Wills: Construction Flashcards
Traditional Rules
○ 4 Corners of the Document
○ Plain Meaning
○ No Reformation
Mistake: Types
○ Mistake as to Instrument (did not know it was a will)
○ Mistake in Inducement
○ Mistake in Contents
○ Reformation
Mistake as to Instrument
Extrinsic evidence admissible
Mistake in Inducement
No relief unless mistake appears on face of will
Mistake in Contents
○ No relief for mistaken
omission
○ Evidence not admitted to
contradict plain meaning
○ Latent ambiguity (ambiguous
as applied) - evidence
admissible
○ Patent ambiguity (on face of
will) - gift fails under
traditional view, but modern
view allows evidence of intent
Reformation
UPC and Restatement permit court to reform will terms (even if will unambiguous) to conform to testator’s intent if clear and convincing evidence that testator’s intent or will terms were affected by fraud or mistake
Interpreting Ambiguous Will Provisions
○ Evidence of surrounding
circumstances permitted
- Testimony Regarding
Surrounding
Circumstances Permitted
□ Declarations of
Testator NOT
Admissible (exception:
equivocation)
- Intent as of Time of
Execution
- Note: If will IS clear -
Extrinsic Evidence
Inadmissible
Testator’s declarations
inadmissible
Interpreting Ambiguous Will Provisions: Rules of Construction
○ Favor intestate heirs
○ Favor construction avoiding
intestacy
○ Favor construction consistent
with perceived plan
○ Every portion of will given
effect if possible
Between completely
inconsistent provisions, one
most recently added is
favored
Anti-Lapse Statutes
○ Lapsed gift is saved by statute if
predeceasing beneficiary within
specified degree of relationship to the
testator and left surviving
descendants
- UPC: saves gift if
predeceasing beneficiary
is testator’s stepchild,
grandparent, or a
descendant of grandparent
○ Statute usually applies only
to wills, but UPC applies it to
trusts, life insurance, etc.
○ Does not apply if contrary will
provision
- Most states: words of
survivorship constitute
contrary provision
- UPC: words of
survivorship are not
enough to negate
application of anti-lapse
statute
Ademption - Property Not In Estate
○ Gift fails
○ Applies only to specific
devises and bequests
○ Bequest of securities is
general bequest (no
ademption) unless “my” is
used
○ Ademption may be partial
○ Testator’s intent is irrelevant
○ Exceptions
- Insurance proceeds and
condemnation awards paid
after death
- Property subject to
executory contract
(testator’s rights pass)
- Securities owned as a
result of merger,
consolidation, etc.
- Property sold by guardian
Increases to Property After Execution of the Will (Accretions)
○ Increases before testator’s
death: income goes to
general estate, but
improvements to real
property go to devisee
○ Increases after testator’s
death pass to specific
beneficiary
○ Specific bequests include
stock splits and stock
dividends
Abatement
○ When assets insufficient, gifts reduced
in this order:
- Property passing by intestacy
- Residue
- General legacies (pro rata)
○ Specific devises and bequests
