Wills: construction Flashcards
Terms of the will: integration
The will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown by:
(1) physical connection of the pages: e.g., if they are stapled or clipped together; or
(2) the ongoing nature of the language of the will—e.g., if the pages are not attached but the page numbers indicate that the pages follow each other.
Terms of the will: incorporation by reference
For example: A validly executed codicil can incorporate an invalid will and make the terms of the will valid.
(1) Common law:
A writing not executed with testamentary formalities may be incorporated by reference if it:
(a) existed at the time the will was executed,
(b) is intended to be incorporated; and
(c) is described in the will or codicil with sufficient certainty.
(2) Uniform Probate Code:
The writing need not exist at the time the will was executed if it only disposes of the testator’s personal property: i.e., the testator can write a will referencing another document and then create the document later.
Terms of the will: acts of independent significance
A will can provide for designation of a beneficiary or amount of a disposition by reference to some unattested act or event occurring before or after execution of the will or the T’s death—if the act or event has some significance apart from the will.
E.g., designating a property to the spouse of a sibling even though the sibling is presently unmarried, as the sibling’s marriage has independent legal significance.
Classification of gifts
(1) Specific legacy, devise, or bequest:
A gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate.
(2) General legacy:
A gift of personal property (e.g., money) that the testator intends to be satisfied from the general assets of his estate (e.g., “$100,000 to John”).
(3) Demonstrative legacy:
A testator intends that a demonstrative legacy be paid from a particular source, but if that source is insufficient, she directs that the legacy be satisfied out of the general assets of the estate.
(4) Residuary:
A residual legacy is a legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.
Abatement
If the assets of the estate are insufficient to pay all debts of the testator and legacies, a court will “abate” or reduce the gifts to pay the debts.
The court will abate the gifts in the following default order:
- Intestate property
- Residuary bequests
- General bequests
- Specific bequests
Abatement within each category is pro rata.
Demonstrative legacies are treated as specific legacies for abatement purposes to the extent that they can be satisfied, and otherwise as general legacies.
Special treatment: stocks
(1) At common law:
At common law, a stock dividend is a property interest distinct from stock given by a specific bequest. A bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock.
A bequest of a certain number of shares is deemed to include any additional shares of that security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. The beneficiary, however, is not entitled to any pre-death cash dividends or distributions.
(2) Uniform Probate Code:
A bequest of a security (stocks) that was owned at the time the will was executed will include any additional shares of that stock or of another stock as long as the action was initiated by the corporate entity.
A stock dividend is treated like a stock split instead of a cash dividend, so the beneficiary will also receive the stock dividends.
Special treatment: life insurance contracts
Life insurance contracts almost never permit a change of beneficiary by will, and courts have almost invariably upheld such restrictions.
If an insured dies while a life insurance policy is in effect, the policy proceeds are payable to the named beneficiary. Although the owner of a life insurance policy typically retains the right to change the named beneficiary without obtaining that beneficiary’s consent, the owner must do so in accordance with procedures specified in the life insurance contract.
Some courts, however, have upheld a beneficiary change by will if the insurance company does not object.
Anti-lapse statutes
At common law, if the beneficiary dies before the testator, the gift to the beneficiary fails (“lapses”).
Under modern statutes, if the beneficiary was related by blood to the testator, the beneficiary’s surviving issue (child, grandchild, etc.) will take in the beneficiary’s place.
Anti-lapse statutes: class gifts
If the will beneficiaries are a class (e.g., “my brothers”), the traditional rule is that only the members of the class who are alive at the time of the execution of the will receive the benefit of the will.
By contrast, under modern statutes, if an anti-lapse statute applies—i.e., because the predeceased class member was related to the testator—then the issue of the predeceased member also will take.
Ambiguities
Traditionally, there was a distinction between patent and latent ambiguities:
(1) Patent ambiguities appeared on the face of the will and were required to be resolved within the four corners of the instrument, i.e., without extrinsic evidence;
(2) Latent ambiguities were not apparent from a reading of the will and were allowed to be resolved by extrinsic evidence.
Many states no longer distinguish between patent and latent ambiguities and allow both to be resolved by extrinsic evidence.
Mistakes
Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when the testator is unaware that she was signing a will.
Extrinsic evidence is not allowed if the mistake involves the reasons behind the testator making the will or a particular gift.
Mistakes: reformation
Courts are reluctant to disturb the plain meaning of a will regardless of mistake. Thus, most courts do not allow extrinsic evidence to alter a will if the meaning of the will’s language is clear.
A few states, however, allow a court to reform the will based on clear and convincing evidence of the donor’s intention.
