Comprising and Construing: Post-Execution Changes to People and Property

Question 1

What is a specific bequest?

Answer 1

A gift by will of something that can be identified and distinguished from all other things of the same kind, satisfied only by delivery of the particular thing.

Question 2

What indicates that a specific legacy was intended in a will?

Answer 2

The use of the possessive word ‘my’.

Question 3

Define a general legacy.

Answer 3

A gift payable out of the general assets of the decedent’s estate and not separated or distinguished from other things of like kind.

Question 4

What is a demonstrative bequest?

Answer 4

A bequest of a sum certain to be paid out of a particular fund.

Question 5

What happens if a specific bequest is not in existence at the testator’s death?

Answer 5

The legatee will be entitled to satisfaction out of the general estate.

Question 6

What is ademption?

Answer 6

What happens when a gift under a will fails for whatever reason.

Question 7

What is ademption by extinction?

Answer 7

Occurs when property specifically bequeathed or devised is no longer in the testator’s estate at death.

Question 8

Can a general gift adeem by extinction?

Answer 8

No, ademption by extinction can only occur with a specific bequest/gift/devise.

Question 9

What is the significance of the absence of property in a will?

Answer 9

The fact of the property’s absence matters but the reason for its absence does not.

Question 10

What happens if specifically devised property is sold or mortgaged by a conservator for an incapacitated principal?

Answer 10

The devisee has the right to a general devise equal to the sale price, unpaid loan amount, or recovery.

Question 11

What is the non-ademption balance for a specific devisee?

Answer 11

The specific devisee has a right to all specifically devised property that remains in the testator’s estate at death and any balance of the purchase price, condemnation amounts, or insurance proceeds.

Question 12

What is the no-exoneration rule?

Answer 12

Property subject to a lien will go to the designated beneficiary with that lien intact, unless the will specifies otherwise.

Question 13

What occurs during abatement?

Answer 13

Abatement occurs if the assets of the testator’s estate are insufficient to satisfy all the bequests or devises.

Question 14

List the order of abatement.

Answer 14

• Property that would pass by intestacy
• Residuary bequests
• General bequests
• Demonstrative bequests
• Specific bequests.

Question 15

What is a class gift?

Answer 15

A gift made to a number of persons as a group, where the size of the group may change and each member’s share depends on the ultimate number in the class.

Question 16

When does a class gift typically close?

Answer 16

At the time the will is effective (i.e., at the testator’s death).

Question 17

What is a lapse in the context of wills?

Answer 17

Occurs when a beneficiary predeceases the testator, causing the gift to that beneficiary to fail.

Question 18

What does an anti-lapse statute do?

Answer 18

Saves a gift if the predeceasing beneficiary was closely related to the testator and had surviving descendants.

Question 19

What must be present for a gift to be saved by an anti-lapse statute?

Answer 19

• The predeceasing beneficiary was closely related to the testator
• The predeceasing beneficiary was survived by descendants.

Question 20

What is required for a gift to be saved from lapse by anti-lapse statutes?

Answer 20

The will must not express a contrary intent.

Question 21

What happens if a class member predeceases the testator and there is no anti-lapse statute?

Answer 21

The gift falls to the other class members.

Question 22

What is the result if a beneficiary named in a will has passed away?

Answer 22

The gift will typically lapse unless saved by an anti-lapse statute.

Question 23

What happens if the testator’s will states that anti-lapse statutes do not apply?

Answer 23

The gifts will lapse according to the common law principles.

Question 24

Who did Andy adopt from his previous marriage?

Answer 24

Peggy

Andy did not adopt Ernest because he was already an adult.

Question 25

What was the first provision in Andy's valid will?

Answer 25

The house to his then-wife Mary ## Footnote This will was created during Andy's marriage to Mary.

Question 26

What amount was bequeathed to Mayberry Church in Andy's will?

Answer 26

$10,000

Question 27

Who was to receive the residue of Andy's estate according to his will?

Answer 27

Opie

Question 28

What happens to the house after Andy's death?

Answer 28

It would have gone to Mary, but she is treated as having predeceased him.

Question 29

Under what statute would Opie receive the house after Andy's death?

Answer 29

Anti-lapse statute or residuary clause

Question 30

What remains of the $10,000 bequest to the church?

Answer 30

$10,000 to Mayberry Church remains

Question 31

What is Helen entitled to from Andy's estate?

Answer 31

Spousal share ## Footnote This includes ½ interest in the marital property.

Question 32

What are the components of marital property in Andy's estate?

Answer 32

Boat and bank accounts ## Footnote Each bank account has $25,000.

Question 33

What does the UPC’s elective share statute provide?

Answer 33

The spouse of a decedent may elect to take one half interest in the marital property.

Question 34

What is the omitted child doctrine?

Answer 34

A pretermitted child is entitled to share in what living siblings received from the estate.

Question 35

Who is considered a pretermitted child in Andy's case?

Answer 35

Peggy ## Footnote She was adopted after the making of the will.

Question 36

If a testator had children at the time of will execution, what happens to omitted after-born or adopted children?

Answer 36

They are entitled to share as if given an equal share of that portion of the estate.

Question 37

Fill in the blank: Helen is entitled to _______ of the marital property.

Answer 37

½