Wills: issues and rule stmts

Question 1

How should the Testator’s estate be distributed?

At issue is the devise of stock

Answer 1

• A specific gift is a specified asset from a specified source. A gift of stock is generally considered specific if it is worded as “my # shares.”
• A general gift provides for a sum or money or unspecified amount of stock, which can be satisfied from any assets in the estate. A gift of stock is general if worded as “I leave $X worth of stock to Y.”
• At common law, a specific gift of stock includes any additional shares produced by a stock split but not shares produced by a stock dividend. Courts generally treat a stock split as a mere change in form, not substance.
• Under the UPC, a specific gift of stock also includes shares of stock produced by a stock dividend.
• For ademption purposes, a general gift of stock can be satisfied using other assets in the estate.

Question 2

How should the estate be distributed?

At issue is when the will specifically devises home, gift, other personal property and testator sells it before death

Answer 2

• Under the doctrine of ademption, when a specific devise is not in the testator’s estate at death, the gift adeems; i.e., it fails (sold, destroyed, given away, lost)
• Most courts use an objective test and do not consider the testator’s intent of whether he intended it to mean the substitute property too.
• Some courts will allow the beneficiary to prove testator did intend to mean the substitute property too.

Question 3

At issue is whether a gift of a generically described item (e.g., automobile, car, house, etc) is valid

Answer 3

• A will takes effect only upon death of a testator.
• It operates upon circumstances as they exist at the time of death
• thus, a generically described item will be a valid gift

Question 4

How should estate be distributed

Issue: how to distribute when Bene disclaims a gift

Answer 4

• A beneficiary may disclaim any interest, and the interest passes as though the disclaimant predeceased the decedent.

Question 5

How should the estate be distributed

Issue: the residuary estate

Answer 5

The residuary estate is the balance of the testator’s property after all expenses, claims, and gifts have been paid.