Will Interpretation and Construction

Question 1

Basic Rules of Construction

Answer 1

• Presence of a will = intent to not die intestate.
• Favor the construction that avoid intestacy.
• Conflicting Provisions –> the provision added closest to the testator’s death prevails.
• Construe the will as a whole.
• Ordinary words are given ordinary, plain language meaning.
• Technical words are given their technical meaning.
• Give affect to all words the testator included in the will.

Question 2

Patent (Obvious) Ambiguity

Answer 2

When a provision is ambiguous on its face and faces to covey a sensible meaning.

Traditional View on Interpretation: Extrinsic evidence is NOT admissible to correct a patent ambiguity.

Modern View: Extrinsic evidence is admissible BUT, cannot be used to fill in blank spaces or supply omitted gifts.

Question 3

Latent (Hidden) Ambiguity

Answer 3

When the language of the will is clear on its face but cannot be carried out without further clarification.

Extrinsic evidence is used by the court to resolve the ambiguity.

Question 4

No Apparent Ambiguity

Answer 4

When 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.

Traditional Approach: Follows the “Plain Meaning Rule” where extrinsic evidence cannot be used to disturb the clear meaning of a will.

Modern Approach: Permits the use of extrinsic evidence;
- most courts that follow the modern approach require clear and convincing evidence.

Question 5

Incorporation By Reference

Answer 5

When a testator incorporates an extraneous document into the will by reference to it rather than writing something into the will.

Effect: Incorporated material is treated as if it were actually written out in full in the will.

Incorporated material does not need to be signed, have witnesses, or be written without influence

Question 6

Incorporation By Reference - Requirements

Answer 6

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; AND
• the document is sufficiently described in the will.

The language in the will must refer to the extrinsic document in a way that it is reasonably identified and the document must correspond to the description in the will.

Question 7

Tangible Person Property Document

Answer 7

Testator’s will may refer to written list to dispose of tangible personal property, even if list was not in existence at the time of will execution.

Applicable in many states and the UPC.

Question 8

Facts of Independent Significance

Answer 8

Something that has a legal reason for existing other than the disposition of property.

Examples: Gifts to “my spouse”; gifts to “all my children”; “the contents of my safe deposit box”.

Question 9

Conditional Wills

Answer 9

A will that provide that it is operative only if a certain event occurs or does not occur.

Courts tend to prefer construing wills as general rather than conditional.

A court might interpret what appears to be a condition as expressing a motive for making the will rather than making it a conditional will.

Parole evidence is NOT admissible to show that a will absolute on its face was intended to be condition.

Question 10

Republication by Codicil

Answer 10

Under this doctrine, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.

This means all facts regarding changes in circumstances are examined based on the date of the last codicil and not the date of will execution.

Proof of a codicil = proof of a will

A codicil can incorporate a defective will by reference.

Question 11

Pour over Provision

Answer 11

Provision in a will that leaves property in an inter vivos trust.

Trust can be created before or after testator excutes will as long as trust is there at time of testator’s death.

Trust does not need to be previously funded. The poured over property can be the initial funding for the trust.

Question 12

Internal Integration

Answer 12

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 person probating needs to make the will look like one unified document.

Integration can be shown by:
- physical attachment;
- internal coherence of pages;
- an orderly dispositional plan to raise a presumption that pages were present and intended to be part of the will when it was executed.

Proof of integration can be shown by witness testimony too.

Question 13

Joint Will

Answer 13

A single testamentary document containing the wills of two or more persons and intended to be the will of each.

Typically used in married couples.

Bad practice because, you can’t make any changes unless both parties want to make changes.

Probating when one person dies and if the other person is dead is difficult.

Question 14

Reciprocal or Mutual Wills

Answer 14

Separate wills executed by two or more testators that contain substantially similar provisions.

Ex: Husband’s will leaves entire estate to Wife and to kids if Wife is dead.

Wife’s will leaves entire estate to Husband and to kids if Husband is dead.

Question 15

Contractual Will

Answer 15

A will that is 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.

Common Law: Extrinsic evidence can establish contractual nature of the will.

Modern Law: Writing REQUIRED to prove that it is a contractual will. The writing needs to be an actual separate contract.

Joint execution does NOT create a presumption that the wills were executed pursuant to a promise by each party not to revoke.

Question 16

Contractual Will - Revocation

Answer 16

• Can be revoked by agreement of parties while both are alive
• Revoked by one person while both alive → Other person can change the will.

Question 17

Breach of Contract

Answer 17

• During T’s lifetime there is no remedy because T can comply with breach up until death.
• If T repudiates the contract after substantial performance by the promisee, the promisee may seek damages, quantum meruit, or equitable relief.
• If T dies in breach, the remedy is for the court to grant a constructive trust for the benefit of the promisee.

Question 18

Power of Appointment

Answer 18

An authority granted to a person, enabling that person (the donee) to designate, within prescribed limits, the persons who shall take property and the manner in which they take.

Power of appointment is OPTIONAL, and NOT A DUTY. The donee does not have to exercise the power.

The limits are prescribed by donor of power of appointment.

Question 19

Donee’s Powers

Answer 19

Absent a contrary provision, the donee can:

• appoint the property outright or in trust;
• create life estates and future interests;
• impose conditions and limitations on the interests created;
• create additional powers of appointment

Question 20

General Power of Appointment

Answer 20

Power exercisable in favor of anyone including the donee themselves, their estate, their creditors, or the creditors of their estate.

Question 21

Special Power of Appointment

Answer 21

A power exercisable in favor of a LIMITED class of appointees, which class DOES NOT include the donee, their estate, their creditors, or the creditors of their estate.

Question 22

Exercise of Power of Appointment

Answer 22

How powers of appointment are exercise is determined by the donor.

Presently Exercisable = One exercisable by the donee during their lifetime.

Testamentary Power = one that is exercisable only by the donee’s will.

Question 23

Appointive Assets

Answer 23

The donee does not own the appointive property, if the donee does not exercise their general power over the assets.

Creditors cannot (normally) reach the property over which the donee has power until the donee exercises power over the property.

If the donee of the general power is also the donor, the donee’s creditors can reach the appointive assets regardless of whether the donee exercises the power.

Question 24

Residuary Clauses and Exercise of Powers of Appointment

Answer 24

A residuary clause, by itself, does not exercise any power of appointment held by the testator.

Question 25

Residuary Clause & Power of Appointment: Minority Rule

Answer 25

In states with the UPC, a will’s residuary clause exercises a general (NOT special) power of appointment UNLESS:

(1) the donor’s will called for its exercise by a specific reference to the power, or
(2) the donor’s will provides for a gift in default of appointment.

Question 26

Blanket Residuary Clauses and Power of Appointment

Answer 26

Blanket Exercise of Power - a will that devises “all the rest and residue of my property, INCLUDING property over which I may have POWER OF APPOINTMENT”.

Blanket exercise of appointment will be given effect UNLESS the creator of the power called for the power’s exercise by an instrument that specifically referred to the power.

Question 27

Exercise by Implication

Answer 27

Courts will find that a power of appointment was exercised by implication when the donee purports to dispose of property subject to the power as though it were the donee’s own.

An exercise by implication can be found UNLESS the donor called for the power’s exercise by a specific reference to the power.