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Part 7. Rules of Construction Applicable to Wills and Other Governing Instruments
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- Navigate this page:
- Application to Pre-Existing Governing Instruments.
- Historical Note.
- Cross References.
- Comment Scope and Purpose of Revision.
- ERISA Preemption of State Law.
- Revision of Uniform Simultaneous Death Act.
- Reference.
- Comment Purpose and Scope of Revisions.
- Cross Reference.
- Comment Rationale of New Section.
- SECTION 2-705. Class Gifts Construed to Accord With Intestate Succession; Exceptions.
| Part 7. Rules of Construction Applicable to Wills and Other Governing Instruments
GENERAL COMMENT Part 7 contains rules of construction applicable to wills and other governing instruments, such as deeds, trusts, appointments, beneficiary designations, and so on. Like the rules of construction in Part 6 (which apply only to wills), the rules of construction in this part yield to a finding of a contrary intention. Some of the sections in Part 7 are revisions of sections contained in Part 6 of the pre-1990 Code. Although these sections originally applied only to wills, their restricted scope was inappropriate. Some of the sections in Part 7 are new, having been added to the Code as desirable means of carrying out common intention. Application to Pre-Existing Governing Instruments. Under Section 8-101(b), for decedents dying after the effective date of enactment, the provisions of this Code apply to governing instruments executed prior to as well as on or after the effective date of enactment. The Joint Editorial Board for the Uniform Probate Code has issued a statement concerning the constitutionality under the Contracts Clause of this feature of the Code. The statement, titled “Joint Editorial Board Statement Regarding the Constitutionality of Changes in Default Rules as Applied to Pre-Existing Documents,” can be found at 17 Am. C. Tr. & Est. Couns. Notes 184 (1991) or can be obtained from the Uniform Law Commission, www.uniformlaws.org. Historical Note. This General Comment was revised in 1993. For the prior version, see 8 U.L.A. 137 (Supp. 1992). SECTION 2-701. Scope. In the absence of a finding of a contrary intention, the rules of construction in this [part] control the construction of a governing instrument. The rules of construction in this [part] apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type or types of provision or governing instrument. Comment The rules of construction in this part apply to governing instruments of any type, except as the application of a particular section is limited by its terms to a specific type or types of provision or governing instrument. The term “governing instrument” is defined in Section 1-201 as “a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.” Certain of the sections in this part are limited in their application to provisions or governing instruments of a certain type or types. Section 2-704, for example, applies only to a governing instrument creating a power of appointment. Section 2-706 applies only to governing instruments that are “beneficiary designations,” a term defined in Section 1-201 as referring to “a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate transfer at death.” Section 2-707 applies only to governing instruments creating a future interest under the terms of a trust. Cross References. See the Comment to Section 2-601. Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 138 (Supp. 1992). SECTION 2-702. Requirement of Survival by 120 Hours. (a) [Requirement of Survival by 120 Hours Under Probate Code.] For the purposes of this [code], except as provided in subsection (d), an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is deemed to have predeceased the event. (b) [Requirement of Survival by 120 Hours under Governing Instrument.] Except as provided in subsection (d), for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event, by 120 hours is deemed to have predeceased the event. (c) [Co-owners With Right of Survivorship; Requirement of Survival by 120 Hours.] Except as provided in subsection (d), if (i) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours and (ii) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the proportion that one bears to the whole number of co-owners. For the purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others. (d) [Exceptions.] Survival by 120 hours is not required if: (1) the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case; (2) the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period; but survival of the event or the specified period must be established by clear and convincing evidence; (3) the imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under Section 2-901(a)(1), (b)(1), or (c)(1) or to become invalid under Section 2-901(a)(2), (b)(2), or (c)(2); but survival must be established by clear and convincing evidence; or (4) the application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival must be established by clear and convincing evidence. (e) [Protection of Payors and Other Third Parties.] (1) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this section. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this section. (2) Written notice of a claimed lack of entitlement under paragraph (1) must be mailed to the payor’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this section, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court. (f) [Protection of Bona Fide Purchasers; Personal Liability of Recipient.] (1) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (2) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. Comment_Purpose_and_Scope_of_Revisions.'>Comment_Scope_and_Purpose_of_Revision.'>Comment Scope and Purpose of Revision. This section parallels Section 2-104, which requires an heir to survive the intestate by 120 hours in order to inherit. The scope of this section is expanded to cover all provisions of a governing instrument and this Code that relate to an individual surviving an event (including the death of another individual). As expanded, this section imposes the 120-hour requirement of survival in the areas covered by the Uniform Simultaneous Death Act. By 1993 technical amendment, an anomalous provision exempting securities registered under Part 3 of Article VI (Uniform TOD Security Registration Act) from the 120-hour survival requirement was eliminated. The exemption reflected a temporary concern attributable to UTODSRA’s preparation prior to discussion of inserting a 120-hour survival requirement in the freestanding Uniform Simultaneous Death Act (USDA). In the case of a multiple-party account such as a joint checking account registered in the name of the decedent and his or her spouse with right of survivorship, the 120-hour requirement of survivorship will not, under the facility-of-payment provision of Section 6-222(1), interfere with the surviving spouse’s ability to withdraw funds from the account during the 120-hour period following the decedent’s death. Note that subsection (d)(1) provides that the 120-hour requirement of survival is inapplicable if the governing instrument “contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case.” The application of this provision is illustrated by the following example. Example. G died leaving a will devising her entire estate to her husband, H, adding that “in the event he dies before I do, at the same time that I do, or under circumstances as to make it doubtful who died first,” my estate is to go to my brother Melvin. H died about 38 hours after G’s death, both having died as a result of injuries sustained in an automobile accident. Under subsection (b), G’s estate passes under the alternative devise to Melvin because H’s failure to survive G by 120 hours means that H is deemed to have predeceased G. The language in the governing instrument does not, under subsection (d)(1), nullify the provision that causes H, because of his failure to survive G by 120 hours, to be deemed to have predeceased G. Although the governing instrument does contain language dealing with simultaneous deaths, that language is not operable under the facts of the case because H did not die before G, at the same time as G, or under circumstances as to make it doubtful who died first. Note that subsection (d)(4) provides that the 120-hour requirement of survival is inapplicable if “the application of this section to multiple governing instruments would result in an unintended failure or duplication of a disposition.” The application of this provision is illustrated by the following example. Example. Pursuant to a common plan, H and W executed mutual wills with reciprocal provisions. Their intention was that a $50,000 charitable devise would be made on the death of the survivor. To that end, H’s will devised $50,000 to the charity if W predeceased him. W’s will devised $50,000 to the charity if H predeceased her. Subsequently, H and W were involved in a common accident. W survived H by 48 hours. Were it not for subsection (d)(4), not only would the charitable devise in W’s will be effective, because H in fact predeceased W, but the charitable devise in H’s will would also be effective, because W’s failure to survive H by 120 hours would result in her being deemed to have predeceased H. Because this would result in an unintended duplication of the $50,000 devise, subsection (d)(4) provides that the 120-hour requirement of survival is inapplicable. Thus, only the $50,000 charitable devise in W’s will is effective. Subsection (d)(4) also renders the 120-hour requirement of survival inapplicable had H and W died in circumstances in which it could not be established by clear and convincing evidence that either survived the other. In such a case, an appropriate result might be to give effect to the common plan by paying half of the intended $50,000 devise from H’s estate and half from W’s estate. ERISA Preemption of State Law. The Employee Retirement Income Security Act of 1974 (ERISA) federalizes pension and employee benefit law. Section 514(a) of ERISA, 29 U.S.C. § 1144(a), provides that the provisions of Titles I and IV of ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA. See the Comment to Section 2-804 for a discussion of the ERISA preemption question. Revision of Uniform Simultaneous Death Act. The freestanding Uniform Simultaneous Death Act (USDA) was revised in 1991 in accordance with the revisions of this section. States that enact Sections 2-104 and 2-702 need not enact the USDA as revised in 1991 and should repeal the original version of the USDA if previously enacted in the state. Reference. This section is discussed in Halbach & Waggoner, “The UPC’s New Survivorship and Antilapse Provisions,” 55 Alb. L. Rev. 1091 (1992). Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 140 (Supp. 1992). SECTION 2-703. Choice of Law as to Meaning and Effect of Governing Instrument. The meaning and legal effect of a governing instrument is determined by the local law of the state selected in the governing instrument, unless the application of that law is contrary to the provisions relating to the elective share described in [Part] 2, the provisions relating to exempt property and allowances described in [Part] 4, or any other public policy of this state otherwise applicable to the disposition. Comment Purpose and Scope of Revisions. The scope of this section is expanded to cover all governing instruments, not just wills. As revised, this section enables the law of a particular state to be selected in the governing instrument for purposes of interpreting the instrument without regard to the location of property covered thereby. So long as local public policy is accommodated, the section should be accepted as necessary and desirable. Cross Reference. Choice of law rules regarding formal validity of a will are in Section 2-506. See also Sections 3-202 and 3-408. Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 141 (Supp. 1992). SECTION 2-704. Power of Appointment; Meaning of Specific Reference Requirement. If a governing instrument creating a power of appointment expressly requires that the power be exercised by a reference, an express reference, or a specific reference, to the power or its source, it is presumed that the donor’s intention, in requiring that the donee exercise the power by making reference to the particular power or to the creating instrument, was to prevent an inadvertent exercise of the power. Comment Rationale of New Section. In the creation of powers of appointment, it has become common estate-planning practice to require that the donee of the power can exercise the power only by making reference (or express or specific reference) to it. The question of whether the donee has made a sufficiently specific reference is much litigated. The precise question often is whether a so-called blanket-exercise clause (also called a blending clause) – a clause referring to “any property over which I have a power of appointment” – constitutes a sufficient reference to a particular power to exercise that power. E.g., First National Bank v. Walker, 607 S.W.2d 469 (Tenn. 1980), and cases cited therein. Section 2-704 sets forth the presumption that the donor’s purpose in imposing a reference requirement was to prevent an inadvertent exercise of the power by the donee. Under this section, mere use by the donee of a blanket-exercise clause would be ineffective to exercise the power because such a clause would not make a sufficient reference to the particular power. If, however, it could be shown that the donee had knowledge of and intended to exercise the power, the blanket-exercise clause would be sufficient to exercise the power, unless the presumption of this section is overcome. Under Section 2-701, the presumption of this section would be overcome if it could be shown that the donor’s intention was not merely to prevent an inadvertent exercise of the power but was to prevent any exercise of the power, intentional or inadvertent, that failed to identify in explicit terms the specific power or the creating instrument. Reference. See Langbein & Waggoner, “Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?,” 130 U. Pa. L. Rev. 521, 583, n. 223 (1982), suggesting that a donee’s will that omits a sufficiently specific reference to a particular power can be reformed to include the necessary reference if it can be shown by clear and convincing evidence that the omission was caused by a scrivener’s mistake. This approach is not inconsistent with Section 2-704. See Sections 2-601 (and accompanying Comment); 2-701. See also Motes/Henes Trust v. Mote, 297 Ark. 380, 761 S.W.2d 938 (1988) (donee’s intended exercise given effect despite use of blanket-exercise clause); In re Strobel, 149 Ariz. 213, 717 P.2d 892 (1986) (donee’s intended exercise given effect despite defective reference to power). Cross Reference. See Section 2-608 for a provision governing whether a general residuary clause in the donee’s will exercises a power of appointment that does not require a reference (or an express or specific reference) by the donee of the power. SECTION 2-705. Class Gifts Construed to Accord With Intestate Succession; Exceptions. (a) [Definitions.] In this section: (1) “Adoptee” has the meaning set forth in Section 2-115. (2) “Child of assisted reproduction” has the meaning set forth in Section 2-120. (3) “Distribution date” means the date when an immediate or postponed class gift takes effect in possession or enjoyment. (4) “Functioned as a parent of the adoptee” has the meaning set forth in Section 2-115, substituting “adoptee” for “child” in that definition. (5) “Functioned as a parent of the child” has the meaning set forth in Section 2-115. (6) “Genetic parent” has the meaning set forth in Section 2-115. (7) “Gestational child” has the meaning set forth in Section 2-121. (8) “Relative” has the meaning set forth in Section 2-115. (b) [Terms of Relationship.] A class gift that uses a term of relationship to identify the class members includes a child of assisted reproduction, a gestational child, and, except as otherwise provided in subsections (e) and (f), an adoptee and a child born to parents who are not married to each other, and their respective descendants if appropriate to the class, in accordance with the rules for intestate succession regarding parent-child relationships. For the purpose of determining whether a contrary intention exists under Section 2-701, a provision in a governing instrument that relates to the inclusion or exclusion in a class gift of a child born to parents who are not married to each other but does not specifically refer to a child of assisted reproduction or a gestational child does not apply to a child of assisted reproduction or a gestational child. (c) [Relatives by Marriage.] Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces, or nephews, are construed to exclude relatives by marriage, unless: (1) when the governing instrument was executed, the class was then and foreseeably would be empty; or (2) the language or circumstances otherwise establish that relatives by marriage were intended to be included. (d) [Half-Blood Relatives.] Terms of relationship in a governing instrument that do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces, or nephews, are construed to include both types of relationships. (e) [Transferor Not Genetic Parent.] In construing a dispositive provision of a transferor who is not the genetic parent, a child of a genetic parent is not considered the child of that genetic parent unless the genetic parent, a relative of the genetic parent, or the spouse or surviving spouse of the genetic parent or of a relative of the genetic parent functioned as a parent of the child before the child reached [18] years of age. (f) [Transferor Not Adoptive Parent.] In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless: (1) the adoption took place before the adoptee reached [18] years of age; (2) the adoptive parent was the adoptee’s stepparent or foster parent; or (3) the adoptive parent functioned as a parent of the adoptee before the adoptee reached [18] years of age. (g) [Class-Closing Rules.] The following rules apply for purposes of the class-closing rules: (1) A child in utero at a particular time is treated as living at that time if the child lives 120 hours after birth. (2) If a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date is the deceased parent’s death, the child is treated as living on the distribution date if the child lives 120 hours after birth and was in utero not later than 36 months after the deceased parent’s death or born not later than 45 months after the deceased parent’s death. (3) An individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted. Comment This section facilitates a modern construction of gifts that identify the recipient by reference to a relationship to someone; usually these gifts will be class gifts. The rules of construction contained in this section are substantially consistent with the rules of construction contained in the Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.5 through 14.9. These sections of the Restatement apply to the treatment for class-gift purposes of an adoptee, a nonmarital child, a child of assisted reproduction, a gestational child, and a relative by marriage. The rules set forth in this section are rules of construction, which under Section 2-701 are controlling in the absence of a finding of a contrary intention. With two exceptions, Section 2-705 invokes the rules pertaining to intestate succession as rules of construction for interpreting terms of relationship in private instruments. 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