TERMS AND COMPONENTS OF WILLS

Question 1

Construction and Interpretation Checklist

Answer 1

• Integration
• Acts of Independent Significance
• Incorporation by Reference
• Ambiguities

Question 2

Disposition Checklist

Answer 2

• Classification
  
  • Specific Gift
  • General Gift
  • Demonstrative Gift
  • Residuary Gift
• Ademption
  
  • Ademption by Extinction
  • Ademption by Satisfaction
• Abatement
  
  • Lapse and Anti-Lapse
    
    • Lapse
      
      • Exception - Class Gifts
    • Anti-Lapse
      
      • Class Gifts

Question 3

Integration

Answer 3

All documents physically present at the will’s execution are integrated therein if the testator intended for them to be included in the will.

Intent can be demonstrated by physical connection or the will’s language indicating that the pages are meant to be read together.

Question 4

Acts of Independent Significance

Answer 4

Acts of independent significance are events that hold significance outside of the will.

These acts can be used by the court to determine the disposition of property or identity of a beneficiary

Question 5

Incorporation by Reference

Answer 5

A document that is not a part of a will can be incorporated by reference if (1) the testator intended it to be included in the will, (2) the document existed when the will was executed, and (3) the document is described with sufficient certainty to allow for identification.

Question 6

Ambiguities

Answer 6

Extrinsic evidence is admissible to help resolve ambiguities present in the will

Question 7

Classification - Specific Gift

Answer 7

A specific gift is one that is specifically identified in the will

Question 8

Classification - General Gift

Answer 8

A general gift is a non-specific devise satisfied from the testator’s general assets.

Question 9

Classifications - Demonstrative Gift

Answer 9

A demonstrative gift is a general gift that identifies the specific source from which that gift is to be satisfied.

Question 10

Classifications - Residuary Gift

Answer 10

A residuary gift is any property remaining when all other assets have been transferred

Question 11

Ademption - Ademption by Extinction

Answer 11

If a testator makes a specific gift that is not in her estate upon her death, then the gift deems, and the beneficiary takes nothing. To determine whether a gift adeems, courts consider the testator’s intent.

(only applies to specific gifts)

Question 12

Ademption by Satisfaction

Answer 12

Occurs if the testator satisfies a gift through inter vivid transfer. To deem by satisfaction,

(I) the will states the gift is to be transferred inter vivid,

(ii) the testator composes a contemporaneous writing acknowledging satisfaction of the gift,
(iii) the transferee declares, in writing that the gift is satisfied by the inter vivos transfer, or
(iv) the property transferred and the specific gift are the same

Question 13

Abatement

Answer 13

Abatement is the process of reducing testamentary gifts in order to pay the testator’s debts when the estate’s assets are insufficient. Unless contrary to the testator’s intent, gifts abate in the following order:

(i) intestate property
(ii) residuary gifts
(iii) general gifts to non relatives
(iv) general gifts to relatives
(v) specific gifts to non relatives and (vi) specific gifts to relatives

Question 14

Lapse

Answer 14

Under common law, a gift would lapse if the intended beneficiary predeceased the testator. The lapsed gift would fall into residue, if applicable, or be distributed through intestate succession.

Question 15

Lapse - Exception - Class Gifts

Answer 15

Under common law, if the intended beneficiaries are a class, and a class member predeceases the testator, the other members of the class share the deceased member’s gift instead of the gift lapsing.

Question 16

Anti-Lapse

Answer 16

In California, a gift will not lapse if the intended beneficiary was (1) a blood relative of the testator or of her current spouse or domestic partner who (2) predeceased the testator and left issue.

The issue will take unless contrary to the testator’s intent.

Question 17

Anti-Lapse

Class Gifts

Answer 17

If the intended beneficiaries are a class, and an anti-lapse statute is applicable, then the predeceased member’s issue takes the gift.