Probate & Trust Law Section Conference Manual ... - Minnesota CLE

(2) A different, but equally litigious, situation was created when a
trust called first for the payment of certain “Specific
Testamentary Gifts” totaling $8,000,000 and then the
distribution of the trust remainder but specified in the
remainder clause that the share given to Elizabeth include the
contents of the testator’s personal residence. At the time for
distribution, after the payment of taxes and administrative costs
the estate was less than $8,000,000. Here the court found in
favor of Elizabeth holding that even though the gift of the
personal property was contained in the remainder or residue
clause, it was a specific gift and was to be paid before what
was determined to be a general gift of the $8,000,000. Garner
v. Redwine, 309 Ga. App. 158 (Ga. 2011)
3. Complications. Even with the help of state law, there are many ways in
which will or trust provisions dealing with specific or general devises can
lead to problems.
a. Loans and Advancements. While Minn. Stat. § 524.2-609
discussed above does add clarity to advancements made during life
by a testator to a devisee, the statute does not apply to loans to a
devisee. These remain claims of the estate unless the testator
specifically provides otherwise in a will. See 6 Page on the Law of
Wills § 55.6, at 343 (Jeffrey A. Schoenblum, ed., 2000)
(1) Specifying how loans are to be treated in dividing an estate
may go a long way to avoiding controversy among the
heirs.
(2) Determining what constitutes a loan will still be a frequent
cause of dispute.
(3) Where loans and gifts are made to the same devisee,
thoughtful drafting will be especially important.
b. Clarity of Descriptions. While generally providing a clear
description of tangible personal property will not be difficult, real
property poses frequent challenges.
(1) Consistency in the description may be one problem. For
example, if the will provides “I leave my home to X’,
especially if dealing with home within a city, there may not
be an issue. However, if the home is in the outer suburbs or
in the country, and the will provides “I leave my home,
more fully described as …. to X”, care should be taken to
be certain that at the time the will is written the specific
legal description of the property fully encompasses the
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