IX. OTHER WILLS DOCTRINES MISTAKES OR AMBIGUITIES IN THE WILL

Question 1

A. MISTAKES OR AMBIGUITIES IN THE WILL

44. [Feb. 2000] Tom instructs his lawyer to draw his will and to give his nephew Ed “300 shares of Exxon stock.” A typist types the quoted phrase but makes a mistake and writes the figure as “200 shares,” which Tom did not notice when he signed the will in proper self-proved form. At Tom’s death he owns 300 shares of Exxon stock. What does Ed get and why?

Answer 1

44,
2015 new statute: reformation of wills for mistake by C&C standard, if C&C there is mistake, reform the will

we can reform if the mistake is scrivener error (person who hold the pen)

Question 2

B. CONTRACTS RELATING TO WILLS

A contract to make a will or not to revoke a will, “can be established only by?

The execution of a joint will or reciprocal wills of itself suffice as evidence of the existence of a contract?

If contractual will is established?

Contractual will can be revoked by

Answer 2

A contract to make a will or not to revoke a will, “can be established only by (1) provisions in the will stating that a contract does exist and stating the material provisions of the contract,” or (2) a binding and enforceable written agreement (e.g., a buy-sell agreement, or provision in a premarital agreement).

[July 1995:] The execution of a joint will or reciprocal wills does not of itself suffice as evidence of the existence of a contract.

If contractual will is established, (i) the new will that purported to revoke the agreed- upon disposition under the contractual will is admitted to probate, and then (ii) a constructive trust is imposed in favor of the beneficiaries of the contractual will.

Contractual will can be revoked by giving notice to other party to the contract.

Question 3

C. NONPROBATE ASSETS

47. [Feb. 2007] T has a $100,000 Allstate life insurance policy that names Bill Bates as beneficiary. T dies leaving a will that provides: “I hereby direct that the proceeds of my Allstate life insurance policy be paid to my sister Ann Painter.” Who takes the $100,000 policy proceeds?

Can you change a life insurance or [Feb. 2014] retirement plan beneficiary designation by will?

Answer 3

C. NONPROBATE ASSETS are interests that pass at death other than by will or intestacy; and [Feb. 2013] are not part of the probate estate for administration purposes. Major types (also called nontestamentary assets):
#1. Property passing by right of survivorship (joint bank account, etc.).
#2. Property passing by contract [July 2012]: life insurance, employee death benefits.
#3. Property held in trust, including a revocable trust; trust terms govern distribution.
#4. Property over which the decedent held a power of appointment.

47, no; contract governs ; Bates takes

Question 4

D. EFFECT OF DISINHERITANCE CLAUSE—”NEGATIVE BEQUEST”
48. Tammy’s will devises Blueacre to her son Sam and her residuary estate to her husband Harold. The will provides: “I intentionally make no provision for my daughter Nancy, as she married out of the faith and has been a great disappointment to me.” Tammy divorces Harold and dies two years later without having changed her will; she is survived by Sam and Nancy as her nearest kin. (Nancy had no children.) Who takes the residuary estate?
Harold?
Who takes?

Answer 4

48, divorce rule: gift to Harold is revoked by the divorce

1991 statute: Words of disinheritance in a will are given full effect; so Nancy is out as though she predeceased
Sam takes all because Nancy has no children

But if Nancy had children, they would take that one-half as heirs; only Nancy was disinherited.

Question 5

45. [Feb.2003]”Igive$10,000tomynephew,JohnPaulJones.”Problem:Thasa nephew James Peter Jones, and a nephew named Harold Paul Jones, but no nephew named John Paul Jones. Who takes the $10,000?
    Is extrinsic evidence admissible to cure a latent ambiguity?
    But what if the extrinsic evidence does not cure the ambiguity?
46. Tom’s lawyer prepares a will that includes this provision: “I bequeath the sum of Twenty- Five Dollars ($25,000) to my brother Bob.” What does Bob get?
    Is extrinsic evidence admissible?

Answer 5

45, this is called latent ambiguity because there is misdescription

yes in TX; only to explain existing word, not change the word

part of the residuary

46, patent ambiguity; mistake appears on the face of the will
admissible