MASSACHUSETTS WILLS

I. Intestate Succession
A. Vocabulary
1. Probate – Court proceeding in which
a. It is judicially determined that decedent left a validly executed will, or
that the decedent died without a will and his intestate heirs are
determined; and
b. A personal representative (executor if named in the will, administrator if
appointed by the court) is appointed to administer the decedent’s
estate.
2. Heirs – Persons who take by intestacy.
3. Beneficiaries (devises, legatees) – Persons who take under a will.
4. Intestate distribution riles applies when:
a. Decedent left no will (or “will” was not validly executed);
b. The will does not make a complete disposition of the estate (resulting
in a partial intestacy);
c. An heir successfully contests the will, and will is denied probate; and
d. Testator marries after the will’s execution, in which case the will is
revoked by operation of law.
e. Intestacy rules also invoked in questions involving omitted child
statutes.
5. The MA statutes use “issue” throughout. The terms “issue” and
“descendants” are synonymous, and include lineal descendants (child,
grandchildren, etc.) by blood or adoption.
B. Intestate Decedent Survived by Spouse
1. Survived by issue
If intestate decedent is survived by a spouse and issue(s) (descendants),
whether the issue are of this marriage or from an earlier marriage, the
surviving spouse takes one-half (1/2) of the estate and the issue(s) take
the other half divided equally among all.
NOTE: If decedent wants to leave entire estate to spouse, MUST write a will to avoid
intestate statutes.
2. Not survived by issue

If an intestate decedent is survived by spouse and other kindred (i.e.
relatives by blood or adoption) but NOT by issue, the surviving spouse
takes first $200,000 plus one-half (1/2) of the balance. Kindred take
remaining one-half (after spousal share of $200K + 1/2).

$200,000 comes from personal property first. If not enough personal
property to cover $200K, real property can be sold or mortgaged to get
$200K.
3. Not survived by issue NOR kindred
If an intestate decedent is survived by his or her spouse but NO kindred
(no living relations by blood or adoption), the surviving spouse inherits the
ENTIRE estate.
This rule is rarely invoked, as MA sets NO LIMIT on the degree of
relationship needed to take as heir. If one living relative is found, no
matter how remotely, “first $200K plus one-half balance” rule applies.
C. Other Statutory Rights of Surviving Spouse
These rights take precedent over creditor’s claim.
TIP: In ANY question involving a surviving spouse, whether decedent left a will or died
intestate, the answer can be strengthened if also discuss the statutory rights below.
Thus it might be appropriate to say something like “In addition, [spouse] is entitled to
the following statutory rights, which take precedent over creditor’s claims. These
amounts passing to [spouse] under [decedent’s will] [by intestacy] [as an elective
share].”
1. Right to occupy residence for 6 months
Spouse might remain in the house of a deceased spouse for six months
without charge for rent. This would be relevant ONLY if the deceased
owned a house in his or her name. If house was held in joint tenancy or
tenancy by entirety, spouse would take house by right of survivorship.
2. Spouse’s allowance

Upon petition, the probate court may grant the surviving spouse an
allowance to provide for “necessities” “for a short time until she has an
opportunity to adjust herself to the new situation”. Amount of the
spouse’s allowance is in court’s discretion, taking into account all
circumstances of the case, including the standard of living to which the
spouse had been accustomed (NOTE: NOT a dollar amount).

The spouses allowance is over and above amounts passing to the
spouse by will, intestate succession, etc., and takes priority over debts
and administration expenses.
D. Inheritance by Issue – Per Capita Representation
If inheritance is by children and issue of deceased children (or by brothers,
sisters, and issue of deceased brothers, sisters, etc), the distribution,
although sometimes referred to a per stirpes, is per capita with representation
(“per capita at the first level; by representation at the next level”) – Issue of
deceased children take by representation. You go down to the first
generational level at which there are living takers and then one share for
each line of issue/descendant.
E. Intestate Decedent NOT Survived by Spouse or Issue
1. All to parents (one-half each) or surviving parent (all).
2. If not survived by parents, to issue of parents – Brothers, sisters, and
issue of deceased brothers and sisters who take per capita with
representation.
3. If not survived by parent, or issue of parents, to “kindred” in nearest
degree of kinship. MA does NOT have a “no laughing heirs” statute (as
does the Uniform Probate Code, which eliminates inheritance by remote
relatives). In MA, there is NO limit to the degree of kinship that qualifies
one to be heir. ONLY if the decedent left no living kin by blood or adoption
does the estate escheat to the Commonwealth.
F. Adopted Children, Non-Marital Children
1. Adopted Children

Adopted children and their issue have full inheritance rights from the
adoptive family (and vice versa).

A gift to someone’s “issue” presumptively includes adopted offspring.

Child is not adopted for this purpose until final decree of adoption is
entered.

Once a child has been adopted by a new family (e.g. an infant
adoption), the child has NO inheritance rights from the natural parents
or their kin. EXCEPT where child is adopted by spouse of a natural
parent after the other natural parent has died (e.g. Child’s father dies,
mother remarries; second husband adopts Child. Child has
inheritance rights from her mother, her adoptive father, AND family
members of her deceased biological father).
2. Non-marital children
a. Non-marital children do NOT inherit from natural father, UNLESS
i. The mother and father married after the child’s birth AND the father
acknowledged the child as his child; OR
ii. Paternity was established in a paternity suit; OR
iii. Paternity is established in probate proceedings in action
commenced within ONE YEAR after the decedent’s death.
NOTE: The one-year statute of limitations is probably unconstitutional (Supreme Court
said so in a case turning down a Texas statute) – e.g. 5-year-old kids cannot bring suit.
Not fair that kid loses right because someone else didn’t bring suit.
b. Woodward v. Commisioner of Social Services – Sperm bank case
Posthumously conceived child can inherit… IF it is affirmatively shown
that decedent (1) consented to the posthumous conception, (2)
consented to support any resulting child, and (3) prompt and orderly
administration of the estate is not compromised – The one-year SOL
for paternity suits does not apply.
c. Non-marital children have full inheritance rights from mother and
mother’s kin.
 d. Non-marital children have no inheritance rights from mother’s husband
if husband did not adopt the child, UNLESS adoption by estoppel
(equitable adoption – Unperformed agreement to adopt) – Step
children have NO basis for inheritance.
G. Deaths in Quick Succession
1. Under the Uniform Simultaneous Death Act (USDA), when title to property
depends on order of deaths and there is no sufficient evidence that the
persons have died otherwise than simultaneously, the property of each
passes as though he or she survived (absent contrary provision).
a. Intestacy
As though intestate survived and heir predeceased.
b. Wills
Estate distributed as though the testator survived and the beneficiary
predeceased – This will invoke the lapsed gift doctrine and the anti-
lapse statute.
c. Insurance
A though insured survived and beneficiary predeceased. As though
IRA account owner survived and beneficiary predeceased.
2. If joint tenants with right of survivorship or tenants by entirety die
simultaneously – One-half (1/2) is distributed through A’s estate as though
A survived B, and one-half (1/2) is distributed thru B’s estate as though B
survived A. Simultaneous deaths prevent operation of right of
survivorship. In effect, property passes as though a tenancy in common
were involved (one half each).
3. Massachusetts did NOT adopt the Uniform Probate Court “120 hour rule”,
under which a person must survive by 120 hours to take as heir. In MA,
controlling law is the USDA – Five minutes later is sufficient.
H. Lifetime Gifts to Heir or Will Beneficiary
1. Common Law
Lifetime gift to a child was presumptively an advancement (advance
payment) of the child’s intestate share, to be taken into account in
 distributing the estate at death (theory was that a parent would always
want to treat all children equally).
2. Massachusetts
Lifetime gift to an heir is NOT and advanced payment UNLESS
a. Declared as such in contemporaneous writing by the donor, or
b. Acknowledged as such in writing (contemporaneous or not) by the
donee, or
c. The will provides for reduction of legacies by any lifetime gifts.
I. Disclaimer by Heir or Beneficiary
All states recognize that no one can be compelled to be a beneficiary or heir
against her will. An intestate heir, will beneficiary, beneficiary of a life
insurance policy or an employee benefit plan, or any other interest in property
can disclaim the interest, in whole or in part. A disclaimer, once made, is
irrevocable.
1. To be a valid disclaimer
a. Must be in writing and signed
If real property is involved, must be acknowledged before a notary
public and an attested copy must be recorded in the county where land
is located.
b. Must be filed with the probate court within 9 months after decedent’s
death.
2. Any interest can be disclaimed (e.g. bequest by will, life insurance,
employee death benefits, powers of appointement, etc).
Surviving joint tenant or tenant by the entirety can disclaim, but only to the
extent that the decedent has furnished the consideration for the property
acquisition.
3. Disclaimer can be partial (e.g. “I disclaim ½ of the interest bequeathed to
me).
4. Personal representative can disclaim on behalf of deceased beneficiary or
heir.
 5. Guardian or conservator can disclaim on behalf on incapacitated
beneficiary or heir, IF court finds a disclaimer is the best interest of the
estate of such beneficiary or heir.
6. Distribution of Estate
If heir disclaims, estate distributed as though disclaimant predeceased –
Disclaimant’s share passes by representation to disclaimant’s
descendants – Disclaimant’s inheritance passes directly to disclaimant’s
descendants/issues/children with NO gift taxes.
7. Irrevocable Intervivos Trusts
For irrevocable intervivos trusts, beneficiary must disclaim within 9 months
after the trust is created. The trust is read as though disclaimant was
dead when the trust was created.
A disclaimer can be made even if the trust contains a spendthrift clause
barring transfer of beneficial interests because
a. Disclaimer is not a transfer, and
b. Spendthrift restriction does not attach until beneficiary accepts the trust
interest.
8. A disclaimer cannot be used to defeat creditor’s claims if the disclaimant is
insolvent.
J. Non-Probate Assets
Non-Probate assets are interests in property that do not pass under the
decedent’s will (if testate), do not pass by intestacy if decedent left no will,
and are not past of probate estate for purposes of administration.
Major types (also called nontestamentary assets):
1. Property passing by right of survivorship – Joint bank account, tenancy by
entirety, etc.
2. Property passing by contract – Life insurance, employee retirement
benefits, where the contract governs change of beneficiary of distribution
of assets.
3. Property held in trust, including a revocable trust, where trust governs the
distribution of assets.
 4. Property over which the defendant held a power of attorney.

II. Execution of Wills

A. Requirement for a Validly Executed Will
1. Testator must be at least 18 years old.
a. Signed by testator or by proxy signature – Someone at testator’s
direction and in her presence.
Any mark intended as testator’s mark satisfies the signature
requirement.
b. Two attesting witnesses – No age requirement, but some have
“sufficient understanding”.
c. Testator must sign will (or acknowledge earlier signature) in each
witness’s presence.
d. Each witness must sign in the testator’s presence.
2. Codicil, a later amendment or supplement to a will, must be executed with
same formalities.
3. Some states impose the following additional requirements, NOT required
in MA.
a. That the testator sign “at the foot or end” of the will – In MA signature
can appear anywhere.
b. That witness know they are witnessing a will as distinguished from
some other legal document – In MA no “will publication” requirement.
c. That witnesses sign in each other’s presence – In MA as long as each
witness signed in testator’s presence, they do NOT have to sign in
each other’s presence.
4. Signature Timing
a. Two VERY OLD Massachusetts cases (1900 & 1911) – Witnesses
attest to testator’s signature, which must be on the will when they sign.
b. More recent cases in other jurisdictions (the “better view”) – Exact
order of signing is not critical when the execution ceremony is a
contemporaneous transaction.
 BUT even under the “better view”, if testator’s forgot to sign when
witnesses signed, and added his signature three days later in some
witnesses’ presence, not a contemporaneous transaction and will be
denied project.
B. What Constitutes Being in Testator’s “Presence”?
In MA, the testator must sign the will (or acknowledge her earlier signature) in
each witness’s presence, AND each witness must sign in testator’s presence.
1. Most states apply the liberal conscious presence test
It is not necessary that testator should actually be able to see the
witnesses when they sign. They are in his presence whenever he is so
near to them that he is conscious of where they are and what they are
doing.
2. Some old MASSACHUSETTS cases indicate that MA has adopted the
line of sight (scope of vision) test – Witnesses must be in testator’s
uninterrupted line of sight (i.e. no impediment to visual contact).
NOTE: If the witnesses take the will to an adjoining room and sign on a table that was
visible to testator through the doorway, witnesses have signed in testator’s line of sight
(and thus “presence”). BUT if the witnesses sign the will on a table on the other side of
the wall, the “line of sight” test is not satisfied. And if immediately after signing the will,
the testator has a massive heart seizure and dies, and then the witnesses sign, they did
NOT signed in testator’s presence.
C. Interested Witness Statute – “Purging Statute”
Interested witness situation never affects validity of the will, but beneficiary
loses legacy (beneficiary gets nothing), UNLESS there were two disinterested
attesting witnesses – supernumerary rule.
1. If the spouse of the beneficiary is a witness, the gift is void.
2. Interest is determined at the time the will is signed.
3. ONLY beneficiary’s spouse triggers the statute and voids the gift (i.e.
daughters, cousins, agents are allowed).
4. Statute applies to the beneficial gift, NOT earned compensation
(beneficiary can still serve as executor and receive compensation).
 5. Contingent gifts do no trigger statute. ONLY direct gifts trigger the statute.
D. Holographic Wills, Oral Wills
1. Uniform probate court and about 30 other states recognize holographic
wills – In testator’s handwriting and signed, but NOT witnessed by
attesting witnesses.
2. Massachusetts does NOT recognize holographic wills. In
Massachusetts, ALL wills must be in writing, signed by the testator, and
witnessed by two witnesses.
3. Massachusetts does recognize oral wills under VERY limited
circumstances – Valid only for soldiers in active military service and
mariners at sea, and then for personal property only.
4. Under Uniform Execution of Foreign Wills Act, a will executed in another
state is admissible to probate in MA if executed in accordance with (MED):
a. MA law,
b. Execution law – Law of place where the will was executed, or
c. Domicile law – Law of place where the testator was domiciled, either
when will was signed or at her death.
NOTE: As long as holographic will done in state where it was legal, can be probated in
MA.

III. Revocation of Wills

A. Valid Revocation – A will can be revoked only if
1. By a later testamentary instrument, executed with appropriate formalities,
2. By physical act (burning, canceling, writing VOID across the face, or
obliterating)
a. Anything done to signature by testator shows an intent to revoke the
entire will and is considered a “decisive act of revocation”.
b. Physical act must be on the will, NOT a copy.
c. To be valid revocation by physical act by another person (by proxy)
must be (1) at testator’s direction, and (2) in testator’s presence.
d. If will destroyed by physical act, but not validly revoked.
 “Proof of lost wills” rules:
(1) Proof of due execution (testimony of attesting witnesses) as in
any case.
(2) Cause of will’s nonproduction must be proved – Must
overcome presumption of revocation.
(3) Contents must be proven by secondary evidence (e.g.
photocopy). Any oral testimony as to will’s contents must be
“strong, positive, and free from doubt”.
3. By operation of law.
B. Presumption as to revocation
1. Where a will, last seen in testator’s possession or control, is not found
after death, presumption is that testator revoked it by physical act.
2. Where a will, last seen in testator’s possession or control, is found
mutilated after testator’s death, presumption is that testator did the
mutilating (i.e. revocation by physical act).
3. Neither presumption arises if will was last seen in the possession of
someone adversely affected by its contents.
4. Evidence is admissible to rebut presumption if revocation where will
cannot be found or is found in damaged condition (e.g. will destroyed in
fire that killed testator).
5. Where a will is executed in duplicate (two signed and witnessed copies),
testator’s destruction of the duplicate copy in his possession revokes the
will even though other copy is found unscathed.
6. Codicil – Effect of two wills executed one after the other without any
revocation language.
a. Read both wills together.
The second “last will” is treated as a codicil to the first will, and revokes
the first will only to the extent of inconsistent provisions. But if the
second will is wholly inconsistent with the earlier will, first will is
revoked by implication.
 b. Revocation of a codicil to a will does not revoke the will; the part of the
will that was modified by the codicil is restored and takes effect as
though codicil had never been written.
C. Revival of Revoked Wills
1. Common law and majority rule – No revival of revoked wills
When testator executed the second will containing a revocation clause,
will one was legally dead. It could not be revived unless:
a. It was re-executed – Signed by testator and two witnesses, or
b. The doctrine of “republication by codicil” applies (e.g. testator validly
executes a codicil to will one that makes various changes).
2. Massachusetts
A revoked will is not revived unless:
a. The will is still in existence (i.e. it hasn’t been destroyed), AND
b. There is evidence that testator intended to revive earlier will.
D. Dependent Relative Revocation (DRR)
1. Permits a revocation to be disregarded when the act of revocation was
premised upon, conditioned upon, dependent upon a mistake of law as
to the validity of another disposition. Effect will be to disregard the
revocation of Will 1 and permit its probate. Test – Does this come close to
what testator tried, but failed to do?
2. DRR = Second Best Doctrine
DRR should not be applied unless the distribution that results from
disregarding the revocation comes from closer to doing what the testator
tried (but failed) to do than an intestate distribution. If revocation of Will 1
is independent of the testator’s intent in drafting Will 2 then to disregard
the revocation would defeat testator’s intent and intestate distribution rules
will be applied.
E. Changes on Face of Will after it has been Executed
1. Partial revocations by physical act are valid in MA.
2. Words added to a will after it has been signed and witnessed are
disregarded as unattested words – They were not part of the duly
 executed will. ONLY the words present when the will was signed
constitute the final (last) will.
3. If testator crossed out a portion of the will and adds another BEFORE the
will is signed and witnessed, the changes are valid IF it can be
established by proof that the words were part of the duly executed will.
4. If testator crosses out some part of the will, the part has been revoked by
physical act. DRR by mistake of law will be used to honor testator’s intent
(e.g. crosses out “$2,000” and writes “$5,000”, beneficiary entitled to
$2,000 even though clause revoked. If testator, however, writes “$500”,
DRR would defeat intent and intestate rules will apply).

IV. Beneficiary Dies During Testator’s Lifetime

A. Anti-Lapse Statutes
When a will beneficiary predeceases the testator, the gift lapses (fails), unless
the gift is saved by the anti-lapse statute. Principle – Cannot make gift to a
dead person. Dead person cannot hold title to anything.
1. The MA anti-lapse statute applies if the beneficiary was a child or other
relative of the testator.
Requirements:
a. The deceased beneficiary must have been a child or other relative of
the testator, AND
b. Must have left issue who survived the testator.
2. The anti-lapse statute names the substitute taker, the beneficiary’s will is
irrelevant.
3. If a bequest lapses and the anti-lapse statute does not apply (e.g. the
beneficiary left no issue), the lapse gift falls into the residuary estate and
passes under the will’s residuary clause.
4. If the gift is conditioned on beneficiary surviving testator, the gift fails
according to its terms (surviving was a condition to the gift). Gift then falls
into the residuary estate.
B. Lapse in Residuary Gift – Surviving Residuary Beneficiary Rule
 1. Anti-lapse statute does not apply to relatives by affinity (e.g. marriage).
Statute applies only to relatives by blood or adoption.
Massachusetts statute – If residuary estate is devised to two or more
persons and gift to one of them lapses, surviving residuary beneficiaries
take the entire residuary estate, in proportion to their interests in the
residue (absent contrary will provision).
2. Anti-lapse statute trumps (overrides) “surviving residuary beneficiaries”
rule if the predeceasing beneficiary (1) was related to the testator, and (2)
left issue who survived the testator.
C. Class Gifts
1. Class Gift Rule
In a gift by will to a class of persons (“children”, “brothers and sisters”,
etc), if a class member predeceases the testator, class members who
survive testator take (absent contrary provision).
Basis – The testator was “group minded” in making the gift, and wanted
this group and only this group to share the property.
a. If the beneficiaries are individually named (e.g. “to A, B, and C, the
children of my friend”), the “class gift rule” does not apply.
b. Subject to possible application of the anti-lapse statute. The class gift
rule gives way to the anti-lapse statute when the predeceasing class
member is a relative of the testator and leaves issue (e.g. “to A, B, C,
the children of my bother”. A predeceases leaving issue, issues takes
with B and C).
2. Rule of Convenience (“class closing” rule)
Rule of construction used to define takers of a class gift. Class is closed,
meaning later-born members are not included in the gift, when some
class member is entitled to a distribution. This is done to determine
the minimum share of each class member, so a distribution can be made
without the necessity of debate.
3. Outright gift by will – Class closes at testator’s death. Subject to gestation
principle – 280 days from conception to birth.
V. Changes in Family Relations After Will’s Execution
A. Testator marries after will executed
1. In MA, marriage following execution of a will revokes the will in its entirety
(except for the exercise of power of appointment). UNLESS it appears
from the will (no extrinsic evidence) that it was made in contemplation
thereof.
2. Under the doctrine of republication by codicil, the will “speaks” (is
deemed to have been executed) on the date of the last codicil thereto (i.e.
if codicil after marriage, the pre-marriage will survives the marriage).
B. Testator is Divorced After Will is executed
Divorce of annulment revokes all gifts and fiduciary appointments in favor of
former spouse. Estate is distributed, and fiduciaries are named as though the
former spouse predeceased the testator. The statute operates to revoke gift
and appointments only if spouses divorce at testator’s death.
1. Statute does not apply to a decree of separation by the parties. Statute
only applies if the marriage was dissolved by divorce or annulment.
2. “Divorce revokes rule” applies only as to wills. Does not apply to life
insurance policies or revocable inter vivos trusts…
C. Omitted Child Statute
1. In MA, the omitted child statute applies to all children (and the issue of
deceased children), whether alive when the will was executed or born or
adopted thereafter. Omitted child takes intestate share, UNLESS
a. Evidence shows that the omission was intentional and not occasioned
by a mistake in drafting the will, or
b. The child was provided for during the testator’s lifetime (e.g. inter vivos
trusts or gifts, and
c. As to real property, claim on behalf on child must be filed with Registry
of Probate within one year after approval of executor’s bond.
2. “Omitted child” statute applies ONLY to the probate estate.
3. Children out of wedlock would probably take a share as an omitted child.
 A 1976 case said “omitted child” statute did not apply to children born out
of wedlock because in 1976 they were not entitled to an intestate share.
In 1980, however, the intestacy statute was ruled unconstitutional as to
children born out of wedlock; so today children born out of wedlock would
probably be heirs under “omitted children” statute if they satisfy the rule.
4. A gift in a will or trust to some person’s “children” or “issue” presumptively
include a child born out of wedlock if the transfer was made after April 17,
1987 (Patriots day 1987).

VI. Problems Associated with Testamentary Gifts

A. Lingo
1. Specific Device – Gift of specifically described property. “I devise
Blackacre to my son John”
2. Demonstrative Legacy – A general amount from a specific source. “I
bequeath $5,000, to be paid from the proceeds of the sale of my Shell Oil
stock, to Sally”
3. General Legacy – “I bequeath $10,000 to my nephew Ned.”
4. Residuary Gift – “I give all the rest and residue of my estate to Betty”
5. Intestate Property – If the will, poorly drafted, does not contain a residuary
clause it results in a partial intestacy.
Today, the words “give”, “devise”, and “bequeath” are used interchangeably;
they all mean the same thing.
B. Abatement of Legacies to Pay Debts, Expenses
Abatement problem – There are so many claims against the estate that there
aren’t enough assets to cover all of the gifts made by the will.
1. General Rule
Absent contrary provision, debts and expenses are first paid out of:
a. Intestate property (if partial intestacy for some reason); then
b. Residuary assets; then
c. General and demonstrative legacies; and finally
d. Specific bequests.
 Within each category, no distinction is made between real and personal
property.
2. Exception
Gifts to spouse and minor children are the last to abate, EVEN if it is a
residuary gift (want to protect the family).
C. Specifically Devised Property Not in Estate at Death – Ademption by
Extinction
1. Ademption by extinction – Where a will makes a specific gift of
property and the property is not owned by the testator at death,
beneficiary takes nothing (beneficiary does not take proceeds, nor
mortgage because the gift was specifically for the land and proceeds
or mortgage was not mentioned in will).
2. Exception
IF (1) will was executed before testator became incapacitated, and (2)
specifically devised property is sold by a guardian or conservator (or
agent acting under durable power of attorney), the beneficiary is
entitled to proceeds of sale, if traceable in the estate at testator’s
death.
3. Mass. Gen. Laws ch. 204 § 1 – Probate court has authority to compel
specific performance if a person dies after entering into a written
agreement for the conveyance of real property. Therefore, ademption
also applies if deceased had entered into written agreement to sell the
land and beneficiary takes nothing.
4. Ademption applies ONLY to specific gifts (e.g. not demonstrative
legacies, even if the specific source does not exist).
D. Bequests of Stock and Other Securities
1. If stocks are specifically bequest in the possessory (“I give MY shares of
stock”) and testator had sold the stock prior to death, ademption applies
and beneficiary takes nothing.
2. If stocks are bequest not in the possessory (‘I give shares of stocks”) – For
ademption purposes treat as general legacy. Ademption does not apply to
 general legacies and beneficiary gets date of death value (DOV) of
general legacy (e.g. value of the shares).
3. A specific gift of stock (“I give shares of stock”) includes additional stock of
that entity or another entity produced by a stock split or stock dividend,
and also stock resulting from a reorganization, merger, etc. after will was
executed, but NOT stock acquired after exercise of stock option.
NOTE: A bequest of stock can be specific for one purpose (stock split or
stock dividend) and general for another purpose (to avoid ademption as in
3 above). Principle is that the beneficiary always wins.
E. Specific Gifts of Property Subject to Lien
1. MA, by statute, abolished the “exoneration of liens” doctrine – NO
exoneration of liens unless the will directs exoneration
2. Under the statute, a general provision in the will for the payment of debts
is not such an indication that liens are to be exonerated.

VII. Reference to Facts and Events Outside the Will

A. Incorporation by Reference
1. Definition
An extrinsic document, not present when the will was executed and thus
not part of the duly executed will (not signed and witnessed), can be
incorporated by reference into the will, IF:
a. Writing must be in existence when the will was executed.
b. Will must show an intent to incorporate the writing.
c. Will must describe the writing sufficiently to permit its identification –
“So there can be no mistake as to the identity of the document”.
2. Exception
An exception is made for incorporation by reference to an existing
document that makes gifts of tangible personal property (but NOT money
or intangibles such as stocks and bonds) – While the writing must be in
existence when the will is signed, the contents of the document can be
 altered or revised at any time (i.e. the will does not have to describe
writing by date).
Statute provides a way to make gifts of personal items of sentimental
value without having to amend the will every time client changes mind, or
wants to add to the list.
B. “Acts of Independent Significance” Doctrine
1. Also called, “doctrine of nontestamentary acts” – There is a lifetime act
with a lifetime purpose or motive (independent of the will).
2. Doctrine applies to gift of contents (e.g. “contents of my sea chest”).
Gift of contents does NOT apply to title documents (e.g. deeds, bank
passbooks, stock certificates) – Gift of contents include tangible property
only.

VIII. Other Wills Doctrines

A. Mistakes or Ambiguities in the Will
1. Plain Meaning Rule
Under the Plain Meaning Rule, absent ambiguity, extrinsic evidence not
admissible to overturn the plain meaning of the will. Absent suspicious
circumstances, it is conclusively presumed that the testator read the will
and intended its contents.
2. Latent Ambiguity
a. Latent ambiguity results in a misdescription when the will its applied to
the fact to which it refers (e.g. “to my nephew John Paul Jones” when
testator only has nephew John Peter Jones and Harold Paul Jones).
b. Extrinsic evidence is admissible to cure the ambiguity.
c. If the extrinsic evidence does not cure the ambiguity, the gift fails.
3. Patent Ambiguity
a. Patent ambiguity exists when the mistake appears on the face of the
will (e.g. “bequeath twenty-five dollars ($25,0000)”) because of
defective, obscure, or insensible language.
 b. A couple of VERY old cases in MA say that extrinsic evidence is NOT
admissible as to patent ambiguities.
c. Modern/Better View
Modern trend in other jurisdictions is to ALLOW extrinsic evidence to
correct the ambiguity.
4. Blanks in Will (e.g. “I bequeath $25K to _______ )
Courts will NOT fill in the blanks in a will. There is no ambiguity because
there are no words to interpret (an “air ball”).
5. Mistake in the Inducement
Mistake involves the (mistaken) reasons that led the testator to make the
will, or the mistaken reasons for making or not making a particular gift.
a. NO relief, absent fraud unless the mistake appears on the face of the
will.
b. If fraud in the inducement – impose constructive trust in favor of
beneficiary.
B. Contracts Relating to Wills
Statute of Frauds apply to all contracts relating to wills – All contracts to
make a will, not to revoke a will, or to make a gift in a will must be in writing.
C. Words of Disinheritance in Will are Ineffective
When a will does not make a complete disposition of the estate (partial
intestacy), words of disinheritance in the will are INEFFECTIVE.
Rationale – When a property passes by intestacy, it passes pursuant to
statute, not the decedent’s will.
D. Attorney Liability for Negligence
1. Trust
An attorney’s duty is to trustee or executor who retained him.
Beneficiaries under the will cannot sue attorney because there is no
attorney-client relationship and therefore, no duty.
2. Common law and minority view
 An attorney’s duty is the client who contracted for his services (in effect
burying the only witnesses). Intended beneficiaries under the will cannot
sue attorney for negligence because there is no privity of contract.
3. Emerging Majority Rule
An attorney also owes a duty to intended beneficiaries of his services.
4. Massachusetts – Argue both ways
However, when the court held (Spinner v. Nutt) that the attorney for an
executor or trustee has no duty to the beneficiaries because that would
give rise to conflicting duties, it distinguished the “majority rule” cases
holding an attorney liable for the intended will beneficiaries for negligent
will preparation, noting that in the will preparation case there were no
conflicting duties. Therefore, court has indicated that they will probably go
with majority rule.

IX. Elective Share Statute

A. Amount of Elective Share
Purpose of elective share is to protect surviving spouse disinheritance by
assuring that, upon election, the spouse takes a minimum share of
decedent’s state.
1. Decedent survived by spouse and issue
Surviving spouse takes first $25,000 of personal property outright, plus life
estate in one-third (1/3) of balance.
a. When life estate involves personal property, property is held in trust.
b. If the life estate involved real property, a “legal” life estate (i.e. not a
trust) is established – “To spouse for life, remainder to others”
2. Decedent survived by kindred but not by issue
Surviving spouse takes first $25,000 of personal property outright, plus
one-half (1/2) of balance. When life estate involves personal property it is
held in trust.
3. Decedent NOT survived by issue or any other living relation (rarely
encountered)
 Surviving spouse takes first $25,000 of personal property, plus one-half of
balance OUTRIGHT (i.e. NOT in trust).
TIP: In ANY question involving a surviving spouse, mention elective share statute, if
only to dismiss it (e.g. “Since W takes _____ under the will, W has no reason to file for
an elective share, which would only give W _____).
4. Revocable trust
If a revocable trust was created by decedent on or after January 23, 1984
(1-23-4), the revocable trust is included in the assets to which spouse
elective share applies. If the trust was created before that date AND no
additions were made to the trust since the date, then the elective share
does not apply to the trust.
5. The amount of surviving spouses elective share does is not affected by
CD, life insurance, or savings accounts balance that passes to spouse
after decedent’s death.
Only the net probate estate is subject to the elective share statute, with
the only exception of revocable trusts created after January, 23 1984
(other non probate assets do not apply).
B. Key Points About Elective Share
1. Right of election is available only if decedent was MA domiciliary; elective
share applies to personal property wherever located and to MA real
property, but NOT real property in another state (Situs rule – MA courts
cannot adjudicate title to land in another state).
2. Spouse must file election within SIX MONTHS after will is admitted to
probate. If he fails to file for election within that period, conclusive
presumption that he elects to take under the will (unless time for making
election was extended by the court on motion).
3. Who may make the election
Election can be made on behalf on an incapacitated spouse by guardian
or conservator, with court approval. If spouse dies before election is
made, election cannot be made by the spouse’s personal representative.
 4. In satisfying elective share, “abatement” rules apply: first out of residuary
estate, etc. But property devised outright to spouse by will is first applied.
(Purpose: To avoid disruption of decedent’s testamentary plan as far as
possible). If, e.g. decedent’s will devised stock (worth $15,000) to his
spouse, this would be applied to the “first $25,000” amount.
5. Right to an elective share may be waived in a written contract (premarital
or during marriage), provided the contract is supported by consideration.
6. Surviving spouse is disqualified from right to an elective share if spouse
deserted decedent or if the couple had been living apart for justifiable
cause.
C. Dower
Instead of taking under the will, by elective share, or by instestacy, a surviving
spouse (male or female) can elect to take dower. A life estate in decedent’s
real property owned at death.
1. As this is invariably less than the spouse ordinarily would be entitled to
under the elective share, the dower election is rarely made. It would be
attractive only if decedent’s estate is insolvent. (Only dower takes
precedence over creditor’s claims. By contract, property passing by will,
intestacy or elective share is the net estate, after payment of all claims).
2. Election to take dower must be made within 6 months after court approval
of executor’s bond.

X. Will Contests
A. Standing
1. Only interested parties can bring a will contest: Persons with an economic
interest that would be adversely affected by the will’s probate (e.g. heir’s,
legatees under earlier will whose interest would be defeated if this will is
probated).
2. Thus a close personal friend not named as legatee in an earlier will, has
no standing to contest the decedent will.
 3. Creditor does not have standing; status is not affected by whether
decedent left a will or died intestate.
4. Child born out of wedlock has standing IF child would be an heir if
decedent had died intestate.
B. Lack of Testamentary Capacity
1. Burden of proof is on the contestants. Test – Did the testator had
sufficient capacity to:
a. Understand the nature of the act while he was doing it (knew that he
was writing a will).
b. Know the nature and approximate value of his property.
c. Know the natural objects of his bounty (aware that had spouse and
children, relatives…).
d. Understand the disposition he was making.
2. Evidence of capacity or lack thereof must relate to circumstances at the
time the will was signed, or shortly before or shortly thereafter. The more
distant in time from the will’s execution a particular fact may be, the less
significance of the question at issue: Did testator had capacity at the time
the will was executed?
3. Adjudication of incapacity
Adjudication of incapacity is admissible evidence of lack of testamentary
capacity but will NOT support a directed verdict.
a. Adjudication of incapacity involves different legal tests (capacity to
contract, to manage one’s affairs) that four-point test for capacity to
make a will.
b. Jury could find that the will was executed during a lucid interval.
C. Undue Influence
1. Existence of a testamentary capacity subjected to and controlled by a
dominant influence or power. “Influence is not undue unless free agency
of the agency of the testator was destroyed and a will produced that
expresses the will, not of the testator, but of the one exerting the
influence.” Contestants who have the burden of proof, must show:
 a. Existence and exertion of the influence.
b. Effect is to overpower the mind and will of the testator.
c. Product if a will (or gift therein) that would not have been made but for
the influence (undue influence may be shown as to the entire will, or as
to one gift of the will).
2. While evidence of undue influence is usually circumstantial, the alone are
enough:
a. Mere opportunity to exert influence.
Fact that one child (who received major share of estate) lived with her,
wrote checks for her, balanced the checkbook, helped on income tax,
held a power of attorney… is not evidence that opportunity was taken
advantage of.
b. Mere susceptibility to influence due to illness or age.
Fact that mother was very old, had a broken hip, had memory lapses,
took Valium… not evidence of undue influence.
c. Mere fact of unnatural disposition
Some children given larger shares than others not evidence of undue
influence.
Surmise, suspicion, conjecture are NOT evidence of undue influence,
must have some other evidence. But opportunity, and susceptibility and
unnatural disposition may be sufficient to establish undue influence.
3. Fiduciary relationship
Where one in a fiduciary relationship (attorney-client, agent-principal,
financial advisor, trusted child) benefits from a transaction with his
principal, a presumption of undue influence. Fiduciary has burden of proof
to show that transaction was fair and that principal was fully informed.
Burden of proof is met if fiduciary can show principal (1) made a bequest
with full knowledge and intent, or (2) had independent counsel.
D. No-Contest Clauses
1. Massachusetts – No-contest clauses are given full effect regardless of
whether the contest was filed with probable cause. Rationale: A testator
 should be permitted to protect his testamentary plan, and his reputation,
against post-death attack.
2. If the will is contested and denied probate, then there is no will and
therefore no no-contest clause and have an intestate distribution.
E. Tortious Interference with Inheritance Rights
MA does not recognize a cause of action for tortious interference with
inheritance rights. Adequate remedies already exist under MA law –
Could appoint a guardian who could file suit against the alleged wrongful
perpetrator; after the person’s death, her executor or administrator could
bring such actions; aggrieved beneficiary could pursue undue influence
claim.

XI. Estate Administration

A. Statute of Limitations
In MA, a special short Statute of Limitations applies to decedents’ estates –
All claims, including contingent claims, must be filed within ONE YEAR after
decedent’s death.
Exceptions:
1. New assets discovered (creditor didn’t file earlier; she thought it would be
pointless)
2. Action on the claim accrued more than one year after decedent’s death.
3. Claim was covered by insurance – But only to the extent of the liability
insurance coverage. The purpose of the legislation is to protect the
insured’s estate and not the insurance company.
4. “Where justice and equity require it…” whatever that means (e.g. creditor
with limited education and limited command of English relied on attorney’s
assurances that claim was being properly handled).
B. Sales of estate real property
1. The administrator of an intestate estate cannot sell estate real property
without the court’s approval.
2. The executor or trustee named in decent’s will cannot sell estate real
property without court approval, UNLESS power of sale was expressly
granted in the will.