Will Interpretation and Construction

Question 1

Republication by codicil

Answer 1

A will is treated as having been executed (republished) on the date of the last validly executed codicil. However, to be republished, the will must have been validly executed.

Question 2

Incorporation by reference

Answer 2

A document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will. To incorporate a document by reference:
1. the document must be in existence at the time the will was executed,
2. the language of the will must sufficiently describe the writing to permit its identification, and
3. the will must manifest an intention to incorporate the document.
For the disposition of items of personal property, many states and the UPC dispense with the requirement that the document be in existence at the time the will is executed if the writing is signed by the testator and the items and devisees are described with reasonable certainty.

Question 3

Contract to Make a Gift by Will

Answer 3

Contracts law, not wills law, controls. While at common law a contract to make a gift by will need not be in writing unless land is involved, some states have enacted statutes requiring all contracts to make a gift by will to be in writing. Under the UPC, a contract to make a will can be established only by:

1. provisions in the will stating the material provisions of the contract;
2. an express reference in a will to the contract and extrinsic evidence proving the terms of the contract; or
3. a writing signed by the decedent evidencing the contract.

Question 4

Extrinsic evidence to show testator’s intent

Answer 4

Extrinsic evidence is not admissible in most courts to show that a provision contained in the will is not what the testator intended. Absent evidence of fraud, duress, or suspicious circumstances, it is presumed that the testator understood and approved the terms of the world when he signed it.