Will Interpretation and Construction

Question 1

Who raises interpretation and construction issues?

Answer 1

• personal representative who wants to do the right thing + thus avoid liability for improper administration
• beneficiaries or heirs who would take under various will interpretations

Question 2

Basic Rules of Construction

Answer 2

1) fact that testator left a will indicates intent not to die intestate -> favor the construction that avoids intestacy
2) among two or more contradictory provisions in a will, the last one prevails
3) the will is construed as a whole, not from isolated parts out of context
4) words are given their ordinary + grammatical meaning unless it is clear from the will that the testator intended otherwise
5) technical words are given their technical meaning unless it’s clear testator intended otherwise
6) attempt to give effect to all words the testator included in the will

Question 3

Patent Ambiguity

Answer 3

• exists if a provision is ambiguous on its face (fails to convey a sensible meaning)
• modern view says extrinsic ev admissible (trad view says no)
  -> CAN’T be used though to fill in blank spaces or supply omitted gifts

Question 4

Latent (Hidden) Ambiguity

Answer 4

• exists when the language of the will is clear on its face but cannot be carried out without further clarification
• court will consider extrinsic evidence to resolve the ambiguity

Question 5

No Apparent Ambiguity - Mistake

Answer 5

• situation where provision clear on its face + can be carried out, but beneficiary thinks testator made a mistake
• traditional approach: extrinsic ev can’t be used to disturb the clear meaning of a will
• modern rule: extrinsic evidence is allowed

Question 6

Incorporation by Reference - Basic Idea

Answer 6

• instead of writing something in the will, testator may incorporate an extraneous doc into the will by reference

Question 7

Incorporation by Reference - Effect

Answer 7

• incorporated material is treated as if it were actually written out in full in the will
• doesn’t need to be witnessed, signed, etc

Question 8

Incorporation by Reference - Requirements

Answer 8

Can be incorporated provided that:
- will manifests intent to incorporate the doc
- doc is in existence at time will executed AND
- doc is sufficiently described in the will

-> language of the will must refer to the extrinsic doc in such a way tha it may be reasonably identified, + the doc must correspond to the description in the will

Question 9

Separate Writing Disposing of Tangible Personal Property

Answer 9

• many states + UPC have carved out an exception to the req that the doc exist at execution
  -> allow a testator to refer in their will to a list specifying the distribution of items of tangible personal property + to write or alter that list after executing the will

Question 10

Acts or Facts of Independent Significance

Answer 10

• something outside of a will which has a purpose other than disposing of property at death
• will may dispose of property by reference to acts + events, even though they are in the future in the future + unattested, if they have significance apart from their effect on dispositions made by the will

Question 11

Conditional Wills

Answer 11

• conditional will = one that provides that it is to be operative only if a certain event occurs or does not occur
• courts construe wills as general, not conditional, if possible
  -> court might interpret what appears to be a condition as merely expressing motive for making the will, + might give the will effect even if the condition doesn’t occur
• parol ev is NOT admissible to show that a will absolute on its face was intended to be conditional

Question 12

Republication by Codicil

Answer 12

• codicil modifies a previously executed will + must itself be executed w/ the same formalities
• under doctrine of republication by codicil, the will + codicil are treated as one instrument speaking from the date of the last codicil’s execution

Question 13

Reminder Regarding Alterations on the Face of the Will

Answer 13

• any addition, alteration, interlineation, or deletion made after the will has been signed + attested is INEFFECTIVE to change the will
  -> UNLESS the will is re-executed with proper formalities
  -> or the changes qualify as a holographic codicil where such codicils are recognized

Question 14

Codicil - Validation of Will

Answer 14

• codicil can validate prior invalid will
• validly executed codicil is generally viewed as impliedly incorporating a defective will by reference -> validates the will
• invalid will technically can’t be republished though -> defective will just gets impliedly incorporated by reference

Question 15

Pour-Over Gift to Inter Vivos Trust

Answer 15

• pour-over provision = provision in a will making a gift to an inter vivos trust
• Uniform Testamentary Additions to Trusts Act (adopted in most states) -> permits a testator to make a gift to a trustee of an inter vivos trust notwithstanding that the trust may be amended or revoked after execution of the will
  -> trust may be created before or after the testator executes the will
• property will be governed by all trust amendments, even those made after testator executes will or dies
• if trust revoked, the gift fails (lapses)
• trust does not have to be funded prior to testator’s death

Question 16

Integration

Answer 16

• 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
• physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present + intended to be part of the will when it was executed
• proof of integration can also be provided by testimony or other extrinsic ev

Question 17

Joint Will

Answer 17

• a single instrument executed by two or more testators + intended to be the will of each
• highly unadvisable technique used by married couples in the past

Question 18

Reciprocal or Mutual Wills

Answer 18

• separate wills executed by two or more testators that contain substantially similar provisions
• often called “sweetheart wills”

Question 19

Contractual Wills

Answer 19

• will 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
  -> need consideration to be enforceable
• mere execution of joint or mutual wills doesn’t raise presumption of promise not to revoke though

Question 20

Contractual Wills - Proof of Contract

Answer 20

• governed by contract law
• at common law, all relevant extrinsic ev was admissible to prove existence of contract
• modern law requires a writing, + many states have enacted statutes requiring that these K’s be in writing or specifically mentioned in the will

Question 21

Contractual Wills - Revocation of Contract

Answer 21

• contractual will can be revoked by agreement between parties while they’re both alive
• contract becomes irrevocable on first testator’s death

Question 22

Contractual Wills - Breach of Contract

Answer 22

• generally no remedy during testator’s lifetime b/c testator can comply until death
  -> if testator repudiates K after substantial performance by promisee though, promisee may seek damages, quantum meruit, or equitable relief
  -> constructive trust = usual remedy if testator dies in breach
• no remedy for breach of K not to revoke unless the 1st party dies in reliance on the K (constructive trust only if survivor disposes of property in breach of agreement after 1st party dies in compliance w/ agreement)

Question 23

Powers of Appointment

Answer 23

• power of appointment = an authority granted to a person, enabling that person (donee of the power) to designate, w/in limits prescribed by creator of the power, the persons who shall take the property + manner in which they shall take it

Question 24

General vs. Special Power of Appointment

Answer 24

• general = exercisable in favor of anyone including donee themself, estate, their creditors, or creditors of their estate
• special = exercisable in favor of a limited class of appointees, which class does not include donee, their estate, their creditors, or creditors of their estate

Question 25

Appointive Assets and Creditors

Answer 25

• if donee does not exercise general power, donee’s creditors cannot reach the property
• if donee does exercise the power, even if donee appoints to another person ,the donee’s creditors can reach the appointive property as if donee were donor
• if donee of a general power is also the donor, donee’s creditors can reach the appointive assets regardless of whether donee exercises the power

Question 26

Exercise of Powers of Appointment

Answer 26

• residuary clause does not, by itself, exercise any power of appointment held by testator
• “blanket” exercise of power permissible
• power of appointment exercised by implication when donee purports to dispose of property subject to the power as though it were the donee’s own (disposition can be given effect only if treated as an exercise of the power)

Question 27

Interests That Can Be Created by Exercise of Power of Appointment

Answer 27

Absent a contrary provision in the instrument creating the power, the donee can:
- appoint the property outright or in trust
- create life estates and future interests
- impose conditions and limitations on th interests created
- create additional powers of appointment