Comprising and Construing the Will: Interpretation

Question 1

General Rule of Construction

Answer 1

Wills are always to be construed in accordance with the discernible intent (hence the term “will” of the testator).

Question 2

Integration (What Comprises a Will?)

Answer 2

Any pages that suffice under integration. 2 req: 1) present at execution and 2) intent for pages to be a part of the will.

Question 3

Four Doctrines Under Which Either Pages or Acts that Would Fail “Integration” May Nevertheless Become Part of the Will

Answer 3

1) Facts of independent significance
2) Inter vivos trusts (UTATA)
3) Incorporation by reference
4) Personal property list

Question 4

Incorporation by Reference

Answer 4

Says that documents will become a part of will if:

• the writing was in existence at the time of execution of the will
• the will manifested intent to incorporate; and
• the will described the writing sufficiently to permit its identification

Question 5

Facts of Independent Significance

Answer 5

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after the execution of the will, so long as that act or fact holds some significance apart an attempt to change the will. A common example is the residuary clause (everything done in life will affect that clause).

Question 6

Personal Property List

Answer 6

The testator has the ability to make a writing that lists PP the decedent would like to transfer to certain individuals if the writing described the beneficiaries and the property to be given away with reasonable certainty.

Question 7

Personal Property List Req.

Answer 7

• The writing will dispose of the property even if not properly attested, as long as it is signed
• This writing can be created even after the will is in existence, as opposed to incorporation by reference (must exist before)
• Real estate or RP cannot pass in this way (furthermore, $ is not PP for this purpose)

Question 8

Inter Vivos Trusts

Answer 8

Under the Uniform Testamentary Additions to Trust Act (UTATA), if a testator makes a gift to a trust in existence at the time of the decedent’s death, that gift will be a valid disposition, even if the trust is created or altered/amended after the will was executed.

Question 9

Selected Statutory Rules of Interpretation: Speaking at Death

Answer 9

A will speaks at death, so the situation in existence at the time of death will carry the day. E.g. “the rest to my children” will cover children born after the time of execution as well as those already born before. After acquired property will not be covered by the will if the will does not speak to it.

Question 10

Spouse’s Elective Share

Answer 10

• Statutory right of a surviving spouse to decline to take under the will or pursuant to the intestacy statute, and instead choose to take an elective-share (50% of the value of the marital-property portion of the augmented estate). The right to elect survives even where the testator specifically and purposely left the spouse out of the will.
• Therefore, taking an elective share is an alternative to challenging a will.

Question 11

Procedure for Election of a Share

Answer 11

The surviving spouse must make an election within the later of:

• the nine months after the date of the decedent’s death; or
• six months after the probate of the decedent’s will

Question 12

Determining the Marital Property Portion of the Augmented Estate

Answer 12

Under the UPC, there is a sliding scale approach, the longer the marriage = the higher the marital property portion.

Question 13

Supplemental Elective Share

Answer 13

A special feature for small estates that is designed to bring the surviving spouse’s assets up to at least $75,000, or as close to that figure as the value of the assets permits.

Question 14

Waiver of Right of Election

Answer 14

The right of election of a surviving spouse may be waived, wholly or partially, before or after marriage, by a written K, agreement, or waiver signed by the surviving spouse (e.g. prenup).

Question 15

Scrutinizing Waivers of Election

Answer 15

Courts heavily scrutinize these sorts of waivers and might hold them to be ineffective if inequitable or based upon incomplete financial disclosure.

Question 16

Property that is Excluded from Right to Election

Answer 16

The decedent’s sales that were supported by adequate and full consideration are excluded from the augmented estate, even if the purchaser is a relative.

Question 17

Spouse’s Right to Intestate Share

Answer 17

If a testator’s surviving spouse married the testator after the subject will was executed, the surviving spouse is entitled to receive an intestate share (which is often greater than an elective share) unless:

• the will indicates that the spouse was not intended to take anything under the will; or
• if inter vivos gifts are made to the spouse in satisfaction of the spouse’s share.

Question 18

Omitted Heirs: Children Living at Time of Execution of Will

Answer 18

Under the UPC, a testator can disinherit a child intentionally. There is no forced or elective share for children in the same way that there is for a spouse.

Question 19

What About Children Born After Execution of the Will?

Answer 19

If a testator fails to provide for a child born or adopted after making the will, the UPC protects such child from unintentional disinheritance and instead entitles the child to some share, unless it appears from the will that the failure was intentional.

Question 20

Rights of After-Born Children: When the Testator Had No Living Child When the Will Was Executed

Answer 20

The after-born or adopted child receives an intestate share except:

• when the will devised most or all of the estate to the omitted child’s other parent
• the face of the will reflects that testator intended omission.

Question 21

Rights of After-Born Children: When a Testator Does Have Children

Answer 21

• If a testator had one or more children living at will’s execution and the will made a devise to one or more of them, the omitted after-born or adopted child is entitled to share in what they received as if the child had been given an equal share of that portion of the estate.
• If a testator had living children at the time of the will’s execution but they received nothing under the will, the after-born or adopted child will continue to “share” by also getting nothing.

Question 22

Do After-Born Non-Marital Children Have Rights?

Answer 22

Non-marital after-born children are entitled to take the same as marital after-born children if:

• mother & father marry; or
• father holds child out as his; or
• judicial determination of paternity; or
• there is other clear and convincing evidence of paternity

Question 23

After-Born Children Rights: Codicils

Answer 23

Remember if a valid codicil is executed after the birth of an originally after-born child, the entire will is republished as of that date, the child is treated as if in existence at execution (no longer an after-born child), and will not be entitled to an intestate share.

Question 24

Slayer Act

Answer 24

Any person who participates, either as a principal, co-conspirator, or an accessory before the fact, in the willful and unlawful killing of the decedent may not acquire any property or receive any benefit as a result of the decedent’s death. Does not apply if the killing was reckless, accidental, or negligent.

Question 25

Slayer’s Right in a Joint Tenancy

Answer 25

Joint tenancy property with rights of survivorship is converted to a tenancy in common. The interest of the slayer prior to the slaying will be kept, with the other portion passing as tenancy in common property to probate estate.

Question 26

What Happens to Slayer’s Interest in Insurance?

Answer 26

If the slayer is the beneficiary or assignee of a policy insuring the life of the decedent, or is the survivor of a joint life policy, the proceeds will be paid to the decedent’s estate, or if designated, to a contingent beneficiary, even if the contingent beneficiary is a relative of the slayer.

Question 27

Effect of Divorce and Remarriage Upon Wills

Answer 27

• An ex-spouse is no longer a surviving spouse. All provisions of the will relating to the divorced spouse are ineffective unless it is apparent in the will that the provisions were intended to survive the divorce or the parties remarry.
• However, there must be a final legal decree of divorce. Pending divorces and separations are deemed not final enough to bar the other party.

Question 28

What if a Beneficiary Simultaneously Dies?

Answer 28

• In many states, survival by an instant is enough.
• However, under the UPC, one who cannot be established to have survived the decedent by 120 hours (5 days) by clear and convincing evidence is deemed to have predeceased that decedent.

Question 29

Disclaimer of Property Interests (Req.)

Answer 29

To be effective, a disclaimer must be:

• in writing or other record;
• declare the disclaimer;
• describe the interest or power disclaimed;
• signed by the disclaiming party; and
• delivered or filed

Question 30

When Disclaimer is Impermissible

Answer 30

• The would-be recipient has waived their right to disclaim their bequest
• The would-be recipient had already received and accepted the property
• The would-be disclaimed interest has already been assigned or encumbered (e.g. mortgage)
• The would-be disclaimed interest has already been sold in a judicial sale

Question 31

Effect of Disclaimer (Relation Back)

Answer 31

A disclaimer relates back to the date of the death of the decedent. Because of the relation back, the disclaimant is treated as having predeceased the testator, even though the disclaimer is made after the death of the testator.

-Therefore, the disclaimer will accelerate the possession of interests that are subsequent to the disclaimant.

Question 32

Can a Contingent Remainder be Accelerated Upon a Disclaimer?

Answer 32

A contingent remainder will not be accelerated where there are prior successive interests (e.g. “to A for life, remainder to B and his heirs, but if B dies without issue, to A’s heirs,” A’s disclaimer will not accelerate the interests of A’s heirs because B’s interest precedes those interests).