Wills

Question 1

specific bequest

Answer 1

gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described

Question 2

stock

Answer 2

common law- specific bequest includes any additional shares produced by a stock split NOT stock dividends

UPC and some states: specific bequest of stock also includes shares of stock split and stock dividends

Question 3

doctrine of ademption

Answer 3

when specifically bequeathed property is not in the testators estate at death the bequest is adeemed (fails)

Question 4

test of ademption

Answer 4

objective test- whether the specifically bequeathed property is part of testator’s estate NOT intent

some courts- adopt a more lenient intent test- beneficiary entitled to substitute property owned by testor IF beneficiary can prove testator intended beneficiary to take substituted property

Question 5

UPC for replacement property

Answer 5

specific devisee has the right to any real property owned by the testator at death that was acquired as a replacement for the specifically devised property

Question 6

“a will speaks at the time of death”

Answer 6

will operates upon circumstances and properties as they exist at the time of the testor’s death

Question 7

disclaim

Answer 7

may disclaim any interest and the interest passes as though the disclaimant predeceased the decedent

Question 8

anti-lapse statutes-

Answer 8

saves a give from failing for predeceased or disclaimed person

typical: provides that surviving descendants take by substitution only when the predeceasing beneficiary is a descendant of the testator
- few allow for any beneficiary’s or any relative of testator

Question 9

residuary estate

Answer 9

balance of the testor’s property after all expenses claims and bequests have been

Question 10

will requirements

Answer 10

i. acknowledged by the testator

ii. signed by testator in the presence of two witnesses

Question 11

holographic

Answer 11

handwritten and UNATTESTED

Question 12

Life insurance proceeds

Answer 12

nonprobate asset and pass to beneficiary outside of the estate
0 it is a contract

Question 13

Can a separate memorandom dispose of property

Answer 13

document may be incorporated by reference if:
I. it was in existence at the time the will was executed
ii. will sufficiently describes the document, and
iii. will manifests an intent to incorporate the document

for personal property- UPC and most states do not require that document is in existence at time will was executed if signed and dated by testator and items and devisees are described .

Question 14

anti lapse with predeceasing spouse

Answer 14

most required predeceasing beneficiary be related and do not save a gift to a predeceasing spouse even if he left descendants

Question 15

abatement occurs:

Answer 15

when an estates assets are not sufficient to pay all claims and satisfy all bequests and devises

unless testator provides order gifts abate:
intestate property
residuary estate 
general legacies 
specific devises and bequests

Question 16

valid will

Answer 16

testator must intend that the particular intstrument operate a his will

language such as this is my last will raises a presumption of testatmentary intent - rebuttable

Question 17

Extrinsic evidence to prove validity of will

Answer 17

admissible to show testamentary intent or lack of testamentary intent

Question 18

revoke will by written instrument requires

Answer 18

present intent to revoek

and instrument msut be executed with the same formalities as are required for execution

Question 19

Physical revocation

Answer 19

act of burning, tearing, obliterating, or cancelling material portion

act must be shown to have had an actual effect on the will or its language

Question 20

witnesses with interest

Answer 20

common law: if one of the two witnesses had an interest the will could not be probated

NOW: most states have purging statutes- eliminate the interest rather than render the will invalid

Question 21

Contract to make a gift by will

Answer 21

common law- need not be in writing unless land
- some states require all contracts to make a gift by will to be in writing
UPC: established by (1) provisions in the will stating the material provisions of the contract, (2) an express reference in a will to the contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract

Question 22

quantum merit

Answer 22

reasonable expectation among the parties to be compensated

Question 23

cy pres

Answer 23

applies to gifts as well needs:

general charitable intent and impossible or impractical to use gift for purpose indicated.

Question 24

a will is effective upon

Answer 24

the testators death

Question 25

effective will and revocation

Answer 25

at common law if testator writes a will and

revokes it by a subsequent instrument and

revoking instrument is revoked before the testtoar death,

the first instrument remains in effect and operative

Question 26

revival of revoked will (some jurisdictions)

Answer 26

(1) reexecuted with the proper testamentary formalities or acknowledged by the testator OR
2. republished by a validly executed codicil

Question 27

reovked will and revival (UPC and majority)

Answer 27

second will immediately revokes the first will, but first may be revived if that was the testator’s intent when he revoked the second will.

Question 28

inter vivos gift made subsequent to a will execution

Answer 28

generally deemed to be in satisfaction of the gift in the will if the testator intended gift to be in satisfaction

UPC- testator has to provide intent in will or in a contemporaneous writing or devisee acknowledges writing

Question 29

dependent relative revocation

Answer 29

allows a court to disregard revocation of will when it appears that testator revoked the will because of a mistake of law and belief that another disposition of his property was effective OR will apply intestate if will come closer to what testator was attempting in revokation

i.e. revoked second so that first could rule but first wasn’t good- will bring back the second

Question 30

UPC and interested witnesses

Answer 30

a bequest to an itnerest witness will not be purged

Question 31

abatement and demonstrative legacys

Answer 31

treated as a specific legacy up to the value of the particular asset and general legacy as to the rest

Question 32

demonstrative legacy

Answer 32

gift of a general amount to be funded from a specific source

Question 33

witness is interested - purge exceptions

Answer 33

(1) witness is a supernumerary witness (extra with requisite disinterested witnesses)
OR
2. interest witness would have taken under intestacy or an earlier will

Question 34

testamentary power of appointment

Answer 34

properly exercised by donees validly executed will

• if specifically refers that appointment must be exercised by specifically referring to the power- direction must be complied with

Question 35

property with liens

Answer 35

commone law and some states: sepcifially devised property subject to lien- beneficiary entitled to have lien exonerated.

UPC and most states: liens on specifically devised property are not exonerated unless will secpficially directs exoneration

Question 36

identiy theory

Answer 36

admpetion decided soley on basis of objective test: whether the specifically bequeathed property is a part of the estate at the testators death

Softened ademption law: some states allow beneficiary entitled to casualty insurance proceeds resulting from loss of property

Question 37

durable healthcare power effective:

Answer 37

when principal becomes incapacitated and extends t all healthcare decisions including withdrawal

must act in best interest and is not subject to liability

Question 38

durable healthcare form requiremetns

Answer 38

some states- do not require witnesses some require witnesses

Question 39

Testamentary capacity

Answer 39

presumed to be of sound mind unless proven otherwise

measured at time of will execution and exists if: 
I. understood nature of act
ii. knew nature and extent of property
iii. knew objects of her bounty, and 
4. knew nature of disposition

Question 40

codicil

Answer 40

later testamentary instrument that amends, alters or modifies a previously executed will- same formalities

may also republish a prior valid will, revive a previously revoked will and validate prior invalid will

Question 41

who can contest a will

Answer 41

an interested party - anyone who would be adversely affected by the will’s admission to probate

Question 42

contractual will established by:

Answer 42

i. provision in the will state material provisions of contract
ii. express reference in the will to the contract
iii. a writing signed by decedent evidencing contract

Question 43

joint will

Answer 43

will of two or more persons executed on the same piece of paper and intended to serve as the will of each

maj rule that there is no presumption that will is contractual

Question 44

contractual will revokable

Answer 44

yes by either party but becomes irrevocable upon the first party’s death

Question 45

undue influence definition

Answer 45

free will of testator is destroyed and resulting testamentary disposition reflects the desires of party exerting undue influence

Question 46

BOP of undue influence factors

Answer 46

i. influence exerted

ii. effect of influence was to overpower
iii. product wouldn’t have been executed but for

Question 47

fraud in a will

Answer 47

showing testator has been willfully deceived as to the character or content of an instrument

fraud in execution- misrepresentation as to nature of content

fraud in inducement- testor intends to make a will but fraud induced into making will by misrepresentation as to facts which influence his motivation

Question 48

statutory order of preference for appointment of a personal representative is:

Answer 48

i. person named
ii. suriving spouse, if beneficiary
iii. any will beneficiary
iv. surviving spouse;
v. heirs
vi. creditor

Question 49

pretermitted child (one born after will executed) may:

Answer 49

get an intestate share UNLESS

i. omission was intention
ii. had other children and devised estate to parent of omitted child or
iii. provided by transfer outside the will

Question 50

integration (necessary when pages arent attached)

Answer 50

process of embodying several sheets of paper or documents into a single entire will

must show pages present when will executed

extrinsic evidence is admissible