Will Construction Flashcards
1
Q
3 questions of will construction
WILL CONSTRUCTION
A
- What comprises the will?
- Is the will a contract?
- How are the terms of a will construed?
2
Q
4 curative doctrines
WHAT COMPRISES A WILL
A
- Integration
- Republication by codicil
- Incorporation by reference
- Acts of independent significance
3
Q
purpose
INTEGRATION
A
How we determine what pages constitute a will when will is written on more than one page
4
Q
doctrine
INTEGRATION
A
Every piece of paper that was 1. Physically present at execution AND 2. Intended to be part of the will = integrated therein (AKA part of the will)
5
Q
required proof
INTEGRATION
A
must be CLEARLY APPARENT T intended that together they should constitute the last will and testament of the testator
6
Q
effect
REPUBLICATION BY CODICIL
A
Redates the will to date of codicil
7
Q
2 views on validity of will
REPUBLICATION BY CODICIL
A
- Majority = only a valid will may republished
2. TN (minority) = some invalid wills may be republished
8
Q
valid will republication
REPUBLICATION BY CODICIL
A
Only a valid will may be republished
= If the first document was not a valid will, the second document cannot be a codicil
(Majority view)
9
Q
invalid will republication
REPUBLICATION BY CODICIL
A
Some invalid wills may be republished
= Properly attested codicil may cure defect in execution of underlying will itself (like only one subscribing witness)
(TN/minority view)
10
Q
definition
CODICIL
A
= document that modifies, amends, or supplements another will
11
Q
formalities
CODICIL
A
= Codicils must be executed with same formalities as will
12
Q
doctrine
INCORPORATION BY REFERENCE
A
will is permitted to incorporate extrinsic writing that doesn’t accord with formalities for will AS LONG AS 3 requirements are met
13
Q
3 requirements
INCORPORATION BY REFERENCE
A
- Writing that is being incorporated must exist at the time the will itself is executed (AKA cannot incorporate planned, future writing)
- Writing that is being incorporated must manifest testator’s intent to incorporate the writing
- Will must describe the writing sufficiently to permit a court to identify it
14
Q
statutory extension of incorporation doctrine
INCORPORATION BY REFERENCE
A
= allows written statement or list to be
a. written before or after will is executed AND/OR
b. modified at any time
Enacted in UPC
Not enacted in TN
15
Q
elements of statutory extension
INCORPORATION BY REFERENCE
A
Will refers to written statement or list
- that disposes of tangible personal properties other than money AND
- that is not otherwise specifically controlled in the will itself AND
- that is signed by testator AND
- that describes the property with reasonable certainty
16
Q
doctrine under upc
ACTS OF INDEPENDENT SIGNIFICANCE
A
Acts having independent, lifetime motive may impact on the will as well
= Will may dispose of property by reference to acts/events
1. that have significance apart from their effect upon the dispositions made by the will
2. whether they occur
a. before or after the execution of the will OR
b. before or after the testator’s death
NOTE = execution or revocation of another individual’s will is such an event
17
Q
application in tn
ACTS OF INDEPENDENT SIGNIFICANCE
A
Doctrine applied
- to T’s codicil to refer to husband’s will, though husband’s will was not yet in existence when written and despite codicil not specifically naming beneficiaries thereunder
- Where evidence showed T was estranged from family and wanted estate to go to whomever husband wished
18
Q
test
ACTS OF INDEPENDENT SIGNIFICANCE
A
Do the acts of events have a lifetime motive and significance apart from their effect on this testator’s will
19
Q
general rule
IS THE WILL A CONTRACT
A
= no
20
Q
exceptions
IS THE WILL A CONTRACT
A
- Contract to make a will or bequest
- Contract not to revoke a will or bequest
- Contract to die intestate
21
Q
upc/tn rule
IS THE WILL A CONTRACT
A
Any will contract (real or personal)
1. To make a will
2. Not to have a will
= can only be established in one of three ways
22
Q
3 ways to establish a will contract
IS THE WILL A CONTRACT
A
FIRST = if material terms of the contract appear in the will itself
SECOND = terms of the contract appear in a second writing signed by decedent
THIRD = will refers to a contract + extrinsic evidence proving terms of the contract
(under UPC/TN rule)
23
Q
existence of joint/mutual/reciprocal wills
IS THE WILL A CONTRACT
A
Mere existence mutual/reciprocal wills = does not imply/create presumption of contract to make/refrain from revoking a will
(under UPC/TN rule)
24
Q
tn evidence to establish contract not to revoke will
IS THE WILL A CONTRACT
A
Must be clear and convincing
25
general inquiry
| INTERPRETATION OF WILL
= how are the terms of a will construed?
26
general construction rules
| INTERPRETATION OF WILL
1. Implement T’s intent
2. Plain meaning rule
3. Reformation
27
plain meaning rule
| INTERPRETATION OF WILL
rule = evidence not admissible to contradict plain language = no extrinsic evidence
exception = patent/latent ambiguities
28
definition
| LATENT AMBIGUITY
= exists when the language of the will, although clear on its face, in describing a beneficiary or property, results in a misdescription when applied to the facts
29
exception
| LATENT AMBIGUITY
= extrinsic evidence admissible to cure ambiguity
| if extrinsic evidence fails to resolve the ambiguity, the gift fails
30
definition
| PATENT AMBIGUITY
= exists when the uncertainty appears on the face of the will
31
common law rule
| PATENT AMBIGUITY
No extrinsic (parol) evidence admissible to remove a patent ambiguity
TN VIEW
32
modern rule
| PATENT AMBIGUITY
Extrinsic evidence admissible
33
tn latent/patent ambiguity exception
| PLAIN MEANING RULE
Latent ambiguity = extrinsic evidence ADMISSIBLE to cure ambiguity
Patent ambiguity = extrinsic (parol) evidence INADMISSIBLE to remove a patent ambiguity
34
T’s will devises Blackacre “to my niece Nellie.” T has two nieces named Nellie.
TYPES OF AMBIGUITY
LATENT AMBIGUITY
| = parol evidence is admissible to show which niece T intended to benefit
35
T’s will devises Blackacre “to my niece Nellie.” T has no niece named Nellie. He does, however, have a niece named Norrie and a cousin named Nellie.
TYPES OF AMBIGUITY
LATENT AMBIGUITY
= parol evidence is admissible to show whether T intended to make a gift to cousin Nellie or to niece Norrie
BUT if the evidence does not establish which one T had in mind, the gift fails
36
A devise of “Lot #6, Square #403,” which T did not own, could be shown by extrinsic evidence to pass Lot #3, Square #406, which T did own.
TYPES OF AMBIGUITY
LATENT AMBIGUITY
37
T’s will bequeathed her residuary estate “to Apollo Medical Center as a memorial to my late husband.” Apollo was acquired by another corporation, and the hospital’s name was changed to Humana Hospital. Thereafter, T executed a new will that repeated the gift to the Apollo Medical Center.
TYPES OF AMBIGUITY
LATENT AMBIGUITY
= evidence was admitted to show that T intended the gift for the hospital at which her husband was treated before his death, and that the name change did not defeat the gift
(“[T]he misnomer of a devisee will not cause the devise to fail where the identity of the devisee can be identified with certainty”)
38
T’s will bequeathed one-third of his business to A and B, but the will was unclear as to whether A and B were to receive one-third each or whether, instead, the one-third share was to be divided between A and B (giving them one-sixth each).
TYPES OF AMBIGUITY
PATENT AMBIGUITY
| = TN would not allow extrinsic evidence to be admitted to cure the ambiguity
39
majority rule
| REFORMATION
= reformation may not be used to fix mistakes in wills
| BUT courts may disregard erroneous descriptive information
40
upc rule
| REFORMATION
= a court may reform the terms of a will to conform to T’s intent
EVEN IF the will is unambiguous
AS LONG AS it is proven by clear and convincing evidence
1. that T’s intent and
2. the terms of the will
3. were affected by a mistake of fact or law
(whether in expression or inducement)
41
reformation in trusts
| REFORMATION
= a court may reform terms of trust to conform to settlor’s intent
EVEN IF the will is unambiguous
AS LONG AS it is proven by clear and convincing evidence
1. What the settlor’s intention was AND
2. That the terms of the trusts were affected by a mistake of fact or law
(whether in expression or inducement)
42
purpose
| SPECIAL CONSTRUCTION RULES
To deal with issues that arise during time gap between execution and time will takes effect at testator’s death
AKA stale will difficulties
43
key inquiry
| SPECIAL CONSTRUCTION RULES
how do we construe the will in light of these post-execution, pre-death changes?
44
6 types
| SPECIAL CONSTRUCTION RULES
1. Lapse
2. Ademption by extinction
3. Ademption by satisfaction
4. Exoneration
5. Abatement
6. Accretion
45
lapse
| SPECIAL CONSTRUCTION RULES
= issue that arises when a beneficiary named in a will dies before the testator
46
common law rule
| LAPSE
the beneficiary does not survive T= bequest fails
| UNLESS otherwise provided in the will
47
3 requirements
| ANTILAPSE STATUTE
1. Lapsed bequest
2. Specified degree of relationship between T and deceased beneficiary
3. Surviving issue left by deceased beneficiary
48
rule
| ANTILAPSE STATUTE
(a) If all 3 elements are satisfied = the deceased beneficiary’s issue are substituted (and take by representation) for the deceased beneficiary
49
application
| ANTILAPSE STATUTE
= apply only when predeceasing beneficiary is a descendant of testator’s grandparents
- Will not apply to someone who isn’t related to decedent at all
- Will not apply in a gift to a will to a testator’s own spouse
NOTE = predeceased beneficiary does not get to pick
50
example
| SURVIVOR REQUIREMENT
= “if she survives me”
51
does merely stating requirement that beneficiary survive affect whether the anti-lapse state applies or not?
SURVIVOR REQUIREMENT
Majority = yes, anti-lapse statute no longer applies
(gift to predeceased beneficiary will fall to the residue and pass as part of the residuary estate)
UPC = mere statement “if she survives me” does not prevent operation of anti-lapse statute
52
general rule
| MISTAKE IN INDUCEMENT
1. alleged mistake involves reasons that led T to make the will (or for making/not making a particular gift therein) AND
2. mistake was not fraudulently induced
= no relief is granted
53
rationale
| MISTAKE IN INDUCEMENT
- would open the door to fraudulent testimony b/c T is dead = cannot contradict the testimony
- even if the alleged mistake were shown = would not establish T would have made different disposition knowing the true facts
54
exception
| MISTAKE IN INDUCEMENT
= if mistake appears on face of will, relief will be granted
55
child mistakenly believed dead
| MISTAKE IN INDUCEMENT
evidence is admissible to show that a testator’s child was omitted from the will because T mistakenly believed that child was dead
enacted in UPC (and several state statutes)
56
3 types of mistake
| MISTAKE
1. Mistake in execution of will
2. Mistake in inducement
3. Mistake as to content of will
57
2 situations
| MISTAKE IN EXECUTION OF WILL
1. Mistake as to nature of instrument
| 2. Wrong will signed
58
mistake as to nature of the instrument
| MISTAKE IN EXECUTION OF WILL
= mistake relates to the issue of whether the testator had the requisite testamentary intent, without which the will would be invalid
59
admissibility of extrinsic evidence
| MISTAKE AS TO NATURE OF THE INSTRUMENT
extrinsic evidence admissible to show that the testator was unaware of the nature of the instrument she signed
Example = she believed it to be a power of attorney
60
wrong will signed
| MISTAKE IN EXECUTION OF WILL
= cases where the testator has signed the wrong will
61
whether relief should be granted
| WRONG WILL SIGNED
Courts are split
62
relief - traditional practice
| WRONG WILL SIGNED
= courts denied relief on ground of testamentary intent b/c T did not intend to execute the document that he signed
63
relief - modern view
| WRONG WILL SIGNED
(better view)
= that the court should
- grant relief b/c both the existence and the nature
- by inserting corrected names/titles as appropriate
64
basic principle
| SCOPE OF THE WILL
will operates only on decedent’s probate estate
65
probate estate
| SCOPE OF THE WILL
= essentially assets titled in the testator’s name alone
66
```
class gift
SPECIAL SITUATIONS
```
= gift to more than one individual that intrinsically includes a right of survivorship
67
described by group label
| CLASS GIFTS
If a gift describes the beneficiaries only by a group label, a rebuttable presumption arises that the gift is a class gift
Example = children, nephew
68
described by individual names
| CLASS GIFTS
If a gift describes the beneficiaries only by name, the gift is not a class gift
Example = to A and B
69
described by group label AND individual names
| CLASS GIFTS
If a gift describes the beneficiaries by both a group label and individual names, a rebuttable presumption arises that the gift is not a class gift
Example = to my children, A and B
70
rule
| CLASS GIFTS
when there is a gift
to a group of persons generically described as a class
who are not relatives to testator
= anti-lapse statute doesn’t apply
AND some class member predeceases testator
= surviving class members take (shares re-divided among them)
71
converse rule
| CLASS GIFTS
when there is a gift
to a group of persons generically described as a class
who ARE relatives to testator
= anti-lapse statute DOES apply
AND some class member predeceases testator
= surviving class members take WITH issue of predeceased
72
residuary estate issue
| SPECIAL SITUATIONS
what happens if the lapse occurs IN THE RESIDUARY GIFT?
73
residuary estate rule
| SPECIAL SITUATIONS
If the residuary estate is devised to two or more persons
AND the gift to one of them FAILS for any reason
= then the surviving residuary devises take the entire residuary estate, in proportion to their interest in residue
If predeceased beneficiary was related to testator
= anti-lapse statute kicks in
= pre-dead beneficiary’s descendant takes
74
resolving inconsistency between will provision and lapse/antilapse rules
RESIDUARY ESTATE RULE
If will creates alternative, it supersedes
AKA lapse and antilapse are merely default rules
75
2 types of ademption
| SPECIAL CONSTRUCTION RULES
1. Ademption by extinction
| 2. Ademption by satisfaction
76
limited application
| ADEMPTION BY EXTINCTION
Applies ONLY with respect to SPECIFIC gifts
77
purpose
| ADEMPTION BY EXTINCTION
Answers Q of what happens if the subject matter of a specific gift is not owned by the testator at the time of death
78
key issue
| ADEMPTION BY EXTINCTION
= whether court should consider testator’s testamentary intent
79
2 theories
| ADEMPTION BY EXTINCTION
1. Identity theory
2. Intent theory
(also modified theory)
80
identity theory
| ADEMPTION BY EXTINCTION
TN view
Majority/common law view
= if subject matter of specific gift is not in testator’s estate for any reason the gift to the beneficiary = adeemed AKA beneficiary takes nothing
(intent is irrelevant, immaterial, inadmissible)
81
application
| IDENTITY THEORY
applies any time specific gift is not in estate for any reasons
82
3-prong test
| IDENTITY THEORY
1. Is this a specific bequest?
2. If so, is the specifically devised property part of the testator’s probate estate?
3. If not, ademption applies and the beneficiary receives nothing
83
upc intent theory
| ADEMPTION BY EXTINCTION
= testator’s intent matters
If there was evidence that testator didn’t want gift adeemed = court may substitute cash value for gift
84
choices available
| INTENT THEORY
Specific devisee named in a will has the right to any remaining specifically devised property
AS WELL AS ANY OF THE FOLLOWING
1. Balance of a purchase price
2. Condemnation award for the taking of the property
3. Fire or casualty insurances proceeds
4. Any tangible or personal property that decedent acquired as a replacement for the specific gift left to beneficiary in the will
5. Any property that the decedent acquired as the result of a foreclosure of the security interest on a specifically devised note
6. Stock that decedent acquired as part of a merger or consolidation IN EXCHANGE for the stock mentioned in the will
85
balance of a purchase price
| INTENT THEORY
= balance that is owed from a purchaser
ONLY WHEN a contract of sale is still executory at the testator’s death
example = testator dies before contract signed
86
condemnation award for taking of property
| INTENT THEORY
BUT ONLY to the extent that that award is unpaid at the time the testator dies
87
fire/casualty proceeds
| INTENT THEORY
BUT ONLY to the extent that those proceeds are unpaid at the time the testator dies
(similar to condemnation award)
88
example of any tangible property D acquired as replacement for specific gift
INTENT THEORY
example = trade car in for newer car, substitute
89
modified theory
| ADEMPTION BY EXTINCTION
= incompetency rule
- exception to strict application of the identity rule
- focus is on whether, after removal of the property from the estate, the testator had the opportunity and voluntarily chose not to change her will
90
(1) Factual scenario
| MODIFIED THEORY
1. Will executed before testator is declared incompetent
2. during testator’s incapacity, gift is sold or condemned or paid to casualty loss for insurance proceeds relating to gift are receiving by conservatory
91
remedy
| MODIFIED THEORY
= gives specific devisee
- right to cash legacy
- equal in amount
- to net proceeds/condemnation award or insurance proceeds
- regardless of if proceeds have been collected before testator died
UNLESS testator’s incapacity is adjudicated to have ceased and testator survived adjudication by a year
92
applies to
| ADEMPTION BY SATISFACTION
General and (shared) residuary bequests
93
upc general rule
| ADEMPTION BY SATISFACTION
Property T gave in her lifetime to a person is treated as a satisfaction of a devise in whole or in part ONLY IF
a. the will provides for deduction of the gift OR
b. the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise OR
c. the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise
94
upc partial satisfaction
| ADEMPTION BY SATISFACTION
property given during lifetime is valued
a. as of the time the devisee came into possession or enjoyment of the property OR
b. at the testator's death
whichever occurs FIRST
95
upc decisee fails to survive testator
| ADEMPTION BY SATISFACTION
= gift is treated as full/partial satisfaction as appropriate
UNLESS T’s contemporaneous writing provides otherwise
96
tn general rule
| ADEMPTION BY SATISFACTION
Satisfaction occurs ONLY IF there’s direct evidence this was T’s intent
97
tn burden of proof
| ADEMPTION BY SATISFACTION
Party asserting satisfaction has burden of proving T’s intent to satisfy bequest
98
applies to
| EXONERATION
Specific bequests ONLY
99
upc rule
| EXONERATION
A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts
100
tn rule
| EXONERATION
= an heir or devisee is generally entitled to have encumbrances upon real estate paid by the estate’s personalty UNLESS the will directs otherwise in the devisee’ case
(common law doctrine)
101
tn application
| EXONERATION
- applies to property passing by will
| - does not apply to to property passing by right of survivorship
102
applies to
| ABATEMENT
ALL bequests
103
upc default distribution
| ABATEMENT
- except as affected by spouse's elective share
- shares of distributees abate
- w/o any preference or priority as btwn real/personal property
- in the following order
1. property not disposed of by the will
2. residuary devises
3. general devises
4. specific devises
104
2 upc treatments for general devise charged on any specific property/fund
ABATEMENT
1. treated as specific devise
| 2. treated as general devise
105
treated as specific devise
| UPC ABATEMENT FOR GENERAL DEVISE CHARGED ON ANY SPECIFIC/PROPERTY FUND
to the extent of the value of the property on which it is charged
106
treated as general devise
| UPC ABATEMENT FOR GENERAL DEVISE CHARGED ON ANY SPECIFIC/PROPERTY FUND
upon the failure or insufficiency of the property on which it is charged
to the extent of the failure or insufficiency
107
upc proportion
| ABATEMENT
= in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will
108
upc alternative order
| ABATEMENT
IF EITHER
a. the will expresses an order of abatement OR
b. if the testamentary plan or the express/implied purpose of the devise would be defeated by default order
= the shares of the distributees abate as may be found necessary to give effect to the intention of the testator
109
upc subject of preferred devise sold/used
| ABATEMENT
= abatement shall be achieved by
a. appropriate adjustments in OR
b. contribution from
other interests in the remaining assets
110
tn doctrine
| ABATEMENT
when the estate is insufficient to satisfy estate debts and bequests, 3 rules apply
(in the absence of clear expression of T’s contrary intent)
1. the residuary beneficiary abates before the general
2. the general beneficiary abates before the specific and demonstrative
3. finally, the specific and demonstrative beneficiaries abate last
(common law doctrine)
111
tn pro rata burden
| ABATEMENT
each beneficiary bears a pro rata burden of the debt, unless T clearly expresses intent to prefer one bequest over another
112
tn demonstrative bequest
| ABATEMENT
= a pecuniary gift to be paid out of a specified fund.
113
4 other tn rules
| ABATEMENT
1. The whole personal estate not specifically bequeathed must be exhausted before general legatees can be required to contribute anything out of their legacies
2. General legacies must abate proportionally, in case of deficiency of assets, before the specific legatees can be called on to contribute
3. Personal property passing by intestacy and personal property in the residuary estate abate before real property in the residuary estate
4. Approval of the court to sell real estate is required
114
applies to
| ACCRETION
specific bequests ONLY
115
key issue
| ACCRETION
is the beneficiary of a specific gift of a set number of share of stock entitled to any additional share that are owned by the testator as a consequence of stock split or stock dividends?
AKA increase
116
tn view
| ACCRETION
= beneficiary’s rights depends on whether split or dividends
Stock split = beneficiary gets all the shares
Stock dividend = beneficiary is restricted only to original share
(common law doctrine)
117
upc view
| ACCRETION
= beneficiary gets all the shares
REGARDLESS of whether stock split or stock dividend
(majority view)
118
effect of t purchasing more shares
| ACCRETION
beneficiary has no right to them
= beneficiary only has potential right to accreted shares if testator paid no consideration (AKA consequence of stock split/dividend)
119
tn view on stock splits
| ACCRETION
= beneficiary gets all the shares
120
upc view on stock splits
| ACCRETION
= beneficiary gets all the shares
121
tn view on stock dividends
| ACCRETION
= beneficiary is restricted only to original share
122
upc view on stock dividends
| ACCRETION
= beneficiary gets all the shares
123
4 types
| GIFTS IN A WILL
1. specific devise/bequest
2. demonstrative legacy
3. general legacy
4. residuary bequest
124
specific devise/bequest
| GIFTS IN A WILL
= Gift of a specific asset and that asset only
125
demonstrative legacy
| GIFTS IN A WILL
=Gift of a specified pecuniary amount but with funding instruction
(Hybrid = like a general legacy but with with funding instruction)
126
general legacy
| GIFTS IN A WILL
= Gift of a specified pecuniary amount
127
residuary bequest
| GIFTS IN A WILL
All the rest of gifts
128
example
| SPECIFIC DEVISE/BEQUEST
2007 Cadillac to john
129
example
| GENERAL LEGACY
10K to Donna
130
example
| RESIDUARY BEQUEST
all the rest, residue, and remainder of my estate to my wife
131
intestacy possibility
| RESIDUARY BEQUEST
Possible that some property passes according to intestacy statute b/c of partial intestacy
FOR INSTANCE = all beneficiaries predecease and none are related = residue would be undisposed of, would drop out of will and pass according to state intestacy statute
132
interpretation focus
| GUIDELINES FOR AMBIGUOUS WILL
focus on T's actual intent
133
extrinsic evidence general rules
| GUIDELINES FOR AMBIGUOUS WILL
Will clear = extrinsic evidence inadmissible
Will ambiguous = extrinsic evidence admissible
134
5 rules of construction when no evidence of actual intent
| RULES OF CONSTRUCTION
1. Favor those who would take intestate
2. Favor the construction that avoids intestacy
3. Favor the construction that is consistent with the perceived “plan” of disposition
4. Every portion of the will should be given effect if possible
5. Between totally inconsistent clauses, the latter is most likely the final intent
135
applicable law
| EXAM INSTRUCTIONS
1. wills = tn (compare to UTC)
intestacy = tn (compare to UTC)
2. trusts = UTC (or majority if UTC silent)
3. non-probate transfers = majority
4. powers of appointment = majority
5. uniform prudent investment act = adopted by tn
6. uniform principle and income act = adopted by tn
136
distinction from advancement
| ADEMPTION BY SATISFACTION
advancement = intestacy
| ademption by satisfaction = wills
