SECTION 2-601. SCOPE. In the absence of a finding of a contrary intention, the rules of construction in this [part] control the construction of a will.
PART 6. RULES OF CONSTRUCTION APPLICABLE ONLY TO WILLS GENERAL COMMENT
Parts 6 and 7 address a variety of construction problems that commonly occur in wills, trusts, and other types of governing instruments. All of the “rules” set forth in these parts yield to a finding of a contrary intention and are therefore rebuttable presumptions.
The rules of construction set forth in Part 6 apply only to wills. The rules of construction
PART 6. RULES OF CONSTRUCTION APPLICABLE ONLY TO WILLS GENERAL COMMENT
Parts 6 and 7 address a variety of construction problems that commonly occur in wills, trusts, and other types of governing instruments. All of the “rules” set forth in these parts yield to a finding of a contrary intention and are therefore rebuttable presumptions.
The rules of construction set forth in Part 6 apply only to wills. The rules of construction
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set forth in Part 7 apply to wills and other governing instruments.
The sections in part 6 deal with such problems as death before the testator (lapse), the inclusiveness of the will as to property of the testator, effect of failure of a gift in the will, change in form of securities specifically devised, ademption by reason of fire, sale and the like, exoneration, and exercise of a power of appointment by general language in the will.
The sections in part 6 deal with such problems as death before the testator (lapse), the inclusiveness of the will as to property of the testator, effect of failure of a gift in the will, change in form of securities specifically devised, ademption by reason of fire, sale and the like, exoneration, and exercise of a power of appointment by general language in the will.
Comment
Purpose and Scope of 1990 Revisions. Common-law rules of construction yield to a finding of a contrary intention. The pre-1990 version of this section provided that the rules of construction in Part 6 yielded only to a “contrary intention indicated by the will.” To align the statutory rules of construction in Part 6 with those established at common law, this section was revised in 1990 so that the rules of construction yield to a “finding of a contrary intention.” As revised, evidence extrinsic to the will as well as the content of the will itself is admissible for the purpose of rebutting the rules of construction in Part 6.
As originally promulgated, this section began with the sentence: “The intention of a testator as expressed in his will controls the legal effect of his dispositions.” This sentence was removed primarily because it was inappropriate and unnecessary in a part of the Code containing rules of construction. Deleting this sentence did not signify a retreat from the widely accepted proposition that a testator’s intention controls the legal effect of his or her dispositions.
A further reason for deleting this sentence is that a possible, though unintended, reading of the sentence might have been that it prevented the judicial adoption of a general reformation doctrine for wills, as approved by the American Law Institute in the Restatement (Third) of Property: Wills and Other Donative Transfers § 12.1 (2003), and as advocated in Langbein & Waggoner, “Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?”, 130 U. Pa. L. Rev. 521 (1982). Striking this sentence removed that possible impediment to the judicial adoption of a general reformation doctrine for wills as approved by the American Law Institute, as advocated in the Langbein-Waggoner article, and (as of 2008) codified in Section 2-805.
Cross Reference. See Section 8-101(b) for the application of the rules of construction in this part to documents executed prior to the effective date of this article.
Historical Note. This Comment was revised in 2008.
Purpose and Scope of 1990 Revisions. Common-law rules of construction yield to a finding of a contrary intention. The pre-1990 version of this section provided that the rules of construction in Part 6 yielded only to a “contrary intention indicated by the will.” To align the statutory rules of construction in Part 6 with those established at common law, this section was revised in 1990 so that the rules of construction yield to a “finding of a contrary intention.” As revised, evidence extrinsic to the will as well as the content of the will itself is admissible for the purpose of rebutting the rules of construction in Part 6.
As originally promulgated, this section began with the sentence: “The intention of a testator as expressed in his will controls the legal effect of his dispositions.” This sentence was removed primarily because it was inappropriate and unnecessary in a part of the Code containing rules of construction. Deleting this sentence did not signify a retreat from the widely accepted proposition that a testator’s intention controls the legal effect of his or her dispositions.
A further reason for deleting this sentence is that a possible, though unintended, reading of the sentence might have been that it prevented the judicial adoption of a general reformation doctrine for wills, as approved by the American Law Institute in the Restatement (Third) of Property: Wills and Other Donative Transfers § 12.1 (2003), and as advocated in Langbein & Waggoner, “Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?”, 130 U. Pa. L. Rev. 521 (1982). Striking this sentence removed that possible impediment to the judicial adoption of a general reformation doctrine for wills as approved by the American Law Institute, as advocated in the Langbein-Waggoner article, and (as of 2008) codified in Section 2-805.
Cross Reference. See Section 8-101(b) for the application of the rules of construction in this part to documents executed prior to the effective date of this article.
Historical Note. This Comment was revised in 2008.
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