VIII. REFERENCE TO ACTS AND EVENTS OUTSIDE THE WILL

Question 1

A. INCORPORATION BY REFERENCE: An extrinsic document, not present when the will was executed and thus not part of the duly executed will, can be incorporated by reference into the will if:

On July 1, 2008, Tim’s will provides: “I devise Blackacre to the persons designated on the attached sheet, and I give my residuary estate to my brother Ben.” After Tim’s death, stapled to his will is a typewritten, signed, unwitnessed sheet dated May 11, 2008: “Pursuant to my will, I give Blackacre to my nephew Norman.” Evidence shows that the document was not attached at the time the will was signed by Tim and the witnesses. Who takes Blackacre?
Incorporation by reference on these facts?

Can a holographic will incorporate a typewritten document by reference?

Answer 1

A. INCORPORATION BY REFERENCE: An extrinsic document, not present when the will was executed and thus not part of the duly executed will, can be incorporated by reference into the will if:

(1) [Feb. 1993] Writing must be in existence when will executed;
(2) Will must show an intent to incorporate the writing; and
(3) Document must be clearly identified by language in will, “such that there can be no mistake as to the identity of the document referred to.”

residuary estate takes blackacre; attached sheet is not a sufficient identification

no

Question 2

B. ACTS OF INDEPENDENT SIGNIFICANCE [“NONTESTAMENTARY ACTS”]

43. [Feb. 1995, Feb. 2000] Trudy’s will provides: “I give the automobile that I own at my death to my nephew Ned, and the furniture and furnishings in my living room to my sister Sue.” A year before her death Trudy trades her 1999 Ford in on a brand new Mercedes. She also moves a $25,000 Picasso from her den and mounts it on her living room wall. What is the effect of these acts on Trudy’s will?
    ________ Does Ned take the Mercedes? ________ Does Sue take the Picasso?

Does a bequest of “my Lane cedar chest” (or “my house at 2220 Casino Lane”) include the contents of the cedar chest (or house)?

Does a bequest of “my Lane cedar chest and its contents” include title documents – deeds, stock certificates, bank passbooks etc.?

Answer 2

both yes

Acts of independent significance doctrine (Also known as nontestamentary acts doctrine)

life time act with life time motive (decoration)/ purpose has independent significance

no; by statute; a gift of reciprocal is reciprocal only not its content

no; bequest of content include tangible property (not deed) and cash only

Question 3

VII. PROBLEMS ASSOCIATED WITH TESTAMENTARY GIFTS

“I devise Blackacre to my son John.”

[Hybrid] General amount from a specific source. “I bequeath $25,000, to be paid out of the proceeds of the sale of my Exxon stock, to Sally.”

“I bequeath $10,000 to my nephew Ned.”

“I give all the rest, residue and remainder of my estate to B.”

E.g., partial intestacy because the will, poorly drafted, does not contain a residuary clause.

Answer 3

Specific devise or bequest: 
Demonstrative legacy:
General legacy: 
Residuary gift:
Intestate property:

Question 4

A. ABATEMENT OF LEGACIES TO PAY DEBTS
35. [July 2003; five times since 1994] What happens when there are so many claims against the estate that there are not enough assets to cover all of the gifts made by the will? In the absence of provision in the will, what is the order of abatement of testator’s property to pay debts and claims?

Answer 4

Devises and legacies abate in the following order. Within each category, bequests and devises abate pro rata.

(1) Intestate property (if the testator died partially intestate);
(2) Residuary estate – personal property;
(3) Residuary estate – real property;
(4) General legacies of personal property;
(5) General legacies of real property;
(6) Specific bequests of personal property;
(7) Specific devises of real property.

The statute does not address how demonstrative legacies are treated. Likely result: Would be treated same as specific bequest (and thus last to be abated) to the extent of the value of the specified property, and as a general legacy to the extent of any excess. If (e.g.,) the will made a bequest of “$25,000, to be paid out of the proceeds of the sale of my Exxon stock, to Sally,” but the Exxon stock was only worth $16,000 at testator’s death, for abatement purposes it would be treated as a specific bequest as to $16,000, and as a general legacy as to $9,000.