Wills — Construction and Death of Beneficiary

Question 1

What is construction of a will?

Answer 1

Determining the meaning attributed to the will.

Question 2

Plain Meaning

Answer 2

If the plain meaning of the will is clear as a day and there is no ambiguity, then extrinsic evidence may not be introduced to determine the meaning of the will.

Question 3

Latent Ambiguities

Answer 3

Can be present by either:
1. a description for which two or more persons or things fit exactly aka equivocation; or
2. a description for which no person or things fits exactly but two or more persons or things fit partially aka no exact fit.

Personal usage exception:
If there is evidence that the testator treats a particular word to mean a certain thing, then extrinsic evidence may be introduced to establish the meaning the testator ascribes to that word or phrase.

Question 4

Patent Ambiguities

Answer 4

An ambiguity that is evident from the face of a will.

Traditionally, extrinsic evidence is not admissible for such ambiguities. Rather, courts adhere to the four corners of the will to resolve these patent ambiguities.

You cannot add or substitute words to resolve these, but you can delete words to resolve these ambiguities.

Question 5

Reformation to Correct Mistakes

Answer 5

A court may reform terms of a will, even if unambiguous to conform with the transferor’s intent, IF:
1. it is proven by clear and convincing evidence what the transferor’s intentions are and;
2. whether what the terms of the governing instrument were is dependent on a mistake of fact or law.

Question 6

Determining if the document is a will

Answer 6

Extrinsic evidence is admissible to determine whether the document constitutes a will EVEN if the will is unambiguous, if there exists clear and convincing evidence that the testator intended something else at the time the will was drafted. .

However, in CA, extrinsic evidence is only available for mistaken expression. Meaning you said something but intended to say something else.

Question 7

Lapse

Answer 7

A beneficiary who dies before the testator does, fails to take under the will. The beneficiary gift then ‘lapses,’ and falls within the residuary of the estate.

Question 8

Anti-lapse

Answer 8

The lapsed gift will be restored if:
1. the beneficiary is a blood relative of the testator; and
2. the beneficiary leaves an issue.

BASICALLY, if the gift lapses but the beneficiary is a blood relative AND had a valid issue, then it wont lapse.

Question 9

Anti-lapse with respect to class gifts.

Answer 9

If a member of the class, e.g., the class is brothers and one of the brothers die, and then the will was executed with the class “to my brothers,” and the testator knew that one of his brothers was dead, then the dead brother’s issue does not take. Instead, the gift goes to the brothers who were alive at the time of execution of the will.

Question 10

Lapse Common Law rules

Answer 10

If the devisee predeceases then the following happens:

1. If a specific gift lapses –> the devisee falls into residue
2. If a general gift lapses –> the devise falls into residue
3. If all residual takes predecease –> intestacy to heirs of testator
4. Some residual takers predeceased –> split of authority
5. If one of the members of a “class” predeceased, other class members take

Question 11

120-hour rule

Answer 11

If the devisee dies within less than 120 hours of the testator dying, they are considered to have PREDECEASED the testator.

Question 12

Ademption by Extinction

Answer 12

When a specific gift is no longer within the testator’s estate, the gift is considered to be ADEEMED or REVOKED. This only occurs with SPECIFIC GIFTS not GENERAL GIFTS.

Focus on the testator’s intent to determine if the gift is deemed.

Stock may be either general or specific, depends on the testator’s intent.

Question 13

Abatement

Answer 13

When the estate does not have enough assets to fulfill its gift the following is the hierarchy of gifts that are revoked first:

1. Residue abates (revoked) first;
2. General devises abates second; and
3. Specific devises abate LAST.

Question 14

Specific Gifts

Answer 14

Specific gifts are typically those gifts that are referenced by “my”, example: MY ford 150 vs. A Ford 150. The former is a specific gift, the latter is a general gift.

Question 15

General Gifts

Answer 15

General Gifts are gifts that can be satisfied by a number of various gifts. They are typically referenced by ‘a,’ examplage. A $1,000. v. My Apple Stock.

Question 16

Ademption by Satisfaction

Answer 16

At common law this occurs when the testator gave the gift stated in the will inter vivos to the beneficiary before they die.

Under the UPC / CA, this occurs only by writing, meaning the testator has to confirm in writing that they intend for the substitute gift to replace the gift stated within the will. NOTE: ademption by satisfaction issues only arise typically if its a general gift only. Meaning if the testator gave a specific gift, we don’t have to worry about whether or not the will is abated with respect to this gift.