Will Interpretation and Construction

Question 1

Who can raise interpretation and construction issues?

Answer 1

1. personal representatives who want to do the right thing and avoid liability for improper administration
2. beneficiaries (or heirs) who would take under various interpretations

Question 2

Basic construction maxims

Answer 2

1. the fact that the testator left a will (especially if it has a residuary clause) indicates an **intent not to die intestate **
2. among two or more contradictory provisions in a will, the **last one prevails **
3. a will is construed as a whole, not from isolated parts out of context
4. attempt to give effect to all words the testator included in the will

Question 3

Patent (obvious) ambiguity

Answer 3

a patent ambiguity exists if a provision is ambigious on its face, that is, it fails to convey a sensible meaning

the court will consider extrinsic evidence to resolve the ambiguity, but extrinsic evidence cannot be used to fill in blank spaces or supply ommitted gifts

Example: “I leave $25,00 to Doris”

Question 4

Latent (hidden) ambiguity

Answer 4

Exists when a provision conveys a sensible meaning on its face but cannot be carried out without further clarification

the court will consider extrinsic evidence to resolve the ambiguity

Example: “I leave my car to Juan” but the testator died owning two card

Question 5

No apparent amniguity

Answer 5

A situation may arise where a will provision is clear on its face and can be carried out as written but a beneficiary or other interested person thinks the testator made a mistake

Question 6

Incorporation by reference

Answer 6

A testator may incorporate an extraneous document into the will by reference rather than writing the provision in the will directly

Question 7

Effect of incorporation by reference

Answer 7

The incorporated material is treated as if it were actually written out in full in a will–a legal fiction.

It does not matter that the document lacked witnesses, was not signed, or was written under the influence

Question 8

Elements of incorporation by reference

Answer 8

A document may be incorproated into the will by reference if:
1. the testator intends to incorporate the extraneous document
2. the document to be incorporated is **in existence **at the time the will was executed
3. the will sufficiently identifies the material to be incorporated so that no other document could reasonably be referred to by that description

Question 9

Act of fact of independent significance

Answer 9

An act or fact of independent significance is something outside of a will which has a legal purpose other than disposing of property at death.

If something is an act or fact of independent significance, then it need not be executed with the formalities of a will to impact the transfer of property at death.

Question 10

Examples of acts or facts if independant significance

Answer 10

1. “I leave the automobile that I own at my death to Bryan.” – the court will look outside the four corners of the will to ascertain Bryan’s bequest
2. “I leave $100,000 to my children and $5,000 to each of my employees.” – the court will look outside the four corners of the will to ascertain the identity of the children and employees.
3. “I leave the contents of my safe deposit box to Tony.” – Even though Testator may change the contents of the box at any time after execution, Tony will receive whatever contents are in the box at the tie of testator’s death because the box is a fact of independent significance.

Question 11

Separate writing disposing of tangible, personal property

Answer 11

The testator’s will may refer to a written statement or list fo dispose of items of tangible personal property not otherwise disposed of by the will even thouhg the list was not in existence when the testator executed the will and has no legal purpose

testator may dispose of tangible items of personal property if:
1. an unrevoked will refers to the writing
2. the document is dated
3. the document is either handwritten or signed
4. the document described the items and the recipients with reasonable certainty

Cannot include cash or business property; total calue may not exceed $25,000 and each item cannot exceed $5,000.

Question 12

Conditional wills

Answer 12

A conditional will is a will which operates only if a certain event occurs or does not occur. there is a presumption against conditional wills; a court will construe a will as general if possible

Question 13

Is parol evidence admissible to show that a will is conditional

Answer 13

Parol evidence cannot be admitted to show that a will absolute was intended to be conditional

PArol evidence may be admitted to show that the instrument was not meant to have any effect at all but not to show conditions.

Question 14

Codicil

Answer 14

A codicil modifies a previously executed will and must itself be executed with the same formailities.

Question 15

Republication by codicil

Answer 15

Under the doctrine of republication by codicil, a codicil acts to republish the will except for the parts of the will that are inconsistent with the codicil.

The will and the codicil are treated as one instrument speaking from the date of the codicil.

Question 16

Pour-over gift to inter vivos trust

Answer 16

A pour-over provision is a provision in a will making a gift to an inter vivos trust.

In CA, the Uniform Testamentary Additions to Trusts Act, it permits the pour-over of estate assets to an inter vivos trust as amended on the testator’s death if the trust is identified in the testator’s will and its terms are set forth in a written instrument executed before, concurrently with, or within 60 days after the execution of the testator’s will.

Question 17

Basic rules of pour-over gifts

Answer 17

1. the property goes into the trust as the trust exists on the date of the testator’s death, not how it was written on the date when the will was executed
2. the trust must be in writing no later than 60 days after the testator executes the will
3. if the trust is revoked, the gift fails

Question 18

External integration

Answer 18

If the testator executed more than one will or codicil, they need to be properly integrated so that the court knows which will is the last will or which provisions of a later will or codicil revokes provision of a prior will or codicil.

All wills should contain the date of execution to assist in external integration.

Question 19

Internal integration

Answer 19

A will proponent must be able to show that the pages present at time of execution are those present at time of probate.

Physical attachment or internal coherence of pages raises a presumption that the pages were present and intended to be a part of the will

Question 20

Extrinsic evidence that offers proof of internal integration

Answer 20

1. pages fastened together
2. sentences flow page-to-page
3. es toto pagination, i.e., “page x of y”
4. avoidance of blank spaces
5. testator and witnesses initialing of each page

Question 21

Joint wills

Answer 21

a joint will is a single testamentary document containing the wills of two or more persons, typically a married couple

Question 22

Reciprocal or mutual wills

Answer 22

reciprocal or mutual wills are wills of two persons containing parralel dispositive provisions, often called “Sweetheart wills.”

revocable at any time during testator’s life

Question 23

contractual will

Answer 23

Executed or not revoked as the consideration for a contract. a contract to make, not to make, or not to revoke a will is valid.

K law governs these issues. Consideration is required. Ks need to be in writing.

Question 24

Effect of contractual wills

Answer 24

The contract provides a basis for a cause of action against the estate of the promisor, but it cannot be used to oppose the probate of a properly executed will that is inconsistent with the terms of the agreement.

Question 25

Proof of contract in contractual wills

Answer 25

A contract to make (or not to revoke) a will, devise, or other instrument, or to die intestate, can be established only by one of the following:
1. provisions of a will or other instrument stating the material provisions of a K
2. an express reference in a will or other instrument to a K and extrinsic evidence proving the contractual terms
3. writing signed by decedent evidencing the K
4. clear and convincing evidence of an agreement bw the decedent and the claimant, or a promise by the decedent to the claimant that is enforceable in equity
5. clear and convincing evidence of an agreement bw the decedent and another person for the claimant’s benefit, or a promise by the decedent to another person for the claimants benefit that is enforceable in equity

Question 26

Can a contractual will be revoked?

Answer 26

Yes, by either party is both parties are still alive

Question 27

What happens if the testator dies in breach of a contractual will?

Answer 27

The injured beneficiaries may sue to impose a **constructive trust **on the property they should have received under the K