Interpretation & Construction Flashcards
If a will contains two or more contradictory provisions, how will they be construed?
The last prevails
If a will contains patent/obvious ambiguity, how will the courts deal with this?
Consider extrinsic evidence to resolve ambiguity, but not fill in the blanks
If a will contains latent/hidden defects (so there is sensible meaning, but will cannot be carried out without further clarification), how will the courts deal with this?
Extrinsic evidence permitted
There is no apparent ambiguity in the will, but a party wants to introduce extrinsic evidence to show another meaning. How will the courts react?
Traditional rule = extrinsic evidence not considered
Modern rule = extrinsic evidence may be allowed to assist the court in carrying out T’s intent
Can a will incorporate another document by reference?
Yes, if:
- Other document existed at the time of execution of the will
- It is sufficiently described in the will
- The will manifest the intent to incorporate them
Does a document that is incorporated by reference need to undergo the formalities of a will to be incorporated?
No because it’s treated as though it’s inside the will
If a will includes reference to a future/unattested act or events to dispose of property under a will, is this effective?
Yes
Are conditional wills valid?
Generally, there is a presumption against conditional wills and courts will construe them as general
What is the effect of a republication by codicil?
Will is treated as being executed on the date of the last codicil. The codicil incorporates the will by reference.
What is a pour over provision in a will?
Under the Uniform Testamentary Additions to Trusts Act, the testator is allowed to make a gift to a trustee of an inter vivos trust.
The trust into which the property pours over must be created before OR after testator creates the will. And such a trust can be amended or revoked after the will is executed
If a inter vivos trust is revoked after a will containing a pour over provision is executed, what is the effect?
The gift fails
Is a contractual agreement not to make or to make or not to revoke a will valid?
Yes and there is consideration for this contract
How do you revoke a contractual will?
By revocation by agreement of both parties if still alive.
If a person breaches their contact with regards to revoking a will, and T dies in breach, what might the court do?
Admit the new/breaching will into probate, but impose a constructive trust for the benefit of the promisee