12.02.170 Rules for Interpreting a Will

(a) Incorporation by Reference. Any writing in existence when a Will is signed may be incorporated by reference if the Will indicates that the writing should be incorporated and it describes the writing sufficiently to permit its identification.

(b) Rules of Construction and Intention. The intention of a person making a Will as expressed in his/her Will controls the distribution of the estate. The rules of construction set forth in this chapter do not apply if they are contrary to the intention of the Will.

(c) Will Passes All Property. A Will must be interpreted to pass all property of the estate, including property acquired after the execution of the Will.

(d) Devises or Gifts and the Residual.

(1) Residue Definition. The "residue" of an estate is what remains after fees and expenses are paid and specific devises, or devises of assets or cash are made. This part of the estate is also call the "residual."

(2) Specific Devise. Wills may provide for specific shares of real or personal property to specific beneficiaries. This is known as a specific devise. If a specific devise cannot be carried out for any reason, such as the beneficiary has predeceased the person making the Will, whatever was devised becomes a part of the residue of the estate.

(3) Division of Residue. If the person making the Will provides that the residue of the estate passes to two or more persons and one of the shares cannot be passed to that person, his/her share will pass to the other beneficiaries of the residue in proportion to their interests.

(e) Property Given During Lifetime.

(1) Generally. If a beneficiary is given a gift of property by the person making the Will during the Willmaker's lifetime, that property will be not be treated as satisfaction of a devise or gift under the Will except as provided for in subsection (2) below.

(2) Treatment as Devise. The gift may be treated as part of the beneficiary's inheritance if (A) the Will provides for the deduction of the gift, (B) the person making the Will declares in a separate writing at the time of the gift that it is in satisfaction of a devise, or (C) the beneficiary acknowledges in writing that the gift is in satisfaction of a devise.

(3) Valuation. If the property is determined to be a devise as set forth in subparagraph (e)(2) above then such property given during the lifetime of the Willmaker shall be valued at the date the beneficiary came into possession or enjoyment of the property.

(f) Children Left Out of a Will. If a Willmaker mistakenly leaves a child out of his/her Will, or fails to provide for any children born or adopted after the Will is signed, the child who has been left out shall receive a share in the estate equal in value to that which he would have received had the person died without a Will. In satisfying a share provided for in this section, the other devises made by the Will shall be reduced according to the rules governing the distribution of an estate in Section 12.02.230(d). A child who is excluded, however, shall not receive a share if it appears from the Will that the child was left out intentionally or the person making the Will expressed the intention to and did provide for the child outside of the Will. The burden of proof shall be by a preponderance of the evidence and it shall be on the excluded child seeking a share of the estate.

(g) Spouse Left Out of a Will.

(1) If a Will fails to provide for a surviving spouse, that spouse would not receive a share if it appears from the Will that the spouse was left out intentionally or the person making the Will otherwise expressed the intention to provide for, and did provide for, the surviving spouse outside of the Will.

(2) If a Will fails to provide for a surviving spouse who married the person making the Will after the Will was signed, the spouse shall receive the same share of the estate the spouse would have received if the deceased left no Will. In satisfying a share provided for in this section, the other devises made by the Will shall be reduced according to the rules governing the distribution of an estate in Section 12.02.230(d).

(3) The burden of proof in either case shall be by a preponderance of the evidence and the burden shall be on the excluded spouse seeking a share in the estate.