Wills: Construction Flashcards
Mistaken or Ambiguous Language: Plain Meaning Rule
(a.k.a No Extrinsic Evidence Rule)
MAJORITY RULE
Extrinsic evidence may be admitted to resolve certain ambiguities, but the plain meaning of the words of a will cannot be disturbed by evidence that the testator intended another meaning
Mistaken or Ambiguous Language: No Reformation Rule
MAJORITY RULE
Courts may not reform a will to correct a mistaken term to reflect what the testator intended the will to say
Four Types of Mistakes
1) Mistake in execution: Testator has the intent to make a will, and mistakenly believed he complied with the formalities, when, in reality, he did not.
2) Mistake in inducement: A mistaken belief induced the testator to make or change his will.
3) Mistake regarding living children: Testator was unaware a child of theirs was alive or was ever born.
4) Mistake with respect to description of terms in a will: The will mistakenly or ambiguously describes terms
Decedent’s Mistake as to Existence of Child
If the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the birth of the child, the child shall receive:
A share in the estate equal in value to that which
the child would have received if the decedent had
died without having executed any testamentary
instruments.
Mistake in the Description of Will’s Terms
General Rule (“Plain Meaning Rule”):
When the words of a will are clear and understandable, extrinsic evidence is NOT admissible to show or explain the testator’s meaning or to show that he or she actually intended to describe a different person or piece of property.
However, extrinsic evidence is admissible to determine whether a document constitutes a will (attested or holographic), or to determine the meaning of a will or a portion of a will if the meaning is unclear.
Conditional Wills
Conditional Will: A will that is made expressly conditional upon the happening of a certain event. If the condition does not occur, then the will does not go into effect.
Condition Affecting the Entire Will: Entire will stands or fails based on whether the Testator intended for the condition to be binding.
Condition Attached to a Specific Gift: A specific gift within a will stands or fails based on whether a condition set forth in the will is satisfied
HYPO:
Will states: “I am going to hospital for heart bypass surgery. I am afraid I may die due to the surgery, and thus I am drafting this as my last will and testament. I hereby leave everything to my brother.” Testator dies 5 years later. Is this a conditional will?
T’s death from bypass surgery is not a condition affecting the entire will.
Even though T made will because he feared dying, T does not say the will is effective only if the condition (of his dying from bypass surgery) occurs, just a motive for drafting the will
HYPO: Will states: “This will is effective only if I die due to injuries suffered in an airplane accident.” Testator dies in car accident. Is this a conditional will?
This is a condition affecting the entire will, and the will is ineffective because T specifically said that the will is effective only if the condition of him dying
from an airplane accident is met.
Since that condition was not met here (T died in a car accident), there was no testamentary intent, and the will is ineffective.
Conditions attached to a specific gift
1) If the condition is met, the will goes into effect.
2) If the condition is NOT met:
a) The gift goes into effect if the condition was just a motive for drafting the gift in the will (meaning the Testator did not intend for the language to constitute a condition)
b) The gift fails for lack of testamentary intent if the Testator intended for the language to be a binding condition.
HYPO:
Will states: “This is my last will and testament. If I die on this trip to Africa, I leave $25k to my girlfriend. The remainder of my estate goes to my brother.” T died two years after the trip of heart attack. What result?
Will is effective because the entire will is not conditional (first sentence contains no conditions). Condition attaches to gift of $25k to girlfriend. Because T did not die on his trip to Africa, the condition was not met > that gift fails.
Reading rest of will, brother gets entire estate
Death of Beneficiaries before T’s Death
Common Law: All gifts made by will are subject to the condition that the devisee survive the testator, unless the testator specifies otherwise.
If a devisee does not survive the testator, the devise fails, and is said to have “lapsed”
However, anti-lapse statutes (active in nearly all states) substitute in another beneficiary if certain conditions
are met.
4 Types of Gifts
SPECIFIC GIFT: A gift of a particular item of property distinct from all other objects in the estate.
- Recognize by words of possession (“my ___”) or identification (e.g., stock certificate #12345 of 50 IBM shares to Mary)
- Can be any type of asset.
GENERAL GIFT: a gift of general economic benefit payable out of the estate’s general assets.
- Usually a cash gift (“$100,000 to X”).
DEMONSTRATIVE GIFT:
Type of general gift that is payable first from a particular item of property, & then if insufficient, from the estate’s
general assets.
- Ex: “$10,000 to Luigi, to be taken from 10 shares of IBM stock.”
- Executor sells the 10 shares of IBM stock first, if insufficient to reach $10k > gift is then satisfied through general assets.
RESIDUAL GIFT:
The remainder of estate assets after paying specific gifts, general gifts, debts, expenses & taxes.
- Ex. “all of my estate”.
Gift Priority
When distributing the assets of the estate:
1. Specific gifts must be satisfied first;
- Demonstrative gifts are satisfied second;
- General gifts are satisfied third; and then
- Residual gifts are distributed among beneficiaries after satisfying the testator’s debts, expenses, costs of administration and taxes.
CA Anti Lapse Statute
In the case of a deceased transferee, it goes to their issues UNLESS the testamentary instrument expresses a contrary intention or a substitute disposition.
(Contrary intention can be a requirement that the transferee survive until a future time that is related to the probate of the transferor’s will)
Who is a “Transferee” under the Anti-Lapse Statute
“transferee” means a person who is a blood relative of the transferor or blood relative of a surviving, deceased, or former spouse of the transferor.
