Will Construction

Question 1

concerns of will construction

Answer 1

1. authenticity- is it really the testator’s will
2. voluntary- was the testator subjected to the will or influence of another person that compelled them to make the will a certain way
3. meaning- what is the plain meaning of the will, are there ambiguities

Question 2

2 types of ambiguities with wills

Answer 2

1. patent- one on the face of the will

2. latent- one embedded within the will

Question 3

what type of ambiguity will extrinsic evidence be used to resolve

Answer 3

Latent ambiguity. This most often happens when two or more things fit a description or nothing fits a particular description. extrinsic evidence will be used to resolve this.

Question 4

lapsed devise

Answer 4

when a beneficiary of a will does not survive the testator, the gift to the beneficiary is considered lapsed

Question 5

specific devise

Answer 5

a devise of a particular item. For example, the diamond ring goes to B

Question 6

general devise

Answer 6

a devise of a sum of money

Question 7

demonstrative devise

Answer 7

a devise of a sum of money from a particular source

Question 8

residuary devise

Answer 8

the remaining estate after all other devises and creditors have been settled. if the beneficiary does not survive the testator, then the heirs of the testator take by intestacy

Question 9

anti-lapse statutes

Answer 9

substitute one beneficiary for another based on a particular familial relationship. Often limited to family and descendants

Question 10

what is the relationship between survival language and anti-lapse statutes?

Answer 10

survival language often defeats the anti-lapse statute because the testator accounted for the possibility that the beneficiary wouldn’t survive.

Ex: my ring to my cousin should she survive me, and if not to my friend

Question 11

Ademption

Answer 11

when a gift is not in the estate of the testator upon death the gift is considered to have adeemed

Question 12

Ademption by extiniction

Answer 12

when the gift is not in the estate when the testator dies. Under tradition common law, the beneficiary doesn’t get anything to replace the gift. Under progressive law, the courts may try to determine a replacement

Question 13

Ademption by satisfaction

Answer 13

the gift in the will is given to the beneficiary during life

Question 14

What happens if you get an ‘encumbered devise’

Answer 14

an encumbered devise is one that may have a mortgage or lien on it. This does not have to be paid out of the estate, therefore, a beneficiary takes it subject to the lien

Question 15

abatement

Answer 15

when an estate lacks sufficient funds to pay decedent’s debts, devises, or an omitted person entitled to take under the law. The devises are reduced by:

1. taking from the residuary first
2. then reducing general devises
3. then reducing specific devises, pro rata