Wills - Construction Problems

Question 1

If a beneficiary named in a will predeceases the testator, absent an alternate disposition of the devise specified by the testator,

Answer 1

the devise lapses into the estate’s residue UNLESS the jurisdiction’s anti-lapse statute preserves the devise for the beneficiary’s descendants.

Question 2

Under an anti-lapse statute, devises will vest in the descendants of the predeceased beneficiary if the predeceased beneficiary:

Answer 2

Is a blood relative of the testator;

AND

Has descendant(s) who survive the testator.

Question 3

Residue of a Residue. CL v. modern view.

Answer 3

At common law, an invalidated residuary devise passed to the testator’s heirs through intestate succession.

Under the modern view, if the residue is devised to two or more persons, an invalidated residuary devise will pass to the other residuary beneficiaries rather than the testator’s heirs.

Question 4

Under the doctrine of ademption,

Answer 4

if the subject matter of a specific devise is NOT in the estate at the time of the testator’s death, the devise to the beneficiary adeems or fails (e.g., the testator leaves her diamond ring to her daughter in her will; however, before the testator dies she sells the ring to a pawn shop – the specific devise to her daughter adeems upon the testator’s death).

Question 5

At common law concerning ademption, the testator’s intentions were

Answer 5

irrelevant.

Question 6

In contract to CL, in most jurisdictions today, a specific devise will adeem

Answer 6

ONLY IF the testator intended the devise to fail.

Question 7

If the testator did not intend for a specific devise to fail, the beneficiary is entitled to:

Answer 7

Any property in the testator’s estate, which the testator acquired as a replacement for the specific devise;

OR

A monetary devise equal to the value of the specific devise.

Question 8

Generic Descriptions, how are they interpreted?

Answer 8

Any property described in generic terms is interpreted under the circumstances existing at the time of the testator’s death, rather than when the will is executed (e.g., a devise of “my car” is interpreted as a devise of the testator’s car at the time of death, not the testator’s car at the time of will execution).

Question 9

What are slayer statutes?

Answer 9

A person who feloniously and intentionally kills the decedent is barred from claiming a share of the decedent’s estate as either an heir or a beneficiary under the decedent’s will.

Generally, the decedent’s estate is distributed as if the killer had predeceased the decedent.

Question 10

A beneficiary under a will can

Answer 10

disclaim or renounce his interest under a testator’s will causing the disclaimed property to pass as if the disclaiming party predeceased the testator.

Question 11

A valid disclaimer must:

Answer 11

Be in writing and signed by the person making the disclaimer;

Describe the interest being disclaimed sufficiently;

AND

Be delivered or filed.

Question 12

Timing of disclaimers, CL v. some states v. UPC

Answer 12

Under the common law, a disclaimer must be made within a reasonable amount of time.

Some states require a disclaimer to be made within 9 months after the testator’s death.

Under the UPC, a disclaimer may be made at any time.

Question 13

Specific Devises.

Answer 13

A devise is specific if the subject matter of the devise is specific personal or real property (e.g., a devise of a specific diamond ring or parcel of land).

Question 14

General Devises.

Answer 14

A devise is general if it can be satisfied with any of the estate’s assets (e.g., a devise of a specific dollar amount is general, because it can be funded with cash or other property of equal value).

Question 15

Demonstrative Devises.

Answer 15

A devise is demonstrative if the testator makes a general devise AND specifies a specific source that the general devise should come from (e.g., a devise of a specific dollar amount that is payable from a designated bank account).

Question 16

What is abatement

Answer 16

Beneficiaries under wills are entitled only to the net value of estate assets.

The net value represents what remains of the decedent’s assets at death after the payments of debts, expenses, and taxes.

If there are more claims against an estate from creditors than there are assets to cover all of the devises made under the will, the devises abate.

Question 17

Who has priority to estate, creditors or benefic’s?

Answer 17

Creditors of the estate ALWAYS have priority to assets of the estate over beneficiaries.

Question 18

Absent provisions in the will, the testator’s property abates

Answer 18

…on a pro-rata basis in the following order to pay for debts, expenses, and taxes:

Property not disposed of by will (passing by intestacy)

Residuary devises

General devises

Specific devises

Question 19

Exoneration, CL v. today

Answer 19

At common law, a specific devise of encumbered real property was entitled to have the mortgage on the property paid from the estate as a debt of the decedent.

Today, a beneficiary of real property assumes the mortgage, regardless of a general directive in the will to pay debts.

Question 20

Most publicly traded corporations issue quarterly dividends to shareholders through cash payments. Shareholders may participate in dividend reinvestment programs that automatically reinvest the quarterly dividends into buying more shares of the corporation’s stock. Consequently, a testator can

Answer 20

accumulate a large amount of additional stock through dividends from the time of execution of the will until death.

Question 21

Under the common law (still followed in some states), a stock dividend constitutes

Answer 21

a property interest that is separate from shares of stock received through a specific devise.

Under this rule, the beneficiary of the underlying shares of stock does NOT receive the additional shares that were obtained through stock dividends.

Question 22

Under the majority view of stock dividends,

Answer 22

beneficiaries are entitled to additional shares owned by the testator that were acquired as a result of stock splits or dividends.

Question 23

A testator may devise property to

Answer 23

a class of individuals (e.g., “I leave $20,000 to be divided equally among all my children.”).

A class may increase or decrease in number until the testator’s death.

Question 24

If a member of the class predeceases the testator, her share is

Answer 24

split evenly among the remaining members of the class (i.e., it does NOT lapse into the residue).

Question 25

If there is a devise to a group of individuals, and at least one of those individuals predeceases the testator, then

Answer 25

…you must determine whether the group constitutes a class. If the group constitutes a class, the predeceased member’s share is split evenly among the remaining members of the class.

If the group does NOT constitute a class, the predeceased member’s share lapses into the residue.

For Example: Tom (the testator) leaves “$20,000 to be divided evenly among Ann, Beth, Chris, and Doug” under his will. Ann, Beth, Chris, and Doug are all Tom’s children. This provision can be interpreted as either:
A devise to a class (Tom’s children); OR
Four separate individual devises of $5,000.

*TEST TIP: BOTH interpretations have merit and should be discussed on an exam if any of the children predecease Tom. This finding will determine whether the predeceased beneficiary’s share is split among the remaining class members or lapses into the residue.

NOTE. A devise to a class member who qualifies under an anti-lapse statute would pass to her descendants.

Question 26

How is property distributed to children and issue?

Answer 26

Distribution. A testator may devise property to her “children” or “heirs” or “issue.”

Under these circumstances, a court will likely look to the jurisdiction’s intestacy statutes to determine how the devise should be distributed (e.g., per stirpes, per capita, etc.).

Question 27

A child that is intentionally omitted from a will is

Answer 27

NOT entitled to a share of the decedent’s estate. In most states, a general disinheritance clause is NOT sufficient to show intent to omit a child from the will.

Question 28

A pretermitted child is

Answer 28

a child who is unintentionally omitted from a will.

This commonly occurs when a child is born or adopted after the execution of a will, or is thought to be dead but is later found alive.

Pretermitted children are entitled to the share that they would have received had the testator died intestate so long as the testator did NOT intend to omit the child from his will (if the testator’s intent cannot be determined from his will, a court may evaluate extrinsic evidence to determine intent).

Question 29

Who is considered in “Children” as a Class at common law v today?

Answer 29

CL: only biological, full-blood children born in wedlock were included as members in the class.

Today (in most jurisdictions), adopted children, half-blood children, and children born out-of-wedlock are included in the class.

Question 30

Generally, conditions on devises that prohibit marriage are

Answer 30

VOID as against public policy.

Question 31

In most states, when the term “surviving” is used in a will,

Answer 31

…it requires the beneficiary to survive the date of distribution of the testator’s estate.

However, some states only require the beneficiary to outlive the testator.