Comprising and Construing the Will: Interpretation, Limits, and Special Provisions

Question 1

What is the primary principle guiding the construction of wills?

Answer 1

Wills are construed in accordance with the discernible intent of the testator.

Question 2

What does the term ‘integration’ refer to in the context of wills?

Answer 2

Integration refers to pages present at execution that are intended to be part of the will.

Question 3

Who bears the burden of proof in a question of integration?

Answer 3

The will proponent must show that the will offered for probate is the intended will of the testator.

Question 4

What is ‘incorporation by reference’?

Answer 4

A doctrine allowing the inclusion of unintegrated, unattested documents as part of a will if certain conditions are met.

Question 5

What are the three conditions for incorporation by reference?

Answer 5

• The writing existed at the time of execution of the will
• The will manifested intent to incorporate
• The will described the writing sufficiently for identification

Question 6

What is the doctrine of ‘facts of independent significance’?

Answer 6

A will may provide for designations by reference to future acts, as long as those acts hold significance apart from changing the will.

Question 7

What is a ‘personal property list’ in the context of wills?

Answer 7

A writing that lists personal property to be transferred to certain individuals, which can be created after the will’s execution.

Question 8

What types of property cannot pass through a personal property list?

Answer 8

• Real estate
• Money (not considered personal property for this purpose)

Question 9

What does the Uniform Testamentary Additions to Trust Act (UTATA) allow?

Answer 9

It allows gifts to trusts in existence at the time of the decedent’s death to be valid dispositions.

Question 10

What does the statutory rule ‘a will speaks at death’ imply?

Answer 10

The will reflects the situation at the time of the decedent’s death.

Question 11

What is the elective share for a surviving spouse?

Answer 11

The elective share is generally equal to 50% of the value of the marital-property portion of the augmented estate.

Question 12

What must a surviving spouse do to exercise their right to an elective share?

Answer 12

Make an election within nine months after the decedent’s death or six months after probate of the will.

Question 13

What is an ‘omitted heir’?

Answer 13

Children living at the time of execution of the will who are neither mentioned nor provided for in the will.

Question 14

What protection does the UPC provide for after-born or adopted children?

Answer 14

They are entitled to a share unless the will shows that the failure to include them was intentional.

Question 15

What happens if a decedent’s will is executed before the birth of a child?

Answer 15

The after-born child receives an intestate share unless exceptions apply.

Question 16

What is the effect of a valid codicil on a will concerning after-born children?

Answer 16

The codicil republishes the will, treating the child as if in existence at execution.

Question 17

What does the Slayer Act entail?

Answer 17

It disqualifies any person who unlawfully kills the decedent from acquiring property or benefits from the decedent’s death.

Question 18

How is property distributed if a slayer is involved?

Answer 18

The slayer is deemed to have predeceased the decedent.

Question 19

True or False: A surviving spouse can waive their right to an elective share.

Answer 19

True

Question 20

Fill in the blank: The elective share is generally equal to _______ of the value of the marital-property portion of the augmented estate.

Answer 20

50%

Question 21

What happens to a slayer’s inheritance if they commit felonious intentional slaying?

Answer 21

The slayer cannot take as an heir and is deemed to have predeceased the decedent

This applies to property that would have passed from the decedent to the slayer under descent and distribution statutes.

Question 22

How is joint tenancy property treated if the slayer is involved?

Answer 22

It is converted to tenancy in common, with the slayer’s interest retained and the remainder passing to the probate estate as tenancy in common property.

Question 23

What happens to insurance proceeds if the slayer is a beneficiary?

Answer 23

The proceeds will be paid to the decedent’s estate or a designated contingent beneficiary, even if that beneficiary is a relative of the slayer.

Question 24

True or False: Desertion or abandonment is sufficient to bar a surviving spouse under the UPC.

Answer 24

False

The UPC requires some definitive legal act to bar the surviving spouse.

Question 25

What is the effect of divorce on a surviving spouse's rights under a will?

Answer 25

An ex-spouse is no longer a surviving spouse, and provisions related to them are ineffective unless intended to survive the divorce.

Question 26

How does the UPC define simultaneous death for inheritance purposes?

Answer 26

If a person cannot be established to have survived the decedent by 120 hours, they are deemed to have predeceased the decedent.

Question 27

Fill in the blank: Under the UPC, if both A and B die together and neither can be established to have survived the other by ______, they are deemed to have failed to survive each other.

Answer 27

120 hours

Question 28

What happens to joint tenancy property if the joint tenants die within 24 hours of each other?

Answer 28

The property will pass according to the survivorship rules, affecting the distribution based on who survived by the 120-hour rule.

Question 29

What is a disclaimer in the context of property interests?

Answer 29

A disclaimer is a refusal or rejection of a testate or intestate share.

Question 30

What must a disclaimer include to be effective?

Answer 30

It must be: * in writing or other record * declare the disclaimer * describe the interest disclaimed * signed by the disclaiming party * delivered or filed.

Question 31

True or False: A disclaimer can be made after the recipient has accepted the property.

Answer 31

False ## Footnote A disclaimer is impermissible if the recipient has already accepted the property.

Question 32

What is the effect of a disclaimer on the date of death of the decedent?

Answer 32

A disclaimer relates back to the date of the death of the decedent, treating the disclaimant as having predeceased the testator.

Question 33

What are common reasons people disclaim property interests?

Answer 33

Common reasons include: * To defeat creditors * Tax purposes * Share manipulation.

Question 34

What happens if a contingent remainder is disclaimed in the presence of prior successive interests?

Answer 34

A contingent remainder will not be accelerated where there are prior successive interests.

Question 35

Fill in the blank: In certain jurisdictions, if a son disclaims his share, his children may take a share as though he ______ their parent.

Answer 35

predeceased

Question 36

Under the UPC, how are disclaiming parties' children treated in terms of inheritance?

Answer 36

They will only take the share that the disclaiming party would have taken had the party not disclaimed.