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Bar Exam (Austin) > Wills > Flashcards

Wills Flashcards

1
Q

When does intestacy occur?

A
  • Person died without a will (total intestacy)
  • Will did not dispose of all property (partial intestacy)

Order goes as follows
o Surviving spouse
o Decedent’s children
o Descendants of deceased children

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2
Q

Applicable law for intestacy?

Marital Rights, personal property, and real property?

A

Marital rights -> law of domicile where property acquired

Personal property -> law of domicile at death

Real property -> law of situs (location of land)

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3
Q

Classic Per Stirpes - Minority Rule

A
  • Divide estate into shares at first generation below decedent
  • Create one share for each surviving child and one share for each predeceased
    child who left living descendants
  • Give each surviving child one share
  • Give share created for predeceased child to child’s descendants
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4
Q

Per Capita with Representation - Majority Rule

A
  • Divide estate at first generation with surviving members
  • Each living person at that level takes a share
  • Share of deceased person at that level passes to issue
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5
Q

Per Capita at each Generational Level - Modern Trend

A
  • Divide estate into shares at first generation with survivors
  • Pool shares of lower generation, so each person receives equal share
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6
Q

Adoption

A
  • Adopted child inherits from adoptive parents
  • Whether adopted child inherits from biological state varies by state
  • Adoptive parents inherit from adopted child
  • Biological parents DO NOT inherit from adopted child
  • Adoption by estoppel may permit child to inherit
  • Generally, stepchildren have no inheritance rights
  • In most states, age when person was adopted does not matter
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7
Q

Adoption by Estoppel

A

Permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them

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8
Q

Advancement

A

Lifetime gift intended by donor as prepayment of intestate share

If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share (Advancement goes into “Hotchpot”)

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9
Q

Simultaneous Death Survival Rules

A

USDA -> provides that when disposition of property depends on the order of death and the order cannot be established (they died simultaneously), the property of each decedent is disposed of as if they had survived the other

120-Hour Rule -> One person to have survived another by 120 hours before being deemed to have survived that person

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10
Q

Disclaimers

A

You cannot be forced to accept an inheritance or gift under a will

Requirements of Disclaimers – Disclaiming an interest
o In writing
o Signed by person disclaiming
o Acknowledged in front of notary
o Timely filed

Modern View -> Can disclaim at any time as long as no acceptance or use of benefits from gift

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11
Q

Slayer Statutes

A

A person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate

Property passes as though the killer predeceased the victim

Slayer statute does not apply if descendant kills the testator’ spouse! They can still inherit from testator! Only applies if Descendant directly kills the TESTATOR!

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12
Q

Requirements for a valid Will

A
  • Legal capacity
  • Testamentary capacity
  • Testamentary intent
  • Formalities

Legal Capacity
- Must be 18 years old to create a will

Testamentary Capacity
- Understand what testator is doing
- Understand effect of what testator is doing
- Understand nature and extent of property
o Exact knowledge is not necessary -> general idea!!
- Recognize natural objects of testator’s bounty
o Recognize family members!
- Ability to do the above at the same time
- Issues
o Mentally challenged individual, alcoholics, and drug addicts can make a will as
long as they meet the above requirements
o Adjudication of incompetence -> rebuttable presumption of lack of capacity
o Intoxication while making will -> NOPE NOT VALID

Testamentary Intent
- Testator intended instrument to be will
- Must have present intent!
- Promises to make a will in the future and ineffective deeds are not given effect as
wills

Formalities of Attested Will
- In writing
o Some states allow electronic wills
- Signed by testator or proxy
o Any mark made with present intent to authenticate will
o Proxy -> made by another person at the testator’s direction and in their
presence
o Most states do not mandate location of signature
- Two witnesses
o Credible (can testify in court about it)
o Some states impose age requirements
o Some states impose that witnesses know a will is being signed
o No state requires witnesses to know contents of will
o States vary whether interested witness loses gift
o Usually, must witness in testator’s conscious presence!
 Conscious Presence Test -> Each party was conscious of where the other
parties were and what they were doing, and the act of signing took place
within the general awareness and cognizance of the other parties
 Scope of Vision Test -> Person was in such close proximity that they
could have seen the signing had they looked
o Participating via telephone or computer IS NOT PRESENCE for the purpose of
execution requirements unless the state has specific e-will legislation

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13
Q

Execution of Attested Wills

A
  • In writing
  • Signed by the testator
  • 2 witnesses
  • Testator signs in presence of 2 witnesses
  • Witnesses sign in testators presence
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14
Q

Holographic Wills

A

A will that is written in testator’s handwriting … must have the material portions in the testator’s handwriting

MUST BE SIGNED AND DATED SOMEWHERE BY TESTATOR (does not have to be at the end of the will)**

No need for witnesses in some states

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15
Q

Codicil

A

Amendment/supplement to a will

Republication by Codicil
- Will and codicil treated as one document speaking from date of codicil
- Proof of codicil = Proof of will
- Codicil can incorporate defective will by reference
- For a will to be republished by a codicil, the first will must have been validly executed

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16
Q

Devise

A

Gift of real property

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17
Q

Bequest

A

Gift of personal property

o Specific bequest -> Property distinguishable from rest of testator’s estate
o Specific bequest of general nature is not distinguishable from rest of estate

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18
Q

Legacy

A

Gift of personal property not sufficiently described to be specific (usually money)

“I leave $10,000 to Grant”

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19
Q

Demonstrative Legacy

A

Gift of specific sum of money payable out of designated fund

“I leave $10,000 to Grant form my account at FCB”

20
Q

Residuary Gift

A

Gift of remainder of estate after all debts and other gifts are paid

21
Q

Life Insurance Proceeds

A

Life Insurance proceeds are a non-probate asset and pass to the beneficiary out of the estate.

A life insurance policy is a contract, and the disposition of the proceeds is governed by the terms of the contract

A will cannot change the beneficiary designation unless the terms of the contract permit it

22
Q

Ademption

A
  • Gift fails because property is no longer in testator’s estate
  • Applies only to specific devises and bequests
  • Does not apply to General or Demonstrative legacies

Common exceptions to Ademption
- Replacement property
o Under identity theory of ademption, the devisee would still not take the
replacement property!
o Under the lenient intent test, the individual would take if the beneficiary
can prove that the testator intended the beneficiary to take the substitute
property
o Under the UPC, a 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
- Balance of purchase price
- Condemnation or insurance proceeds
- Proceeds from sale by guardian/conservator

Ademption by Satisfaction
- Beneficiary receives gifted property before testator’s death
- Most states require a writing

23
Q

Increases to property after execution of will (Accessions)

A

Beneficiary receives increased number of shares from stock splits or stock dividends
o Under common law, a specific bequest of stock includes any additional shares produced by the stock split BUT not those produced by a stock dividend
o Under the UPC and statutes of many other states, a specific bequest of stock includes stock dividends

Beneficiary does not take new securities that have been purchased or acquired by the reinvestment of dividends

24
Q

Abatement

A

Process of reducing gifts when estate property is inadequate to satisfy gifts and debts

Abatement Order
- Property passing by intestacy
- Residual gifts
- General gifts
- Demonstrative gifts
- Specific gifts

25
Q

Lapse

A

Gift fails because beneficiary fails to survive testator or is legally treated at not surviving testator

All states have some form of anti-lapse statutes that saves the gift if the predeceasing beneficiary was in a certain degree of relationship to the testator and left descendants who survived the testator.
- those decedents will then take because the gift is not saved for the predeceasing beneficiary’s estate

Most statutes require the predeceasing beneficiary be related to the testator by blood and do not save a gift to a predeceasing spouse - even if he left descendants who survived the testator.

How to distribute lapsed property
- Will’s terms
- Anti-lapse statute may apply
- Residuary clause
- Intestacy

26
Q

Anti-Lapse Statute

A
  • Prevent lapse by substituting descendants of predeceased beneficiary for
    predeceased beneficiary
  • Relationship needed between testator and predeceased beneficiary varies by state
    o Generally, that relationship needs to be family
27
Q

Lapse in Residuary Gift

A

Common law -> Deceased beneficiary’s/or invalid portion of will, the share passes by intestacy
- If a testator’s residuary estate is bequeathed to two or more beneficiaries and one of the shares lapses. That share “falls out of the will” and passes by intestacy

Modern rule -> Surviving residuary beneficiaries divide the deceased/or invalid beneficiary’s share
- Most states have replaced the common law rule, and say that the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue

28
Q

Patent Ambiguity

A

Ambiguity is obvious
o Court looks at extrinsic evidence

Example -> I leave $25,00 to Grant.
-> i really mean $2,500

29
Q

Latent Ambiguity

A

Language is clear on its face but cannot be carried out without further clarification
- Court looks at extrinsic evidence

Example -> I leave my car to Grant
-> i have 2 cars though soo??

30
Q

Latent Ambiguity

A

Language is clear on its face but cannot be carried out without further clarification
- Court looks at extrinsic evidence

31
Q

No Apparent Ambiguity

A

Language is clear on its face and can be carried out, but someone thinks testator made a mistake
o Traditional/plain meaning rule -> Cannot disturb plain meaning of will!
o Modern Rule -> Extrinsic evidence permitted to alter plain meaning

32
Q

Incorporation by Reference

A

Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference

Requirements for Incorporation by Reference
- Intent to incorporate writing
- Writing must be in existence when will is executed
- Writing must be clearly identified in will

Testator may use a incorporation by reference when creating a codicil to reference to a first invalid will… Analyze the requirements for IoR and find that the codicil will more than likely be a partial will and the property clearly identified in the codicil will pass ow the testator wants and the unidentified property will pas through intestacy

33
Q

Pour-over provision

A

Provision in a will that leaves property to inter vivos trust
o Trust can be created before or after testator executes will
o Trust does not have to be previously funded

34
Q

Revocation by Operation of Law

A

Marriage After Will Execution
- In most state, marriage has no effect on prior will

Divorce After Will Execution
- All provisions in favor of ex-spouse are VOID
- Voiding occurs upon FINAL DIVORCE
- Property that would have gone to ex-spouse passes under terms of will as if ex-
spouse had died first

35
Q

Revocation by Physical Act

A

Requirements
- Intent
o If destroyed by mistake or accidentally, NO REVOCATION!
- Mental Capacity
- Physical act -> Burning, tearing, ripping, writing “void” across will, etc.

Proxy revocation permitted if done at testator’s request and in testator’s presence

Partial Revocation
- Most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes

36
Q

Revocation by Subsequent Will or Codicil

A
  • Will or codicil must meet formal requirements
  • Revocation can be express
  • New will completely disposes of testator’s property -> Old will completely revoked
  • New will partially disposes of testator’s property -> Old will revoked only as to
    inconsistent parts
37
Q

Presumptions to Revocation

A

Presumption of no revocation if will is found in normal location and there are no suspicious circumstances

Will was in testator’s possession or control but cannot be produced after testator’s death -> Presumption that testator revoked will

When a will has been executed in duplicate, an act of revocation done to EITHER copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last will”

Destruction of an unexecuted copy with intent to revoke does not revoke the will

38
Q

Doctrine of Dependent Relative Revocation

A

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 will -> if the other disposition fails, the revocation also fails and the will remains in force

39
Q

Revival of Revoked Wills

A
  • UPC/Intent Approach -> Look at testator’s intent
  • Automatic Revival Approach -> Revoking will never took effect because it was
    revoked
  • No revival Approach -> Revocation by subsequent writing takes effect immediately
    when signed
40
Q

Grounds for Will Contest

A
  • Does not meet requirements of valid will (defective execution)
  • Legal capacity
  • Lack of testamentary capacity
  • Lack of testamentary intent
41
Q

Insane Delusion

A
  • Persistent belief in facts that are against all evidence
  • Must have a connection between insane delusion and property disposition to be
    grounds for will contest
42
Q

Undue Influence (Memorize)

A

Elements of undue influence
o Influence existed and was exerted
o Influence overpowered testator’s mind and free will
o Influence caused testator to execute will with different terms

Presumption of undue influence
o Unnatural disposition
o Confidential or fiduciary relationship
o Beneficiary’s involvement in drafting will
o Opportunity to exert undue influence
o Ability of testator to resist

43
Q

Fraud

A

Elements of Fraud
o False representation made to testator
o Knowledge of falsity by person making statement
o Testator reasonably believed statement
o Statement caused testator to execute Will, the testator otherwise would not have
executed

Fraud in the Execution/Factum
o Testator deceived as to identity or contents of instrument

Fraud in the Inducement
o Testator knows identity and contents of will but is deceived as to extrinsic fact
and makes gift based on that fact

44
Q

Mistake

A

Mistake in the execution/factum
o Testator is in error regarding contents or identity of instrument

Mistake in the Inducement
o Testator mistaken as to some extrinsic fact and makes will based on the fact
o Courts generally will not grant relief**

45
Q

No-contest Clause

A

Beneficiary forfeits interest in estate if they contest the will and lose
o Most states enforce clause unless contest was in good faith and with probable cause
o Some states give clause full effect even if contest was in good faith

46
Q

Living Will

A

States individual’s desires regarding life-sustaining procedures

Bar Exam (Austin) (17 decks)

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