wills

Question 1

intestate succession

Answer 1

any property not passing by valid will or by operation of law is governed via intestate

if decedent leaves only one surviving spouse –> spouse gets entire estate

if surviving spouse and issue
most states –> spouse and issue will each receive certain % (usually 1/3)
UPC –> spouse receives entire estate if all issue are from that spouse

no spouse –> decedents issue

no spouse or issue –> surviving parents, grandchildren, or issue of parents (siblings & their issue)

majority: assets pass per capita at each generation level

Question 2

will formalities

Answer 2

in writing, signed by testator, and witnessed by 2 people or notarized

Question 3

witnessing a will

Answer 3

 Majority: conscious presence test – the presence is satisfied if each party was conscious of where the other parties were and what they were doing, and the act took place within the general awareness and cognizance of the other parties
 Minority: scope of vision test – the person must be in such proximity that they could have seen the person signing had they looked

Question 4

will formality compliance standard

Answer 4

common law: strict compliance

some states: substantial compliance

UPC: harmless error - improperly executed will is valid if proven by clear and convincing evidence that decedent intended the writing to be his will

Question 5

doctrine of integration

Answer 5

doc will be integrated into will if testator

1. intended it to be part of the will and
2. doc was physically present at will execution

*may be proven via extrinsic evidence or witness testimony

Question 6

interested witness

Answer 6

common law: must be disinterested to be valid

modern view/majority: will is valid even if witness is interested but the gift will be purged unless

1. interested witness is heir (gift is reduced to lesser of intestate share or gift under prior will or gift under current will) or
2. if another disinterested witness was present so there was still 2 disinterested witnesses present at signing

Question 7

codicil

Answer 7

instrument made after will is executed that modifies, amends, or revokes a will

must meet will execution requirements

cannot republish an invalid will, but can cure interested witness issue

Question 8

holographic will

Answer 8

handwritten or alteration to will that is not witnessed

required to be signed at the end of doc

holographic codicil revokes earlier will to extent it conflicts

Question 9

incorporation by reference

Answer 9

bequest through an unattested memo is valid if it meets requirements of incorporation by reference

majority:
1. doc was in existence at time the will was executed
2. it was sufficiently described in the will and
3. testator intended to incorporate it into the will

UPC:
a bequest of tangible personal property (other than money) will be incorporated if
1. signed by testator and
2. the items & devisees are described with reasonable certainty
*doc does NOT have to be in existence at time of will execution

Question 10

acts of independent significance

Answer 10

acts or events with significance outside of the will making process - can be used to fill in gaps of will

Question 11

revocation of will by physical act

Answer 11

1. testator intended to revoke the will and
2. it is burned, torn, destroyed, or cancelled by testator or someone at his discretion & in his presence

extrinsic evidence admissible

common law: words of cancellation are valid only if they come in physical contact with the cancelled words of the will

UPC: words of cancellation are valid written anywhere on the will - no physical contact required

Question 12

revocation of will by subsequent will or codicil

Answer 12

may revoked by executing subsequent will or codicil, but revocation is only valid to extent that previous will conflicts with the new will unless the new will expressly revokes the previous will in entirety

Question 13

dependent relative revocation doctrine

Answer 13

cancels a previous revocation that was made under mistaken belief of law or fact

court will disregard revocation if premised on mistake of law or fact, would not have occurred but for the mistake, and the results from disregarding revocation are closer to testator intent

Question 14

revival of an earlier will

Answer 14

common law: auto revived if subsequent will was revoked

modern: revival of revoked will not permitted - can only be revived by re-execution or republication

UPC: a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evidence from the circumstances or testator statements that the testator intended to revive the previous will
– If the OG will was only partly revoked, the revoked provisions are revived unless it is shown that testator did not intend to revive the provisions

Question 15

contractual wills

Answer 15

contracts to execute mutual wills are enforceable

must expressly state that the parties intend their wills to be a binding k - must be specific reference to the k on which joint wills are based

if breached –> constructive trust in favor of OG beneficiaries

**execution of joint or mutual will does not create presumption of a k not to revoke

Question 16

per stripes

Answer 16

minority
start with first generation of which there are takers (living or dead), each living and non-living person in that generation is entitled to one share, each share going to non-living person drops down and is split equally among their issue

Question 17

ambiguity in will

Answer 17

courts allow extrinsic evidence to resolve ambiguity

Question 18

advancements/satisfaction

Answer 18

common law: gift to heirs during testator lifetime were considered advancements and amount would be deducted from heirs share of the estate

UPC: not deemed advancement unless

1. the will provides for deduction or
2. a writing indicated that the property was in satisfaction of devise or that its value will be deducted from value of devise

Question 19

simultaneous death

Answer 19

USDA –> if no proof by clear and convincing evidence that one person survived the other by 120 hours/5 days, then the property is distributed as if that person predeceased the other person

it is presumed that each person outlived the other when distributing assets

when property is held as JT –> rights of survivorship are severed, and property passes as TIC

Question 20

residue of residue

Answer 20

common law: any residue passes intestacy

Modern: invalid residuary shares of estate goes to other residuary beneficiaries, but only applies where anti-lapse statute does not create substitute taker for beneficiary who fails to survive

Question 21

condition prohibiting marriage or divorce to inherit

Answer 21

void against public policy if prohibiting first marriage or require divorce
*treated as if not imposed

restraint on marriage will be upheld if

1. restraint on re-marraige or
2. purpose is to take care of a person’s daily needs until they are able to obtain such support through marriage

Question 22

per capita by representation

Answer 22

Majority approach
• The property is divided into equal shares at the first-generation level at which there are living takers
• Each living person takes a share, and the share of each deceased person at that level passes to their issue by right of representation
• If all children are dead and all property is going to grandchildren, each grandchild takes an equal share rather than the share or part of the share the parent would have taken if survived

Question 23

UPC/per capita at each generation level

Answer 23

• Division made at the first generation where there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generation level

person sin same degree of kinship take equal shares

Question 24

testamentary intent

Answer 24

• Testamentary intent will be found if it is shown that the testator intended to dispose of the property, intended the disposition to occur only upon his death and intended that the instrument in question accomplish the disposition

Question 25

will signature

Answer 25

o Order and location: order of signing is not critical if the signing is done as part of the single contemporaneous transaction
 Maj/UPC: signature can be anywhere on the document
 Minority: either the entire will is void if not signed at the end or everything after the signature is void

o Proxy signature: must be at the testator’s direction and in their presence

Question 26

attestation clause

Answer 26

PF evidence all formalities were met

Question 27

specific devise

Answer 27

gift of particular item of property distinct from all other object in estate

Question 28

general devise

Answer 28

gift of general economic benefit, usually a dollar amount, payable out of assets of estate without requiring any source of payment

Question 29

demonstrative devise

Answer 29

gift of the general amount to be paid from a particular source or fund - treated as a specific legacy to the extent the source of payment is available and general legacy to the extent any shortfall of source of payment

Question 30

ademption

Answer 30

failure of a gift b/c the property is no longer in the testator’s estate at the time of death
- Maj: specific gift adeems if it cannot be identified or is not owned at time of testator’s death
identity theory: ademption doctrine is an objective test that does not take into account testators intent
exception:
if a guardian or conservator is appointed for testator after will execution, and the property is sold by the conservator, the beneficiary is entitled to sale proceeds to the extent they have not been expended on care

• some UPC states: a specific gift is deemed only if the testator intended the gift to fail. if no intent, the beneficiary is entitled to any property acquired as replacement of gift or monetary devise equal to value of gift
• Applies ONLY to specific bequests
• Partial ademption: a gift may be partially adeemed, where the testator devises a large tract of land and conveys a portion of it in their lifetime

Question 31

exceptions to ademption

Answer 31

o Replacement property: some states allow beneficiary to receive replacement property if testator replaced the gifted item with another similar item
o Balance of purchase price: some states allow beneficiary to receive the remaining money if the testator sold the gifted item and the purchaser still owes money to the testator
o Proceeds of condemnation award or insurance: some states all the beneficiary to receive a condemnation award paid after the testator’s death or casualty insurance proceeds for the loss of property if they are paid after testator’s death
o Proceeds from sale by guardian or conservator: if testator became incompetent and the devised property was sold by guardian, the beneficiary may be entitled to general pecuniary legacy equal to the amount of the proceeds

Question 32

accessions

Answer 32

increase in property after execution
• Specific gifts: appreciation and depreciation of specifically gifted personal property b/t execution and death is irrelevant
o Increases occurring before death: income on property goes into general estate, but improvements to real property go to the specific devisee
o Increases occurring after death: any increase in specific gifts after death passes to beneficiary b/c they are deemed owners of the property at death
• Securities acquired after will execution
o Stock splits
 At common law, specific bequest of stock includes any additional shares produced by splits, but does not included shares produced by dividend
 UPC/Maj: includes stock dividends
o Newly purchased securities: beneficiary does not take new securities that have been purchased or acquired be reinvestment of dividends

Question 33

exoneration of liens

Answer 33

common law: liens on specifically devised property are exonerated with estate funds

UPC/Maj: liens on specific devised property are not exoneration unless the will directs; thus, beneficiary takes subj to debt

Question 34

abatement

Answer 34

if debts are greater than assets in estate, gifts will abate to cover estate debts
- creditors always have priority over beneficiaries

order of abatement:

1. property passing via intestate
2. residuary gifts
3. general
4. specific

*each category must abate in full before moving on - abatement within each category is in proportion to the amount of property each beneficiary would receive

Question 35

lapse/antilapse

Answer 35

where gift is conditioned on beneficiary survival

common law: if a gift lapsed, it passes via intestacy
UPC: saves a lapsed gift under anti-lapse statute if gift applies to issue, stepchildren, grandparents, grandparent issue
anti-lapse statute: a lapsed gift will vest in issue of predeceased beneficiary if that beneficiary is a specified descendant of testator and the beneficiary leaves issue who survive testator

majority of courts say words of survivorship bar application of anti-lapsed statute, but under UPC words of survivorship are not enough to negate application of anti-lapse statute

lapse in residuary gift:
o Common law: do not allow the surviving residuary beneficiaries to divide the deceased beneficiary’s share among them – instead, the deceased beneficiary’s share passes by intestacy
o Majority: “no residue of a residue” rule – allows the surviving residuary beneficiaries to divide the share in proportion to their interest in the residuary
o Note: if anti-lapse statute applies, that takes precedent

Question 36

revocation by operation of law

Answer 36

subseqent marriage: gifts abated and revoked to extent necessary to make up omitted spouse intestate share

divorce: partial revocation unless will leaves everything to ex-spouse. revokes all bequests or appointments of property made to former spouse - some states/UPC extend this to all former spouse heirs as well

birth or adoption: gifts revoked to extent necessary to make up share for pretermitted child

Question 37

disclaimer

Answer 37

renoucing a legal right to inheritence 
requires 
1. declared in writing 
2. describe interest or power disclaimed 
3. signed by person making disclaimer 
4. delivered or filed 

timing:
common law: within reasonable time
some states: within 9 months
UPC: any time as long as disclaimer is not barred by acceptance or transfer of interest

if disclaimed, property passes according to will or trust or as the person pre-deceased testator unless anti-lapse statute applies

Question 38

class gift

Answer 38

gift to group of persons decribed collectively - class closes when testator dies

rule of convenience: class closed when any member of class is entitled to possession

anti-lapse & class gifts:

• if class members are named –> gift will lapse, unless anti-lapse statute applies
• if named as group –> gift is divided among other members unless the will states otherwise or anti-lapse statute applies

Question 39

inheritance by equitable adoption

Answer 39

a child may be informally adopted through words or conduct

• person takes a child and assumes parental responsibilities, equity may hold the person as having adopted the child
• some states require the parent promised to adopt the child

Question 40

spouse elective share

Answer 40

spouses can take an elective share instead of taking under the will

majority: 1/3 net probate estate (gross probate assets less creditor claims and expenses)
minority: 1/3 augmented estate (includes certain lifetime transfers)

this is in addition to statutory family exemptions, i.e., homestead, residence, property, etc.

Question 41

pretermitted child

Answer 41

a child born or adopted after execution of will is entitled to an intestate share of estate or a share equal to other children share, unless intentionally omitted

some states: this does not apply if provided for child outside of will or left all of the estate to spouse

a child living at time of execution is not entitled to share unless the child was omitted b/c testator believed the child to be dead or did not know of child existence

Question 42

testamentary capacity

Answer 42

nature and extent of property
natural objects of bounty
disposition made
ability to connect above elements into coherent plan

Question 43

insane delusion

Answer 43

a false belief in a nonexistent state of facts in which no rational person would believe that deprives a person of the capacity to make a will

there must be a connection b/t the insane delusion and the property disposition

the will is set aside only to extent that the delusion caused the testamentary disposition

Question 44

undue influence

Answer 44

Influence exerted on testator overpowered the mind and free will of testator and resulting disposition would not have been made but for the influence

Begging, nagging, pleading, or threatening do not constitute undue influence
**Circumstantial evidence of the ability to influence testator is not enough

Presumption of undue influence arises when there is confidential relationship b/t the testator and beneficiary & the beneficiary participated in a significant activity related to execution of the will

Duress is a form of undue influence but connotes violent conduct, such as threat of physical harm

Question 45

standing to contest will

Answer 45

• Contest may be brought by any person whose interest would be directly affected by the will’s admission to probate

Question 46

fraud

Answer 46

Either (1) misrepresentation is made as to the nature or contents of the instrument or (2) the testator is induced into making a will or disposition by misrepresentations of fact that influence her motivation

Question 47

no contest clause

Answer 47

(Sometimes called in torrem clause) clause in a will providing that a beneficiary forfeits all their interest in the estate if they contest and lose

o Majority: no forfeiture if PC for contesting will
o Minority: no contest clause given full effect regardless of PC to contest will

exceptions/does not apply where

• good basis to challenge exists plus either fraud or subsequent will revoking
• contest on behalf of minor or incompetent
• contesting party alleges court does not have jx
• merely asking court to interpret or construe terms of will

Question 48

patent ambiguity

Answer 48

Patent (obvious) ambiguity: where a provision is ambiguous on its face; fails to convey a sensible meaning
 Traditional view: extrinsic evidence is not admissible to correct patent ambiguity
 Modern view: extrinsic evidence is admissible but cannot be used to fill in blank spaces or supply omitted gifts

Question 49

latent ambiguity

Answer 49

Latent (hidden) ambiguity: where the language of the will is clear on its face, but cannot be carried out without further clarification
 The court will consider extrinsic evidence to resolve the ambiguity

Question 50

no ambiguity/mistake

Answer 50

No apparent ambiguity – mistake: where a provision is clear on its face, and can be carried out as written, but a beneficiary or other interested person thinks the testator made a mistake
 Plain meaning rule: extrinsic evidence cannot be used to disturb the clear meaning of a will
 Modern rule: permits use of extrinsic evidence

majority: permit modification to conform with intent if clear and convincing evidence presented of mistake

UPC: may modify will if there is clear and convincing evidence of mistake even if it is an unambiguous provision, but extrinsic evidence is not allowed

Question 51

lost or destroyed wills

Answer 51

If a will is lost or destroyed and presumption of revocation is overcome, it may be admitted to probate by showing valid execution, the cause of nonproduction is not revocation, and the content of the will

Question 52

presumption of revocation

Answer 52

o Presumption of no revocation – if a will is found in normal location and no suspicious circumstances, there is presumption that testator did not revoke

o Presumption of revocation – if a will last seen in testator’s possession or under their control cannot be found after death or is found in mutilated condition, a rebuttable presumption arises that the testator revoked it
 However, if the will was last seen in possession of a third person or if a person adversely
affected by its contents had access to it, no presumption of revocation arises