Wills

Question 1

Wills Formalities

Answer 1

Executed outside VI are valid and may be admitted to probate in the VI if executed in accordance w/ the

1) VI
2) place of execution
3) testator’s domicile (time of death)

Question 2

Validity Personal Property

Answer 2

The validity of the distribution of testator’s personal property is determined by the law of the state or country where testator was a resident at the time of death

Question 3

Validity Real Property

Answer 3

The validity and effect of a devise of an interest in VI real property is governed by VI law w/o regard for testator’s residence or where will was executed

Question 4

Testamentary Capacity

Answer 4

In the VI one must be 18 year old and of sound mind to transfer property via a will

Question 5

Administration

Answer 5

Every jurisdiction has the power to regulate the manner and terms upon which real property and personal property is transferred via a will. As such, such issues such as capacity of an administrator are to be determined by local law

Question 6

Insurance K

Answer 6

VI law favors the application of VI law to insurance disputes involving an insured risk located w/in the VI

The VI code expressly prohibits choice of law provisions in insurance K in the VI covering local residents where such clause:

1) requires contracts to be construed according to the laws of another jurisdiction
2) depriving VI courts of jurisdiction of action against the insurer

Question 7

Restatement and Insurance K

Answer 7

Restatement further provides that the validity of a fire, surety, or casualty insurance contract and the rights created thereby are determined by the law of the jurisdiction which the parties understood to be the principal location of the insured risk unless another location has an MSR

Question 8

Illegality

Answer 8

If performance is illegal in the place of performance enforcement will usually be denied

Question 9

Formalities

Answer 9

Formalities meeting the law of the jurisdiction of the place of execution are all acceptable.

Question 10

Capacity and domicile

Answer 10

Capacity to K will also be upheld if the person has capacity under the law of the state of their domicile

Question 11

Formalities of a will

Answer 11

1) Writing
2) signed at the end by testator
3) witnessed by two
4) acknowledged that this is testator’s last will and testament

Question 12

Execution outside VI

Answer 12

Will executed outside the VI may be admitted to probate in the VI if executed in accordance w/ the laws of

1) The VI
2) The place of execution
3) the testator’s domicile

Question 13

Witness as beneficiary

Answer 13

1) Necessary witness forfeits
2) If 3 witnesses that the witness can take under the will b/c the other two can prove the will
3) If wit would have taken as an intestate distributee they can take but can not exceed what he would have taken under the will

Question 14

Nuncupative will, holographic will

Answer 14

Nuncupative will - oral will
Holographic will - in testator’s handwriting

only valid if made by a soldier or sailor while in actual military or naval service and when made

nuncupative will - made w/in hearing distance of at least 2 witnesses

holographic - entirely in handwriting of maker valid for one year from discharge from service -> capacity

Question 15

Payment of liens on real property

Answer 15

A devisee must satisfy all liens or mortgages on real property devised through a will unless the will expressly provides otherwise

Question 16

Right of election

Answer 16

When a testator dies and leaves a SS they get a personal right of election as if the spouse had died intestate.

Right of election allows the SS to take his or her share of the estate intestacy but not more than 1/2 of the net estate (what is left after deduction of debt funeral, administration, and estate taxes)

Question 17

Temporary restraining order

Answer 17

Emergency remedy used to maintain status quo

• Ex parte TRO may be granted w/o notice to adverse party where counsel certifies that efforts were made to give notice and why it should not be required
• identity of the party unknown
• party can’t be located in time for hearing

Question 18

Testamentary capacity

Answer 18

18

Sound mind - ability of the testator to mentally understand the nature and extent of the property to be disposed of and who would naturally claim a benefit from the will as well as practical effect of the will as executed

Question 19

Order and distribution of intestate estate

Answer 19

1) SS takes all if there are no children
2) if there are children, SS takes 1/3 and remaining 2/3 divided equally amongst the children
3) if NO SS everything divided amongst the kids equally or their representatives

Question 20

Illegitimate children

Answer 20

Shall have the same status as a legitimate child, for purposes of intestate distribution

However, father must have acknowledged paternity either by signing Birth Certificate or some other written acknowledgement or have been ajudged father by the court

Question 21

Step Children

Answer 21

No statute for intestate distribution to step children from step parent

Question 22

Joint Ownership

Answer 22

The VI has a presumption against joint tenancy in favor of joint tenancy in common = no survivorship rights unless conveyance or devisee expressly declares that and shall pass w/ rights of survivorship

Heirs free to sever their property interest

Question 23

Precluded persons from intestate estate

Answer 23

1) Divorced spouse
2) Wife who abandoned husband
3) husband who has abandoned wife
4) parent who neglected or abandoned child unless parental duties had resumed and continued until child’s death

Question 24

Escheat

Answer 24

If there are no heirs competent to take under the intestacy statute the decedents estate “escheats” to the VI (becomes property of the territory)

Question 25

Advancement

Answer 25

Advance payment on a prospective inheritance

• added back to the decedant’s estate before computing children share
• if equals or exceeds his share neither he nor his descendants will take
• if advancement is less than share, the remainder should be taken from estate

Question 26

Simultaneous deaths

Answer 26

• Dispose of as if each person survived the other

Testamentary disposition - divide property into equal parts and distribute to both estates

Joint tenant - distribute each half to both estates

Life Insurance Policy - give to alternate beneficiary - if none goes back to insured’s estate

Question 27

Jurisdiction of superior court

Answer 27

1) Probate wills
2) Grant and revoke letters testamentary and letters of administrations
3) Supervised conduct and settle accounts of executors and administrators
4) Direct payments of debts, legacies, and the distribution of the intestate estate
5) order sale and disposal of decedant’s real and personal property

(Magistrates)

Question 28

Presumption of death

Answer 28

Absent from jurisdiction from when he owns property, whereabouts unknown, and cannot be obtained w/ a reasonable amount of diligence for 10 years

Interested parties may seek administration of the estate on presumptions that owner died intestate.

Question 29

w/in 10 year period

Answer 29

Rebuttable presumption that person is still alive which must be rebutted by a preponderance of the evidence

1) Continuously absent
2) mostly likely to contact have no heard from him
3) No success to locate after reasonably diligent search
4) no reasonable explanation

Question 30

Summary administration

Answer 30

If an estate is valued at less than $300 it may be administered in a summary manner

Question 31

Settlement w/o administration

Answer 31

Where decedent died intestate and w/o any debts the heirs may petition the court to settle the estate w/o administration w/ the heirs to be recognized as legal heirs and property to be put in their possession.

All heirs must consent

Question 32

Settlement w/o administration w/ a will

Answer 32

if a decedent left a will and no debts the legatees after inventory, appraisement and appointment of an executor if an administration is unnecessary may apply to the court to be recognized and have property put in their possession

Question 33

After discovered creditor

Answer 33

Any transfer or encumbrance of the property made w/in 120 days after judgement transferring property to heirs is voidable against any creditor prejudiced thereby

Question 34

Foreign intestate estate (ancillary proceedings)

Answer 34

VI law does not recognize the actions of a foreign administer under VI probate law, the only way for the administrator of a foreign estate to administer property in the VI is either to file a petition for administration under Rule 191 or to follow the settlement w/o administration procedure

Question 35

Probate

Answer 35

A courts procedure by which a will is proven to be valid or invalid. However term has been expanded to include all matters pertaining to administration of estates

1) interpreting will
2) decreeing how property is to be distributed
3) Collection of personal assets
4) Using assets to pay administrative expenses and approved claims
5) if anything is left distributing such among heirs

Question 36

Jurisdiction of VI probate ct

Answer 36

Proof of a will shall be taken in a VI court under any of the following circumstances

1) testator was inhabitant of and left assets in VI
2) testator was no VI inhabitant but left assets in VI
3) Not inhabitant and did not leave inhabitant but assets came to VI

Question 37

Issuance of letters

Answer 37

Once the will has been proven the court will issue letters testamentary to the executor

Formal instrument empowering the executor to carry out his duties

Question 38

Foreign Will

Answer 38

Superior ct Rule 210 allows an estate to proceed w/o administration if it is able to produce a will that has been admitted to probate in another jurisdiction. It is essentially a full faith and credit regulation which serves to give effect to foreign judgements

File w/ office of recorder of deeds may petition the court to be recognized and then proceed w/o administrationvia Rule 191

Question 39

Disqualification of Executor

Answer 39

If executor in will declines or is disqualified, letters of administration w/ the will annexed will be issued to the person who would have been administrator if there had been no will

Question 40

Residue after right of election

Answer 40

The residue after the right of election -> the terms of the will to the greatest extent possible will remain in effect

Question 41

Effect of divorce or abandonment

Answer 41

No right of election after divorce or after wife has abandoned husband or husband has abandoned or refused to support wife

Question 42

Procedure for right of election

Answer 42

Notice of right of election must be served upon the representative of the estate personally w/in 6 months of the issuance of the letters testamentary of letters of administration

This time period may be enlarged for good cause shown

Question 43

Waiver or release of right of election

Answer 43

One spouse while the other is still alive may waive or release the right of election to take against the will of the other spouse

Waiver must be signed by the other spouse and proved in the manner required for the recording of real property (signed in the presence of 2 witnesses before notary public)

Question 44

Will Contests

Answer 44

At any time prior to the probate court issuing a final order of distribution any person interested in the estate may file a Declaration of Contest objecting to will

Question 45

In terrorem clause

Answer 45

Provides that an heir who contests the will forfeits his bequest or legacy

The VI adopted the restatements position that in terrorem clauses are unenforceable against one who in good faith and probably cause contests a will on any ground, regardless of whether successful

Question 46

Charitable bequest or devise

Answer 46

No person having a spouse or child “descendant” or parent may devise or bequeath more than 1/2 of his estate to a religious, charitable, or other similar institution

Lineal heirs

Question 47

Undue influence

Answer 47

A will is invalid where it is the product of undue influence

Burden - ordinarily burden resets on party asserting undue influence. However where a confidential relationship existed between testator and beneficiary and natural object of T’s bounty are excluded from will burden shifts to the beneficiary to disprove influence by clear and convincing evidence

Question 48

Undue influence factors

Answer 48

SOUPS ICE

1) susceptibility to undue influence
2) opportunity
3) unnaturalness of disposition
4) participation in procuring will
5) secrecy of relationship
6) illicit relationship between testator and beneficiary
7) change in behavior
8) disposition to exert influence

Question 49

After born children

Answer 49

If testator has not provided for child in his will or a settlement, a child (including illegitimate) born after the making of the last will is entitled to recover from the parents estate as if parent had died intestate. Such child shall recover such amounts proportionally from other legatees and devisees.

Question 50

After born grandchild

Answer 50

Statute makes NO provision for an after born grandchild

Question 51

Anti-lapse

Answer 51

A bequest generally fails if a named beneficiary dies before the testator.
Exception - The VI provides for an exception to the lapsed legacy rule where the beneficiary is related to the testator. A devise or bequest to testators relative will not lapse if B predeceases T. Such legacy instead will vest in the child or other descendant of B (NOT SS of B)

Question 52

Revocation of Will by subsequent will

Answer 52

A will may be revoked by another will or other writing w/ will formalities which expressly revokes will #1 or impliedly does so if it is so inconsistent w/ will #1

Question 53

Revocation of will by physical act

Answer 53

of destroying the total will be tearing, burning, cutting, obliterating or canceling the will. testator can do this alone.

• if original will or codicil which is known to have been in testator’s possession cannot be found after testator’s dead, a presumption arises that testator destroyed the will w/ intention of revoking it

Question 54

3rd party revocation of testator’s will

Answer 54

a 3rd party may at testator’s direction destroy testator’s will to revoke it

1) must be at testator’s discretion
2) in testator presence
3) must be 2 additional witnesses who heard testator command and saw 3rd person destroy will (for a total of 4 ppl)

Question 55

Ademption

Answer 55

An implied revocation due to subsequent inconsistent act (sale of devised property)

The destruction of a legacy when bequeath ceases to be a part of the estate

Question 56

Revival

Answer 56

if a testator makes a will then duly makes and executes a 2nd will, the destruction, cancellation or revocation of will #2 does not revive will #1 unless

1) the testator expresses in the revocation his intention to revive will #1
2) after he destroys or revokes will #2 testator republishes will #1

Question 57

Real property

Answer 57

The validity and effect of a devise of VI real property is governed by VI law w/o regard to the testator’s residence or where the will was executed

Question 58

Personal property

Answer 58

Validity of distribution of testator’s personal property is determined by the law of the state or country where testator was a resident at time of death

Question 59

Per capita and per stirpes

Answer 59

Unless a contrary intent is expressed issue in a will take according to consanguinity

Per capita - if of equal consanguinity full brothers and sisters they take per capita

per stirpes - if unequal the take per stirpes (by root or representation)

Question 60

Intestacy

Answer 60

To die w/o a will

Question 61

Descent

Answer 61

Descent is generally used to mean inheritance by operation of law rather than by provision of a will

Question 62

Intestate estate

Answer 62

Intestate estate is property that does not pass under will b/c

• T did not leave a will
• Legacy in T’s will lapsed and will did not contain residuary clause
• will contained residuary clause but it lapsed or failed for some other reason

Question 63

Administrator

Answer 63

An administrator is a person appointed by the court to manage the assets and liabilities of a decedent. such person is referred to a executor if name in the decedent’s will

Question 64

duties of executor/administrator

Answer 64

1) Collect debts due to the estate
2) to prosecute and defend suits involving the estate
3) otherwise preserve and protect it from loss

Question 65

Disqualification

Answer 65

1) Nonresident of VI (unless named in will)
2) of unsound mind
3) convicted of felony or misdemeanor involving a crime or moral turpitude
4) a judicial officer

Question 66

Foreign Bank

Answer 66

A foreign bank w/ a branch in the VI may act as an executor or administrator

Question 67

order of priority

Answer 67

1) SS or next of kin
2) one or more principal creditors
3) any other competent qualified person

SS or next of kin must demand w/in 30 days of death to be named or they lose their position of priority

Question 68

SS has priority as administrator unless…

Answer 68

1) Misses 30 day deadline
2) unqualified or incompetent
3) there has been some testamentary disposition naming someone else as the estate’s administrator

-> administrator must get consent of decedent’s legal heirs

Question 69

Special administrator

Answer 69

Appointed in interim to take charge of the estate

1) If there is a delay in issuing the letters and
2) danger of property being lost/destroyed

Can do everything reg administrator can do except pay debts and discharge obligations

Question 70

Sale

Answer 70

Property of the estate may be sold to pay for expenses of the funeral administration and claims against the estate

1) Personal property 1st
2) then real property

Question 71

Sale of real property

Answer 71

When the decedent estate or will neither

a) specifically devised real property nor
b) expressly prohibits its sale

the executor, administrator, or trustee has the statutory power to

1) take possession
2) collect rents
3) manage
4) sell w/o leave of court
5) mortgage
6) lease all the real property owned by decedent at time of death

Question 72

Deficit

Answer 72

If property is sold and there is still a deficit (not enough to pay the expenses or claims) the specific legatees and devisees shall be proportionally liable for such

Question 73

Compensation

Answer 73

Unless will provides for other compensation and executor does not renounce such w/in 10 days after appointment, the executor/administrator is allowed just compensation for his services, including all reasonable expenses

Question 74

Inventory

Answer 74

Executor/administrator must file an inventory of the decedent’s property (including debts) w/in one month of his appointment

• any claim that executor had against executor must be included (if discharged in will such is invalid it should be included in inventory and treated as legacy in such amount)

Question 75

Accounting

Answer 75

Must give an accounting every 3 months starting from appointment

• must show $ received and expended

when estate is fully administered, executor must file final accounting

no creditor whose claim has been satisfied will be allowed to object

Question 76

Notice by publication

Answer 76

immediately after his appointment executor must publish notice of appointment in a local newspaper once a week for 4 weeks

Must also post notice in 3 public places including post office nearest to where decedent lived that all those who have claims against estate have six months to present them to him

• first 6 months claims take priority

Question 77

Actual notice

Answer 77

Must provide actual notice to all known creditors of the estate

Question 78

verification of claims

Answer 78

Claims presented against the estate are to be verified by affidavit of the claimant

if claim established by judgment claimant need only present a certified copy of judgment

Question 79

Approval or rejection of claims

Answer 79

When administrator or executor is satisfied w/ the claim he may approve or reject it. If approved, he must pay it

A list of all such claims approved or rejected is to be filed w/ court every 3 months

Question 80

Judicial review of claim

Answer 80

A claimant may have the court review the denial of a claim. However, no rejected claim may be subsequently allowed by the court based on the testimony of the claimant alone.

Must have the corroboration of some additional competent or satisfactory evidence

Question 81

Statute of limitations

Answer 81

Neither the court nor the executor can approve a claim barred by the statute of limitations

Question 82

Administrator as creditor

Answer 82

If the administrator is a creditor of the deceased a duly verified claim may be presented to the court for approval or rejection

An executor whose personal interests conflict w/ his duties as a representative of the estate is not a proper person to hold office

Question 83

Priority of payment

Answer 83

Allowed claims are to be paid in the following priority of payment

a) Compensation and expenses of executor
b) funeral expenses
c) taxes
d) expenses of last sickness
e) debts preferred by law
f) debts represented by liens on property
g) employee wages from last 90 days

Question 84

Partial distribution

Answer 84

After the filing of the 1st quarterly account a legatee may petition for partial distribution of the estate, in order to have possession, rents and profits of the portion of property to which he may be entitled and to be paid his portion of any legacy or have his portion of personal property distributed to him. If there is more than a little debt against the estate court may distribute such property upon the posting of a bond by the legatee

Question 85

Claims against estate

Answer 85

Claimant may not sue the estate w/o first presenting claim to the administrator/executor

Question 86

Final accounting

Answer 86

Executor/administrator must file a final accounting when the estate is fully administered

Notice by publication for final accounting is required once a week for 4 weeks in newspaper

Question 87

Support of widow and minor children

Answer 87

Until administration is granted and inventory is filed, widows and minor children are entitled to remain in possession of homestead, wearing apparel, household furniture and reasonable provision for their support

Question 88

Estate shall support widow and minor chidren

Answer 88

before administration is finalized 15 VIC 356 provides a widow may remain in the dwelling house of her husband one year after his death without being charged w/ the rent therefer, and shall have reasonable sustance out of the estate therefer

Question 89

Exempt property

Answer 89

After the filing of the inventory the court must set aside the widow all property of the estate exempt from execution.

Exempt property is property to be used to support widow and children

The take all if after administration and funeral the value of the estate is less than the exempt property.