1.32.260 Rules of Construction and Intention

(a) The intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions.

(b) The Following rules of construction apply unless a contrary intent is clear in the will.

(1) All Property and After-acquired Property. A will is construed to pass all property which the testator owns at his or her passing including property acquired after the execution of his or her will.

(2) Devisee Must Survive Testator by 120 Hours. A devisee who does not survive the testator by 120 hours is treated as if they predeceased the testator, unless the will of the decedent contains such language dealing explicitly with simultaneous passings, including common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.

(3) Failure of Testamentary Provision. If a devise other than a residuary devise fails for any reason, it becomes part of the residual estate. If the residual estate is devised to two or more persons and the share of one of the residuary devises fails for any reason, his or her share passes to the other residuary devisees, or to other residuary devises in proportion to his or her interests in the residue.

(4) Class Gifts. One who would have been a devise under a class gift if they had survived the testator is treated as a devisee for purposes of this section whether his or her passing occurred before of after the execution of the will.

(5) Exercise of Power of Appointment. A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment unless specific reference is made to that power.

(6) Generic Terms. Half-bloods, adopted persons and persons born out of wedlock are included in class gifts terminology and terms of relationships in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father or unless paternity has been judicially determined during the life of the father or in some other manner which satisfies the court by clear and convincing evidence that paternity has been conclusively established.

(7) Ademption by Satisfaction. Property which a testator gave in his or her lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction. For the purpose of partial satisfaction, property given during the lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of passing of the testator, whichever occurs first.