Will Interpretation and Construction Flashcards
Who might raise interpretation and construction issues? (2 types of people)
- T’s personal representative who wants to do the right thing and avoid liability for improper administration of the will; AND
- Beneficiaries/heirs who would take differently given certain interpretation(s)
What general intent does T indicate by leaving a will?
Intent not to die intestate
If there are contradictory provisions in a will, which prevails?
The last provision prevails (because it was written closest to death)
How is a will construed?
As a whole, not as isolated provisions
How are words in a will treated?
Unless T clearly intends otherwise, words are given their ordinary and grammatical meaning
How are technical (i.e., legal) words treated in a will?
Unless T clearly intends otherwise, technical words are given their technical meaning
What is the goal when interpreting a will?
Give effect to all the words that T included in the will
What are teh two kinds of ambiguity that can be present in a will?
- Patent (obvious) ambiguity (ambiguous on its face, e.g., “I leave my vizz to X”)
- Latent (hidden) ambiguity (sensible on its face, but requires clarification, e.g., “I give my car to X” but T died with two cars)
What will a court consider to resolve a patent ambiguity?
- Extrinsic facts and circumstances AND
- Statements the testator made to the DRAFTING ATTY
(N.B. Evidence of T’s statements of intent to third parties is NOT admissible!)
What will the court consider to resolve latent ambiguities? (3 things)
- Extrinsic facts and circumstances;
- Evidence of T’s statements of intent to third parties; AND
- Statements T made to the drafting att’y
What is incorporation by reference?
**Often tested
Instead of writing something out in the will, testator attempts to incorporate the extraneous document into the will by reference
In NY, what is the rule on incorporation by reference?
NY does NOT recognize incorporation by reference EXCEPT w/r/t pour-over trusts
(e.g., “X devises all her jewelery to the people on the list in her safe deposit box.” List is found. Devise is not given effect in NY.)
What are acts or facts of indenpendent significance?
Something outside the four corners of the will that has legal purpose other than disposing of property upon death
(e.g., “I leave the car I own at my death to Tom.” The car may change, so executors must look outside the will to make the disposition.)
If something is found to be a fact of independent significance, then it does NOT need to be executed in the formalities of the will to transfer property at death!
What are four types of facts of independent significance?
- Specific gifts of a general nature (e.g. “I leave the car I own at my death to X”)
- Class gift designations (e.g., “I leave $100k to all my children”)
- Gift to “my spouse”
- Gifts of contents (e.g., “I leave the contents of my safe deposit box to X”)
[In all these situations, the specific gifts or the specific beneficiaries may change between execution and death]
What is a conditional will?
A will which operates only if a certain event occurs or does not occur
(There is a presumption AGAINST conditional wills!)
(e.g., “This will is to be effective if I die of cancer” is conditional; “I have been diagnosed with cancer and so I am writing this will” is NOT conditional.)
