Class 11

A. Remaining problem
a. Re: elective share
i. Subtract from elective share the marital property portion of the survivor’s share
of the augmented estate
ii. Prevents wealthier survivor from taking more
iii. Survivor should leave death with half of their shared property
iv. Some property pooled in augmented estate comes from the survivorfraction
of their property that they have antecedently to calculation of the augmented
estate is community property
B. Wills + Execution
a. Execution: if a lawyer presides and has a clue what they’re doing, the lawyer always
includes an attestation clause of the will. Precedes witnesses and follows testator’s
signature
i. Creates a rebuttable presumption of the truth of the attestation clause as long
as witness can identify their signature (then presumption that witness
witnessed will)
b. 2-504 (a) self-proved will (helps minimize costs/risks in the long run)
i. Then if will is being probated, affidavit takes the place of a person’s physical
appearance if they can’t be found
c. 2-504(b) can make will self-proved at a later time after its execution with attesting
witnesses
C. 2-510 Incorporation by Reference (tends to be harsh and restrictive)
a. Writing in existence when a will is executed may be incorporated by reference if the
language of the will manifests this intent and describes the writing sufficiently to permit
its identification
b. Estate of Norton SC NC 1991
i. Writing south to be probated, legal cover sheet and 8 pages
ii. Last 2 pages added later, 1st 6 pages only initialed by testator
iii. Does 2pg codicil validate the invalid 6pg will?
iv. Ct: 6 pages not valid because no witness signatures
1. Valid 2 pages fails to adequately identify the attached 6 pages so as to
execute a valid incorporation by reference
c. Clark v. Greenhalge SC Mass. 1991
i. Woman executes will, gives her cousin everything except what she listed in a
memo
ii. Writes memorandum + Specific written bequests of personal property in a
notebook
iii. Greenhalge refused to deliver painting to Virginia Clark
iv. Notebook in existence at time of execution of the will codicilesincorporated
by reference into terms of will
1. Art. V of will provides mechanism to alter and amend bequests via
memo
v. (really should not have won, will only references memo)
 D. 2-512 Events of Independent Significance
a. A will may dispose of property by reference to acts and events that have significance
apart from their effect upon the dispositions made by the will, whether they occur
before or after the execution of the will or before or after the testator’s death
i. Rescues wills and codicils from strictness of incorporation by reference
b. In re Tiplers will CoA Tenn. 1998
i. Decedent executed will and holographic codicil to the will directing that if
husband predeceased her, property should be distributed in accordance with
deceased husband’s will
1. If she dies before he does, he gets everything. If he dies before she
does, estate distributed as his will directs
2. Holographic willusually means major provisions need to be
handwritten by decedenthusband’s will not handwritten by wife
a. Codicil entirely in her handwritingwanted estate to be
distributed as husband wisheda holograph which bequeaths
her estate to persons named as beneficiaries under husband’s
will would contain all material provisions in her handwriting
even though specific identity of beneficiaries is in another
document not in he handwriting
ii. Independent significanceMr. Tipler’s will had an independent significance of
distributing his estate and was not written with intent of distributing Mrs.
Tipler’s estate
iii. Estate distributed to husband’s family
E. 2-513 Separate Writing Identifying Devise of Certain Types of Tangible Personal Property
a. Whether or not holographic wills apply, a will may refer to a written statement or list to
dispose of items of tangible personal property [other than money]. To be admissible as
evidence of intended disposition, writing must be signed by the testator and must
describe the items and the devises with reasonable certainty. The writing may be
referred to as one to be in existence at the time of the testator’s death; it may be
prepared before or after the execution of the will; it may be altered by the testator after
its preparation; and it may be a writing that has no significance apart from its effect on
the dispositions made by the will

Class 12

A. Abatement
a. Determines order of priority among various devisees when the value of the will is
insufficient to satisfy all devisees in the will
b. In re Estate of Potter CoA Fl. 1985
i. Leaves home to daughter and equal amount of value from assets in trust to give
son cash equivalent in home
ii. 3-902shares of distributees abate, residuary devises abate first and then
general and then specific
 iii. CoA: devise of residence to daughter was specific, trust amount was
tantamount to general devise (one which may be satisfied out of general assets
of estate instead of specific thing)
1. General devises abate before specific devisesdaughter should receive
residence
B. Ademption
a. Right to specific devise, but what if that devise was already destroyed or sold?
b. Identity theory: if object is not in estate at death of decedent, then that gift is nullified
(adeemed)
i. Attractive to minimize transaction costs
c. Intent theory: Treats person as well as will wanted them to be treated
d. 2-606 Nonademption of Specific Devises
i. A specific devisee has a right to specifically devised property in the testator’s
estate at the testator’s death, [and if it isn’t there, then]:
1. Any balance of the purchase price, together with any security
agreement, owed by a purchaser at the testator’s death by reason of
sale of the property
2. Any amount of a condemnation award for the taking of property unpaid
at death
3. Any proceeds unpaid at death on fire or casualty insurance or on other
recovery for injury to the property
4. Any property owned by the testator at death and acquired as a result of
foreclosure, or obtained in lieu of foreclosure, of the security interest
for a specifically devised obligation
5. Any real property or tangible personal property owned by the testator
at death which the testator acquired as a replacement for specifically
devised real property or tangible personal property
6. If not covered by paragraphs (1)-(5), a pecuniary devise equal to the
value as of its date of disposition of other specifically devised property
disposed of during the testator’s lifetime but only to the extent it is
established that ademption would be inconsistent with the testator’s
manifested plan of distribution or that at the time the will was made,
the date of disposition or otherwise, the testator did not intend
ademption to the devise
a. Devisee has burden of proving when the object in question left
the estate, it wasn’t with the intent that the owner did so to
lower the amount the devisee was to receive
e. McGee v. McGee SC RI 1980
i. Identity theoryform and substance rule = substantial change in the nature or
character of subject matter of a bequest will operate as an ademption, merely
nominal or formal change will not
f. Pg. 289, Problem 3
i. Tom entitled to any proceeds of insurance 2-606(a)(3)
 ii. Easy to make partially whole with (a)(1)-(5), but then on the devisee to litigate
for more equal to the value of the object minus whatever has bee conferred via
(a)(1)-(5)
1. Lawsuit will be over intent of testator at time property was removed
from the estate
C. Lapse
a. Death of will beneficiaries
b. A devise “lapses” if devisee predeceases testator, devisee’s heirs and descendants take
nothing
c. Antilapse statute would leave property to heirs of devisee
d. UPC 2-603: gifts to friends where friend pre-deceases testator will lapse and go into
residuary of the estate; gifts to predeceased relatives would go children/grandchildren
of relatives
i. Alternative Devise: lawyer anticipates that beneficiary will die and the will
expressly provides alternative devises on the happening of one or more events
ii. Substitute Gift: Statute creates gift in children/grandchildren where testator
didn’t make one (if a devisee fails to survive the testator and is a grandparent, a
descendant of a grandparent, or a stepchild of the testator:)
1. Except as provided in paragraph 4, if the devise is not in the form of a
class gift and the deceased devisee leaves surviving descendants, a
substitute gift is created in the devisee’s surviving descendants
2. Words of survivorship are not, in the absence of additional evidence, a
sufficient indication of an intent contrary to the application of this
section “if he survives me”don’t have any real effect unless
complemented by other words
3. If the will created an alternative devise with respect to a devise for
which a substitute gift is created, the substitute gift is superseded by
the alternative devise if: the alt devise is not in the form of a class gift
and the expressly designated devisee of the alt devise is entitled to take
under the will (and is alive at time testator dies)
e. 2-603(c) If substitute gifts are created and not superseded with respect to more than
one devise and the devises are alternative devises, one to the other, the determination
of which substitute gifts take effect is resolved as follows:
i. Ex: 10K to my sister if she survives me and if not to my brother Brad
1. Both die and both have kids
2. Give the money to Sue’s kids
ii. Except as provided in Para 2, the devised property passes under the primary
substitute gift
1. Primary devise = devise that would have taken effect had all the
deceased devisees of the alternative devises who left surviving
descendants survived the testator
iii. If there is a younger-generation devise, the devised property passes under the
younger-generation substitute gift and not under the primary substitute gift
 1. Younger-generation devise means a devise that is to a descendant of a
devisee of the primary devise, is an alt devise with respect to the
primary devise, is a devise for which a substitute gift is created, and
would have taken effect had all the deceased devises who left surviving
descendants survived the testator except the deceased devisee or
devisees of the primary devises
a. Ex: 10k to my sister issm and if not to her daughter
b. Pg. 117-118 in statute book, examples
f. Unless will created alternative devisees, statute creates substitute gifts. Where wills do
create, trumps substitute gifts as long as beneficiary is alive and can take