5. Lapse, Ademption, Abatement, Undue Influence Flashcards Preview

MEE - Wills > 5. Lapse, Ademption, Abatement, Undue Influence > Flashcards

Flashcards in 5. Lapse, Ademption, Abatement, Undue Influence Deck (18)
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1

Lapse

When does lapse occur?

When a beneficiary predeceases T

2

Lapse

When does an anti-lapse statute do?

It saves the gift if

1. The predeceasing beneficiary was in a specified degree of relationship with T, i.e. related, and

2. PB had descendants who survived T

3

Lapse

When an anti-lapse statute applies, what is the name given to the term describing how PB's descendant's take?

Substitution

4

Lapse

When an anti-lapse statute applies, what is the one instance it will not be used?

When a contrary provision appears in the will, e.g. "I do not want X's descendant's to take"

5

Lapse

What is the split of authority regarding how words of survivorship are treated?

 

Most States

Words of survivorship are treated as a contrary provision

UPC

Words of survivorship not enough to negate anti-lapse

6

Ademption

What is ademption?

The failure of a gift because the property is no longer in T's estate

7

Ademption

To what does ademption apply?

Specific devises or bequests only

8

Ademption

What does specific mean?

The gift can only be satisfied by receipt of the particular property described

9

Ademption

What is the effect of ademption on the intended beneficary?

They take nothing

10

Ademption

What two types of legacies does ademption not apply to, and what are they?

 

General Legacy

Gift of a specific dollar amount

Demonstrative Legacy

Gift of a specific dollar amount with a particular asset as the source of payment

 

11

Ademption

What happens to a demonstrative legacy to avoid ademption?

Other assets are sold off or directly given to the beneficiary

12

Undue Influence

What three elements are required?

1. Influence was exerted

2. It overpowered the mind and free will of T

3. The resulting will would not have been executed but for the influence

13

Undue Influence

What evidence must be shown to establish undue influence, and what evidence cannot?

Direct evidence showing it happened

Circumstantial evidence that T could have been influenced is not enough

14

Undue Influence

When will a presumption of undue influence arise?

1. Confidential relationship between T and beneficiary

2. B was active in procuring, drafting, or executing the will

15

Undue Influence

For what confidential relationship will a presumption of undue influence not arise?

Between spouses

16

Abatement

What is abatement?

Process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims and satisfy all bequests and devises

17

Abatement

Unless T sets out an order of abatement in the will, in what order will an estate be abated?

1. Property passing by intestacy

2. Residuary estate

3. General legacies

4. Specific bequests and devises

18

Abatement

What are the two categories of demonstrative legacies for abatement?

 

Specific Legacy

To the extent it can be satisfied by the designated source

General Legacy

To the extent that the fund is insufficient