Wills-Construing-DWB

Question 1

Extrinsic Evidence

Answer 1

CA: Extrinsic evidence is admissible to determine whether a document constitutes a will or to determine the meaning of a will or a portion of a will if the meaning is unclear.

Generally, extrinsic evidence is admissible to ascertain the validity of an instrument.

CL, CA, Maj: Under the Plain Meaning Rule, extrinsic evidence is inadmissible to help construe a will absent ambiguity.

Question 2

Plain Meaning Rule

Answer 2

The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear an their intended meaning can be ascertained.

Technical words are given their technical meaning unless 1) context clearly indicates contrary intention, or, 2) it satisfactorily appears that the instrument was drawn solely by the transferor and that the transferor was unacquanited with the technical sense.

Question 3

Latent Ambiguity

Answer 3

A latent ambiguity is an ambiguity which is not apparent from the face of an instrument.

At common law courts would admit extrinsic evidence both to extablish and help construe a latent ambiguity.

Courts will not, however, add words or rewrite the will.

If latent ambiguity cannot be resolved, gift fails.

Question 4

Patent Ambiguity

Answer 4

A patent ambiguity is an ambiguity apparent from the face of an instrument.

CL: Extrinsic evidence inadmissible.

CA: Extrinsic evidence is admissible to determine the meaning of a will or a portion of a will if the meaning is unclear.

Personal Usage Exception for nicknames.

Question 5

Latent Ambiguity

Equivocation

Answer 5

An equivocation is where the language in the will fits more than one object or person equally well.

The court will take extrensic evidence to determine which of the objects or people was the intended object or person.

Question 6

Latent Ambiguity

Misdescription

Answer 6

Misdescription arises where a description appears fine, but when applied, the described object or person almost, but not exactly, matches the description.

Courts will not add words or rewrite a will. They will admit extrinsic evidence to establish misdescription, strike the offending language, then see if the remaining description adequately describes the object or person so that it can be given effect.

Question 7

Scrivener’s Error

Answer 7

CA: Exstrinsic evidence admissible to correct scrivener’s error except error of omission. CA will not add provisions to a will.

Question 8

Gift Types

Answer 8

Specific Gift

General Gift

Residuary Gifts

Question 9

Specific Gifts

Answer 9

are gifts of specific items; such gifts can generally only be satisfied by the specific item identified.

Question 10

General Gifts

Demonstrative Gifts

Answer 10

are gifts of a general pecuniary value which can be satisfied by using any item that fits the description of the gift.

Usually money.

are general gifts from a specific source and should be treated as general gifts for construction.

Question 11

Residuary Gift

Answer 11

is a gift that gives away all the testator’s property that otherwise has not been given away.

Question 12

Ademption

Answer 12

Revocation of a specific gifty by inter vivos transfer of the item in question.

Common law, majority: irrebuttable presumption of revocation.

Identity approach: executor attempts to identify specific gifts; if unsuccessful, item is adeemed.

Modern Minority: involuntary transfer results in general gift equal to pecuniary value of specific gift.

Question 13

Outstanding Balance Doctrine

Answer 13

If item or gift is transferred and there is still an outstanding balance due the testator as a result of the transfer, then the beneficiary of the specific gift takes the outstnading balance in lieu of the specific item.

Used in CA

Question 14

Ademption

Conservator/Agent Exception

Answer 14

Where a specific gift is transferred by a conservator or agent with durable power of attorney, the intended beneficiary is entitled to a general pecuniary gift equal to the value of the gift.

Used in CA

Question 15

Judicial

Ademption Softening

Doctrines

Answer 15

• Incomplete disposal
• Characterization as general gift
• Change in form, not substance
• Construe at time of death
• Change in value

Soft, fact-sensitive, judicial doctrines, construed broadly or narrowly based on court’s disfavor or favor of ademption doctrine.

Question 16

Stock Gifts

Answer 16

CL: analyze whether general or specific gift.

Modern trend, CA: include shares gained as a result of ownership of original shares.

Question 17

Satisfaction

Answer 17

Same as advancement, but for wills, not intestate.

Only counts toward general gifts.

CL: If gift is of like kind, presumed satisfaction.

Modern, CA, UPC: presumed not satisfaction absent writing.

Question 18

Abatement

Answer 18

Where a testator gives away more than they have, the doctrine of abatement controls what happens.

General Approach, Majority: take from, in order: residuary, general, specific.

Minority: Same, but court may alter to effect teatator intent.

CA: intestate property, Residuary, general non-relative, general relative, specific non-relative, specific relative.

Question 19

Exoneration of Gifts

Answer 19

Under the Modern trend, the UPC, and California law, a specific gift passes the property transferred subject to any mortgage, deed of trust, or other lein existing at the date of death, without right of exoneration, regardless of a general directive to pay debts contained in the instrument. (CPC-21131)

At Common law, there was apresumption that beneficiaries were to take free and clear of any debt, at the cost of reducing residuary gifts.

Question 20

Survival Requirement

Lapse

Answer 20

In all jurisdictions, beneficiaries must survive testator, simultaneous death rule applies.

Where a beneficiary doesn not survive the testator or until such a time as required by the instrument, the gift lapses, i.e. fails.

Question 21

Failed Gift

Answer 21

Failed general and specific gifts go to residuary or in the absence thereof to intestacy.

Failed residuary gifts to intestacy.

Failed partial residuary gifts either: (CL) to intestacy, or (Modern, UPC, California) split porportionally between other beneficiaries.

Question 22

Anti Lapse Statute

Answer 22

The California anti-lapse statute applies to wills, trusts, and other will substitutes and provides, _absent express testator inten_t, for substitution of the issue of transferees to prevent lapse where transferees are ‘kindred’ of the testator or their surviving, deceased, or former spouse.

Most states have similar statutes; the required degree of kinship varies, most only apply to wills, and most do not apply to spouses.

Question 23

Class Gift Analysis

Answer 23

Factors to determine if a gift is a class gift:

1. beneficiary description (collectively(+) or individually(-))
2. gift description (aggregate(+) or separate shares(-))
3. taker common characteristic (+) shared with non-takers (-)
4. overall testamentary scheme (express right of survivorship elsewhere(-) or whether potential resulting alternate takers would be desirable to testator (y:-, n:+)