Components of a Will: what words given testamentary effect? Flashcards Preview

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Flashcards in Components of a Will: what words given testamentary effect? Deck (24)
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0
Q

Republication by Codicil

A

earlier valid will is considered republished if referenced in a subsequent codicil and is valid as of the date of the codicil under the formalities of the codicil.
will republish all codicils attached to prior will

applies only if it furthers testators intent

Does NOT apply to wills revoked by physical act

1
Q

Integration Doctrine

A

will consists of whatever the testator intended to be part of the will
present at the time will was executed

integration is presumed if pages are connected in some manner or if there is a logical continuity in the language from one page to the next

extrinsic evidence is allowed to prove documents present at the time will was executed were intended to be part of the will

No additions or substitutions of pages after execution without re-execution

2
Q

incorporation by reference doctrine

A

non-testamentary writings can be incorporated by reference into a will if clearly identified in the will
already in existence
intended to be incorporated.

NY does not recognize the incorporation by reference doctrine

3
Q

exception to NY not recognizing Incorporation by Reference

A

testators can incorporate other formal documents such as
inter-vivos trust;
another persons attested will; or
a writing physically attached to the will

4
Q

Doctrine of “Facts if Independent Significance”

A

A will can dispose of property by reference to extrinsic facts and events
having significance apart from effect on dispositions made by the will
independent acts can occur before or after execution of will or before or after testators death

leaving contents of safety deposit box to X. later replacing contents before death. purpose of placing items in safety deposit box has independent purpose apart from any testamentary significance.

5
Q

plain meaning rule

A

extrinsic evidence is not admissible to change the plain meaning of a will.

6
Q

Mistake as to nature of document

A

will is invalid when person signs writing and fails to know it is a will

lacks testamentary intent

7
Q

Mistake in the inducement

A

no remedy where testator is mistaken about underlying facts in the will

will cannot be changed with one exception

8
Q

Mis-signed Reciprocal wills

A

2 parties draft wills with mirror image or common estate plan
and mistakenly sign the wrong one

NY courts will read wills together to correct the mistake

9
Q

Alternate Disposition

A

mistake appears on the face of the will and testators alternative disposition, but for the mistake, appears on the face of the will

will can be reformed to effectuate testators manifest intent

10
Q

Mistaken Omissions

A

no remedy where testator inadvertently omits a devise he intended to make even if attorney is at fault

11
Q

mis-description

A

where property description or beneficiary consists of several particulars
and all do not fit one person or thing
less essential particulars can be ignored so remaining description clearly fits one person or thing

12
Q

mistakes in expression

A

testator is incorrect about contents of will or legal consequences of language

court will not provide a remedy

13
Q

Textual Ambiguities

A

where language in a will is susceptible to multiple reasonable interpretations. May be latent ambiguity or patent ambiguity

14
Q

Latent Ambiguity

A

revealed only when executor attempts to carry out a will.

Extrinsic evidence is admissible to carry out testators intent including declarations of testator

15
Q

Equivocation

A

a latent ambiguity where a testator describes 2 things equally well or equally poorly

extrinsic evidence is admissible to determine intent of testator

16
Q

Patent Ambiguity

A

obvious from the face of the will.

NY courts are reluctant to admit extrinsic evidence to clarify a patent ambiguity.

Effects - gift stricken if it cannot be carried out on its face.
May look to the four corners of the will to determine a construction that will carry out the testators intent.

17
Q

Devises - defined

A

any disposition of real or personal property by will

devise, bequest, and gift are synonymous

18
Q

4 categories of devises - list

A
  1. specific
  2. general
  3. demonstrative
  4. residuary
19
Q

Specific devise

A

gift of identifiable property distinguishable from all other assets
only way to satisfy is the specific item itself

20
Q

General Devise

A

gift stating a value payable out of general assets from the estate

if not sufficient cash in the estate to make gift, assets not specifically devised, will be sold to generate funds sufficient.

An apparent specific devise but an item never owned by T is a general devise

21
Q

General Devise - gifts of stock

A

All of shares - specific devise

less than all shares - not prefaced by “all” or “my” is not a specific bequest. Interpreted as a placeholder for some value and is a general bequest.

22
Q

Demonstrative Devise

A

specifically designates where funds are to come from for devise.

treated as a general bequest but sale of specific asset is used first and if not sufficient, other general assets of the estate will be used to complete the gift

23
Q

Residuary Devise

A

gift of the remainder of estate after all other specific, general, and demonstrative devises have been paid and all other expenses of administration.