Will Interpretation & Construction

Question 1

Basic rules of construction (6)

Answer 1

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

Question 2

Obvious ambiguity and extrinsic evidence

Answer 2

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

Question 3

Hidden ambiguity and extrinsic evidence

Answer 3

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

Question 4

No apparent ambiguity but mistake

Answer 4

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

Question 5

No apparent ambiguity but mistake - plain meaning rule

Answer 5

Traditional approach

Extrinsic evidence cannot be used to disturb the clear meaning of a will

Question 6

No apparent ambiguity but mistake - modern rule

Answer 6

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

Question 7

Incorporation by reference

Answer 7

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

Question 8

Requirements for incorporation by reference

Answer 8

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

Question 9

Incorporation by reference - document exist at execution

Answer 9

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

Question 10

Acts or facts of independent significance

Answer 10

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

Question 11

Conditional wilsl

Answer 11

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

Question 12

Codicil generally

Answer 12

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

Question 13

Doctrine of republication by codicil

Answer 13

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

Question 14

Alterations on the face of the will and effectiveness

Answer 14

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

Question 15

Codicil and validation of prior invalid will

Answer 15

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

Question 16

Properly executed coil and defectively executed will

Answer 16

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

Question 17

Pour over fist to inter vivos trust

Answer 17

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

Question 18

Pour over provision and Uniform Testamentary Additions to Trusts Act

Answer 18

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

Question 19

Integration

Answer 19

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

Question 20

Integration - presumption

Answer 20

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

Question 21

Joint wills

Answer 21

A joint will is a single instrument executed by two or more testators and intended to be the will of each

Highly unadvisable technique

Question 22

Reciprocal or mutual wills

Answer 22

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

Often called sweetheart wills

Question 23

Contractual wills generally

Answer 23

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

Question 24

Contractual wills and proof

Answer 24

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

Question 25

Joint and mutual wills - presumption of contractual obligation

Answer 25

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

Question 26

Contractual will and revocation

Answer 26

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

Question 27

Contractual will and breach of contract

Answer 27

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

Question 28

Contractual will and breach of contract not to revoke

Answer 28

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

Question 29

Powers of appointment

Answer 29

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

Question 30

General vs. special power of appointment

Answer 30

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

Question 31

Presently exercisable vs. testamentary power - power of appointment

Answer 31

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

Question 32

Spouse’s elective share and power of appointment

Answer 32

A surviving spouse’s elective share does not apply to property over which the deceased spouse held a power of appointment

Question 33

Appointive assets and creditors

Answer 33

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

Question 34

Residuary clause and exercise of testamentary power - modern view

Answer 34

In nearly every state, a residuary clause, by itself, does not exercise any power of appointment held by the testator

Question 35

Residuary clause and exercise of testamentary power - minority view

Answer 35

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

Question 36

Blanket exercise of appointment - residuary clause

Answer 36

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

Question 37

Exercise by implication

Answer 37

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

Question 38

Interests that can be created by power’s exercise

Answer 38

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