Types of Gifts
Gift of personal property
Bequest
Failure of testamentary gift because the testator has already transferred property to beneficiary between the time of the will execution and death
Satisfaction
1. Intestate property
2. Residuary Gift (personal, then real)
3. General Gift (personal, then real)
4. Specific Gift (personal, then real)
Lapse
gift fails because beneficiary dies before testator
What is a pretermitted child?
Child born or adopted after Testator executed the will
"I leave my 1974 AMC Gremlin to X"
specific devise or bequest
Application to Corporate Stock
Specific = adeems because it is not in the estate
General = does not adeem because it is treated like money
Pro Tanto Exception
Testator devised 100 acre farm but dies owning only 75
No ademption, B still gets 75 acres because its still the same specific gift just a smaller portion
Common law impact on a will from divorce
No impact on will so ex-spouse would still take
Policy behind Pretermitted Children
Based on theory that the testator would have provided for them if they had know they would exist
"I leave my car to X"
Specific Devise/Bequest of a general nature
Old Texas Rule for Exoneration
When the testator owes a debt secured by a lien upon specific property belonging to them, the debt, like any other personal debt, it to be paid out of the testator’s personal estate, in absence of provisions in the Will showing contrary intention
Conveyance & Reacquisition
Facts: Testator conveys to Beneficiary; Beneficiary conveys to X; X conveys to Testator
Beneficiary would receive the gift unless the will, Testator’s contemporaneous writing, or Beneficiary's written acknowledgment provided that the gift was satisfied.
Cy Pres
Gift saved for equitable equivalent charity: court is going to try to find an equitable equivalent charity to give the money to
Computation -- if will makes no gift to testator's children
- Ascertain amount of estate NOT passing to PC's other parent
- Give PC share of this amount as if testator died intestate with no surviving spouse (Treat as individual property)
Relief of poverty, advancement of education, etc.
Charitable
9/1/2003
Before: any admissible extrinsic evidence to prove satisfaction
After: express statement in the will, T's contemporaneous writing, B's written acknowledgment
Securities automatically excluded from gift:
Newley purchased on the market
Newley purchased via purchase options
Acquired through cash dividend reinvestment plan
Texas Anti-Lapse requirements
2. When it applies, B physically or legally dies before testator
3. B left at least one suriving descendant
4. B's descendant outlives T by 120 hours (survival staute)
5. Gift then passes to B's descendants per capita with Rep
Problem: Wife dead, 3 children in will and left a husband. One PC
5(b): W’s will gives $25,000 to H and the residuary worth $400,000 to the American Red Cross.
100 K to PC
300K to Red Cross
"I leave 1K from my savings account to Frost Bank to X"
Demonstrative Gift
9/1.2005
Texas Abolished the rule of Exoneration. Now every devise is now subject to its own debt unless the Will specifically state's the property shall pass without being subject to debt
Texas' presumption on Tax Apportionment
Every asset pays it's fair share in taxes (both probate and non-probate assets)
What will provisions are void following divorce?
Ex-Spouse as B
Ex-spouses relatives as B
Former Step-Children
Former in-laws
Ex-spouse as fiduciary
Problem: Wife dead, 3 children in will and left a husband. One PC
5(d): W’s will gives: $50k to A, $30k to B, $20k to C
PC gets 25K
A gets 37.5K
B gets 22.5K
C gets 15K