What is ademption by extinction under common law?
Specific gift is adeemed (fail) by extinction if it can’t be identified at the time of testator’s death or the testator doesn’t own it at death.
Under the common law, testator’s intent is not relevant.
What is the effect of incorporation by reference?
Makes a bequest through an unattested memorandum valid.
What are the requirements of incorporation by reference in most states?
- Document or writing in existence at the time the will was executed;
- Is sufficiently described in the will; and
- The will manifests an intent to incorporate the document.
What is the exception for incorporation by reference for gifts of tangible personal property other than money under the UPC?
Document does not have to be in existence at the time the will was executed, if:
- Signed by testator, and
- Item/devisees are described with reasonable certainty.
What is an act of independent significance?
Acts with significance outside of the will-making process can be. used to fill in any gaps of a will.
E.g., “the contents of my safe deposit box” “my spouse”
What is ademption by extinction in most states?
Specific gift adeems only if the testator intended the gift to fail.
If no intent, beneficiary is entitled to:
- any property acquired as a replacement for the specific gift, or
- a monetary devise equal to the value of the gift .
How do specific bequests of stock get distributed?
At common law, beneficiary is entitled to additional shares produced by the stock split.
Under UPC, get additional shares AND stock dividends.
What are the basic rules of will construction?
- Avoid intestacy.
- When two+ provisions contradict, the last one prevails.
- Construe will as a whole.
- Words are given ordinary and grammatical meaning.
- Technical words get technical meaning.
- Give effect to all words.
What is ademption by satisfaction?
When a testamentary gift is transferred to the beneficiary during the testator’s life.
Common law: advancement; amount of gift is deducted from heir’s share of estate.
UPC: not an advancement if - (a) will provides for satisfaction or (b) devisee acknowledges in writing gift was satsifaction.
What happens to mortgages on devised real property?
Common law: does not pass subject to mortgage and mortgage is paid from estate
UPC/Modern: assumes the mortgage unless will directs otherwise
What is abatement?
Reducing testamentary gifts when estate assets are insufficient to pay all claims against the estate & satisfy all gifts.
Creditors of the estate always have priority to assets of the estate over beneficiaries.
What is the order of abatement?
Unless stated otherwise,
- Intestate property
- Residuary estate
- General legacies
- Specific bequests and devises
One group gets eliminated until enough. Within each group, reduction is pro rata.
When does a gift lapse?
When the beneficiary predeceases the testator (or is treated as predeceasing the testator).
What is an anti-lapse statute?
Save the lapsed gift by vesting it in the issue of the predeceased beneficiary if the predeceasing beneficiary was in a certain degree of relationship to the testator and left surviving descendants. Most states exclude predeceasing spouse.
In most states:
- Predeceased beneficiary is a specified blood relative AND
- Beneficiary leaves issue who survives testator.
**if will provision includes words of survivorship, anti-lapse will not apply.
What is the rule “no residue of a residue”?
Applies when a will devises the residuary estate to two+ beneficiaries and one predeceases the testator.
Common law: deceased’s share passes through intestacy
Modern: survivors split deceased’s share pro rata (unless anti-lapse applies)
What is integration?
Process of embodying several papers into a single will, validated by a single execution.
Must show:
- Pages were present when will was executed, and
- Pages were intended to be part of will.
Both elements are presumed when pages physically connected, internal coherence, or orderly dispositional plan
What is a contractual will?
A contract to execute mutual wills.
What makes a contractual will enforceable?
- Expressly state that the parties intended their wills to be a binding contract, and
- Specific reference to the contract on which the joint wills were based.
**Does NOT raise a presumption that the wills were executed pursuant to a promise not to revoke.
When can a contractual will be revoked?
Anytime before the first testator’s death.
What happens when a contractual will is breached?
Remedies are only available if the testator dies in breach.
The court will impose a constructive trust for the benefit of the promisee.
What are the 2 simultaneous death rules (USDA & UPC)?
USDA: If there is no sufficient evidence of survival, property is disposed of as if the decedent had outlived the other.
UPC: Person cannot take as an intestate heir or will beneficiary unless they survive the decedent by at least 120 hours.
What are the requirements of disclaimer?
- Written,
- Describe the interest/power disclaimed,
- Signed by the disclaimant, and
- Filed with court within 9 months of death.
What is the effect of a disclaimer?
The property passes either:
- According to the terms of the will (if any), or
- As if the disclaiming predeceased the testator (lapse, unless anti-lapse applies).
Are conditions on bequests that prohibit marriage valid?
Restrains first marriage/requires divorce = no.
Restrains remarriage or is intended to take care of someone until they marry = yes.
