Will Construction

Question 1

Basic Rules for Wills Construction

Answer 1

1) Plain Meaning Rule

2) No Reformation Rule

Question 2

Plain Meaning Rule

Answer 2

-General rule as to solving ambiguities
o Look to the plain meaning of the words of the will
▪ Extrinisic evidence may be admitted to resolve certain ambiguities, but the plain meaning of the words of a will cannot be disturbed by evidence that the testator intended another meaning

Question 3

No Reformation Rule

Answer 3

Courts do not reform Wills

Question 4

Abiguity

Answer 4

If there is no ambiguity, the court will not allow extrinsic evidence
– no ambiguity exists if something exists which meets the exact language in the will
– Failure to include “Inc.” does not render the will ambiguous
– Allowed extrinsic evidence because it was necessary to determine whether or not there actually was a will

Question 5

Types of Ambiguities

Answer 5

1) Latent
2) Patent
- some courts do not distinguish between the two

Question 6

Latent Ambiguity

Answer 6

(the application of the term/s is ambiguous)

• Extrinsic evidence is allowed

Question 7

Patent Ambiguity

Answer 7

(ambiguous on its face)

• Nothing is allowed

Question 8

Personal Usage

Answer 8

o If extrinsic evidence shows that a testator habitually used a term in an idiosyncratic manner, the evidence is admissible to show that the testator used that term in accordance with his personal usage rather than its ordinary meaning

Question 9

Rules regarding Incorrect Information in Will:

Answer 9

▪ The court has no power to correct or reform a will or change any of the language by substituting or adding words
• The principle of falsa demonstration non nocet
-can use extrinsic evidence

Question 10

The principle of falsa demonstration non nocet

Answer 10

o Where a description of a thing or person consists of several particulars and all of them do not fit any one person or thing, less essential particulars may be rejected provided that the remainder of the description clearly fits

Question 11

Death of a Beneficiary Before the Death of the Testator Options

Answer 11

o	Lapse  
o	Void  
o	Specific or General Devise  
o	Residue Devise  
-Specific or General Devise
o	Demonstrative  Hybrid of specific and general
o	No-Residue-of-the-Residue

Question 12

Lapse

Answer 12

It was valid because there was a living, breathing person at the time of execution, but it lapses if they do not survive the beneficiary

Question 13

Void

Answer 13

Barred from execution, already dead, or someone ineligible

• will pass through intestecy
• a bequest to a dog is void

Question 14

Specific or General Devise

Answer 14

Falls to the residue
▪ Specific – specific pieces of property
▪ General – money

Question 15

Residue Devise

Answer 15

Falls to the testator’s heirs who take by intestacy

Question 16

Demonstrative  Hybrid of specific and general

Answer 16

Money coming from a specific source

Question 17

Class Gift - Anti-lapse Statute

Answer 17

▪ If the beneficiary predeceases the gift is said to lapse, but the antilapse statute will substitute someone for the beneficiary
▪ Only applies to the extent that the beneficiary is within a sufficient degree or relation, which is defined by the statute

Question 18

Survivorship Mechanism Applied to Class Gifts

Answer 18

▪	If we have a class gift and one of the members of the class predeceases the testator
•	Survivorship mechanism – survivors will take the predeceased members share unless the antilapse statute applies

Question 19

Class Gift - Intent

Answer 19

• Intent is paramount
o We are looking for there to be a fluctuation in identity of the class, as opposed to specifically named individuals
▪ Extrinsic evidence may be brought in to determine what they meant
• What if there were more cousins that were not named
• Whether there are other gifts given to the people missing from the class later in the will
o We are looking to see if the proportional shares of the individuals are fixed

Question 20

Ademption

Answer 20

When specifically devised property is no longer in the testator’s estate, the beneficiary’s gift fails.

Question 21

Ademption Applies Only To…

Answer 21

specific devises or bequests

Question 22

General Devise

Answer 22

If testator intends to confer a general benefit and not give a particular asset

Question 23

Demonstrative Devise

Answer 23

A general devise, yet payable from a specific source

Question 24

Residuary Devise

Answer 24

Conveys that portion of the estate not otherwise effectively devised by other parts of the will

Question 25

Intent & Ademption

Answer 25

• She was not competent at the time the duplex was sold • She was not aware of the transaction and therefore, did not have the opportunity to change her will o Under the intent theory  No ademption

Question 26

False Ademption Remedy

Answer 26

Where the specific devises are removed as a result of an involuntary act  The devisee is entitled to the value of the sale of the duplex – the amount spent on the testator’s care

Question 27

Exoneration of Liens

Answer 27

If a will makes a specific deposition of real or personal property that is subject to a mortgage to secure a note on which the testator is liable  It is presumed that the testator wanted the debt to be paid out of the residuary estate

Question 28

Abatement

Answer 28

If an estate lack sufficient assets to pay the decedent’s debts as well as all devises and bequests  Come must be reduced or abated

Question 29

Abatement Occurs in Following Order

Answer 29

(1) Residuary devises are reduced first (2) General devises are reduced second (3) Specific and demonstrative devises are the last to abate and they are reduced pro rata o Statutory provisions not provided for  The same thing is done