Interpretation of Wills

Question 1

Specific Legacies

Answer 1

A specific legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate. The issue is whether the testator intended the donee to have that thing only, or something similar.

Question 2

General Legacies

Answer 2

A general legacy is a gift of general economic benefit (such as cash), payable out of the general assets of the estate. Is a gift of stock general or specific? It depends on the language and circumstances. In most cases, it is general, unless the testator says “my” shares of a particular Corporation Stock, or unless the stock is a small, closely held corporation not traded on a stock exchange. In those cases, it would be a specific legacy.

Question 3

Extrinsic Evidence

Answer 3

Extrinsic evidence is admissible to explain any ambiguity in a will—latent or patent. It is not admissible to show a will provision has a meaning to which it is not reasonably susceptible. Thus, before you can state that extrinsic evidence will be admissible to resolve something, you must first identify and explain the ambiguity.

Question 4

Ademption

Answer 4

This occurs when the specific gift identified in the will is no longer there when the testator dies. There are two kinds. Ademption by extinction occurs when the specific gift is no longer owned by the testator at the time of his death. Ademption by satisfaction occurs when the testator gives the beneficiary a substitute gift during the testator’s lifetime.

Question 5

Lapse

Answer 5

If the beneficiary predeceases the testator, the gift lapses and falls to the residue in the absence of an applicable anti-lapse statute. An anti-lapse statute applies if: (1) the deceased beneficiary is kindred of the testator/trustor or of the testator’s/trustor’s surviving, ex- or deceased spouse or domestic partner; and (2) the deceased beneficiary left issue surviving them.

Question 6

Intestate Succession

Answer 6

Always consider the possibility that the instrument, or the residue, fails for various reasons. The result may then be intestacy. In case of intestacy, the surviving spouse, if any, gets the decedent’s share of the community property, and all of the separate property if the decedent leaves no issue, parent, sibling, or issue of a deceased sibling. Otherwise, in determining what happens to the separate property, follow the intestacy statutes as to fractions that the spouse receives: the spouse gets 1/3 if there is more than one child, one child and issue of a deceased child, or two or more issue of a deceased child; the spouse gets ½ if one child, one issue of a deceased child, or no children but a parent or issue of a parent.