Wills - Interpretation and Construction Flashcards
Who raises construction and interpretation issues?
1) The personal representative, who wants to do the right thing and avoid liability, as well as
2) Beneficiaries who want to get more under other interpretations
Construction Maxims
1) The fact that the testator left the will, especially a residual clause, indicates intent not to die intestate
2) If conflicitng provisions, last in time prevails
3) Will is construed as a whole
4) Attempt to give effect to ALL words used by the testator.
Ambiguity
3 types:
1) Patent or obvious ambiguity. It’s obvious on its face. “I leave my fasjfhksaedf to Harold”. What is that? Extrinsic evidence is permitted to resolve the latent or patent ambiguity. But they WON’T fill in blank spaces using extrinsic evidence.
2) Hidden or Latent ambiguity. When you read the will, it makes perfect sense, but when you try to carry it out, you find out you can’t. “I leave my car to Juan” but he owns 2 cars when he dies. Which one does Juan get? Who knows. That’s what makes it a latent ambiguity.
-> Extrinsic evidence can be used to fix these.
3) No Apparent Ambiguity: provision is clear on its face and you can carry it out exactly as it says. Can we bring in evidence to show something different? YES
-> Ex: I leave 25k to niece and the remainder to daughter. Estate is 500k. Testator survived by niece and daughter. Can niece argue that testator meant to leave the estate equally to niece and daughter and it was the attorney who drafted the will and a 0 was dropped inadvertently from niece’s gift? YES, CA follows the modern rule that allows extrinsic evidence to create an ambiguity where 1 doesn’t otherwise exist then use that evidence to resolve the ambiguity.
Incorporation by Reference
The idea is instead of writing something out in full, the testator incorporates the other document by referring to it in the will. It’s treated as if it’s fully part of the will. Doesn’t matter whether the doc is “legal” or notarized or otherwise fraudulent. Just incorporating it by reference.
3 elements required to incorporate
1) Intent by testator to incorporate
2) writing in existence at execution of the will
3) writing must be clearly identified in the will so no other doc could fit that description
Ex: On Feb 2020, will executed saying I devise all my jewelry to the persons named in the list dated Feb 1 2019 in my safe deposit box. It’s signed by her but not witnessed. Those instructions will be INCORPORATED because it satisfies all 3 reqs: intent, existence, and identified.
Facts/Acts of Independent Significance
This is an action outside of a will with a legal purpose other than disposing of property at death. If something is a fact of independent significance, it doesn’t need to be executed with formalities of will to impact the transfer of property upon death.
Ex 1: “I leave the automobile I own at my death to Brian.” - the court will look outside the 4 corners of the will to ascertain what car Brian gets.
Ex 2: Class gift. I leave 100k to each of my kids and 5k to each employee of my business. Court looks outside 4 corners to find out who testator’s kids are and who employees are.
Ex 3: I leave my whole estate to my current spouse. Court looks outside will to find out the name of that spouse.
Ex 4: Gift of contents may change between will execution and death. Will says I leave my safe deposit box stuff to Tony. Even if testator changes what’s in there, Tony gets what’s in it when testator dies. The box is a fact of independent significance. Its sole purpose is not to dispose of property upon death.
Separate Writing Disposing of Tangible Personal Property
CA permits a technique that is neither 1) facts of independent significance OR 2) incorporation by reference.
Here, the will may refer to a written statement or list to dispose of items of tangible personal property not otherwise disposed of by the will even if that list was not in existence when the testator executed the will and has no legal purpose other than to dispose of property at death.
Requirements:
1) Will must refer to the list
2) List must be dated
3) List must be handwritten or signed. No witnesses needed.
4) List must describe property and recipients with reasonably certainty. Must be tangible personal property (can’t be stocks, bonds, land, CASH, or business property).
5) Value of list can’t exceed 25k
6) No one item can exceed 5k
Conditional Will
This only operates only if a certain event occurs or does not occur. Law presumes against conditional wills. Courts will presume wills to be general and not conditional.
Ex 1: Testator’s will says I’ve been diagnosed with cancer and therefore I’m writing this will, but then she dies in car accident. The will is NOT conditional. The cancer was just an inducement.
Contrast Ex 2: I got cancer and this will is only effective IF I DIE FROM THIS CANCER. Then she dies in car accident. Is will conditional? YES. It’s conditional on dying from cancer and thus is not effective.
Republication by Codicil
A codicil is an amendment to will that republishes the will except for the parts that are inconsistent with the codicil. They are treated as one instrument speaking as of the date of the codicil.
Ex: T executes will without testamentary capacity. Later with full capacity T executes codicil leaving 1k to friend. Proof of codicil acts as proof of the will and allows the codicil to bootstrap/save this otherwise invalid will.
Ex 2: T executes will leaving all property to mother. Then T had child. T executes codicil adding 500$ to friend. Can child claim share as omitted/pretermitted child? NO. The will is now being treated as being executed on the date of the codicil after the child’s birth.
Pourover Provisions
This is a provision in a will that makes a gift to an inter vivos trust. This is allowed and very common.
Pour-over to Inter Vivos Trust:
1) The property goes into the trust as the trust exists at date of testator’s death. Not how it was written or when the will was executed. Thus trust amendments made after will execution are effective to govern the pourover property.
2) The trust, though, must be in writing no later than 60 days after the testator executes the will.
3) Gift fails if trust revoked prior to testator’s death.
Integration
2 types of integration:
1) External integration. If testator executed more than 1 will or codicil, must be properly integrated so we know how to line them up in proper order. All wills and codicils should contain the date of execution because that will help with external integration issues.
2) Internal integration: must be able to show the pages present at time of will execution are present at the time of probate. Methods: fasten the pages together, have sentences flow from page to page, write “page X of Y”, initial every page, etc. That makes it so the pages offered for probate were actually present when T executed the will.
Combination Wills: Joint Will
This is a single document containing the will of 2 or more persons, typically spouses. NEVER EVER use joint wills. They are a pain. How do you probate the first time when it’s already been probated once lol?
Combination Wills: Reciprocal Wills
Will of two people with parallel provisions. Like husband and wife sharing same kids. So if husband dies then all to wife and if wife already dead all to kids.
Combination Wills: Contractual Will
This is a will executed pursuant to a contract supported by consideration such as the testator agrees to leave 100k to Pat if Pat takes care of testator in testator’s old age. Must prove K. The will itself or another instrument must state/be proven by:
1) the material provisions of the contract.
2) Reference to contract in will or other instruments plus extrinsic evidence of contents
3) Signed writing of testator
4) Clear and convincing evidence of a K that equity would enforce
Revocable by either party if both parties are alive.
Breach of K: injured beneficiaries may sue to impose constructive trust on property they would have received under the K.
-> Ex: Matt and Lisa execute reciprocal wills pursuant to a written K not to revoke the will without the consent of the other. Assume all evidence for contractual will. Each stated their assets would pass to each other and then to their children equally. Matt died first, then Lisa remarried and had more kids changing her will to only have her stuff go to her new kids with her new husband. The new will is admitted to probate, HOWEVER the court will then impose a constructive trust on the property in favor of the intended beneficiaries, the original kids.
Just because you have a joint or reciprocal will does not create any presumption that those wills are contractual.
