will contsruction -- class gifts and ademption Flashcards
what is a class gift
A class gift arises if the testator was GROUP MINDED
Ie rather than naming the beneficiaries individually, he uses a common label to describe the beneficiaries as a class
how are class gifts treated differently under lapse
If a class member predeceases the testator, the surviving members of the class divide the total gift, including the deceased member’s share, unless an Antilapse statue applies
dawson v yucus
The testator wrote a will, the second clause of her will providing the following (see full lang on page 378)
One half of my interest therein to Setwart Wilson, a nephew, now living in Birmingham, Michigan and one half of my interest to Gene Burtle, a nephew, now living in Mission, Kansas
The testator devised the residue of her estate to Ina Mae Yucus and Hazel Degelow
Gene, one of the nephews to whom the testator devised her interest to the farm, died before her
Whether the gift to the nephews was a class gift so that the surviving nephews would take Gene’s share, or if Gene’s share would lapse and pass to Yucus and Degelow as part of the residue
There is a class label (nephew) BUT is it describing a class or just describing who the beneficiaries are?
The court below correctly held that upon the death of gene the devise to him lapsed and passed under the residuary clause of the will
There is nothing in in the lang of the will that indicates the testator intended to create a class or survivorship gift
in dawson, what are arguments against a class gift
Not as a description of the class but the individual named
Maybe using it to clear up any potential latent ambiguities
She also specifies how much they are to get WHICH IS NOT HOW CLASS GIFTS WORK
why would it be an argument that a class gift was not made if the testator specifes how much a person is going to get
Class gifts specifically are flexible in how much a class member may receive; how much you get depends on if people join via birth or leave via death
what is the best way to create a class gift
No magic words but you must make it a general term/label that we can figure out
Shares fluctuate as time goes on so any indication of specificity of how much they will get may point away from class gift
Can extrinsic evidence come in to help define classes?
Yes if its a latent ambiguity as long as you can figure it out
do lapse flow chart – check slide 9 of class 18
what is the presumption behind anti lapse applying to class gifts
courts reason that the Anti lapse statues are designed to carry out the typical testator’s intent, and that the typical testator would prefer for a dead class member’s share to go to that member’s descendants rather than to the surviving member of the class
what is scenario does ademption come up in?
t’s will gives away a specfic gift, and by the time t dies the gift is no longer in the estate
what kind of devise does ademption apply to?
Ademption only applies to specific devises
Does not apply to general, demonstrative, or residuary devises
what does the traditional identity theory of ademption say
if a specifically devised item is not in the testator’s estate, the gift is EXTINGUISHED
what does the new intent theory of ademption say aka the upc version
if the specifically devised item is not in the testator’s estate, the beneficiary may nonetheless be entitled to the replacement or cash value of the original item, if the beneficiary can show that this is what the testator would have wanted
anton
Hestor Mary Lewis Anton (Mary) left a half interest in her duplex to her stepdaughter, Gretchen Coy, and the other half to her son, Robert Lewis.
After a car accident, Mary moved to a nursing home, and her daughter Nancy, acting under a power of attorney, sold the duplex without Mary’s knowledge to pay for her care.
Gretchen sought to recover the sale proceeds, and the case was appealed to the Iowa Supreme Court.
Whether the sale of certain property by an attorney in fact prior to the death of the testator resulted in the ademption of a specific property bequest
The court adopts alternative intent theory of ademption
They allow gretchen to claim a portion of the sales proceeds
Where a specific devise is removed from an estate by the act of an attorney-in-fact that was not known or assented to by the testator, the devise is not adeemed, i.e., canceled, to the extent that identifiable proceeds remain in the possession of the estate.
under the intent theory of ademption aka the upc’s version, what does the specific devisee have a right to in the event the gift does not exist at the time of the testator’s death
1.any balance of the purchase price
3.any proceeds unpaid at death on fire or casualty insurance . . . to the property;
5.any . . . property owned by the testator at death which the testator acquired as a replacement for specifically devised . . . property
if not covered by paragraphs (1) through (5), a pecuniary devise
