Chapter 6 Flashcards
The process of recognizing various pages as a single will is called “integration.” If the pages of the will are fastened together, an inference arises that the testator intended them all to be part of one document. The testator need not sign every page.
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The “incorporation by reference” doctrine permits the court to include an additional document as part of the testator’s will if (i) the testator intends it to be so included; (ii) the document is in existence at the time the will is executed; and (iii) it is sufficiently described so it can be readily identified. If the doctrine applies, the incorporated document—as it existed on the day the will was executed—is deemed to be part of the will, as if the document were literally typed into the will or attached to it as an exhibit
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UPC §2-510. Incorporation by Reference.
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
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The doctrine of “events [or acts or facts] of independent significance” allows the probate court to look to events or acts outside the four corners of the will to determine which property goes to which beneficiaries
Events of independent significance are otherwise objective events that occur in the outside world without regard to the testator’s plan of disposition. Typical events include the birth, death, and adoption of a child as well as the act of acquiring or disposing of property.
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UPC §2-512. Events of Independent Significance.
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of another individual’s will is such an event.
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UPC §2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal Property.
Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.
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The plain meaning rule requires the court to first give the words of the will their common meaning.
The court is not allowed to use extrinsic evidence until it has first tried to divine the testator’s intent from the four corners of the will itself.
If the court determines that the will contains an ambiguity, it may consider extrinsic evidence.
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“patent” ambiguity, where extrinsic evidence was not allowed
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“latent” ambiguity, where such evidence was allowed. A patent ambiguity is one that appears on the face of the will itself
.a latent ambiguity is a provision that is not apparent upon reading the will but rather becomes apparent when the provisions are applied
UPC §2-805. Reformation to Correct Mistakes.
The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence what the transferor’s intention was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.
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UPC §2-805 requires clear and convincing evidence to support a finding that “the terms of the governing instrument were affected by a mistake of fact or law,” before allowing reformation.
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Devises in a will can be classified into four categories: specific devises, general devises, demonstrative devises, and residuary devises.
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Specific—A specific devise is a gift of a particular asset, specifically identified in the will. For example, a gift of “my Volvo,” “my grandmother’s diamond ring,” or “all my books” is each a specific devise.
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General—A general devise is a gift of money or value. A gift of “$100” is a general devise. The devise is a gift of that value, and if the estate does not contain cash when the testator dies, the beneficiary can receive property worth that amount or the personal representative can sell assets and distribute cash. (A gift of a certain amount of money is sometimes also called a “pecuniary” bequest.)
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Demonstrative—A demonstrative devise is a gift of money or value payable from a specified source, but if that source is insufficient, then from other assets. For example, a gift of “$1,000 from my bank account at Trustworthy Bank” will be made first from any amounts on deposit at the specified bank, but if no account exists or the account has less than $1,000, the devise will be made from other assets.
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Residuary—The residue is everything else. Any property in the probate estate not distributed as a specific, general, or demonstrative devise is considered the residue.
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UPC §2-604. Failure of Testamentary Provision.
(a) Except as provided in Section 2-603, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.(b) Except as provided in Section 2-603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.
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lapse- general rule
a bequest to an individual fails or “lapses” when that person dies before the testator. The bequest will go to an alternate beneficiary if the will names an alternate taker. If no alternate taker is named and if the antilapse rules do not apply, the gift fails and passes pursuant to UPC §2-604
There are four elements that must be met in order for the antilapse rule of UPC §2-603 to apply:The intended beneficiary must predecease the testator or be deemed to have predeceased the testator.The intended beneficiary must leave living descendants.The intended beneficiary must be a family member, defined as the testator’s grandparents, a descendant of the grandparents, or the testator’s stepchild; the reach of the statute is very inclusive, covering almost all relatives who would receive property if the testator died intestate.
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A class gift is a gift made to a group of people identified as a group by the testator and typically with each member of the group bearing the same relationship to the testator. Examples include “my children,” “my employees,” or “my cousins.” The class members divide the property that is the subject of the gift, for example, a sum of money, a piece of real property, or shares of stock in a family business.
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Under the common law, if a class member predeceases the testator, the remaining members of the class divide the gift. That common law rule continues to apply to people not covered by the antilapse statute.
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However, if the class gift is made to a group covered by the antilapse statute, there are two possibilities. First, if the gift is to “issue” or a similar group that contains several generations, there is no substitute gift. This is because the class is phrased so that it automatically substitutes a member of the younger generation if an ancestor predeceases
If, however, the class gift is not a “multi-generational” gift, then the antilapse statute creates a substitute gift so that each surviving member of the class takes a share and the descendants of the deceased class member take her share.
If the deceased class member has no descendants, the antilapse conditions are not satisfied, and the remaining class members benefit from her share pursuant to the common law. In the example above, Alberto would receive $15,000 if Martha had died without descendants. If the testator makes individual gifts to named individuals, the result is less likely to be a class gift.
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