§ 331 RULES OF CONSTRUCTION

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 331 Rules of construction

The SCPC provides that any rules of construction expressed in the Code apply unless the testator's will indicates a contrary intent.¹⁴⁵ Subject to that proviso, the SCPC contains several rules of construction.¹⁴⁶

Section 62-2-601. Rules of construction and intention; reformation of will.

(A) The intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions. The rules of construction expressed in the succeeding sections of this part apply unless a contrary intention is indicated by the will.

(B) Notwithstanding subsection (A), the court may reform the terms of the will, even if unambiguous, to conform the terms to the testator's intention if it is proved by clear and convincing evidence that the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.

The use of inter vivos trusts in modern estate planning raises the question whether the rules of construction used for wills would also apply to inter vivos trusts. The SCPC is silent.¹⁴⁷ However, in Bowles v. Bradley,¹⁴⁸ the South Carolina Supreme Court ruled that the SCPC's rules of construction for wills would apply to inter vivos trusts in certain situations, but not necessarily every situation.¹⁴⁹

The 2013 amendments added section 2-601(B), which confirms the ability of a court to reform a will because of a testator's mistake of fact or law, if proved by clear and convincing evidence. Reformation differs from modification. Reformation conforms an inaccurate document to be consistent with the testator's intent while modification changes the document to change the testator's intent. Section 2-601(B) is consistent with section 7-415, which allows the reformation of trusts.¹⁵⁰

While courts generally are loath to modify a will, reformation is less problematic because the testator's intent is being honored rather than changed. However, that may not be the rule in South Carolina. In the case of Wilson v. Dallas,¹⁵¹ the Supreme Court seemed to propose a greatly expanded notion of reformation or else demonstration a lack of understanding of the difference between reformation and modification. That case involved the Court's rejection of a settlement agreement in the estate of James Brown, the renowned entertainer. One of the many reasons proposed by the settling parties in support of the settlement agreement was that the settlement resolved the will and trust contests based on undue influence by the named fiduciaries, who, according to the documents, would receive an ongoing "management fee" of 50 percent of the gross annual income of the estate and purported trust. According to the Office of the Attorney General, acting as the protector of the decedent's purported charitable trust, the settlement would likely provide greater value to the charitable trust than if the estate and trust prevailed on all challenges because the settlement gave the charitable trust a portion of a valuable asset that the charitable trust would otherwise not be entitled: the family members' federal rights in copyrights. Assuming the validity of the contested documents, the Court described the 50 percent management fee—which would reduce any charitable share commensurately—as merely "generous" and suggested that reformation would be a proper remedy to reduce the "generous" fees. The Court did not cite any evidence that the decedent's intent was to provide less than 50 percent management fees, so that the document mistakenly expressed his intent. If that were the case, then reformation might be appropriate—for example, if the 50 percent fee was the result of a scrivener's error. Because the Court failed to cite any evidence that the document failed to accurately reflect the decedent's intent, then it appears that the Court was instead meaning to suggest the use of modification, as opposed to reformation. In that event, the Court apparently was suggesting a tool that most courts would eschew: the modification of a will.¹⁵²

§ 331.1 Treatment of half-bloods, illegitimates, and adopteds

For testacy purposes, the SCPC treats half-bloods, adopteds, and illegitimates the same as for intestacy purposes with one exception: the Code does not consider an illegitimate child as the child of the father unless the father openly and notoriously treated the child as his own.¹⁵³

Section 62-2-609. Construction of generic terms to accord with relationships as defined for intestate succession.

Half bloods, adopted persons, and persons born out of wedlock are included in class gift terminology and terms of relationship 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.

§ 331.2 Will construed to pass all of the testator's property

The SCPC construes a will to pass all of the testator's assets owned at death regardless of when acquired, as well as all property acquired after death, unless the testator indicates a contrary intent.¹⁵⁴

Pre-SCPC law provided similarly.¹⁵⁵

Section 62-2-602. Construction that will passes all property; after-acquired property.

A will is construed to pass all property which the testator owns at the testator's death including property acquired after the execution of the will and all property acquired by the testator's estate after the testator's death.

§ 331.3 Anti-lapse

The SCPC provides a rule of construction that, if a devisee who is the testator's great-grandparent or lineal descendent thereof predeceases the testator, the devise to that devisee will not lapse, but will instead pass to the issue of that predeceased devisee.¹⁵⁶ Thus, for the anti-lapse statute to apply, the devisee must be within the requisite degree of relationship to the testator—spouses are not included—and must have surviving issue who can take that devise by representation.

Moreover, the contrary intent of the testator can supersede the operation of this section.¹⁵⁷ For example, if a testator leaves Blackacre to his son C1, but to his neighbor N if C1 predeceases the testator, the will expresses a substitutional preference, and the anti-lapse statute does not apply. The 2013 amendments clarify that, if the testator uses words of survivorship, such as "if he survives me," the testator presumably intended to override the operation of the anti-lapse statute.¹⁵⁸

The Code also specifically includes within the protection of the statute a predeceased member of a class that receives a class gift, regardless of the date of that class member's death.¹⁵⁹ This feature of the anti-lapse statute may be counter-intuitive to the testator's intentions in certain cases. It seems unlikely that a testator making a class gift would want to include, within the class, the issue of a person who predeceased the execution of the will. In that case, because the testator would know at the time of execution that the person had already died, the testator would probably make specific provision for that person's issue if they were intended to take in lieu of that person.

Section 2-603 does not apply to trust beneficiaries, but only to devisees.¹⁶⁰ However, the SCTC added section 7-606, which provides rules analogous to section 2-603 for revocable trust beneficiaries.

Section 62-2-603. Anti-lapse; deceased devisee; class gifts.

(A) Unless a contrary intent appears in the will, if a devisee, who is a great-grandparent or a lineal descendant of a great-grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree than those of more remote degree take by representation.

(B) One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

(C) Words of survivorship in a devise to an individual, such as, "if he survives me," or to "my surviving children," are, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of subsections (A) and (B).

§ 331.4 Lapsed devises

Upon the lapse of a devise under the SCPC, the subject property of a lapsed pre-residuary devise passes to the residuary beneficiaries, of a partially lapsed residuary devise to the remaining residuary beneficiaries, and of a completely lapsed residuary devise to the testator's intestate heirs.¹⁶¹

Example

Testator (T) leaves Blackacre to his friend F and the residue of his estate to his grandsons GC1 and GC2 in equal shares. If F predeceases T, F's devise lapses and falls into the residue.

Example

Testator (T) leaves Blackacre to his friend F and the residue of his estate to his grandsons GC1 and GC2 in equal shares. If F predeceases T, F's devise lapses and falls into the residue. GC1 also predeceases T. GC1 has no issue, which means the anti-lapse statute cannot apply to GC1's devise. GC2 takes the entire residue.

Example

Testator (T) leaves Blackacre to his friend F and the residue of his estate to his grandsons GC1 and GC2 in equal shares. If F predeceases T, F's devise lapses and falls into the residue. GC1 and GC2 also predecease T. GC1 and GC2 have no issue, which means the anti-lapse statute cannot apply to GC1's or GC2's devise. T's intestate heirs take the entire residue by partial intestacy.

As to partially lapsed residuary gifts, pre-SCPC case law followed the no-residue-of-a-residue rule. The lapsed portion of the residuary gift passed by partial intestacy.

Example

Testator (T) leaves Blackacre to his friend F and the residue of his estate to his grandsons GC1 and GC2 in

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