Will Interpretation & Construction Flashcards
Basic rules of construction (6)
When there is no evidence of the testator’s intent, courts resort to the following rules of construction:
Testator leaving a will, especially if residuary clause, indicates an intent not to die intestate
- construe in favor that avoids intestacy
Two or more contradictory provisions, last one prevails
Construed as a whole, not from isolated parts out of context
Words are given their ordinary and grammatical meaning unless clear from the will that intended it otherwise
Technical words are given their technical meaning unless intended otherwise
Give effect to all words
Obvious ambiguity and extrinsic evidence
A patent ambiguity exists if a provision is ambiguous on its face - fails to convey a sensible meaning
Traditional view is that extrinsic evidence is not admissible to correct a patent ambiguity
- but modern view is that extrinsic evidence is admissible but cannot be used to fill in blank spaces or supply omitted gifts
Hidden ambiguity and extrinsic evidence
A latent ambiguity 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
No apparent ambiguity but mistake
The 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
Plain meaning rule and modern rule
No apparent ambiguity but mistake - plain meaning rule
Traditional approach
Extrinsic evidence cannot be used to disturb the clear meaning of a will
No apparent ambiguity but mistake - modern rule
Other jurisdictions adopt a more liberal rule that permits the use of extrinsic evidence
- evidence is significant and assists court to carry out the testator’s intent
Incorporation by reference
Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference
The incorporated material is treated as if it were actually written out in full in the will
- does not matter that the document lacked witnesses, was not signed, etc
Requirements for incorporation by reference
A document may be incorporated by reference into a will, if
- 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
Language of the will must refer to the extrinsic document in such a way that it may be reasonably identified and the document itself must correspond to the description in the will
Incorporation by reference - document exist at execution
Many states and the UPC have carved out an exception to the requirement that the document exist at execution
Permit a testator to refer in their will to a list specifying the distribution of items of tangible personal property and to write or alter that list after executing the will
Acts or facts of independent significance
An act or fact of independent significance is something outside of a will which has a purpose other than disposing of property at death
A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will
But may require certain items represented by title documents to be transferred in a particular manner
Acts of third persons and of the testator can be used under this doctrine
Conditional wilsl
Operative only if a certain event occurs or does not occur
Will construe wills as general, not conditional, if possible
If express the motive for making the will, will give effect even if the condition not met
Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional
Codicil generally
Modifies a previously executed will and must itself be executed with the same formalities
Doctrine of republication by codicil
The will and codicil are treated as one instrument speaking from the date of the last codicil’s execution
Important for purposes like determining whether a child was born after the will’s execution for purposes of the pretermitted child statute
Alterations on the face of the will and effectiveness
For questions involving alterations on the face of the will, any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective to change the will
Unless the will is re-executed with proper formalities
Codicil and validation of prior invalid will
A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference
- and thus validating the will
An invalid will technically cannot be republished
- so even if republish is used in the codicil, the defective will is instead impliedly incorporated by reference
Properly executed coil and defectively executed will
Although a properly executed codicil can validate a defectively executed will, for the validation to occur just by virtue of the execution of the codicil, there is an enhanced chance of validation if the original document was intended to be a will
Pour over fist to inter vivos trust
Pour over provision is a provision in a will making a gift to an inter vivos trust
Trust may be created before or after the testator executes the will
Property will be governed by all trust amendments, even those made after the testator executed the will or dies
If trust is revoked, the gift fails
Trust does not have to be funded prior to the testator’s death
Pour over provision and Uniform Testamentary Additions to Trusts Act
Most states have adopted the uniform testamentary additions to trusts act
- permits a testator to make a gift to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of the will
Integration
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
Integration - presumption
Physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed
Proof of integration can also be provided by testimony or other extrinsic evidence
Joint wills
A joint will is a single instrument executed by two or more testators and intended to be the will of each
Highly unadvisable technique
Reciprocal or mutual wills
Separate wills executed by two or more testators that contain substantially similar provisions
Often called sweetheart wills
Contractual wills generally
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
Contract law, not wills law, governs these issues
Contractual wills and proof
Contract law governs
Consideration is required
At common law, all relevant extrinsic evidence was admissible to prove the existence of the contract
Modern law requires a writing and many states have enacted statutes requiring that these contracts be in writing or be specially mentioned in the will
Joint and mutual wills - presumption of contractual obligation
The mere execution of joint wills or mutual wills does not raise a presumption that the wills were executed pursuant to a promise by each party not to revoke
Contractual will and revocation
A contractual will can be revoked by agreement between the parties while they are both alive
Contract becomes irrevocable upon the first testator’s death
Contractual will and breach of contract
Generally, no remedy during the lifetime because the testator can comply up until death
If the testator repudiates the contract after substantial performance by the promisee, the promisee may seek damages
If testator dies in breach, usual remedy is for the court to grant a constructive trust for the benefit of the promisee
Contractual will and breach of contract not to revoke
There is no remedy for breach of contract not to revoke unless the first party dies in reliance on the contract
Thus, a constructive trust will be granted in favor of the beneficiaries of the contractual wills only if the survivor disposes of the property in breach of the agreement after the first party dies in compliance with the agreement
Powers of appointment
Power of appointment is an authority granted to a person, enabling that person (donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it
Owner of the property transfers to the donee the power to appoint the new owner
General vs. special power of appointment
General - power exercisable in favor of anyone including the donee themself, their estate, their creditors, or the creditors of their estate
Special - 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
Presently exercisable vs. testamentary power - power of appointment
A presently exercisable power of appointment is one exercisable by the donee during their lifetime
A testamentary power is one that is exercisable only by the donee’s will
Spouse’s elective share and power of appointment
A surviving spouse’s elective share does not apply to property over which the deceased spouse held a power of appointment
Appointive assets and creditors
Under theory that donee does not own the appointive property, if the donee does not exercise their general power, the donee’s creditors cannot reach the property
But if the donee exercises the power, even if appoints it to another person, the donee’s creditors can reach the appointive property as if the donee were the owner
If the donee of a general power is also the donor, the donee’s creditors can reach the appointive assets regardless of whether the donee exercises the power
Residuary clause and exercise of testamentary power - modern view
In nearly every state, a residuary clause, by itself, does not exercise any power of appointment held by the testator
Residuary clause and exercise of testamentary power - minority view
In states that have enacted the Revised Uniform Probate Code, a will’s residuary clause exercises a general (but not special) power of appointment unless
- the donor’s will called for its exercise by a specific reference to the power, or
- the donor’s will provides for a gift in default of appointment
Blanket exercise of appointment - residuary clause
If a person holding a testamentary power executes a will that devises “all the rest and residue of my property, including any property over which I may have a power of appointment”
This blanket exercise of any power 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
Exercise by implication
The 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
- meaning that the disposition can be given effect only if it is treated as an exercise of the power
An exercise by implication can be found unless the donor called for the power’s exercise by a specific reference to the power
Interests that can be created by power’s exercise
Absent a contrary provision in the instrument creating the power, the donee can
- appoint the property outright or in trust (and can include spendthrift provisions in the trust)
- create life estates and future interests
- impose conditions and limitations on the interests created, and
- create additional powers of appointment
