Interpretation and Construction Flashcards
Interpretation and Construction overview
a. Who raises interpretation issues
i. personal representative / executor who wants to do right thing. if they do wrong thing they’re personally liable
ii. Beneficiaries
b. Basic construction maxims.
i. Fact that testator left will, esp with residuary clause, = intent not to die intestate
ii. Among contradictory provisions, the last one prevails.
iii. Will is construed as a whole. not isolate parts out of context
iv. Words are given ordinary meaning, unless clear that testator meant otherwise
v. Technical wors given technical meaning unless clear from will that testator intended otherwise
vi. Assumption against surplusage.
vii. The testator’s own declarations of what he intended to do are generally not admissible because of high chance of perjury.
1. Exception: if there is an equivocaton (a description of property or person describes more than one person or property) testimony is adissable to determine which person/property.
3 types of ambiguity
a. Patent (obvious) ambiguity—ambiguous on its face. I leae 50% of residuary to A, B and. C
i. Extrinsic evidence allowed. But cannot fill in blank spaces.Like I leave $ ___ to A.
b. Latent (hidden) ambiguity—sensible on its face but cant be carried out without further clarification.
i. To my sister pat. But sister named Chris, brother is Pat.
ii. I leave my car to X, but dies with 2 cars.
iii. Extrinsic evidence allowed
c. No apparent ambiguity—provision is clear and can be carried out as written.
1. Traditionally, extrinsic evidence not allowed
2. Modern rule—extrinsic evidence is allowed.
a. esp for evidence it’s a scrivener’s error. like attorney has 5 prior drafts of the will and letters from the testator.
b. Usually higher burden of proof than preponderance of the evidence. clear and convincing.
Incorporation by reference
MUST HAVE:
1) intent to incorporate, 2) writing is in existence when will is executed, 3) writing is clearly identified
b. Effect- treat the incorporated material was written out in full in the will.
It doesn’t matter if that document isn’t legal, e.g. wasn’t signed or written under undue influence
Acts or facts of independent
a. Something outside 4 corners of will with legal purpose other than disposing of property at death. can be by reference to future unattested acts.
b. If something is of independent significance, then it need not be executed ith the formalities of a will to transfer property at death. However, the law may require certain items represented by title documents to be transferred in a particular manner such as real property, stock certificates, and bank accounts.
c. Examples
i. Specific gifts of a general nature- like I leave my car at death to Brian. need to go outside the 4 corners to figure out the car
ii. class gift—I leave to all my children. need to go outside will to who your children
iii. Gift to my spouse
iv. Gift of contents—contents of safety deposit box
v. Acts of a 3P—like the disposition of property in someone else’s will
Separate writing disposing of tangible personal property
a. UPC and in about ½ of states allows reference to a written statement or list to dispose of TANGIBLE personal property not otherwise in will even though the list was not in existence whenthe testator executed in the will
b. not incorporated by reference—not in existence
c. not act of independent significance—bc the only purpose is to dispose of property after death
d. Why?
i. bc if you make slight changes of mind, you have to resign the whole will.
Conditional wills
a. wills which operates only if certain event occurs or doesn’t
b. Presumption against conditional wills
i. courts construe wills as general, not conditional.
ii. For ex “if I return from this trip” can be construed as a motive but not a condition.
Republication by codicil
a. codicil = amendment. Codicil Acts to republish the will except for the parts of the will that are inconsistent with the codicil. Will and codicil are one instrument speaking from the date of the codicil. Valid codicil may bootstrap an otherwise invalid will.
Basically, codicil incorporates by reference the old will
- if original document was intended to be a will.
Pour over provision
a. definition—provision in will making gift to inter vivos trust.
b. Modern rule—The trust you’re pouring over may be created before or after the execution of the will. The property will be governed by all trust amendments even those made after the testator dies. If trust is revoked, the gift fails. The trust doesn’t have to be funded prior to testators death.
Powers of appointment
Testator may appoint someone who will be given the authority to dispose of certain property under the will.
-Limits are established by testator
a. General vs. Special power.
i. general= power excersisable in favor of the donee himself.
Example: “I leave my video game collection to be distributed as my son Andrew sees fit.”
ii. special power = limited class of appointees, not including the donee. donee must choose who receives gift, within a class fo people. "I leave my cactus collection to my children, my wife Pat to choose who receives which cactus."
b. presently exercisable vs. testamentary
i. presently exercisable- exercisable during donee’s life.
ii. testamentary power—one that is exercisable only by the donee’s will.
“to B for life, remainder to persons as B shall ‘by will’ appoint”
c. Generally creditors cannot reach appointive assets until power is exercised.
Nonprobate assets cannot be disposed of by will
a. things like life insurance, death benefits, property in trust
Internal integration
a. Must show that pages present at time of execution are those present at time of probate.
i. pagination X of Y
ii. sentences flow
iii. initial every page
Joint wills
a. Joint wills—single document of 2 or more persons, usually married couple. Bad idea. Divorce, multiple sets of kids.
c. No presumption of k that each party promised not to revoke. Minority find that joint wills = promise not to revoke.
Combination wills– reciprocal wills
Wills of 2 people usually spouses with parallel dispositive provisions. AKA sweetheart wills. Husband leaves all to wife, if wife dead to kids and vice versa
Contractual wills
can you change without permission of other
i. Will executed or not revoked as consideration for a contract – for ex.promise to leave entire estate to someone who takes care of person in old age
- common law—could use relevant extrinsic evidence to prove contract
- modern law—must show writing to prove contractual will.
- most state statutes—joint/ reciprocal wills are not a contract. so there’s no promise not to revoke a joint will.
Revocation of contractual will
- can be revoked as long as both parties agree.
- Cannot revoke upon death.
In case of breach
a. changing a will = breach
b. injured beneficiary sue for constructive trust remedy.
c. Example 36. Matt and Lisa executed a joint will with an express statement of intent. The will stated that each of their assets are to go to whomever survives the other, and upon the survivor’s death, the assets would be divided equally among their children, Chris, Jill and Karen. Matt predeceased Lisa. Lisa remarried, had more children, and executed a new will changing the beneficiaries from her children with Matt to her children with Steve (Husband 2), along with other assorted dispositions. Who inherits upon Lisa’s death? The ___new_ will is admitted to probate. There’s an express statement of intent, so the court will then impose a constructive trust on the property in favor of the intended beneficiaries, Chris, Jill, and Karen.The new kids do get the property, but they can’t keep it because of the breah of k to the old kids.
