Pg 14

Question 1

Once you know the court will probate a will, what do you have to do next?

Answer 1

Resolve issues about how to interpret provisions that are unclear or contradictory

Question 2

Is extrinsic evidence admissible to vary or counter the terms of a valid will?

Answer 2

Not usually

Question 3

If a will says that Jay gets “the dog,” and you want to show that he always called his car “the dog,” will the court allow this?

Answer 3

Not usually because extrinsic evidence is inadmissible to vary or contradict the terms of an integrated writing, and the best evidence of the testator’s intent is his own testimony, but since that cannot be gotten, courts like to adhere strictly to the terms of the will as the best evidence of the testator’s intent

Question 4

What are situations that you can bring in extrinsic evidence with regard to a will?

Answer 4

• for capacity
  – to see if the testator really intended the document to be his will
  – to see if harmless error could apply by clear and convincing evidence
  – if a holographic will applies
  – if the witnesses knew that the document was the testator‘s will
  – if the handwriting was really the testator‘s

Question 5

What is a situation that it would not be OK to bring in extrinsic evidence with relation to a will?

Answer 5

If the devise is erroneously made or omitted due to a mistake

Question 6

What is the rationale behind not allowing extrinsic evidence to counter or vary the terms of a valid will?

Answer 6

Courts are OK with extrinsic evidence to determine the validity of a will because they haven’t yet determined if the will is valid, but once a will is valid, courts give deference to the will and they do not like to consider outside evidence.

Question 7

What is the rule if there is a mistake that has been made in the construction of a will?

Answer 7

– majority rule: there can be no reformation for innocently caused mistakes
– minority: a small number of jurisdictions say that the court can correct drafting errors if there is clear and convincing evidence of the mistake.

Question 8

What is involved when there is a mistake in the construction of a will?

Answer 8

A claim that the will’s terms failed to reflect the testator’s intent because of an error in drafting that is made by either the testator or the drafter.

Question 9

What are the situations when courts are OK with extrinsic evidence being brought in with regard to a mistake?

Answer 9

If the mistake had to do with the capacity of the testator or fraud or undue influence that played a part

Question 10

If a mistake in the construction of a will is just a factual error or a drafting error, can you bring in extrinsic evidence to prove this?

Answer 10

No. I.e.: if the testator wrote the wrong name accidentally as the devisee

Question 11

If there is a mistake in the construction of a will, what is your best bet to try to get it fixed?

Answer 11

Call it an ambiguity and not a mistake because courts allow extrinsic evidence for ambiguity, but not for mistake

Question 12

If there has been a mistake in the construction of a will, what will some courts allow?

Answer 12

The deletion of an item, but not the addition of an item. I.e.: if the testator’s will devises “the house at 123 Main St” but the testator owns a house at 124 Main St., because he cannot give something that he doesn’t own, if the devise was more general (such as just saying “Main Street”) then there wouldn’t be a problem. So the court might strike out the address number as if the testator never specified it and that solves the problem.

Question 13

How could a constructive trust be imposed with regard to a mistake?

Answer 13

A frustrated beneficiary can try to impose a constructive trust on the named devisee that took property and claim that the property should’ve rightfully gone to the frustrated party. This is an equitable remedy where the court imposes it without reforming the will. This is usually only used to avoid benefitting an intentional wrongdoer and it requires clear and convincing evidence before the trust is imposed

Question 14

How can you respond to a mistake in a will by suing for malpractice?

Answer 14

The party can sue the attorney to recuperate the value of the gift that he should have gotten under the ill if not for the attorney’s mistake. This is difficult though because the testator is actually the attorney’s client, not the beneficiary, but ‘would-be’ beneficiaries can bring malpractice claims for drafting errors under either tort theory or contract theory. Although the attorney still needs to fall below the professional standard of care in the community in order to recover under malpractice.

Question 15

If a mistake of fact is made in a will such as something like the paternity of a child, will courts give relief for this?

Answer 15

Not usually

Question 16

Will a court reform a mistaken term in a will?

Answer 16

Sometimes, but not often. I.e.: if a couple accidentally signs each other’s wills because they got them mixed up, the court can order reformation to substitute the other’s name. Same if there is just a scrivener’s mistake as long as it’s approved by clear and convincing evidence

Question 17

What does it mean when there is ambiguity in a will, and what are the approaches to this?

Answer 17

The will is reasonably susceptible to more than one interpretation.

There’s the traditional approach and the modern approach.

Question 18

What is the traditional approach to ambiguity in a will?

Answer 18

The courts distinguish between patent and latent ambiguities

Question 19

In the traditional approach to ambiguity in a will, what do the courts do with a patent ambiguity?

Answer 19

This is one that is obvious from the terms of the will. I.e.: the will says that it’s leaving property in three equal parts, but it ends up giving four equal parts. The court does not allow extrinsic evidence to resolve this because the testator should’ve realized his error, so there is no need to fix a problem that the testator knew he had.

Question 20

What do the courts do under the traditional approach to ambiguity with latent ambiguities?

Answer 20

This doesn’t manifest itself until the terms of the will are applied to the facts. So you have to look at external facts to even realize that the will is susceptible to more than one meaning. I.e.: if the will leaves the car to nephew Joe, that looks OK, but eventually you realize that the tt has two nephews named Joe. In this case the court will allow extrinsic evidence to resolve this

Question 21

What are the three types of latent ambiguities under the traditional approach to ambiguity in a will?

Answer 21

• equivocation
  – personal usage
  – no exact fit

Question 22

What is equivocation as a type of latent ambiguity?

Answer 22

When two or more people or things fit the description exactly. Like having two nephews named Joe.

Question 23

What is the type of latent ambiguity that is called personal usage?

Answer 23

Extrinsic evidence can be used to show that the testator habitually used a term in an idiosyncratic way to suggest that the testator used that term in his will according to his personal usage instead of its ordinary meaning. I.e. referring to your car as “the dog“

Question 24

What is involved in the type of latent ambiguity for no exact fit?

Answer 24

If the description in the will doesn’t exactly fit any person or thing

Question 25

What is involved in modern ambiguity?

Answer 25

This doesn’t distinguish between patent and latent ambiguity. It says that extrinsic evidence is admissible to determine if a document is formal or a holographic will, and the meaning of a will or a portion of the will if it is unclear. If the court decides that there is an ambiguity via extrinsic evidence, the court will consider that evidence to resolve the ambiguity

Question 26

If there is a latent ambiguity, modernly what happens?

Answer 26

This is a two-step process. First you have to consider extrinsic evidence to figure out that there is an ambiguity, and then you have to consider extrinsic evidence to resolve the ambiguity. Ie: if a will says “car to nephew Joe” you need extrinsic evidence to show that there are two nephews named Joe and that exposes the ambiguity, and then you need more extrinsic evidence to show that one of the Joes is estranged.

Question 27

If there is an ambiguity in a will and the court decides there’s only one reasonable interpretation of it, what happens?

Answer 27

The court applies the plain language of the will and that’s it

Question 28

What are the different types of extrinsic evidence that can be used to resolve an ambiguity?

Answer 28

Courts only allow circumstances and not statements of the testator (because statements are considered to be too easy to fabricate and not as reliable).

Question 29

If the testator’s will leaves his house to his friend, and the facts show that the testator owns a house and a motorhome, what type of ambiguity is that?

Answer 29

A latent ambiguity

Question 30

If A testator leaves a will that says “house to my friend“ and it is shown that he owns a house and a motorhome, and the testator‘s wife wants the friend to get the motorhome and not the house, so she offers evidence that her husband and the friend often rode in the motorhome together, that suggests that the testator wanted the friend to get the motorhome and is fairly verifiable. But if the wife wants to testify that before the testator died, he told her he wanted his friend to get the motorhome, would that be allowed?

Answer 30

Likely not, because the wife could lie and it would be hard to verify. That is what is meant by courts are only receptive to circumstances and not statements of the testator with regard to resolving ambiguity through extrinsic evidence.