Other Wills Doctrines Flashcards
T tells his lawyer to draw his will and to give his nephew Ed “300 shares of Exxon stock.” A typist makes a mistake and types in “200 shares” which T didn’t notice when he signed the will. At T’s death he owns 300 shares of Exxon. What does Ed get and why?
IL says 200 shares. Use of plain meaning rule: there was no ambiguity here, no extrinsic evidence allowed.
Assuming there are no suspicious circumstances, what is the conclusively presumed?
Presumed that T read the will and intended all of its contents.
What does the UPC say?
300 shares: wills can be reformed to correct mistakes. Mistake must be clear and convincing evidence?
What other issues can you raise about the case?
attorney negligence.
T’s will bequeaths “$10,000 to my nephew, John Paul Jones” and his residuary estate to his sister. Problem: T has a nephew James Peter Jones, and a nephew named Harold Paul Jones, but no nephew named John Paul Jones. Who takes the $10,000? What evidence can you include?
This is called a latent ambiguity because there is a misdescription, extrinsic evidence is permissible.
Can include facts and circumstances, and testator’s statements to attorney who prepared the will.
NO declarations of testator’s intent (aka perjury)
T’s lawyer prepares a will that includes this gift: “I bequeath the sum of Twenty-Five Dollars ($25,000) to my brother Bob.” What does Bob get? What kind of ambiguity is there?
This is called a patent ambiguity because it appears on the face of the will.
Is the extrinsic evidence admissible?
Yes, same rules as above.
What if the extrinsic evidence does not cure the ambiguity?
Then its not relevant, goes to the residuary.
When will a joint will be held as a valid contract? (such that a surviving spouse can’t alter the terms of the jointly executed will)
- Will is labeled “Joint and Mutual”
- Will leaves entire estate to surviving spouse
- Will disposes of all their property in a unified disposition
- There is a common dispositive scheme on the death of the survivor
If the will is held to be contractual, how do you progress?
- Apply Wills law-A testator can always revoke an earlier will even though it was subject to a contract that it wouldn’t be revoked.
- Apply contract law-Since revocation of the 2004 will breached a contract, impose constructive trust against beneficiaries to remedy the breach.
Are reciprocal wills presumed contractual?
No, not unless there is clear and convincing evidence of a contract.
T’s will devises Redacre to his son Sam and his residuary estate to his wife Ann, and then says “I intentionally make no provision for my daughter Nancy, as she married out of the faith and has been a great disappointment to me.” Todd divorces Ann, and then dies without having changed his will. He is survived by Sam and Nancy as his nearest kin. Who takes the residuary estate?
Does Ann get it?
No for Ann, divorce revokes rule, so gift to Ann was revoked.
Residuary estate: 1/2 goes to Sam and 1/2 goes to Nancy.
Mom leaves a will that creates a trust: Income to my daughter Betty until such time tas Betty divorces her husband Hobie, at which time the trust shall terminate and all the trust principal that be distributed to Betty. If Betty does not divorce Hobie, on Betty’s death principal to the National Organization for Women.” Is this a valid condition?
No, this is against public policy. Cannot:
- ENCOURAGE Divorce and
- Place a TOTAL restraint on marriage.
Are marriage restraints/conditions valid? Such as requiring beneficiary to marry a certain race, religion, or until spouse remarries?
Yes, Skokie Feinberg case, just can’t be a TOTAL restraint. Widow support ok.
If there is an invalid condition on the will/trust, what occurs?
Beneficiary takes the property free of trust and condition.
