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Interpretation and Construction

Interpretation and Construction. Interpretation. Determine testator’s actual intent from will or permissible extrinsic evidence. Construction. Determine testator’s presumed intent f rom will or permissible extrinsic evidence. When issue arises?. 1. Before probate (not often)

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Interpretation and Construction

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  1. Interpretationand Construction

  2. Interpretation • Determine testator’s actual intentfrom will or permissible extrinsic evidence.

  3. Construction • Determine testator’s presumed intent from will or permissible extrinsic evidence.

  4. When issue arises? • 1. Before probate (not often) • 2. After probate (most common)

  5. Who raises issue? • 1. Personal Representative • 2. Beneficiaries and heirs

  6. Ambiguity

  7. 1. Patent Ambiguity • Ambiguous on its face • “I leave &^,#@( to Erica Evans.” • “I leave my zdcix to Chad Decker.” • “I leave _____________ to Ryan Nichols.”

  8. 2. Latent Ambiguity • Makes sense on face but cannot be carried out as written. • “To my sister Pat.” • Testator has a sister named Chris and a brother named Pat. • “I leave my car to X.” • Testator owns three cars. • “I leave my house at 15426 Comstock to X.” • Testator owns a house at 15428 Comstock.

  9. 3. No Apparent Ambiguity • Meaning is clear but can extrinsic evidence be used to “create” an ambiguity? • Jurisdictions are divided: • Clear meaning rule, or • Admit extrinsic evidence

  10. Integration

  11. 1. External Integration • Putting together different documents to create testator’s will. • How to avoid problems?

  12. 2. Internal Integration • Continuity within instrument. • Goal = avoid fraudulent page insertion/substitution • How to avoid problems? • See pp. 182-183

  13. Incorporation by Reference

  14. Basic Idea • Treat written material that is not physically part of the text of the will text as being in the will. • A “legal fiction” (pretending).

  15. Requirements • 1. Testator must intend to incorporate.

  16. Requirements • 2. Incorporated writing must be in existence when testator executes the will.

  17. Requirements • 3. Incorporated writing must be reasonably identified.

  18. Issues • 1. Validity of incorporated writing irrelevant.

  19. Issues • 2. Codicil incorporates will (basis of republication)

  20. Issues • 2. Codicil incorporates will (basis of republication) What result if: • a. Valid will + Valid codicil

  21. Issues • 2. Codicil incorporates will (basis of republication) What result if: • b. Valid will + Invalid codicil

  22. Issues • 2. Codicil incorporates will (basis of republication) What result if: • c. Invalid will + valid codicil

  23. Interpretationand Construction[continued]

  24. Facts of Independent Significance

  25. Basic Idea • Can we look outside the four corners of the will to ascertain at-death property distribution?

  26. Defined • Something which has a legal purpose independent of disposing of property at death. • Thus, can be effective to impact new owner of property without compliance with will formalities.

  27. Examples • 1. Safe deposit box contents

  28. Examples • 2. Note in desk drawer

  29. Examples • 3. Identity of class gift members

  30. Examples • 4. Evidence to resolve ambiguities

  31. Examples • 5. Non-probate transfers

  32. Examples • 6. Tagging items of personal property To my daughter, Doris.

  33. Tangible Personal Property Document

  34. Pour Over Provisions

  35. Defined • Will provision leaving property to inter vivos trust. • Why used? • __________ • __________ • __________ • __________ Will Trust

  36. Historical Development • 1. Not allowed.

  37. Historical Development • 2. Incorporation by reference.

  38. Historical Development • 3. Facts of independent significance.

  39. Historical Development • 4. Codification • Uniform Testamentary Additions to Trusts Act (1960) • Uniform Testamentary Additions to Trusts Act(1991) • State tinkering with Uniform Act(Ohio § 2107.03)

  40. Authorization of Technique • Expressly authorizes pour over technique.

  41. Types of trusts into which pour overs allowed • 1. Trust created by testator • Before or at time of will execution = OK • After will execution = ??

  42. Types of trusts into which pour overs allowed • 2. Trust created by another person • Before or at time of will execution = OK • After will execution = ??

  43. Types of trusts into which pour overs allowed • 3. Can pour over funds be the initial trust funding? • Traditional/Ohio view = no • Modern view =yes

  44. Types of trusts into which pour overs allowed • 4. Cannot pour over into revoked or terminated trust.

  45. Governance of poured-over property • Amendments made after will execution: • Before the testator’s death? • After the testator’s death?

  46. Precatory Language

  47. Defined • Serious request but not legally binding. • Examples: • “I hope” • “I would like” • “I recommend” • “I wish”

  48. Ramifications • 1. To restrict or limit gifts • Generally ineffective.

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