Wills Construction

Question 1

Extrinsic Evidence of Testator’s Intent - Majority, UPC, and Texas

Answer 1

1. Majority/Texas 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.
2. UPC - allows extrinsic evidence, even if will is unambiguous.

Question 2

Reformation for Mistake -

1. Majority
2. UPC
3. Texas

Answer 2

1. Majority (No Reformation) - no reformation for mistake.
   
   1. Ad Hoc Relief - some courts will use ad hoc forms of relief (e.g., doctrine of falsa demonstratio non nocet).
2. UPC - reformation allowed, even if unambiguous, to conform to the testator’s intent if c&c evidence of testator’s intent and mistake of law or fact.
3. Texas - only reformation to correct a scrivenor’s error, even if unambiguous, to conform to the testator’s intent.

Question 3

Types of Devises in a Will

Answer 3

1. Specific devise – A specific devise is a testamentary gift of a particularly described item of property. The devise can be satisfied only by distributing that property. (e.g., my home located at 55 Owen Drive)
   
   1. If specifically devised property is subject to a security interest, devisee takes subject to security interest.
2. General devise – A general devise is not a gift of a particular thing, and can be satisfied from the general assets of the estate instead of a particular fund or asset. (e.g., 300 to my sister Kate”).
3. Demonstrative devise – A demonstrative devise is a devise of a particular amount of money to be drawn from a specific probate asset or fund. (e.g., $5,000 to my brother Jim, which shall be satisfied from the sale of my Honda Civic).
   
   1. Asset Insufficient/Oversufficient to Discharge Devise –
   2. if asset sells for less than amount intended in devise, remainder comes from probate estate.
   3. If asset sells for more than amount intended in devise, excess devisee only takes amount specified.
4. Residuary Devise: A residuary devise is the “sweep up” clause in the will that distributes all of the property that has not been described as either a specific, general or demonstrative devise. It is usually the last dispositive clause in the will. Source: Melanie Leslie and Stewart Sterk, Trusts and Estates, 3rd 2016, p. 65-66

Question 4

Lapse -

1. Definition
2. Effect
3. Texas Rule

Answer 4

Definition - if a d_evisee does not survive the testator,_ the beneficiary disclaims the devise, or the transfer is void (e.g., ineligible taker such as a dog), the devise fails and is said to have lapsed.

Effect of Lapse on Different Devises

1. Specific or general - residue
2. Residuary -
   
   1. Majority/UPC/Texas - goes to other residuary beneficiaries, otherwise to intestacy.
   2. Minority/Common Law - goes straight to intestacy
   3. Class Gift - goes to surviving members of class unless antilapse statute in effect.

Question 5

Anti-Lapse -

1. Definition
2. Default Rules

Answer 5

Antilapse Statutes – antilapse statutes do not prevent a lapse, rather, they substitute other beneficiaries, usually the dead beneficiary’s descendants, if certain requirements are met.

Default Rules - Presumption that testator would prefer gift substitute to devisee’s descendants as opposed to lapse.

1. Words of Survivorship Exception – antilapse statute doesn’t apply if the testator expresses an intent that is contrary to the antilapse statute (e.g., “To A, but if A dies before me, to B”).
2. Scope – cutoff for who qualifies under antilapse varies by state (see UPC and Texas below).

Question 6

Anti-Lapse - UPC and Texas

Answer 6

1. If devisee is grandparent or lineal descendant of grandparent of testator and is dead at time of execution of will, fails to survive the testator, or is treated as if predeceased, the issue of the deceased devisee who survives the testator by 120 hours takes in place of the deceased devisee.
   
   1. Texas Rule is same except cutoff is devisee who is a descendant of the testator or a descendant of a testator’s parent.
2. If they are all of the same degree of kinship they take evenly, but if of unequal kinship, the more remote take by representation.
3. Anti-Lapse Applies to Class Gifts
   
   1. Texas - if meets criteria of class member and was alive when testator executed will.
   2. UPC - if meets criteria of class member

Question 7

Words of Survivorship - Majority/Texas and Minority/UPC

Answer 7

1. Majority/Texas Rule (Antilapse Off) - if the will has survivorship language (“To A if A survives me”) = antilapse statute off.
2. Minority and UPC Rule – survivorship language, without additional evidence does not turn off antilapse statute.

Question 8

Ademption -

1. Definition
2. Scope
3. Majority/UPC Rule
4. Minority/Texas Rule

Answer 8

1. Ademption - a specific devise of real or personal property is extinguished (taken away) when the property so devised is no longer in the testator’s estate.
2. Scope - ademption only applies to specific devises.
3. Majority/UPC Rule – Intent Theory of Ademption – if the specifically devised item is not in the testator’s estate, the beneficiary may nonetheless be entitled to the proceed or replacements, or cash value of the original item (if the beneficiary can show the testator didn’t intend ademption).
   
   1. Burden of Proof is on party opposing ademption.
4. Minority/Texas Rule – Identity Theory of Ademption – if a specifically devised item is not in the testator’s estate, the gift is extinguished.

Question 9

Ademption and Guardianships/POA’s

Answer 9

1. Durable Power of Attorney vs. Guardianship - courts differ on how to deal with estate property disposed of by a court-appointed guardian or attorney-in-fact under a POA.
   
   1. Issue - Court appointed guardian has court supervision but POA doesn’t and could dispose of property out of malice to one of the other beneficiaries.
2. Bierstedt Rule – the property is adeemed, regardless if disposed of by a guardian or attorney-in-fact, if:
   
   1. Testator knew the property was sold by the agent;
   2. Testator knew the effect such sale would have on the estate; and
   3. Testator had opportunity to revise the will but didn’t

Question 10

Stock Splits and Stock Dividends

Answer 10

1. Stock Splits - Majority Rule – absent evidence of contrary intent, devisee of stock is entitled to additional shares from stock split.
   
   1. merely a change in form (i.e. same proportionate amount).
2. Stock Dividends - UPC and Restatement - stock dividends are treated the same as stock splits: beneficiary gets them along with the other shares.

Question 11

Doctrine of Satisfaction

Answer 11

1. Doctrine of Satisfaction – if testator makes inter vivos transfer to devisee of property awarded to devisee under testator’s will, there’s a rebuttable presumption that the gift is in satisfaction of the devise made by the will.
   
   1. Only applies to general pecuniary bequests, not specific bequests. (specific bequests awarded during testator’s life are considered adeemed by extinction).
   2. Must be in Writing – UPC, Restatement, and several states (including Texas) require testator’s intent to adeem by satisfaction to be evidenced in writing.

Question 12

Exoneration of Liens

Answer 12

1. Majority and Texas Rule (TEC 255.301) – No Right to Exoneration - Except as provided by Section 255.302, a specific devise passes to the devisee subject to each debt secured by the property that exists on the date of the testator’s death, and the devisee is not entitled to exoneration from the testator’s estate for payment of the debt.
   
   1. Exception – TEC 255.302 – exoneration allowed if testator made specific request for exoneration in the will. But general provision in will that debts are to be paid from the estate is not specific enough.

Question 13

Abatement and Current Order of Abatement

Answer 13

Order Abatement - If creditor claims are substantial, or if testator’s assets have declined in value, there may be insufficient assets to satisfy all of the will provisions.

1. Current order of abatement of estate property (UPC and Common Law):
   
   1. 1st, Intestate estate, if any; (first to go)
   2. 2nd, Residuary devise;
   3. 3rd, General devises (pro rata);
   4. Demonstrative devises
   5. 4th, Specific devises. (last one to go)