Will Interpretation and Construction

Question 1

what happens when there are two or more contradictory provisions in a will

Answer 1

the last one prevails

Question 2

how do you construe a will

Answer 2

as a whole, not from isolated parts out of context

Question 3

patent ambiguity

Answer 3

exists if a provision is ambiguous on its face and fails to convey a sensible meaning

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

Question 4

latent ambiguity

Answer 4

exists when a provision conveys a sensible meaning on its face but cannot be carrier out w/o further clarification

court will consider EE to resolve ambiguity

Question 5

no apparent ambiguity

Answer 5

will provisions look good but beneficiary or interested person thinks they made a mistake

CA follows modern rule - allow EE to create an ambiguity where it does not exist and resolve the issue

Question 6

incorporation by reference

Answer 6

incorporated material treated as if written out in full will

elements:
1) testator intends to incorporate extraneous doc
2) document is in existence at time will is executed
3) will sufficiently identifies material to be incorporated so that no other document could be referred to by that description

holographs can corporate printed or typed matter

Question 7

acts or facts of independent significance

Answer 7

something outside of a will which has legal purpose other than disposing of property at death; need not be executed with formalities of a will to impact transfer of property at death

e.g., “car I own at death,” “leave $ to each of my employees,” “contents of the house,” “my current spouse”

court will look outside the 4 corners of will to ascertain the facts/acts

Question 8

separate writing disposing of tangible personal property

Answer 8

testator may dispose of items of tangible personal property in a writing that does not comply with the requirements for incorporation by reference if:
1) unrevoked will refers to the writing
2) document is dated
3) document is either handwritten or signed by testator
4) document describes the items and the recipients with reasonable certainty

**must be tangible personal property other than cash or business property, and total value may not exceed $25k (nor may any single item exceed $5k in value)

Question 9

conditional will

Answer 9

a will that operates only if certain event occurs or does not occur (general presumption against conditional wills)

parol evidence is not admissible to show that a will absolute on its face was intended to be conditional
- but is admissible to show evidence that entire will was not meant to have effect

argue both ways to distinguish a genuine condition vs. motive to make the will

Question 10

what is a codicil?

Answer 10

modifies a previously executed will and must itself be executed with the same formalities

can be admitted to probate by itself

acts to republish the will except for the parts of the will that are inconsistent with the codicil. will and codicil are treated as one instrument speaking from the date of the last codicil

Question 10

pour-over will to an inter vivos trust

Answer 10

provision in a will making a gift to an inter vivos trust

CA has the Uniform Testamentary Additions to Trust Act, which permits pour-over of estate assets to an inner 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. Trust may be amendable or revocable, and the settlor may be a trustee

basic rules:
1) property goes into trust as the trust exists on the date of testator’s death
2) trust must be in writing no later than 60 days after testator executes the will
3) if trust is revoked, gift fails (lapses)

Question 11

integration of a will

Answer 11

external - if testator executed more than one will or codicil, they need to be properly integrated so courts know which is the last will or which provisions of a later will or codicil revokes provisions of prior will or codicil
**dates on wills/codicils not required, but super helpful

internal - will proponent must be able to show the the pages present at the time of execution are those present at the time of probate
(e.g., pages fastened together, sentences flow page to page, avoid blank spaces, testator + witnesses initialing each page)

Question 12

joint wills

Answer 12

single document containing wills of two or more persons (typically married couple)

Question 13

reciprocal or mutual wills

Answer 13

wills of two persons containing parallel or dispositive provisions, often called “sweetheart wills”

revocable at any time during testator’s life

Question 14

contractual will

Answer 14

will executed or not revoked as consideration for a contract

1) contract law governs; required to be in writing per SOF
2) effect: provides a basis for a COA against the estate of promisor
3) proof of K can be established by only by one of the following:
a) provision of will or other instrument stating material provisions of the K
b) express reference in will or other instrument to a K and EE providing contractual terms
c) a writing signed by decedent evidencing the K
d) clear and convincing evidence of an agreement between the decedent and claimant (or another person for the claimant’s benefit), or a promise by the decedent to the claimant (or to another person for the claimant’s benefit) that is enforceable in equity
4) revocation - can be revoked by either party if both are alive
5) breach -
a) if first party dies, court will deny remedy b/c other party has not been harmed (can change will)
b) if second testator dies in breach, injured beneficiaries may sue to impose a constructive trust on property they should have received under K

**execution of joint or mutual wills does not create a presumption of contract not to revoke