Wills Flashcards
What are the five statutory formalities of Wills?
(1) Testator must be over 18
(2) Will must be written
(3) Need testamentary intent (no jokes)
(4) T must sign the will
(5) Two attesting witnesses required or notary
Will a court validate a defectively executed will (one that fails to meet the statutory formalities required)?
Yes, if the will proponent establishes by CLEAR AND CONVINCING evidence that testator intended the document to be his will.
What happens if a portion of the will FOLLOWS the testator’s signature?
If clause was present before T signed:
- some states invalidate stuff below signature
- UPC and other states, it’s all good
If clause was NOT present when T signed:
-will is valid, but clause is not
If T handwrites a will (holographic will), does T still need two attesting witnesses?
(1) Half of states:
- not allowed, still need two attesting witnesses
(2) UPC and other half:
- allowed if MATERIAL PROVISIONS (who gets what) are in T’s own handwriting and T has signed
What are the two possible tests for properly witnessing T sign?
(1) “Scope of Vision” - must actually see T sign
(2) “Conscious Presence” - knows where T is and what T is doing
Does the will have to conform to the rules of states where there needs to be an “ancillary administration?”
(1) At common law (few states)
- will must comply w/ state where property is being disposed
(2) UPC and MAJORITY:
- Will must comply w/:
- (a) state where it was executed
- (b) state where T was domiciled at death, or
- (c) state where T was domiciled at time of execution
What is an ancillary administration?
If T owned property in states where he was NOT domiciled at death, there must be an ancillary administration in those other states to dispose of the property.
What is the MAJORITY rule if one of the signing witnesses is an “interested party,” one who will gain something from T’s will?
Witness loses legacy unless:
(1) there are two other witnesses that were disinterested, OR
(2) Witness-beneficiary would be an heir if there were no will, in which case she takes the LESSER of:
- (a) amount given in will, or
- (b) intestate share
What is the UPC and modern trend rule if one of the witnesses signing a will is an “interested party” who will gain something from T’s will?
Interested witness does not invalidate the will or any provision, but…
look for undue influence issue.
What is a self-proved will?
Self-Proved Will =
T and witnesses sign self-proving affidavit under oath before notary public. The affidavit recites all elements of due execution. Formalities of execution are conclusively presumed.
Mental capacity, fraud, undue influence, etc. can still be issues though.
What are the elements for revoking a will by physical act?
(1) INTENT to revoke, and
2) a physical act (torn, burned, etc.
What if the word “void” is written on the will?
This is helpful in proving intent to revoke, but the word “void” is not necessary.
What if the will was executed in duplicate (multiple original, signed wills), and then one is revoked by physical act?
An act of revocation on ONE executed copy, revokes ALL executed copies.
What if “void” is written on the back of the will? Or in the margins?
(1) Majority Rule:
- (a) no revocation; need physical act to cross some LANGUAGE of the will to be revoked.
(2) UPC Rule:
- (a) Will is cancelled; act of cancellation can appear ANYWHERE on the will
What if “void” is written across the face of a xerox copy of the will?
NO, not cancelled in any state.
Revocation by physical act must be on the ACTUAL WILL.
What rebuttable presumptions will be made regarding revocation by physical act?
(1) A Will in T’s possession from executed until death, found mutilated? Presume intent to revoke by T
(2) Will last seen in T’s possession, can’t be found after T’s death. Presumed that it was destroyed w/ intent to revoke.
Can someone other than T revoke T’s will?
ONLY IF:
(1) they are acting at T’s direction, and
(2) In T’s presence
What if T orders, and someone else does destroy a will, but not in T’s presence? (invalid revocation)
Follow the state’s “Lost Wills” Statute:
(1) In most states, formal proceeding where proponents have burden of proving contents of lost will
(2) If there is no evidence of T’s will contents, then it will be treated as if will had been revoked (Intestacy rules)
Can an attorney be punished for screwing up a will?
Can be liable in tort, and subject to sanctions via the bar.
What if there is a codicil that makes no reference to a will, but has inconsistent provisions to the will?
(1) To extent possible, read them together
(2) To the extent they are inconsistent, the later document controls
What is a “codicil”
An amendment to a will.
BUT, look out because bar exam will call a codicil a “new will, even though there is no “residuary clause” and it does not expressly revoke the earlier will.
How do you know that a “new will” is actually just a codicil?
(1) No residuary clause, and
(2) No express revocation of prior will
What effect does divorce have on a will? What about a separation of spouses?
UPC Majority:
(1) Following a will, divorce revokes all provisions in favor of ex-spouse
(2) This also applies to revocable inter vivos trusts
Separation does not affect will unless there is a complete PROPERTY SETTLEMENT agreement, which is a waiver of the rights in the will.
What happens if a will is written, then divorce occurs, then the ex-spouses remarry again?
The will rights are reinstated.
What is “dependent relative revocation?”
The practice of disregarding a revocation based on the premise of a mistake of law or fact, assuming that but for the mistake, T never would have revoked.
(1) If the ineffective gift is larger in amount than the original, discuss DDR and apply it (give original amount)
(2) If ineffective gift is smaller in amount than the original, discuss DDR and don’t apply it…revoke the gift and leave person with nothing.
T executes Will 1. Then, T executes Will 2, which revokes Will 1. Then T revokes Will 2. Is Will 1 revived?
Even Split:
(1) No, Will 1 is not revived unless it is executed again or republished by codicil.
(2) UPC: Revived if it still exists, T wanted it revived AND Will 2 was revoked by physical act.
What are the requirements for a will to incorporate an extrinsic document by reference?
Majority (not UPC)
(1) Writing must be in existence at the time will was executed (can’t write it later)
(2) Will must manifest an intent to incorporate the document, AND
(3) Will must “describe the writing sufficiently to permit its identification
UPC:
(1) Written list than disposes of tangible personal property may be written and altered at any time (not just before will is executed)
What if T drives a 1985 Volvo station wagon, and executes a will saying, “To Brian, I leave my car.” Then, later T trades in the Volvo for a Ferrari, effectively altering the substance of his will. What happens?
Brian gets the Ferrari, because of the doctrine of “Independent Significance.”
Acts having an independent lifetime motive may have an impact on the will, and that’s okay.
What is the general rule if the beneficiary dies before T dies? [LAPSE]
The gift has lapsed, and the gift falls to the residue of the estate UNLESS:
Gift is saved by a state’s anti-lapse statute.
In UPC states this also occurs if the beneficiary dies w/in 120 hours of T.
What is the anti-lapse rule under the UPC? [LAPSE]
If the predeceasing beneficiary was T’s grandparent or lineal descendant of T’s grandparent, leave to beneficiary’s issue who survive T.
What is the Class Gift Rule? [LAPSE]
When there is a gift by will to a group of persons generally described as a class (“children”) and some class member predeceases T, and the lapse statute does not apply (not relatives), the surviving class members take.
What is the UPC rule regarding dividing a residuary estate? [LAPSE] (UPC anti-lapse rule application)
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devisees take the entire residuary estate in proportion to their interests in the residue.
What are the five types of gifts that can be given in a will?
(1) Specific devise or bequest
- specific asset; “John gets my Cadillac”
(2) Demonstrative legacy
- specific $ amount + funding instructions
(3) General legacy
- Specific $ amount, no funding instructions
(4) Residuary bequest
- Residuary estate
(5) Intestate property
- Where there is some partial intestacy for some reason
If T’s estate is partially insolvent, in what order are the gifts sacrificed to satisfy expenses (funeral, creditors, etc.)?
Sacrifice Order:
(1) Intestate property
(2) Residuary Estate
(3) General Legacy
(4) Demonstrative Legacy
(5) Specific devise/bequest
What is “ademption” (when a gift is “adeemed”)?
Ademption = beneficiary losing because T didn’t own the specific bequest gift at the time of his death.
What types of gifts does ademption apply to?
Specific gifts only.
What if T devises Blackacre to John. Then T sells Blackacre. Then T dies. What does John get?
Nothing, his gift was adeemed.
