Wills II (Construction, Property Disposition, Lapse, Beneficiaries)

Question 1

In probate court, extrinsic evidence is NOT admissible to:

A. Validate a will
B. Add a provision
C. Correct an erroneous description
D. Interpret an ambiguity
E. None of the above

Answer 1

B. Add a provision

In probate court, extrinsic evidence is admissible to validate a will, correct an erroneous description, and interpret an ambiguity.

However, extrinsic evidence is not admissible to add a provision to a will. Thus, answer B is correct.

Question 2

A no contest clause is unenforceable if clear and convincing evidence supports contestation of the will.

T/F

Answer 2

False.

Remember that a no contest clause is unenforceable if probable cause exists for contestation of the will.

Question 3

Abigail executes a will containing the following provision: “I leave three-fourths of my estate to John Q. Adams, who lives at 123 Pennsylvania Avenue.” When Abigail dies, John Q. Adams, who currently lives at 123 Pennsylvania Avenue, attempts to collect three-fourths of her estate. However, a man named John P. Adams argues that he is Abigail’s closest friend and the intended beneficiary.

Is extrinsic evidence admissible to support John P. Adams’ argument?

A. No
B. Yes, because of a scrivener’s error
C. Yes, because the description may be erroneous
D. Yes, because John P. Adams is not adding a provision
E. Yes, but only if John P. Adams used to live at the address

Answer 3

C. Yes, because the description may be erroneous.

Remember that extrinsic evidence is admissible to correct an erroneous description in the will.

Here, Abigail may have erroneously described her intended beneficiary and his address, so extrinsic evidence is admissible to support John P. Adams’ argument and correct the will. Thus, answer C is correct.

Question 4

Abigail executes a will containing the following provision: “I leave three-fourths of my estate to John Q. Adams, who lives at 123 Pennsylvania Avenue.” When Abigail dies, John Q. Adams, who currently lives at 123 Pennsylvania Avenue, attempts to collect three-fourths of her estate. However, a man named John P. Adams argues that he is Abigail’s closest friend and the intended beneficiary.

Abigail’s will also contains the following provision: “I leave the remainder of my estate to _______.” Another will contestant, George, argues that Abigail intended to place his name into the blank.

A. Abigail’s will is unenforceable.
B. George is barred from taking a portion of Abigail’s estate.
C. Extrinsic evidence is admissible to support George’s argument.
D. Extrinsic evidence is inadmissible to support George’s argument.
E. None of the above

Answer 4

D. Extrinsic evidence is inadmissible to support George’s argument.

Remember that extrinsic evidence is inadmissible to interpret or correct a will but not to add a term or provision.

Here, George’s addition of his name into the blank would add a term rather than merely interpreting an ambiguity or correcting an error, so extrinsic evidence is inadmissible to support his argument. Thus, answer D is correct.

Question 5

Two days before his wedding, Jacob executes a will, leaving his estate to Jessica, his fiancée and future wife. Years later, Jacob reviews his will with Alexander, his attorney, who assures him that his will validly devises his estate to Jessica. Based on Alexander’s assurance, Jacob does not republish his will by codicil. However, when Jacob dies, Jessica learns that his will is invalid. Under a local statute, marriage revokes any previous will not containing a provision for that marriage. In probate court, Jessica offers testimony from witnesses who were present at the execution of Jacob’s will and observed his intent for the will to be valid.

Should the probate court admit the witness testimony?

A. No
B. Yes, to interpret Jacob’s will
C. Yes, to prove that Jacob’s will is valid
D. Yes, to correct a scrivener’s error
E. None of the above

Answer 5

D. Yes, to correct a scrivener’s error.

Remember that extrinsic evidence is admissible to establish and correct a scrivener’s error that affected a testator’s will.

Here, Jacob’s will was affected by Alexander’s scrivener’s error, which affected his will by leading him to believe that it was valid rather than invalid. As a result, extrinsic evidence in the form of witness testimony is admissible to establish and correct the scrivener’s error by showing that Jacob did not intend for his will to be invalid and wanted to leave his estate to Jessica. Thus, answer D is correct.

Question 6

A testator’s property should be abated in the following order:

A. General, residuary, intestate, specific
B. Intestate, residuary, general, specific
C. Residuary, general, specific, intestate
D. Specific, general, residuary, intestate
E. None of the above

Answer 6

B. Intestate, residuary, general, specific

Remember that abatement occurs when a testator gives away more property than he has in his estate. The property is reduced in the following order: intestate property, residuary of the estate, general devises, and specific devises.

Question 7

A beneficiary does not have a right to the exoneration of liens when receiving a testamentary gift.

T/F

Answer 7

True

Remember that a beneficiary does not have a right to the exoneration of liens on a testamentary gift.

Unless the testator specifies otherwise, the gift passes subject to any liens. See id. §§ 2-601, 2-607. The above statement is, therefore, true.

Question 8

Darla executes a will, leaving $50,000 to Ernest, her house to Fritz, and the remainder of her estate to Greg. In her will, Darla provides that all liens should be paid by her estate before disposing of any property.

What should each beneficiary receive if Darla’s estate consists of $50,000 and a house worth $200,000 that is subject to a lien of $20,000?

A. $50,000 to Ernest; the house to Fritz
B. $30,000 to Ernest; the house to Fritz
C. $30,000 to Ernest; the house and $20,000 to Fritz
D. $30,000 to Ernest; the house to Fritz; $20,000 to Greg
E. None of the above

Answer 8

C. $30,000 to Ernest; the house to Fritz

Remember that the doctrine of abatement applies when the testator gives away more property than she has in her estate. The gifts are reduced in the following order: intestate property, residuary of the estate, general devises, and specific devises. Also, a specific gift passes subject to a lien unless the testator indicates otherwise.

Here, Darla has indicated that the lien on her house ($20,000) should be paid by her estate ($50,000), leaving only $30,000 available for property disposition. The specific devise of the house is abated third and last, so Fritz receives the house. The general devise of $50,000 is abated second, so Ernest receives the remaining $30,000. The residuary of the estate is abated first, so Greg receives nothing. Thus, answer B is correct.

Question 9

Zachary executes a will, leaving 250 acres of land to Anne, $25,000 to Beth, and the remainder of his estate to a charity. Several months later, he gifts 50 acres of land to Anne and $50,000 to Beth. He also republishes his will by codicil to provide that the land given to Anne is a partial satisfaction of his bequest.

What should each beneficiary receive if Zachary’s estate consists of 250 acres of land and $50,000?

A. 200 acres to Anne
B. 250 acres to Anne
C. 200 acres to Anne; $25,000 to Beth
D. 250 acres to Anne; $25,000 to Beth
E. None of the above

Answer 9

C. 200 acres to Anne; $25,000 to Beth

Under ademption by satisfaction, an inter vivos gifts satisfies a bequest if the testator provided for the deduction of the gift in his will.

Here, Zachary republished by codicil to provide for the deduction of Anne’s gift in his will. Anne’s 250 acres are deducted by the inter vivos gift of 50 acres, so she should only receive 200 acres. Beth’s $25,000, on the other hand, is not deducted at all. Thus, answer C is correct.

Question 10

Mickey’s will makes the following bequests: his houseboat, the S.S. Mouse, to his wife Minnie; his 10 acres of land in California to his nephew Morty; his 1984 pickup truck to his cousin Madeline; and the remainder of his estate to his sister Amelia. Mickey is killed in a car accident that destroys his pickup truck, which was worth $20,000. His estate consists of the S.S. Rat, which he purchased to replace the S.S. Mouse after it sank, and $100,000, half of which is from the sale of his land in California.

Assuming that Mickey did not intend for ademption of any of his gifts, what should each beneficiary receive from his estate?

A. S.S. Rat and $150,000 to Amelia
B. S.S. Rat to Minnie; $50,000 to Morty; $100,000 to Amelia
C. S.S. Rat to Minnie; $20,000 to Madeline; $130,000 to Amelia
D. S.S. Rat to Minnie; $50,000 to Morty; $20,000 to Madeline; $30,000 to Amelia
E. None of the above

Answer 10

D. S.S. Rat to Minnie; $50,000 to Morty; $20,000 to Madeline; $30,000 to Amelia

Remember that ademption by extinction may apply when the testator makes a specific gift that is no longer in his estate at the time of his death.

However, the beneficiary has a right to any replacement property or outstanding balance from the loss or sale of the gift.

If neither of these is available, then the beneficiary may receive the value of the gift if ademption was not intended.

Here, several of Mickey’s gifts are not in his estate at the time of his death, but Mickey did not intend for ademption. Minnie should receive the S.S. Rat, which was a replacement for the S.S. Mouse. Morty should receive $50,000, the value of the 10 acres of land. Madeline should receive $20,000, the value of the pickup truck. Finally, Amelia should receive the remainder of the estate, which is $30,000. Thus, answer D is correct.

Question 11

A gift lapses when the beneficiary is not alive at the time of the testator’s death.

T/F

Answer 11

False

A gift lapses and fails when the beneficiary fails to survive the testator by 120 hours, or 5 days.

Thus, a gift may lapse even when the beneficiary is alive at the time of the testator’s death.

Question 12

Which of the following beneficiaries may NOT take a lapsing gift?

A. Testator’s daughter
B. Testator’s grandparent
C. Testator’s great-grandparent
D. Testator’s stepchild
E. None of the above

Answer 12

C. Testator’s great-grandparent

Remember that anti-lapse only applies to certain beneficiaries who are related to the testator: grandparents, grandparent’s descendants, and stepchildren.

A great-grandparent does not fall into any of these categories and may not take a lapsing gift. Thus, answer C is correct.

Question 13

In his will, Thor bequeaths his collection of hammers to his brother Loki and the remainder of his estate to his wife Jane. However, Thor and Loki die simultaneously. Loki is survived by a wife and several daughters.

Who should receive Thor’s collection of hammers?

A. Jane
B. Loki’s wife
C. Loki’s daughters
D. Loki’s intestate heirs
E. None of the above

Answer 13

C. Loki’s daughters

Remember that anti-lapse applies when a beneficiary fails to survive the testator. If the beneficiary is the testator’s brother, then the beneficiary’s surviving descendants may take the individual gift if no alternative beneficiary has been named by the will.

Here, Loki has failed to survive his brother Thor. Without an alternative beneficiary, Loki’s surviving descendants, his daughters, should receive Thor’s collection of hammers. Thus, answer C is correct.

Question 14

Andrew’s will contains the following provision: “I leave $1 million to my daughter Amy, if she is living at my death; if not, then to my son Adam.” Subsequently, all three die simultaneously in a tragic plane crash. Andrew is survived by his wife Bridget and their other daughter Bonnie; Amy is survived by her husband Chris and their daughter Cassie; and Adam is survived by his wife Denise and their daughter Debbie.

Who should receive the $1 million?

A. Bridget
B. Bonnie
C. Chris
D. Cassie
E. Debbie

Answer 14

D. Cassie

Remember that anti-lapse prevents a gift from lapsing when a beneficiary fails to survive the testator.

An alternative beneficiary receives the gift if entitled to do so; however, if = the alternative beneficiary is also deceased, the surviving descendants of the primary beneficiary receives the gift.

Here, Andrew’s gift of $1 million is in danger of lapsing. Both Amy, the primary beneficiary, as well as Adam, the alternative beneficiary, are deceased. Under anti-lapse, the primary beneficiary’s surviving descendant, Amy’s daughter Cassie, may receive of the gift of $1 million. Thus, answer D is correct.

Question 15

Charlie’s will contains the following provision: “I bequeath $40 million to my children in equal portions, but if none of my children have survived me, then to my grandchildren in equal portions.” When Charlie dies, four of his children have survived him, while his fifth child, Peggy, is deceased. The four surviving children have a total of nine of Charlie’s grandchildren, while Peggy had one of Charlie’s grandchildren, Lucy.

How should Charlie’s gift of $40 million be distributed to his four children and ten grandchildren?

A. $4 million to each grandchild
B. $8 million to each child and Lucy
C. $10 million to each child
D. $40 million to Lucy
E. None of the above

Answer 15

B. $8 million to each child and Lucy

Remember that anti-lapse applies to a class gift when a member of the class fails to survive the testator.

• If the member of the class is the testator’s child, then the child’s surviving descendant may take the child’s share of the class gift.
• An alternative class supersedes to take the class gift only if entitled to do so.

Here, Charlie has made a class gift to his children. His grandchildren are not entitled to take the class gift, because several of his children have survived. However, Peggy, a member of the class, has failed to survive Charlie, so her surviving descendant, Lucy, may take Peggy’s share of the class gift. Charlie’s gift of $40 million should be divided into five equal portions of $8 million for each child, with Lucy taking Peggy’s share. Thus, answer B is correct.

Question 16

A daughter is not entitled to a share of the testator’s estate if she was adopted after the testator executed a will to leave the estate to another relative.

T/F

Answer 16

False

Remember that the omitted child doctrine applies when a child is born or adopted after the testator executes a will.

Under this doctrine, an adopted child is entitled to a share of the estate if she was adopted after the testator executed a will, even if the will leaves the estate to another relative.

Question 17

A testator executes a will during his marriage to his first wife, devising one half of his estate to his son, and the other half to his first wife. The son is both the testator’s and the first wife’s only child. The son was born during the first marriage. Later, the testator divorces the first wife and marries a second wife, by which he has no children. However, the testator does not revise his will before he dies. The law of the relevant jurisdiction provides that the surviving spouse’s share of the decedent’s intestate estate is one half.

How should the testator’s estate be distributed?

A. One half to the first wife, at least one fourth to the second wife.
B. One half to the first wife, one half to the son.
C. One half to the son, at least one fourth to the second wife.
D. One fourth to the second wife, one fourth to the first wife, and one half to the son.
E. One half to the second wife, one fourth to the first wife, and one fourth to the son.

Answer 17

C. One half to the son, at least one fourth to the second wife.

Generally, in most states, if a testator divorces from a spouse, then any provision in the testator’s will leaving a gift to the former spouse is revoked by operation of law.

Here, the testator’s will initially provided that one half the estate would go to the first wife. However, the testator divorced the first wife and married the second wife before his death, which means that the provision in the will that left one half of the estate to the first wife was revoked by operation of law. Moreover, the usual rule is that, if the surviving spouse married the testator after the execution of the will, the surviving spouse gets an intestate share of the portion of the estate that is not left to certain specified descendants of the testator.

One such specified descendant is a child of the testator, who was born before the testator’s marriage to the surviving spouse, and who is not also a child of the surviving spouse.

Here, the son of the testator was born before the testator married the second wife, the surviving spouse, and he is not a child of the second wife. Thus, the son gets his one-half share as specified in the will. The second wife and surviving spouse, being generally entitled to a one-half intestate share under applicable law, therefore gets at least one half of the half of the estate that did not go to the son, or at least one fourth of the total estate. Thus, answer C is the best answer. The other answer choices are incorrect, because each has some percentage of the estate going to the first wife, when the gift to her was revoked by operation of law, meaning that she gets nothing.

Question 18

A testator executes a will during his marriage to his first wife, devising one half of his estate to his son, and the other half to his first wife. The son is both the testator’s and the first wife’s only child. The son was born during the first marriage. Later, the testator divorces the first wife and marries a second wife, by which he has no children. However, the testator does not revise his will before he dies. The law of the relevant jurisdiction provides that the surviving spouse’s share of the decedent’s intestate estate is one half.

Same facts as the previous question. Which of the following additional facts, if proven, would support an argument that the second wife should receive nothing?

A. The testator transferred one half of his entire net worth to the second wife before he died, and he told both the second wife and his attorney that this transfer was to be in lieu of any testamentary disposition.
B. The testator told his attorney that the second wife should not receive anything after his death.
C. The testator’s will makes no mention of future spouses.

Answer 18

A.

The usual rule is that, if the surviving spouse married the testator after the execution of the will, the surviving spouse gets an intestate share of the portion of the estate that is not left to certain specified descendants of the testator (the omitted spouse doctrine). However, there are exceptions to the omitted spouse doctrine. One exception applies where “the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.”

In answer A, the testator transferred one half of his entire net worth to the second wife before he died. The sheer size of that transfer seems to give rise to a reasonable inference that the testator intended for this transfer to be in lieu of a testamentary disposition. What is more, the testator told both the second wife and his attorney that the transfer was to substitute for a gift under the will. Thus, answer A looks promising.

Answer B is wrong. The testator’s mere expression of intent, during his lifetime, that the surviving spouse not receive anything is not sufficient to preempt the omitted spouse doctrine. That intent must be either expressed in the will itself or accompanied by a lifetime transfer to the spouse outside the will.

Answer C is wrong. The omitted spouse rule is a default rule that usually applies where the will makes no mention of future marriages. If the will does contemplate future marriages, the doctrine will not apply. Thus, answer A is the winning pick.

Question 19

Jesse executes a will, leaving 1/4 of his estate to his wife Winnie and 3/4 to his two children, divided equally. Several years later, Winnie gives birth to a third child, Barry. However, Jesse does not change the property disposition made by his will. When Jesse dies, his estate consists of $120 million. In probate court, Barry initially argues that he should receive 1/6 of the estate, his intestate portion of Jesse’s estate as a surviving descendant. Later, Barry hires an attorney, who argues that he should receive 1/4 of the estate, his equal share of the children’s combined devises. In response, Winnie and the other children argue that Jesse would have republished his will had he wanted Barry to receive a portion of the estate. However, neither party has evidence regarding whether Jesse intended to omit Barry from the will.

How should the probate court rule?

A. Barry receives nothing, because he was not intentionally included in the will
B. Barry receives $20 million, because he was not intentionally omitted from the will
C. Barry receives $30 million, because he is entitled to an equal share of the children’s devises
D. Barry receives $40 million, because he is entitled to an equal portion of the estate
E. None of the above

Answer 19

C.

Under the omitted child doctrine, a child who is born after the execution of a will is entitled to a share of the testator’s estate.

• If the testator had other children at the time of execution and devised property to his children, then the omitted child receives an equal share of the combined devises made to the other children.
• The doctrine does not apply when the testator intentionally omitted or already provided for the child with a transfer of property based on evidence of his intent.

Here, Barry is entitled to a share of Jesse’s estate, because there is no evidence that Jesse intentionally omitted Barry from the will or already provided for Barry with a transfer of property. Jesse devised property to his other children at the time of execution, so Barry receives an equal share of the combined devises made to the other children (1/3 of 3/4, or 1/4). Barry receives $30 million, because he is entitled to an equal share of the children’s devises. Thus, answer C is correct.