SECTION 2-513. SEPARATE WRITING IDENTIFYING DEVISE OF CERTAIN
TYPES OF TANGIBLE PERSONAL PROPERTY. Whether or not the provisions relating to
holographic wills apply, a will may refer to a written statement or list to dispose of items of
tangible personal property not otherwise specifically disposed of by the will, other than money.
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To be admissible under this section as evidence of the intended disposition, the writing must be
signed by the testator and must describe the items and the devisees 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.
Comment
Purpose and Scope of Revision. As part of the broader policy of effectuating a testator’s intent and of relaxing formalities of execution, this section permits a testator to refer in his or her will to a separate document disposing of tangible personalty other than money. The pre-1990 version precluded the disposition of “evidences of indebtedness, documents of title, and securities, and property used in a trade or business.” These limitations are deleted in the revised version, partly to remove a source of confusion in the pre-1990 version, which arose because evidences of indebtedness, documents of title, and securities are not items of tangible personal property to begin with, and partly to permit the disposition of a broader range of items of tangible personal property.
The language “items of tangible personal property” does not require that the separate document specifically itemize each item of tangible personal property covered. The only requirement is that the document describe the items covered “with reasonable certainty.” Consequently, a document referring to “all my tangible personal property other than money” or to “all my tangible personal property located in my office” or using similar catch-all type of language would normally be sufficient.
The separate document disposing of an item or items of tangible personal property may be prepared after execution of the will, so would not come within Section 2-510 on incorporation by reference. It may even be altered from time to time. The only requirement is that the document be signed by the testator. The pre-1990 version of this section gave effect to an unsigned document if it was in the testator’s handwriting. The revisions remove the language giving effect to such an unsigned document. The purpose is to prevent a mere handwritten draft from becoming effective without sufficient indication that the testator intended it to be effective. The signature requirement is designed to prevent mere drafts from becoming effective against the testator’s wishes. An unsigned document could still be given effect under Section 2-503, however, if the proponent could carry the burden of proving by clear and convincing evidence that the testator intended the document to be effective.
The typical case covered by this section would be a list of personal effects and the persons whom the decedent desired to take specified items.
Comment
Purpose and Scope of Revision. As part of the broader policy of effectuating a testator’s intent and of relaxing formalities of execution, this section permits a testator to refer in his or her will to a separate document disposing of tangible personalty other than money. The pre-1990 version precluded the disposition of “evidences of indebtedness, documents of title, and securities, and property used in a trade or business.” These limitations are deleted in the revised version, partly to remove a source of confusion in the pre-1990 version, which arose because evidences of indebtedness, documents of title, and securities are not items of tangible personal property to begin with, and partly to permit the disposition of a broader range of items of tangible personal property.
The language “items of tangible personal property” does not require that the separate document specifically itemize each item of tangible personal property covered. The only requirement is that the document describe the items covered “with reasonable certainty.” Consequently, a document referring to “all my tangible personal property other than money” or to “all my tangible personal property located in my office” or using similar catch-all type of language would normally be sufficient.
The separate document disposing of an item or items of tangible personal property may be prepared after execution of the will, so would not come within Section 2-510 on incorporation by reference. It may even be altered from time to time. The only requirement is that the document be signed by the testator. The pre-1990 version of this section gave effect to an unsigned document if it was in the testator’s handwriting. The revisions remove the language giving effect to such an unsigned document. The purpose is to prevent a mere handwritten draft from becoming effective without sufficient indication that the testator intended it to be effective. The signature requirement is designed to prevent mere drafts from becoming effective against the testator’s wishes. An unsigned document could still be given effect under Section 2-503, however, if the proponent could carry the burden of proving by clear and convincing evidence that the testator intended the document to be effective.
The typical case covered by this section would be a list of personal effects and the persons whom the decedent desired to take specified items.
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Sample Clause. Section 2-513 might be utilized by a clause in the decedent’s will such
as the following:
I might leave a written statement or list disposing of items of tangible personal property. If I do and if my written statement or list is found and is identified as such by my Personal Representative no later than 30 days after the probate of this will, then my written statement or list is to be given effect to the extent authorized by law and is to take precedence over any contrary devise or devises of the same item or items of property in this will.
Section 2-513 only authorizes disposition of tangible personal property “not otherwise specifically disposed of by the will.” The sample clause above is consistent with this restriction. By providing that the written statement or list takes precedence over any contrary devise in the will, a contrary devise is made conditional upon the written statement or list not contradicting it; if the written statement or list does contradict a devise in the will, the will does not otherwise specifically dispose of the property.
If, however, the clause in the testator’s will does not provide that the written statement or list is to take precedence over any contrary devise in the will (or contain a provision having similar effect), then the written statement or list is ineffective to the extent it purports to dispose of items of property that were otherwise specifically disposed of by the will.
I might leave a written statement or list disposing of items of tangible personal property. If I do and if my written statement or list is found and is identified as such by my Personal Representative no later than 30 days after the probate of this will, then my written statement or list is to be given effect to the extent authorized by law and is to take precedence over any contrary devise or devises of the same item or items of property in this will.
Section 2-513 only authorizes disposition of tangible personal property “not otherwise specifically disposed of by the will.” The sample clause above is consistent with this restriction. By providing that the written statement or list takes precedence over any contrary devise in the will, a contrary devise is made conditional upon the written statement or list not contradicting it; if the written statement or list does contradict a devise in the will, the will does not otherwise specifically dispose of the property.
If, however, the clause in the testator’s will does not provide that the written statement or list is to take precedence over any contrary devise in the will (or contain a provision having similar effect), then the written statement or list is ineffective to the extent it purports to dispose of items of property that were otherwise specifically disposed of by the will.
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