Will Interpretation and Construction Flashcards
What are the Basic Construction of Wills Rules?
When there is no evidence of the testator’s intent, the courts resort to the following rules of construction:
- The fact that the testator left a will, especially if it has a residuary clause, indicates an intent not to die intestate. Therefore, favor the construction that avoids intestacy
- Among two or more contradictory provisions in a will, the last one prevail
- The will is construed as a whole, not from isolated parts out of context
- Words are given their ordinary and grammatical meaning unless it is clear from the will that the testator intended otherwise
- Technical words are given their technical meaning unless it is clear from the will that the testator intended otherwise
- Attempt to give effect to all words the testator included in the will
What is Patent Ambiguity vs. Latent Ambiguity?
1) Patent (Obvious) Ambiguity: A patent ambiguity exists if a provision is ambiguous on its face (fails to convey sensible meaning)
- Traditional View — Extrinsic evidence is NOT admissible to correct a patent ambiguity
- Modern View — Extrinsic evidence is admissible unless its used to fill in blank space or supply omitted gifts
2) Latent (Hidden) Ambiguity: A latent ambiguity exists when the language of the will is clear on its face but cannot be carried out without further clarification.
- The court WILL CONSIDER extrinsic evidence to resolve the ambiguity.
What happens when there is No Apparent Ambiguity?
No Apparent Ambiguity — Mistake: The situation may arise where a will provision is clear on its face and can be carried out as written, BUT an interested party thinks that the testator made a mistake
- Plain Meaning Rule — Extrinsic evidence CANNOT be used to disturb the clear meaning of a will.
- Modern Rule: Some courts will PERMIT the use of extrinsic evidence because the evidence assists the court to carry out the testator’s intent.
What is Incorporation by Reference?
Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference.
What are the main requirements for Incorporation by Reference to Apply?
A document may be incorporated by reference into a will, provided:
- The will manifests an intent to incorporate the document
- The document is in existence at the time the will is executed
- The document is sufficiently described in the will: Document must correspond to the description in will
2a) List Disposing of Items of Tangible Personal Property: Many states and the UPC have carved out an exception to the existence requirement when there is a list specifying distribution of items of tangible personal property
- The testator can refer in their will to the list and write or alter the list after executing the will
What are Acts of Independent Significant?
A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.
- Identification of Beneficiaries: The future act may relate to the identification of the beneficiaries
- Identification of Property: This doctrine also permits identification of the property that is to be the subject matter of a bequest
What is Republication by Codicil?
A codicil modifies a will, and thus can be used to have a will be deemed as having been executed (republished) on the date of the last validly executed codicil
- Validation of Prior Invalid Will — A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will.
What is Integration?
The person probating the will must be able to show that the pages present at the time of execution are those present at the time of probate.
The requirements of intent and presence are PRESUMED when there is:
- A physical connection of the pages (staple, paper clip, etc.)
- An internal coherence of pages
- An orderly dispositional plan
