Will Construction Problems Flashcards
Testator’s Intent
Courts give the words their plain meaning unless the will states otherwise.
Generically Described Property
Generically described property gifted in a will applies to property owned at decedent’s death matching description in the will.
(i.e., a gift of “my boat”)
Ambiguity
Courts are reluctant to disturb plain meaning, but most courts allow extrinsic evidence to clarify testator’s intent.
Advancement
Common Law
Gifts to heirs during testator’s lifetime were considered advancements and would be deducted from heir’s share of estate.
Advancement
Modern View / UPC
Gifts during testator’s lifetime are NOT deemed advancements UNLESS:
1) will provides for deduction, OR
2) it was indicated in writing that property was in satisfaction
some states do not require writing, any evidence of intent is fine
Simultaneous Death
RUSDA
If no proof by clear and convincing evidence that one person survived by 120 hours then property is distributed as if that person predeceased the other.
Residue of Residue
Common Law: no residue of a residue. any residuary shares of decedent’s estate that were invalid passed to testator’s heirs via intestate distribution.
Modern View: If residue is devised to two or more persons, share that fails will pass to other residuary beneficiaries.
Common Law Rule of Lapse
All gifts in will were conditioned on the beneficiary surviving the testator & gifts to dead beneficiaries failed if died before testator.
Anti-Lapse Statute
When a beneficiary predeceases testator, gift will vest in issue of dead beneficiary if:
1) dead beneficiary is a specified descendant of testator, and
2) beneficiary leaves issue who survive testator
Anti-Lapse v. Will Provision
Anti-Lpase statute is only default rule. Specific language in will controls.
Ademption
Common Law
Under the common law identity theory, a specific gift is adeemed by extinction if it does not exist at testator’s death.
Ademption
Modern Trend
If a specific gift does not exist at testator’s death, it will adeem only if testator intended gift to fail.
Ademption Gift Swap
If testator did not intend for a specific gift to fail, the beneficiary is entitled to:
1) any real or tangible personal property which testator acquired as replacement for specific gift; or
2) a monetary devise equal to value of specific gift
if gift destroyed –> entitled too insurance payout
Stock Splits & Dividends
A person who was gifted securities (shares of stock) in a will is entitled to additional shares testator acquired from stock splits/dividends.
Exoneration
Common Law: A specific devise of real property did not pass subject to mortgage & mortgage was paid from estate.
Modern View: A specific devisee of real property assumes the mortgage (unless explicitly stated otherwise)
