Construction of Will Flashcards
(24 cards)
What are the four classifications of systems of gifts?
Specific, General, Demonstrative, and Residuary
Define Specific classification
property distinguished with reasonable accuracy from testator’s other property
Define General classification
property to be satisfied from general estate assets
Define Demonstrative Classification
property to come from a particular source
Define Residuary classification
property remaining after all specific, general, and demonstrative gifts are made
What is something “incorporated by reference” and what may it dictate?
Incorporated by reference refers to another writing not executed with testamentary formalities that may dictate the distribution of T’s property if it:
1) existed at time of execution of the will
2) Is intended to be incorporated; and
3) Is described in the will with sufficient certainty to permit identification
What is are acts of independent significance
designation of a beneficiary or disposition by reference to some unattested act or event occurring before or after the execution of the will or T’s death if the act or event has some significance apart from the will
When analyzing a testators acts, what is the importance of time?
Recall that the doctrines of republication by codicil and incorporation by reference apply only to events that occurred in the PAST. For example, republication by codicil looks at a will executed BEFORE the codicil, and incorporation by reference requires the document to be in existence BEFORE the execution of the will (unless the UPC exception applies). The acts of independent significance doctrine, however, is the only doctrine that applies to FUTURE acts or events.
What is Lapse
If the beneficiary dies before the T, the gift lapses and passes to the residuary beneficiary, or if non, via intestacy
What is an anti-lapse statute
if the beneficiary was T’s relative and left issue, then the issue
succeeds to the beneficiary’s gift
* Applies to class gifts
* UPC/Modern trend—also apply to non-probate transfers
Residuary lapse is what?
Common Law: a lapsed residuary interest passes by intestacy
UPC: a lapsed residuary interests passes to the remaining residuary beneficiaries
When is a gift VOID
when a gift is made to a beneficiary, who unbeknownst to T, is already deceased when the will was executed
**anti-lapse statute applies to void gifts
Define abatement
when the assets of the estate are insufficient to pay all debts and legacies, the gifts by will are abated or reduced
What order are gifts abated in?
1) intestate property
2) residuary bequests
3) general bequests
4) specific bequests
NOTE: a demonstrative gift is treated as a specific bequest, if it cannot be, then it is treated as a general bequest
Define Ademption
the denial of a gift to a beneficiary because the property is not longer in the T’s estate
What is Ademption by extinction and when does it apply?
Only applies to specific bequests if the subject matter is missing or destroyed
When the gift is extinct - the beneficiary takes nothing, not even the insurance proceeds or the equivalent in cash
What are the two approaches to Ademption by extinction:
- Traditional - “identity theory”
- UPC - “intent theory”
What is the traditional Identity theory to ademption by extinction
If the specifically bequeathed item is not a part of the estate at the testator’s death, then it is adeemed.
What is the UPC intent theory of ademption by extinction?
Intent of the testator at the time he disposed of the subject matter of the bequest is examined.
The UPC has essentially created a “mild presumption” against ademption and has created several doctrines to avoid it. The bequest to the beneficiary is adeemed if the facts and circumstances establish that the ademption was intended. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money relating to the extinction, the outstanding balance. Unif. Probate Code § 2-606(a).
What is the common law vs UPC approach to Exoneration of liens?
Common Law - beneficiary of encumbered real property can have the lien paid off
UPC (Most states) - a beneficiary of encumbered real property is not entitled to have the lien paid off
As for ambiguities and mistakes, what is the Plain meaning rule?
the Court is reluctant to disturb the plain meaning of a will regardless of mistake
How can ambiguities be resolved?
by extrinsic evidence
How can mistakes be resolved?
extrinsic evidence is admissible to show that there was a mistake in the will’s execution
What is the Rule of Construction?
The will “speaks” for itself rule.
Under the general rule of construction that a will “speaks” as of the time of death, a bequest of a generically described property applies to property that meets the generic description at the testator’s death.
