Wills

Question 1

Intestate Succession

Answer 1

• Society’s development of set of rules which dictate where property goes based on degree of relationship

Question 2

Will

Answer 2

• No constitutional right
• Will substitute: property that has right of survivorship or contract rights which do not go through probate and get distributed first

Question 3

Nonprobate Property: Separate Property

Answer 3

• Property that does not pass through probate and is not governed by will or intestate succession
• Types:
  . Intervivos outright or living trusts
  . Future Interests: if decedent owned LE, property passes to remainder beneficiaries
  . Co-ownership
  1) Tenancy in common: will pass through decedent’s estate
  2) Joint Tenancy: passes to surviving joint tenant
  . Pay on Death Designations
  . Contracts: life insurance, retirement plans, annuities

Question 4

Intestate Law Types of Property

Answer 4

1) Marital Property: owned ½ by each spouse regardless of who earned or how titled
2) Separate Property: beneficiary, trust, gifts, or property acquired before 1986
3) Individual Property: if owned prior to marriage

Question 5

Succession Rights

Answer 5

• Personal: law of the decedent’s domicile at death
• Real Property: law of the situs

Question 6

Intestate With Spouse: No Descendants
Only spousal descendants
Non-Spousal Descendants

Answer 6

• Spouse, No Descendants survive: spouse takes all
• Spouse, with only spousal descendants: the spouse takes all
• Spouse, Non-spousal descendants: Marital property: descendants receive all of the intestate’s interest in marital half, and the spouse takes half; tenancy in common: their half goes to their decedents; Balance of property: surviving spouse and descendants both receive ½

Question 7

Intestate Per Stirpes

Answer 7

Surviving Spouse (if one)=50%
Create 1 share for each living or predeceased w/children=equal shares
If predeceased=split equal shares of parent’s share-unequal to grandchildren

Question 8

Intestate Succession Wisconsin

Answer 8

1. Spouse &/or Decescendants
2. Parents
3. Siblings or their descendants
4. Grandaparents
5. Escheat to state

Question 9

Adoptive Rights

Answer 9

• Adopted children are treated the same as the natural children of the adopting parents
• Adoptive parents inherit from and through the adopted child
• Biological Parents: do not inherit from or through the adopted child except where the biological marries an adoptive or close relative adopted

Question 10

Nonmarital Children

Answer 10

• Stepchildren & foster: no inheritance rights unless adopted
• Nonmarital: always inherit from their mother, and in WI can inherit from their father if either: 1) father was adjudicated to be the father, 2) admitted he was the father in open court, 3) acknowledged him to be the father in signed writing
• Half-blooded Heirs: Wisconsin abolished all distinctions and are treated as whole bloods
• Posthumous Heirs: child conceived before death of a parent but born after treated as living at death
• Murder: cannot collect, treated as they predeceased the intestate

Question 11

Advancement Requirements

Answer 11

• Irrevocable gift intended by the donor as prepayment of an inheritance, gift is presumptively not advancement unless intended
• Proof Required: Writing: Intestate declared in a document that gift is advance against what the heir would receive at death
• Hotchpot: value is added back into estate and then shares calculated and distrusted with the subtraction from the recipient’s share
• Children are charged if parent died, and if too much distributed it is irrevocable, so no pay back

Question 12

Simultaneous Death

Answer 12

must survive 120 hours=5 days

Question 13

Disclaim

Answer 13

• Cannot force to inherit
• Reasons to disclaim: burdensome or tax/liability
• Requirements; writing, timely filed (9 months from date of death)
• Cannot accept and then disclaim and once disclaim it is irrevocable
• Legal Effect: treat heir as if they died first
• Cannot disclaim to avoid the federal tax liens

Question 14

Will Law

Answer 14

• Real Property: law of situs
• Personal Property: domicile at time of death
• Savings Statute: will is admissible to probate if the will is in writing and executed in accordance with the law of Wisconsin, state where executed, domicile at execution or death

Question 15

Will Requirements for Validity

Answer 15

1) Legal capacity
2) Testamentary capacity- sound mind
3) Testamentary intent
4) Formalities

Question 16

Legal Capacity

Answer 16

18+ years old

Question 17

Testamentary Capacity

Answer 17

• Elements:
  1) The nature of their act—that is, that the testator is executing a will
  2) The nature of the disposition the testator is making—that is, a general understanding of the practical effect of the will as executed
  3) The nature and extent of their property
  4) The persons who are the natural objects of their bounty (family members)
  5) Must be able to understand the above issues to from a reasonable judgment
• Testamentary Capacity Issues
   Capacity determined at time of will’s execution
   Testator with mental or physical ailments or drug addiction
   Testator adjudicated insane or incompetent- rebuttable presumption but allowed n a lucid interval
   Sane may lack capacity: intoxicated

Question 18

Testamentary Intent

Answer 18

• Testator intended the instrument to operate as their will
• Promises to discuss or make will in future is not enough

Question 19

Formalities

Answer 19

• Writing
• Signed
• Witnesses sign within reasonable time after either:
  1) Seeing testator sign will and attested immediately afterwards
  2) Reasonable time after testator who acknowledges their signature
  3) Signed within reasonable where testator is there and witnesses acknowledge document

Question 20

Witness Requirements

Answer 20

• Presence Requirement: testator must sign or acknowledge the will or signature in presence of each witness, but does not have to be at the same time
• Simultaneous witnesses not required: do not need to attest to the will at the same time or observe each other
• Do not need to know it is a will
• Beneficiary gift is void if they are a witness, the rest is valid, allowed if extra witnesses, an heir, or sufficient evidence the testator intended a full transfer- if heir, they take the smaller amount

Question 21

Self-Proving Affidavit

Answer 21

• Swear under oath that the requirements were satisfied, then attached to the will
• Normally executed immediately after, can be any time
• Removes requirement that witnesses must come to court in probate

Question 22

Holographic Will

Answer 22

No allowed in Wisconsin, entirely in testator’s handwriting and has no attesting witnesses, unless made in jurisdiction that allows

Question 23

Classification of Property

Answer 23

• Devise: gift of real property
• Bequest: gift of personal property, can be specific or general- I leave my Imac model # v. I leave my computer
• Legacy: gift of personal property not sufficiently described to be specific, usually money
  1) General: gift of a general economic benefit: I leave 10,000 to Walter
  2) Demonstrative: not common: give of sum paid out of certain acct- I leave 10,000 to Walter from Capital Acct
  3) Residuary Gift: remainder of the estate after 1) debts, expenses, taxes and 2) specific, general and demonstrative gifts

Question 24

Issues:

Answer 24

Ademption by Extinction
Ademption by Satisfaction
Exoneration
Abatement
Disclaimers
Survival
Lapse

Question 25

Ademption by Extinction

Answer 25

 Made gift but item is not in estate at time of death- gift adeems, beneficiary gets nothing
 Exceptions:
1) Sold within 2 Years: if sold within 2 years of their death, the beneficiary has the right to: (1) any balance on the sales price unpaid at the time of death and (2) a general pecuniary legacy equivalent to the amount of the sales price paid to testator within 1 year of their death, reduced by the expenses of sale and marginal income taxes payable on the sale
2) Insurance Proceeds within 1 year
3) Sale of Specifically sold property by guardian

Question 26

Ademption by Satisfaction

Answer 26

received item while alive- writing required from testator or beneficiary acknowledges gift in satisfaction

Question 27

Exoneration

Answer 27

debts on specifically devised property are not exonerated unless the will so directs- beneficiary takes subject to a mortgage or security interest even if will contains general—not specific—provision to pay off all debts. Extrinsic evidence is allowed to prove intent to exonerate

Question 28

Abatement

Answer 28

gifts that fail when property is inadequate in the following order:
1) Intestate property
2) Residual gifts
3) General gifts
4) Specific gifts- will be taken away last

Question 29

Lapse

Answer 29

• Beneficiary fails to survive, then apply in order:
  1) Express terms
  2) Antilapse Statute- prevents lapse by substituting the descendants of the predeceased beneficiary per stirpes for the predeceased beneficiary. The anti-lapse statute operates to save the gift if the predeceasing beneficiary (1) was the testator’s grandparent, a descendant of the testator’s grandparent, or the testator’s stepchild, and (2) left descendants who survived the testator.
• Can override antilapse statute with alternative beneficiaries- I give to B if B dies then to C
• Residuary Clause: if testator failed to make provision and gift is not saved goes to residuary or intestacy
• Lapse in residuary Gift: Wisconsin has replaced the common law “no residue of a residue” rule with a statutory rule under which the residuary beneficiaries who survive the testator take the deceased beneficiary’s share of the residuary estate. If the residue is devised to 2 or more persons and the share of one of them fails for any reason, absent a contrary will provision, that person’s share passes to the other residuary beneficiaries in proportion to their interests in the residue.

Question 30

Lapse

Question 31

Will Interpretation: in General

Answer 31

• The fact that the testator left a will, especially if it has a residuary clause, indicates an intent not to die intestate. Therefore, favor the construction that avoids intestacy.
• Among 2 or more contradictory provisions in a will, the last one prevails.
• The will is construed as a whole, not from isolated parts out of context.
• Words are given their ordinary and grammatical meaning unless it is clear from the will that the testator intended otherwise.
• Technical words are given their technical meaning unless it is clear from the will that the testator intended otherwise.
• Attempt to give effect to all words the testator included in the will.

Question 32

Will Interpretation: Ambiguity

Answer 32

• Patent: ambiguous on its face, may use extrinsic evidence to resolve but not fill in blanks
• Latent: when a will provision convey sensible meaning on face but cannot be carried out without further instruction- extrinsic evidence is used to resolve
• No Apparent: if unambiguous cannot bring in extrinsic to prove otherwise or scrivener error

Question 33

Will Interpretation: Incorporation by Reference

Answer 33

• Incorporating extraneous document to will by reference
• Requirements:
  1) Intent
  2) Writing in existence when will executed
  3) Clearly identified when will executed- can staple to will if want or in security deposit box- ex: letter to person inheriting
• List of tangible personal property- can change if stated in will and list is found within 30 days after the appointment of the personal representative- only heirlooms
• Republication by Codicil: modifies a previously executed will and must be executed with same formalities. Acts to incorporate and republish
   Can bootstrap invalid will with valid codicil
   And add or change
• Acts of Independent Significance: something outside of a will which has a purpose other than disposing of property at death: example class gift or contents of safe deposit box

Question 34

Conditional Wills

Answer 34

• Will that will be operative only if a certain event occurs or does not occur. Courts will construe wills as general, not conditional, if possible
• Court might interpret condition as merely expressing the motive for making the will
• Substantial compliance with condition is sufficient- If I live with my kid at death- but in hospital

Question 35

Combination Wills

Answer 35

• Joint Wills: not good. Single instrument for 2 or more testators
• Reciprocal Will: separate wills but contain parallel dispositive provision- sweetheart wills
• Contractual Will: executed or not revoked as the consideration for a contract. A contract to make, not to make, or not to revoke a will is valid- litigation was huge because could be oral- now solid proof of contract: provisions in will, express reference, written contract, clear and convicting evidence of contract- Nonbreaching party can sue for damages or injunction if breached/revoked

Question 36

Will Revocation Types:

Answer 36

• Operation of Law
• Physical Act
• Will or codicil

Question 37

Will Revocation: Operation of Law

Answer 37

• Forgotten new spouse: will receive had the testator died intestate, reduced by the value of all gifts to the testator’s children born before the marriage or domestic partnership who are not also the children of the surviving spouse
• Divorce or Annulment: all provisions in favor of the former spouse and relatives are void, only for final divorces- passes if they disclaimed
• Pretermitted Children: child born or adopted after the testator executed a will may be entitled to a forced share of the testator’s estate. If there is clear and convincing evidence that the testator thought a child was dead, the child may also claim a share as a pretermitted child
   share if no living child, they receive amount they would have received in intestacy unless their living parent is main heir or if other children- same as other children
   Will not collect if express intentional omission or provided for outside of the will, or murdered the testator
   Class gift to children that are named

Question 38

Will Revocation: Physical Act

Answer 38

• Requirements:
  1) Intent to revoke
  2) Mental capacity
  3) Physical Act- burning tearing obliterating- write void across each page
• Proxy testator: allowed but must do it in front of testator
• Partial revocation by physical act: allowed but cannot enlarge a gift except the residual gift

Question 39

Revocation of Will: Will of Codicil

Answer 39

• Express Revocation: expressly revoked earlier will- this revokes my earlier will- good -this is my last will- will not revoke under express
• Revocation by Inconsistency: If a new will completely disposes of the testator’s property, the old will is completely revoked by inconsistency.

Question 40

Presumptions of Revocations

Answer 40

• If will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that the testator did not revoke it.
• If you cannot locate original then presumption that they destroyed it with intent to revoke
• Duplicate Original: An act of revocation on one original is presumed to revoke all originals even though an executed document remains intact. However, an act of revocation on an unexecuted copy with intent to revoke does not revoke the will
• Revival: Testator executes valid will 1, Testator executes valid Will 2 which expressly revokes Will 1. Testator then validly revokes Will 2.
  Is Will 1 revived? Wisconsin: no revival is the general rule. Exception:
  1) partial revocation of the first will, then the first will can revive or
  2) Intent to revive- need evidence the testator meant to revive- by statements and actions

Question 41

Presumptions of Conditional Revocations

Answer 41

1) Express Conditional Revocation: Rare- testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event.
2) Implied Conditional Revocation or Dependent Relative Revocation: Testator executes valid Will 1. Testator validly revokes Will 1 (for example, by ripping it up). Testator executes Will 2, but Will 2 is invalid (for example, because it was not properly witnessed).
 Applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force.
 To determine whether DRR applies, we ask the following questions:
 Was the revocation of Will 1 impliedly conditioned on the validity of Will 2?
 Would Testator have preferred Will 1 over intestacy?
 The more similar the provisions of the 2 wills, the more likely the court will apply DRR. The more different the wills, the more likely the testator would have preferred intestacy to Will 1, so the court will not apply DRR.

Question 42

Will Contests: Standing

Answer 42

• Heir
• Beneficiary of prior will

Question 43

Will Contests: Burden of Proof

Answer 43

The person who contests

Question 44

Will Contests: Grounds

Answer 44

1. Failure to meet Requirements
2. Insane Delusion
3. Undue Influence
4. Duress
5. Fraud
6. Mistake
7. No Contest Clause

Question 45

Insane Delusion

Answer 45

a belief in facts that do not exist and that no rational person would believe existed, belief must: have no basis in fact, spring from a diseased mind, and impact the disposition made in the will. The insane delusion must change the disposition of the will

Question 46

Undue Influence

Answer 46

 invalid if it is obtained through the exercise of undue influence. However, mere pleading, cajoling, nagging,
or threatening the testator does not constitute undue influence
 Must have: 1) influence must be exerted, 2) overpower the testator’s mind, 3) but for the influence, the testator would not have executed
 Evidence: circumstantial that include
Unnatural dispositions, such as cutting out close family
Opportunity and access to the testator
Confidential or fiduciary relationship between the parties
The ability of the testator to resist
A beneficiary that was involved with the drafting or execution of the will
 Presumption of Undue Influence:
1) A confidential or fiduciary relationship existed between the testator and the beneficiary who was alleged to have exercised undue influence.
2) The existence of suspicious circumstances surrounding the execution of the will (for example, an unnatural disposition or the beneficiary participated in some way in procuring or drafting the will)

Question 47

Fraud

Answer 47

• Fraud: requires a showing that the testator has been willfully deceived, and as a result of that deception executed a will that, but for the lie, the testator would not have made. Elements: false representation, knowledge of falsity by person making statement, testator reasonably believed the statement, statement caused testator to execute will
• Fraud in the Execution: a misrepresentation as to the nature of the contents of the instrument
• Fraud in the Inducement: the testator knows they are executing a will and what it contains, but the testator is deceived as to some extrinsic fact and makes the will or a gift based on that erroneous fact. The will or the particular gifts affected by the fraud must be set aside.

Question 48

Mistake

Answer 48

error not caused by evil conduct, either: wrong document or erroneous inclusion
1) Mistake in the Factum or execution: error regarding the identity or contents of the instrument and thus lacks testamentary intent. Extrinsic evidence is admissible to show that the testator was unaware of the nature of the instrument they signed
2) Mistake in the Inducement: testator is mistaken as to some extrinsic fact and makes their will based on that erroneous fact- no remedy

Question 49

No-Contest Clause

Answer 49

beneficiary forfeits interest if they contest the will and lose, valid but strictly construed. WI: good faith and probable cause will not be enforced if claim is brought