Will Interpretation and Construction

Question 1

Who Raises Interpretation and Construction Issues?

Answer 1

Interpretation and construction issues are typically raised by….

1) PERSONAL REPRESENTATIVE who wants to do the right thing and thus avoid liability for improper administration
2) BENEFICIARIES (or heirs) who would take under various interpretations

Question 2

Basic Construction Maxims

Answer 2

Some basic will Construction Maxims are…

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) the Will is CONSTRUED AS A WHOLE, not from isolated parts out of context.
4) Words are given ORDINARY and grammatical meaning unless clear from the will that the testator intended otherwise.
5) Technical words are given their TECHNICAL meaning unless it is clear from the will that the testator intended otherwise.
6) Attempt to GIVE EFFECT to ALL WORDS the testator included in the will.

Question 3

AMBIGUITY

What are the two types of ambiguity that can arise in a will and how are they treated?

Answer 3

Patent Ambiguity = OBVIOUS
Provision is ambiguous on its face, i.e., it fails to convey a sensible meaning

The court will consider the following type of extrinsic evidence to resolve the ambiguity:

(i) Facts and circumstances, and
(ii) Statements the testator made to the DRAFTING ATTORNEY

Note that evidence of the testator’s statements of intent to third parties is not admissible

Latent Ambiguity = HIDDEN
Provision conveys a sensible meaning on its face but cannot be carried out without further clarification

The court will consider the following type of extrinsic evidence to resolve the ambiguity:

(i) Facts and circumstances,
(ii) Evidence of the testator’s statements of intent to 3rd parties, and
(iii) Statements the testator made to the drafting attorney

Question 4

INCORPORATION BY REFERENCE

What is incorporation by reference and is it allowed in NY?

Answer 4

Incorporation by Reference = Instead of writing out something in the will, the testator attempts to incorporate the extraneous document into the will by reference.

NOTE: NOT VALID IN NY!!
New York DOES NOT recognize incorporation by reference except with respect to pour over trusts.

Question 5

ACTS OR FACTS OF INDEPENDENT SIGNIFICANCE

Answer 5

1) Definition:
Something outside of a will which has a legal purpose other than disposing of property at death.

2) Effect
If something is a fact of independent significance, then it need not be executed with the formalities of a will to transfer property at death.

However, the law may require certain items represented by title documents to be transferred in a particular manner such as real property, stock certificates, and bank accounts.

EXAMPLE:
Testatrix’s will provides, “I leave the contents of my safe deposit box Number 657 at New York State Bank to Tony Stark.” Even though Testatrix may change the contents of the box at any time after will execution, Tony WILL RECEIVE
the contents of the box even if Testatrix does not execute a new will after changing the contents because the safe deposit box is a fact of independent significance.

Question 6

CONDITIONAL WILLS

Answer 6

Definition = Will which operates only if a certain event occurs or does not occur

HOW HANDLED = The Court will construe a “conditional” wills as general, not conditional, if possible

example:
Testatrix’s will states, “I have just been diagnosed with cancer and therefore I am writing this will.” Testatrix dies in a car accident.
The COURT will say that the will IS NOT
conditional on dying from cancer; the diagnosis was a mere inducement to its formation.

BUT see this example:
Testatrix’s will states, “I have just been diagnosed with cancer and this will is to be effective if I die from this cancer.” Testatrix dies in a car accident.
The COURT WILL SAY THAT THE WILL IS CONDITIONAL on dying from cancer and thus is not effective

Question 7

COMBINATION WILLS

Answer 7

1. Joint Wills
   Single testamentary document containing the wills of two or more persons, typically a married couple.

Never use.

2. Reciprocal Wills
   Wills of two persons containing parallel dispositive provisions, often called
   SWEETHEART WILLS,
   e.g., Husband leaves all to Wife or to kids if Wife predeceases and visa versa.

3. Contractual Wills
   Will executed or not revoked as the consideration for a contract

Proof of Contract
An EXPRESS STATEMENT OF INTENT that the will’s provisions are intended to constitute a contract between the parties is required.

REVOCATION
A CONTRACTUAL JOINT WILL can be revoked by agreement between the parties while they are BOTH alive, BUT the deceased spouse’s estate cannot revoke a contractual will on behalf of the deceased spouse

BREACH OF CONTRACT
AN INJURED beneficiary may sue to impose a CONSTRUCTIVE TRUST on the property they should have received under the contract