will contsruction -- class gifts and ademption

Question 1

what is a class gift

Answer 1

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

Question 2

how are class gifts treated differently under lapse

Answer 2

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

Question 3

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?

Answer 3

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

Question 4

in dawson, what are arguments against a class gift

Answer 4

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

Question 5

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

Answer 5

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

Question 6

what is the best way to create a class gift

Answer 6

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

Question 7

Can extrinsic evidence come in to help define classes?

Answer 7

Yes if its a latent ambiguity as long as you can figure it out

Question 8

do lapse flow chart – check slide 9 of class 18

Question 9

what is the presumption behind anti lapse applying to class gifts

Answer 9

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

Question 10

what is scenario does ademption come up in?

Answer 10

t’s will gives away a specfic gift, and by the time t dies the gift is no longer in the estate

Question 11

what kind of devise does ademption apply to?

Answer 11

Ademption only applies to specific devises
Does not apply to general, demonstrative, or residuary devises

Question 12

what does the traditional identity theory of ademption say

Answer 12

if a specifically devised item is not in the testator’s estate, the gift is EXTINGUISHED

Question 13

what does the new intent theory of ademption say aka the upc version

Answer 13

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

Question 14

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

Answer 14

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.

Question 15

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

Answer 15

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

Question 16

the upc intnet theory of ademption says that an option for a devisee to get is a replacement – what does that mean?

Answer 16

gives you room to argue as UPC does not define what replacement property is

Really depends on if you can connect the use of the OG and replacement

What you need for proper replacement
Use
Tracing proceeds from sale
Time

Question 17

bequest of stocks - look up in e and e

Answer 17

acquiring stocks passively - specific = beneficiary gets the OG amount and the ones acquired passively

if general - only get the OG amount in will

Question 18

satisfaction upc 2-609 look up in e and e

Answer 18

If a person (the decedent) makes a gift to a beneficiary during their lifetime, that gift may count toward the beneficiary’s share of the decedent’s estate (i.e., it may “satisfy” a bequest in the will)

Question 19

exoneration of leins look up

Answer 19

Common law
an heir or devisee is generally entitled to have encumbrances upon real estate paid by the estate’s personalty unless, in the devisee’s case, the will directs otherwise

UPC
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

Question 20

what is the issue of abatment

Answer 20

if an estate lacks enough assests to pay the decdent’s debts as wll as all devises

if this happens, some devises must be abated or reduced

Question 21

in the absece of an indication of how the devises should be abated in the scenario of insuffenct funds to pay the debt, what is the order in which they payment should come out of?

Answer 21

1. residuary devises are reduced first
2. general devises are reduced second
3. specific and demonstrative devises are the last to abate and are reduced pro rata (ie proportionally)