Ch 5: Construction of Wills Flashcards
(79 cards)
1
Q
Traditionally, what was a devise? (T)
A
Traditionally, a “devise” refers to a gift of real property by will, and a “bequest” or “legacy” refers to a gift of personal property by will.
2
Q
What does devise mean in most states and the UPC? (T)
A
In most states and the UPC, “devise” is used generically to refer to any type of gift.
3
Q
What is a specific devise? (T)
A
A gift that can be distinguished with reasonable accuracy from other property in the testator’s estate
Ex: “My blue truck to my dentist.”
4
Q
When do specific devises abate? (T)
A
Abates last
5
Q
What is a demonstrative devise? (T)
A
A gift the testator intends to be paid from a particular source, but if that source is insufficient, to be paid out of the general assets of the estate
Ex: “$100,000 to John from my X account, but if funds are not sufficient, then the rest paid out of general funds.”
6
Q
When do demonstrative devises abate? (T)
A
Treated as specific devise, or general if source is insufficient
7
Q
What is a general devise? (T)
A
A gift of personal property that the testator intends to be satisfied from the general assets of the estate.
Ex: “$100,000 to John.”
8
Q
When do general devises abate? (T)
A
Abates third.
9
Q
What is a residuary clause? (T)
A
What remains when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.
Ex: “I give all the rest and residue of my property, wherever situated, whensoever acquired, and whether known to me or not, to John.”
10
Q
When do residuary clauses abate? (T)
A
Abates second
11
Q
What does abatement mean? (T)
A
Gifts by will are abated (i.e., reduced) when the estate does not have sufficient assets to pay all debts and legacies.
12
Q
May a testator indicate his intended order of abatement? (T)
A
Yes. The testator may indicate his intended order of abatement, but if he fails to do so, the law prescribes an order.
13
Q
If not otherwise specified in the will, what order are gifts abated in? (T)
A
If not otherwise specified in the will, gifts are abated in the following order:
i) Intestate property;
ii) Residuary bequests;
iii) General bequests; and
iv) Specific bequests.
14
Q
For abatement purposes, how are demonstrative legacies treated? (T)
A
Demonstrative legacies are treated as specific legacies for abatement purposes to the extent that they can be satisfied, and otherwise as general legacies.
15
Q
When may a specific bequest abate to satisfy a general legacy? (T)
A
A specific bequest may abate to satisfy a general legacy only if the intent was clearly indicated by the testator.
16
Q
What does pro rata mean? (T)
A
Pro rata means proportional.
17
Q
What is ademption? (LII)
A
Ademption refers to the destruction or extinction of a testamentary gift because the bequeathed assets no longer belong to the testator at the time of their death.
18
Q
What is ademption by extinction? (T)
A
Ademption by extinction occurs when a testator makes a specific bequest of property but no longer owns that property at the time of his death.
19
Q
When does the doctrine of ademption by extinction apply? (T)
A
The doctrine of ademption by extinction applies only to specific bequests.
20
Q
What is the rule for ademption by extinction? (T)
A
If the subject matter of a specific bequest is missing or destroyed (i.e., “extinct”), the beneficiary takes nothing, not even the insurance proceeds or the equivalent in cash.
21
Q
Does the ademption by extinction rule apply when the testator was incompetent? (T)
A
No. This rule does not apply when the testator was incompetent, unless the will was executed before the incompetency.
22
Q
What is the traditional approach to abatement by extinction? (T)
A
If the specifically bequeathed item is not a part of the estate at the testator’s death, then it is adeemed.
23
Q
In the traditional approach to ademption by extinction, is the testator’s intent relevant in most states if the bequest is extinct? (T)
A
No. The testator’s intent is irrelevant in most states if the bequest is extinct.
24
Q
In the traditional approach to ademption by extinction, does a substantial change in the nature of the subject matter of a bequest operate as an ademption? (T)
A
Yes. A substantial change in the nature of the subject matter of a bequest operates as an ademption, but a mere nominal or formal change does not.
25
How are courts inclined to avoid ademption? (T)
Courts are inclined to avoid ademption by a variety of means, including the classification of a specific bequest as general or demonstrative, the classification of an inter vivos distribution as a mere change in form, and the creation of other exceptions.
26
What is the UPC approach to ademption by extinction? (T)
Under the UPC, the court examines the testator’s intent when he disposed of the subject matter of the bequest. The UPC has essentially created a “mild presumption” against ademption and has created several doctrines to avoid it.
27
Under the UPC, when is the bequest to the beneficiary adeemed? (T)
Under the UPC, the bequest to the beneficiary is adeemed if the facts and circumstances establish that the ademption was intended. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money relating to the extinction, the outstanding balance.
28
If neither the replacement property nor the outstanding balance doctrine applies, what happens under the UPC? (T)
If neither the replacement property nor the outstanding balance doctrine applies, then the UPC provides that a beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition if ademption is inconsistent with the testator’s (1) intent or (2) plan of distribution.
29
If a gift is adeemed, what is the beneficiary entitled to? (T)
If a gift is adeemed, then the beneficiary is entitled to:
i) The remainder of the specifically devised property;
ii) The balance of the purchase price owing from the purchaser of the property;
iii) Any amount of condemnation award for the taking of the property, to the extent unpaid upon death;
iv) Any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property; or
iv) Property acquired from the foreclosure of a security interest on a specifically devised note.
30
What happened in the common law doctrine of exoneration? (T)
Under the common-law doctrine of exoneration, the specific devisee of encumbered real property was entitled to have the mortgage on the property paid from the estate as a debt of the decedent, unless there was evidence of a contrary intent on the part of the testator.
31
What is the rule for the exoneration of liens? (T)
In most states, the specific devisee of encumbered property takes the property subject to the mortgage, unless the testator's intent to pay the mortgage is clear in the will.
32
Is a general directive to "pay debts" sufficient ton direct the exoneration of liens? (T)
No. A general directive to "pay debts" is insufficient to direct the exoneration of liens.
33
Can a testator specifically require a lien to be exonerated? (T)
Yes. A testator can specifically require a lien to be exonerated, in which case the encumbered property will not abate to exonerate the lien unless specifically stated in the will.
34
What is ademption by satisfaction? (T)
A general, specific, or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to the devisee after the execution of the will, if the testator intended to satisfy the devise by the transfer.
35
Regarding ademption by satisfaction, what must exist before the legacy or bequest is rendered inoperative? (T)
The testator’s intent to adeem must exist before the legacy or bequest is rendered inoperative.
36
Does the UPC presume ademption by satisfaction? (T)
No. The UPC presumes no ademption by satisfaction, absent an express writing, and it limits the sources of evidence of the testator’s intent to adeem.
37
Under the common law, what did the treatment of a gift of securities depend on? (T)
At common law, the treatment of a gift of securities depended on whether it was a specific or general bequest.
38
According to many states, how are stock dividends classified? (T)
Many states hold that a stock dividend, like a cash dividend, is a property interest distinct from a specific bequest of the stock.
39
What does a bequest of stock owned by the testator when the will was executed exclude? (T)
A bequest of stock owned by the testator when the will was executed excludes subsequently acquired shares of the same stock.
40
What does a bequest of a certain number of shares of a security owned by the testator at the time the will was executed include? (T)
A bequest of a certain number of shares of a security owned by the testator at the time the will was executed includes additional shares of that security or of another security acquired by a stock split, reinvestment, or merger initiated by the original security.
41
Is the beneficiary entitled to any pre-death cash dividends or distributions? (T)
No. The beneficiary is not entitled to any pre-death cash dividends or distributions.
42
If the bequest is a generic gift (e.g., does not specify a number of shares), does the beneficiary take any additional shares? (T)
No. If the bequest is a generic gift (e.g., does not specify a number of shares), then the beneficiary does not take any additional shares.
43
Under the UPC what does a bequest of a security owned at the time the will was executed include? (T)
Under the UPC, a bequest of a security owned at the time the will was executed includes any additional shares of that security or of another security 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.
44
How are post-death changes to stock classified? (T)
The classification of the gift controls the disposition of any income earned on the gift after the testator’s death.
45
What do specific bequests carry with them? (T)
Specific bequests carry with them all post-death income, such as interest, dividends, and rent.
46
What do general bequests carry? (T)
General bequests carry interest earned on the amount bequeathed beginning one year after the decedent’s death, at a rate set by statute.
47
Are residual bequests interest-bearing? (T)
Residual bequests are not interest-bearing.
48
What was the common law rule for lapse? (T)
At common law, if a beneficiary died before the testator, or before a point in time by which he was required to survive the testator under the will, then the gift failed and went to the residue unless the will provided for an alternate disposition. In the absence of a residuary clause, the gift passed through intestacy. A gift made by will to an individual who was deceased when the will was executed was treated as a lapsed gift.
49
What is the rule for anti-lapse statutes? (T)
Under most anti-lapse statutes, if the gift was made to a relative of the testator within a specific statutory degree, and the relative predeceased the testator but left surviving issue, then the issue succeeds to the gift instead of allowing the gift to lapse.
50
What do most anti-lapse statutes require as far as the devisee who failed to survive? (T)
Most statutes require that the devisee who failed to survive was a grandparent, descendant of a grandparent, or a stepchild of the testator.
Ex: T’s will provides, “I give $50,000 to my brother, B.” B predeceases T. Under anti-lapse, B’s issue would take the $50,000.
51
What do most jurisdictions only allow the anti-lapse statute to apply to? (T)
Most jurisdictions allow the statute to apply only to testamentary gifts.
52
Under the UPC and the modern trend, what do anti-lapse protection statutes apply to? (T)
Most jurisdictions allow the statute to apply only to testamentary gifts. But under the UPC and the modern trend, anti-lapse protection may also apply to nonprobate transfers.
53
What is the class gift rule? (T)
When a gift is made to an entire class and one member of the class predeceases the testator, only the surviving class members take. But if an anti-lapse statute applies (because the predeceased class member was related to the testator and left surviving issue), then the issue of the predeceased member take the member’s share.
54
Before determining a class gift, what do most states and the UPC do first? (T)
Most states and the UPC apply the anti-lapse statute first, before the determination of a class gift.
55
What does the UPC extend anti-lapse statutes to? (T)
The UPC extends anti-lapse to life insurance policies in which the beneficiary predeceases the policyholder.
56
Under the UPC, what happens if the residue is left to two or more persons and one dies, and if anti-lapse does not apply? (T)
Under the UPC, if the residue is left to two or more persons and one dies, and if anti-lapse does not apply, then the remaining beneficiaries take in their proportionate shares. This is contrary to the common-law “no residue of a residue” rule, under which the testator’s heirs succeeded to any lapsed portion of a residual bequest.
57
If a future interest is left to two or more persons and the gift to one of them lapses, what happens? (T)
If a future interest is left to two or more persons and the gift to one of them lapses, then her share passes to the other future interest holders unless anti-lapse applies.
58
What is a void gift? (T)
A gift is void if, unbeknownst to the testator, the beneficiary is already deceased at the time the will is executed.
59
When does a lapsed gift occur? (T)
A lapsed gift occurs when the beneficiary predeceases the testator after the will has been executed.
60
Do most states allow anti-lapse statutes to apply to void gifts? (T)
Yes. Most states allow anti-lapse statutes to apply to void gifts.
61
How may a will incorporate by reference another writing not executed with testamentary formalities? (T)
A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing:
i) Existed when the will was executed;
ii) Is intended to be incorporated; and
iii) Is described in the will with sufficient certainty to permit its identification.
62
How can the UPC waive the requirement that the document must have existed when the will was executed? (T)
The UPC waives the requirement that the document must have existed when the will was executed if the document disposes only of the testator’s tangible personal property. However, the will must expressly state the testator’s intent.
63
How may a will provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator’s death? (T)
A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator’s death, if the act or event has some significance apart from the will. The act may be in relation to the identification of property or of beneficiaries.
64
When analyzing a testator's acts on the exam, what should you look at? (T)
When analyzing a testator’s acts on the exam, look to the timing of the event. Recall that the doctrines of republication by codicil and incorporation by reference apply only to events that occurred in the past.
Ex: Republication by codicil looks at a will executed before the codicil, and incorporation by reference requires the document to be in existence before the execution of the will (unless the UPC exception applies).
However, the acts of independent significance doctrine is the only doctrine that applies to future acts or events.
65
If the testator, the beneficiary, or third party has some control over the act or event, how may it still have independent legal significance? (T)
If the testator, the beneficiary, or third party has some control over the act or event, it may still have independent legal significance if it is unlikely that the testator or other person would perform the act solely for testamentary reasons. The execution or revocation of a will of a third party is an act of independent significance.
Ex: A will might leave a certain gift to “the man who is my niece’s spouse at the time of my death.” The law does not presume that the niece would marry or divorce merely to complete the terms of the will.
66
What is the plain-meaning rule? (T)
Courts are reluctant to alter the plain meaning of a will regardless of mistake, but they are apt to treat certain mistakes as ambiguities.
67
What was the distinction between patent and latent ambiguities? (T)
Traditionally, there was a distinction between patent and latent ambiguities:
Patent ambiguities appeared on the face of the will and were required to be resolved within the four corners of the instrument and without extrinsic evidence.
Latent ambiguities were not apparent from reading the will and were allowed to be resolved by extrinsic evidence.
68
Do many states still distinguish between patent and latent ambiguities? (T)
Many states no longer distinguish between patent and latent ambiguities and allow both to be resolved by extrinsic evidence. If the ambiguity cannot be resolved, then the gift in question becomes part of the residue.
69
What is the rule for mistakes on wills? (T)
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. In a case of the wrong will being signed, courts are divided as to whether relief should be granted. However, the modern trend is moving in the direction of granting relief.
70
At common law, is intrinsic evidence allowed and is relief granted if the mistake involves the testator's reasons for making the will or a particular gift? (T)
No. At common law, no extrinsic evidence is allowed and no relief is granted if the mistake involves the testator's reasons for making the will or a particular gift.
Ex: A testator would normally make a will leaving his estate to his two siblings. But, under the mistaken belief that one of his siblings died, he instead makes a will devising his entire estate to only the other sibling. The court would not allow evidence of the mistake, and only the one sibling would take the estate.
71
What is an exception to the common law rule for mistakes in wills? (T)
An exception to this rule exists if the testator was fraudulently induced or the mistaken inducement appears on the face of the will.
72
If a will is missing provisions, will the court allow extrinsic evidence to show that the omission was accidental and will not grant relief? (T)
No. If a will is missing provisions, the court will not allow extrinsic evidence to show that the omission was accidental and will not grant relief. The rationale is that the testator presumably knew of the will’s contents when he signed it.
73
What is the UPC's (and a few states) approach to mistakes in wills? (T)
A few states and the UPC follow the Restatement (Third) of Property’s more liberal approach, which allows a court to reform a donative document, even if unambiguous, based on clear and convincing evidence of:
i) A mistake of law or fact that affected specific terms of the document; and
ii) The donor’s intention.
74
What is rule of construction? (T)
Under the general rule of construction that a will “speaks” at the time of death, a bequest of generically described property applies to property that meets the generic description at the testator’s death.
75
Can the validity of a will be conditioned on a particular event or circumstance? (T)
Yes. The validity of a will can be conditioned on a particular event or circumstance. However, courts do not look favorably on conditional wills.
76
When possible, how do courts construe excess language in a will? (T)
When possible, the court will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument. The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will. The court can consider factors like where the will was stored after the purported “condition” lapsed, whether setting the will aside would result in intestacy, and whether effectuating the will would result in an inequitable distribution.
77
What should you remember on the exam regarding conditioning the validity of a will? (T)
Conditioning the validity of a will (discussed above) is different from making a conditional bequest (e.g., giving a contingent remainder).
78
What is the rule of convenience for class gifts? (T)
Under the rule of convenience, a class gift closes to future entrants on the distribution date if at least one beneficiary of the class gift is entitled to distribution, unless the language or circumstances establish that the transferor had a different intention.
79
What is the distribution date for class gifts? (T)
The distribution date is the date the class gift takes effect in possession or enjoyment. In the case of an immediate class gift in a will, the testator’s death is generally treated as the distribution date.
