Will Construction

Question 1

What is plain meaning?

Answer 1

Unless the will states otherwise, courts will construe the words in a will by their plain meaning

Question 2

What is integration in the context of a will?

Answer 2

The will consists of all pages that are present at the time of execution and that are intended to be part of the will, which are shown by physical connection to the will (staples, paperclips, etc.) or by ongoing nature of the language of the will (page numbers are consecutive)

Question 3

What is Incorporation by Reference? (CL and UPC)

Answer 3

CL: A writing not executed with the will formalities can be incorporated by reference if it existed at the time the will was executed, T intended to incorporate it, and the will describes it with sufficient certainty

UPC: Same, except for personal property, the document being incorporated can be executed at a later time

Question 4

What is an “Act of Independent Significance”?

Answer 4

A will can reference an unattested act or event apart from T’s death to provide for designation of a beneficiary (e.g. to whoever is my brother’s spouse) or amount of a disposition if the act has legal significance (e.g. getting married)

Question 5

What is abatement?

Answer 5

Court process that occurs when an estate’s assets are insufficient to pay off all a testator’s debts and gifts

Question 6

What is the order in which gifts abate?

Answer 6

1) Intestate property (property not addressed in the will)
2) Residuary Bequests
3) General Bequests
4) Specific Bequests

(Demonstrative gifts are treated as specific bequests for abatement purposes)

Question 7

What is a “specific gift” for abatement purposes?

Answer 7

A gift of a particular piece of property (e.g. a specific car or item of furniture)

Question 8

What is a “general gift” for abatement purposes?

Answer 8

A gift of property satisfied from general assets of estate (i.e. money)

Question 9

What is a “demonstrative gift” for abatement purposes?

Answer 9

A general gift from a particular source (e.g. a bank account), but from the general assets of the estate if the source is insufficient

Question 10

What is a residuary bequest for purposes of abatement?

Answer 10

The part of the estate that remains after all claims against the estate and all specific, general, and demonstrative gifts have been satisfied

Question 11

What is ademption?

Answer 11

When a specific gift in the will is no longer in the testator’s estate at the time of death

Question 12

What is ademption by extinction and what happens to a devise if it is adeemed by extinction (CL and UPC)

Answer 12

Ademption by Extinction means that a will makes a specific devise of property, but the specific piece of property is no longer in the estate at death

CL: The devise is extinct and the devisee takes nothing.

UPC: Look to testator’s intent, which usually means that the beneficiary takes replacement property of a specific gift (e.g. T gives baseball card collection to D, but T trades collection for stamp collection. D will take stamp collection).

Question 13

What is Ademption by Satisfaction?

Answer 13

Applies when a testator satisfies a specific or demonstrative gift in whole or in part during life.

To satisfy, testator must (1) intend for the gift to adeem and (2) intent must be supported by writing.

Question 14

What is a “lapse”?

Answer 14

A failed testamentary gift. Happens when beneficiary predeceases the testator. Failed gifts would be dumped into the residuary of the estate.

Question 15

What is an “anti-lapse” statute and what are the general requirements?

Answer 15

Every state has adopted an anti-lapse statute. Prevents certain gifts from lapsing.

Requirements:

(1) The lapsed gift was intended for a relative of the testator, and
(2) The relative is survived by issue.

If requirements are not met, then the gift goes to the residuary under the CL rule.

Question 16

What happens to lapsed gifts in the context of a class gift?

Answer 16

If a class member’s gift lapsed, then the rest of the class shares that member’s gift unless the class member is covered by an anti-lapse statute

Question 17

Under the UPC, will a bequest of stocks owned at time of will execution include additional shares of that stock that the testator acquired?

Answer 17

Yes, so long as the action creating the additional shares was initiated by the corporate entity

Question 18

Can a testator amend a life insurance contract via will?

Answer 18

No, a testator may only amend the beneficiary of a life insurance contract under the terms of the life insurance contract, and the testator does not need the beneficiary’s consent

Question 19

What are patent ambiguities in a will and how does a court resolve them? (CL and modern trend)

Answer 19

Patent ambiguities appear on the face of a will.

CL: A court would be limited to the four corners of the will to resolve a patent ambiguity and could not look to extrinsic evidence.

Modern: Allow extrinsic evidence.

Question 20

What are latent ambiguities in a will and how are they resolved?

Answer 20

Latent ambiguities are not apparent from the face of the will and extrinsic evidence is always allowed to resolve them.

Question 21

How is a mistake in a will treated by a court?

Answer 21

Extrinsic evidence admissible to show a mistake in execution (e.g. T didn’t know she was signing a will), but extrinsic evidence not allowed to show reasons behind T making the will or gift