Modules 7-12

Question 1

What is a patent ambiguity?

Answer 1

Exists if a provision is ambiguous on its face, that is, fails to convey a sensible meaning.

Question 2

Will a court consider extrinsic evidence to solve a patent ambiguity?

Answer 2

Modern view - extrinsic evidence is admissible. However, extrinsic evidence cannot be used to fill in blank spaces or supply omitted gifts.

Question 3

What is a latent ambiguity?

Answer 3

exists when the language of the will is clear on its face but cannot be carried out without further clarification.

Question 4

will the court consider extrinsic evidence to resolve a latent ambiguity?

Answer 4

Yes.

Question 5

plain meaning rule

Answer 5

extrinsic evidence cannot be used to disturb the clear meaning of a will.

Question 6

modern rule (no apparent ambiguity)

Answer 6

more liberal rule permits the use of extrinsic evidence. These courts hold that the evidence is significant and assists the court to carry out the testator’s intent.

Question 7

a document may be incorporated by reference into a will provided:

Answer 7

• will manifests an intent
• document is in existence; and
• document is sufficiently described in the will

Question 8

republication by codicil

Answer 8

The will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.

Question 9

What is a pour-over provision?

Answer 9

A provision in a will making a gift to an inter vivos trust.

Question 10

What is a power of appointment?

Answer 10

An authority granted to a person, enabling that person to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.

Question 11

In some states and under UPC, the new spouse takes an intestate share as an omitted spouse unless:

Answer 11

• the will makes provision for the new spouse
• the omission was intentional, or
• the will was made in contemplation of the marriage

Question 12

partial revocation

Answer 12

most states authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes.

Question 13

grounds for wills challenge:

Answer 13

1. defective execution
2. revocation
3. lack of testamentary capacity
4. lack of testamentary intent
5. undue influence or duress
6. fraud
7. mistake