Wills

Question 1

In intestacy, what is the spouses share if the decedent is survived by: spouse and shared descendants?

Answer 1

Spouse takes entire estate

Question 2

In intestacy, what is the spouse’s share if the decedent is survived by: Spouse + parents but no descendants

Answer 2

Spouse takes 300k and 75% of the remaining estate

Question 3

In intestacy, what is the spouses share if the decedent is survived by: Spouse + all shared descendants + spouse’s nonshared kids

Answer 3

Spouse takes 225k and 50% of the remaining estate

Question 4

In intestacy, what is the spouses share if the decedent is survived by: Spouse + all non-shared kids

Answer 4

Spouse takes 150k and 50%

Question 5

In intestacy, what is the spouses share if the decedent is survived by: Just spouse

Answer 5

Spouse takes everything.

Question 6

Per Stirpes is when

Answer 6

Surviving child stands in place of deceased parent. Divided equally at first generation.

Question 7

Per capita with representation is when?

Answer 7

the estate is divided at the first level with surviving members and the shares of those who are deceased in that generation drop down to the surviving issue at the next generation. If deceased member with no issue, they get no share.

Question 8

Per capita at each generation is?

Answer 8

Estate divided at first level with a surviving member then remaining is pooled and redivided to issue at next level.

* Favored by the UPC

Question 9

Can you disinherit a child?

Answer 9

Yes in a properly executed will.
*Child may try to argue a lack of capacity
* If child is not expressly disinherited, presumption that she gets something

Question 10

What is required to execute a will?

Answer 10

Capacity (over 18), signed writing, witness (presence/line of sight; 2+), and testamentary intent.

• *1. Capacity
  2. Signed Writing by testator
  3. Testamentary intent (present at execution)
  4. “Presence” of witnesses**

Can someone tell Paul his will is invalid?

* Testamentary intent must be present at the time of execution. Not later or before.

“I think I might want to sign a will”=XX

Question 11

What types of presence are acceptable for witnesses?

Answer 11

Most states require line of sight presence, others allow conscious presence (must be conscious or aware the will is being executed)

Note, most require the presence of at least 2 witnesses.

* UPC allows witnesses to sign within a reasonable time after witnessing the T’s signing. (provided they still witnessed it).

Question 12

What is the purge theory?
* Witnesses

Answer 12

A witness with an interest (financial) in the will has his interest purged in excess of what the witness would take by intestate succession.
* UPC no longer follows the purge theory.
* Even if PT applies, it’s ok if IW would receive less by will than intestacy, or there were 2 other disinterested witnesses.

Question 13

What happens if there is a failure to satisfy formalities of will execution?

Answer 13

* Traditionally, a failure of formalities would void the will. However, under the UPC, the will does not fail if it can be shown by clear and convincing evidence that the T intended to create the will.

⇢This represents a shift from strict compliance to substantial compliance.

1. at common law the will is invalid
2. modern view allows substantial compliance, if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.
   * UPC is all about testamentary intent– much more forgiving; preserve intent or “will” of testator

Question 14

What is a holographic will?

Answer 14

An informal, handwritten, and unwitnessed will. Must be signed to be valid.

*At common law any non-testator markings/handwriting invalidates entire will. At UPC the material provisions must be written by the testator. There must be present testamentary intent!

Question 15

How can a will be revoked?

Answer 15

Any time until death by (1) subsequent instruments that are inconsistent (indirect Revocation) or expressly revoke the prior will, (2) physical acts with intent to revoke, or (3) operation of law (divorce revokes provisions in favor of former spouse).
* Note the more recent will or codicil is “supreme” to any earlier ones.

* later instruments- codicil or new will (either expressly or impliedly inconsistent)
*destruction

Question 16

How does revoking a codicil affect a will?

Answer 16

It revokes only the codicil and revives the original will.

Question 17

What is dependent relative revocation?

Answer 17

If a will is revoked on the basis of mistake in law or fact, the DRR will revive the revoked will.

But for the mistake, the will would not have been revoked.

*Revoking second will does not revive the first one absent mistake.

Question 18

How are wills constructed (interpreted)?

Answer 18

Plain meaning unless the will states otherwise.

Question 19

A will can incorporate a document (by reference) if?

Answer 19

The document exists at the time of execution, the testator intends the document to be incorporated, and the document is described sufficiently to identify it.

Question 20

What is an anti-lapse statute?

Answer 20

It prevents a gift from lapsing if there is a protected ( usually family) relationship and the intended recipient is survived by issue.
* By statute, so should be one on the essay exam?

Class gifts– if gift to one member of class dies, rest of class gets that share of gift (brother 2 dies, brothers 1 and 3 get the additional third).

Question 21

What is the order for abatement, and what is it?

Answer 21

Abatements (reductions) occur when there are debts the estate owes, that must be satisfied. The gifts are reduced in the following order.

Residual gift, General bequests to others, general bequests to family, specific bequests to others, specific bequests to family, specific bequests to spouses.

Question 22

Explain Ademption, its two rules, and abatement by extinction vs. abatement by satisfaction.

Answer 22

By extinction: If a specific devise no longer exists (sold painting), the common law extincted that device (voided it). Under UPC, the intent theory is used, and the devise may be replaced if such was the testator’s intent.

By satisfaction: If T gave a gift during life (intervivos) it may be credited against the will. Presumed under CL, but under UPC need to show: (1) clear intent for gift to replace the will item; (2) intent supported by writing.

Question 23

What is a surviving spouses elective share?

Answer 23

A choice to take 50% of the decedents augmented estate.

Question 24

What are the views on lifetime gifts to children?

Answer 24

Common law viewed them as satisfying a child’s intestate share, the UPC views them as satisfying intestate share only if that was declared in a writing.

Question 25

If a child is unintentionally disinherited, what do they take?

Answer 25

If no other children, their intestate share, if other children,their share of that inheritance.

Question 26

Undue influence requires:

Answer 26

Showing the beneficiary received a substantial benefit under the will, had a confidential relationship, and that the testator had a weakened intellect at time of execution.

Question 27

A no contest clause is?

Answer 27

Unenforceable under the UPC.

Question 28

When considering the Signed by Testator requirement under will formalities, what should you consider for issue spotting purposes?

Answer 28

1. Location of the signature– if signature is not below a material term, those later additions will likely not be admitted.
2. Abbreviations- are okay if clear intent to endorse the will.

Question 29

What are the requirements for a codicil?

Answer 29

The same as those for a will.

Question 30

Explain what happens to wills that are “lost” upon testator’s death

Answer 30

There is a rebuttable presumption that such a lost will was revoked prior to death.
* this presumption may be overcome by the proponent by clear and convincing evidence.

Question 31

Explain the limits on the Testator’s power to transfer and the rules for each.

Answer 31

Limited by:
(1) rights of spouse (may choose elective/forced share of 50% of augmented estate (prop before +during marriage)
(2) gifts to children/advancements (hotchpot)
(3) slayer rule : beneficiary who murders the Decedent is barred from taking under the will (unless unintentional, so not Involuntary manslaughter or self defense).

& (4) Disclaimers – if in writing by beneficiary and signed/filed with court, or declared to estate manager and the interest disclaimed is defined clearly.

Timing of Disc. -= 9 months.

Question 32

Explain the challenges to a will

Answer 32

1. Lack of capacity (unable to understand the nature of the act, the natural character of the property, natural objects of his bounty, the plan of disposition.
   * *(i): insane delusions: objective test: if a rational person in T’s position could not have reached the same conclusion, and that conclusion (delusion) was the but for cause for the decision to exclude (ex: my wife was having affairs with the garden gnomes).
   * *2. Undue influence: a coerced relationship where a 3rd party essentially controlled the decision-making process (subst. beneft+confidential rel. = presumption of UI— doctor, lawyer)
   (1) ben. receives subst. benefit
   (2) ben. had a confidential relationship
   (3) T had a waekened intellect (each creates reb. presumption that can be overcome by a preponderance of evidence.
   * *3. Fraud**: Misrepresentation of fact causing T to create the will (inducement), or misunderstand the contents of the will (execution). The misrep. must cause the T to make a will they otherwise would not have made.

Question 33

Explain the Duties and categories of personal representatives

Answer 33

1 . Personal representative (executor if named, administrator if appointed):
Duties: The PR is a fiduciary, owing fiduciary duties of loyalty and care, and to avoid self-dealing. Must act in best interests of the estate/ t’s intent

• *2. Powers of appointment:**
  (1) general- no conditions on the donee’s power, may do as she wishes and transfer the ownership to anyone

(2) special- specify certain individuals as the object of the power, limits (Hank can’t be the executor

3. Powers of attorney: authority to act on another’s behalf for legal or business matetters:
   (1) writing; (2) signed; (3) dated
   * can be general or special- all decisions of person’s interests, or just certain ones.
4. Advanced healthcare directives:
   (1) living will: the agent’s job is to see the directive is enforced, not use his own judgment necessarily.
   (2) durable power of attorney: agent appointed if T becomes incapacitated and makes decisions for her. Broad power.

Question 34

What is the hotchpot method, when does one apply it, and how?

Answer 34

Apply it when there were advancements made while Decedent was still alive.

I would advance you this money, but I have ADD:

1. Add value of Advancements back to estate
2. Divide estate by number of takers
3. Deduct advancement from their share.