Wills II
Understanding the Meaning of a Will
When Sarah's will says "I leave my diamond necklace to my oldest daughter," does it intend to leave the necklace to the oldest daughter who is alive at the time of Sarah's death, or does it intend to leave the necklace to the oldest daughter at the time the will was drafted. What if Sarah has another daughter, after she writes her will? What if none of her daughters survive, who gets the necklace then? What if Sarah actually has two diamond necklaces? Does it make a difference if Sarah has told her daughters which necklace? Does it make a difference if Sarah has Sarah has told her daughters which one gets the necklace? These are examples of basic questions presented when reading and construing a will.
Why leave them guessing. Of course, we much prefer
that the will answer these questions explicitly. Why leave them guessing?
The best plan is to carefully spell out any specific intentions at the
time the will is drafted. "I leave my diamond necklace to Mary Jane if
she survives me. If Mary Jane does not survive me, I leave it to Nona.
If neither survive me, then I leave it to my oldest surviving granddaughter."
Does that help?
Family Cooperation. Most families work these issues
out, of course without court intervention. When a loved one dies, we tend
to feel mixed emotions of sadness, anger, regret, and deep pain. The danger
is that one might redirect these emotions into a disagreement about disposition
of property. Sometimes a disagreement about the meaning of a will works
as a proxy for resolving old wounds and old disagreements. Its not about
who gets the necklace, its about..... But most families work through these
issues and pull together. Fighting over the will is not really the solution
to anything, and it can be expensive.
Will speaks at time of death. We say that a will
speaks at the time of death. When a will says I leave my home to Sam, it
means the home at the time of death, not the home at the time of writing
the will. When we interpret a will, then, we begin by pretending that the
author of the will, the testator, is speaking now, not many years ago when
the will was drafted. There are times when we disobey this rule, because
we need to understand what the testator was thinking back at the time the
will was drafted, but ordinarily we construe a will as if drafted at the
time of death.
A will often contains specific legacies, that is
a specific gift of specific property. Sarah's gift of her diamond necklace
is such a legacy. If the necklace is no longer in existence, then there
is no gift. We call that ademption. A will may also contain a general
legacy, a gift of a specific amount of money or property out of a general
fund. Sarah might leave $10,000 to Nona, but she doesn't have a specific
stack of bills in mind. Rather, she intends that the personal representative
will take money out of her general property, or sell some of her property
to obtain the cash, and then make a gift to Nona. The gift doesn't depend
upon the existence of specific property, just enough property somewhere
in the estate to fund the legacy. A will might also leave a demonstrative
legacy, out of a specific fund. For example, Sarah might leave Nona
$10,000 out of her account in Zapp National Bank. If the account contains
only $5,000, what do we then do? Finally, Sarah might leave a residuary
legacy, which essentially states that after all other instructions have
been followed, Sarah wants the remaining property, if any, disposed of
in a certain way. The type of legacy is important, if the estate lacks
sufficient funds to make all bequests and legacies, because the type of
legacy determines how gifts will be reduced when there is inadequate property,
in the absence of specific instructions from the testator.
Lapse IssuesSarah leaves property to Nona. Then
Nona dies with children. Does the property go to Nona's children, or does
it go to Sarah's other children. Once again, we prefer that the testator
give us specific instructions. "I leave $10,000 to my daughter Nona, but
if she fails to survive me, then to her heirs...." Or, I leave my lake
home to my surviving children equally. It is my intention that this gift
shall lapse as to any child who fails to survive me." Many states have
so-called anti-lapse statutes which state that gifts to relatives
of a certain degree are presumed not to lapse if the relative predeceases,
but rather are presumed to pass on to the issue of the relative. Thus the
children of the predeceased relative take her share. Of course the testator
can change this rule by specifically providing otherwise.
Parol evidence. In our section on contracts, Contract
Meaning, we discussed the circumstances under which a court will accept
evidence outside the contract to explain the meaning of the contract. Similar
rules apply to wills. If the language of a will is not ambiguous, the court
will not accept outside evidence of Sarah's intent. If the will says Nona
should receive the necklace, the court will not hear evidence that she
really meant Jeanne. But if the will is ambiguous, then the court will
receive information to explain the meaning.
This is the beginning of our discussion of wills. We will be adding more in the future. If you have questions you would like to address, let us know.
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