Other Wills Doctrines Flashcards
What are the mistakes or ambiguities in a will?
Mistakes or ambiguities in the will include the following:
- scrivener’s error
- latent ambiguity
- patent ambiguity
What is the rule regarding scrivener’s errors?
A scrivener’s error is the error of the person who prepared or wrote the will. Wills can be reformed to correct the scrivener’s error to conform with testator’s intent, if the mistake is shown by clear and convincing evidence.
How can a will be reformed?
If by scrivener’s error, it can be reformed to testator’s intent by showing the mistaken by clear and convincing evidence.
Will can also be reformed by executor using a petition if (i) to prevent impairment of estate’s administration or (ii) to achieve tax objects or to qualify for certain govt benefits.
What is a latent ambiguity?
It is when there is a misdescription (“to my only daughter, Sue” but the daughter is named Yue).
Can extrinsic evidence be used to cure a latent ambiguity?
A latent ambiguity is when there is a misdescription. Extrinsic evidence can be used to cure a latent ambiguity. If the ambiguity is not cured, the gift fails.
What is a patent ambiguity?
This is when there is a mistake on the face of the will, such as “to my son, Twenty Five Dollars ($25,0000)”). Extrinsic evidence is permissible to cure ambiguity.
How can a contract to make a will or to not revoke a will be established?
A contract to make a will or not revoke one can be established if:
1) part of will states that a contract does exist and states material provisions of that contract
or
2) there is a binding and enforceable written agreement
What are nonprobate assets?
These are interests that pass at death other than by will or intestacy and are not part of the probate estate.
What are examples of nonprobate assets?
- property that passes by right of survivorship (joint bank account)
- property passing by contract (life insurance, employee death benefits)
- property held in trust
- property over which decedent held a power of appointment
T has a $100,000 life insurance policy that names his brother as beneficiary. But when T dies, his will stated that the proceeds of this policy should go to his sister.
Who takes the $100,000 policy proceeds?
The brother takes the life insurance policy proceeds because the will does not invalidate the contract (life insurance policy).
What is a disinherit clause/”negative bequest”?
This is when a testator specifies, “To x, y, and not then nothing to my bitch sibling z.”
Words of disinheritance in a will are given full effect. The person disinherited is treated as if he/she predeceased the testator, but disinherited person’s children can inherit through the anti-lapse statute if it applies (are descendant’s of testator’s parents).
