Wills Flashcards
When does a spouse take the entire INTESTATE estate
- Decedent is survived by descendants, all of whom are descendants of the surviving spouse OR
- Decedent leaves no surviving descendants.
When does a spouse take HALF of the INTESTATE estate
If the decedent is survived by descendants and the descendant or the surviving spouse have descendants that are not descendants of the other.
Descendants get the other half.
If there is no spouse, what do descendants get
The entire estate
What is the effect of divorce or legal separation on the right to inherit
Right to inherit is conditioned on existence of marital relationship at time of death. Divorce severs this relationship. Legal separation DOES NOT!
Intestate succession after spouse
- Descendants, per stirpes
- Surviving parent(s)
- Brother and sisters and their descendants, per stirpes
- One-half to paternal grandparents, and one-half to maternal grandparents and their descendants, per stirpes
- Kindred of the last deceased spouse, as if she had survived the decedent and then died.
- State
Intestate succession for adopted children
Treated the same as natural children of the adopted parents.
Once parental rights are terminated, so are rights of inheritance from natural parents/children
Intestate succession for half blood heirs
For purposes of inheritance by collateral kin (meaning when sisters and brothers inherit from each other), half bloods take half as much as whole bloods, unless all collateral kin are half-bloods
Intestate succession for children born out of wedlock
They are heirs of mother only, unless Father:
- marries mother
- Is adjudicated the father before or after his death or
- Acknowledges paternity in writing
When can property escheat to state
When there are no heirs left.
Formal requirements to execute a will
- Intent
- Capacity
- Signed writing
- In the presence of two witnesses
What is testamentary intent?
T must have PRESENT INTENT that the instrument operates as a will.
-Parol evidence is admissible to show that instrument was not meant as will.
What is testamentary capacity?
T must be of sound mind and at least 18 years old at the time of making the will.
T must understand the nature and extent of his property, the persons who are the natural objects of his bounty and the nature of the disposition being made.
Will made under 18 is void unless minor is emancipated
Intestate succession for children who were meant to be adopted but never formalized
Allows child who was not legally adopted to share in the intestate estate of an individual who was going to adopt
o Child must prove by C&C evidence:
• (1) An agreement for adoption existed;
• (2) Natural parents performed (gave up custody);
• (3) Child performed by living w/ those intending to adopt;
• (4) Part performance by alleged adoptive parents (took child in); and
• (5) Person who intended to adopt died intestate
What is a holographic will and is it permitted in Florida?
It is a handwritten will signed by T but not in the presence of witnesses. They ARE NOT recognized in Florida
Will - signature and witness requirement
T must sign at end, in presence of W’s, who must sign in the presence of T and each other.
If there are dispositive provisions after signature (but present when T signed) then the ENTIRE WILL IS INVALID.
Does T actually have to sign his name?
No, any mark T signs with intent is ok. T can have a proxy signer too - proxy must sign at T’s direction and in his presence. Proxy must sign his own name too, and can be one of the witnesses.
Presence requirement - scope of vision test
Parties signing will must be within each other’s scope of vision, that is, must actually see signing
(majority of states use conscious presence test - w/in range of T’s senses)
Does Florida require the will to be “published”, i.e. identified to W’s that it is a will?
No.
May interested witnesses take under the will?
Yes, which is a change from the common law.
What is an attestation clause and what effect does it have?
An attestation clause recites the elements of due execution and it operates as prima facie evidence of those elements.
What is a self proving affidavit, and does Florida allow them?
A self-proving affidavit is sworn to by the T and W’s before a notary public. It functions like a deposition and eliminates the need to produce Ws in court years later. So, a will can be admitted to probate without further proof.
Signatures on the affidavit can serve as signatures on the will itself.
What is a military testamentary instrument and is it valid in Florida?
It is a military will. It must be executed:
- By T who is eligible for military legal assistance;
- in the presence of military legal counsel; and
- in the presence of two DISINTERESTED W’s
Wills Executed by Non-Residents
§ Will is valid in Fl if it is valid under laws of place it was executed (NO holographic or oral wills)
What is a codicil
Supplement or amendment to existing will (CANNOT REPLACE THE WILL)
§ Execution - same formalities as will
§ Effect - republishes the will as of the date of the codicil’s execution
** May validate an invalid will
Can documents be incorporated by reference into a will?
Yes, provided that:
- It is in existence at the time of execution
- it is sufficiently described in the will and
- the will manifests an intent to incorporate the document
What one separate writing does not have to be in existence at the time the will is created, but can still be incorporated by reference?
T can make a list specifying distribution of tangible personal property and can create or alter that list later.
Extrinsic evidence permitted to identify the writing whose terms are incorporated by reference
What is a pour over gift to inter vivos trust and is it valid in Florida?
Uniform Testamentary Additions to Trust Act, adopted in Florida permits T to make a bequest or devise to a trustee notwithstanding the fact that the trust may be amended or revoked after execution of will
Bequest
Testamentary gift of personal property
Devise
Testamentary gift of real property
How can a will be revoked prior to death?
- By writing
- By act
- By operation of law
T must have capacity.
Even if there is a K saying T cannot revoke, he still can, its just a breach of K.
Revocation of Will By Written Instrument
All or part of will can be revoked by subsequent instrument executed with the same formalities of a will
If the later will does not revoke the earlier will, then they are read together, with the later will revoking the inconsistent provisions of the earlier will.
Revocation by Physical Act
A will or codicil can be revoked by burning, tearing, canceling, defacing, obliterating or destroying with the intent to revoke.
Accidental destruction does not revoke b/c no intent at time of destruction
If there are 2 originals, and you destroy one, both are revoked
When is there a presumption of revocation
If will was last seen in T’s possession or under his control and cannot be found after his death, or is found in a mutilated condition, a rebuttable presumption arises that the T revoked it.
Does Florida permit partial revocation by physical act?
No. Even if T tries to strike a clause, it is not effective.
Does the revocation of a will revoke all codicils?
Yes
Does the revocation of a codicil revoke the will?
No.
Does Florida permit revival of revoked wills?
No, once it is revoked, it cannot be revived unless it is reexecuted or republished.
What does it mean to publish a will?
To acknowledge it in front of Witnesses
If the will is lost or destroyed (and presumption that T revoked is overcome), how are contents of will proven?
By the testimony of two disinterested witnesses or by one disinterested witness plus a photocopy of will (draft not enough)
What is the doctrine of dependent relative revocation?
When T revokes will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked will.
If the other disposition fails, the revocation also fails and the will remains in force. DRR is only applied if it comes closer to what the T tried to do, than would an intestate distribution
What is a pretermitted spouse?
a spouse who would likely stand to inherit under a will, but was not named in the will because she was not yet married to the testator at the time the will was written.
What does Pretermitted spouse get if T dies without changing the will he created before marriage?
Pretermitted spouse gets intestate share, UNLESS
- Valid pre or post nuptial agreement
- Will includes a gift to spouse in contemplation of marriage
- Will discloses intention not to make a provision for the spouse.
Share comes out of property passing as follows:
- partial intestacy
- residuary estate
- general legacies
- specific bequests
Effect of divorce/annulment on provisions in will
Divorce and annulment revoke all will provisions in favor of ex spouse. Will is read as it ex spouse predeceased.
In Fla, this rule applies to revocable trusts, life insurance policies, and other interests that transfers to spouse upon death.
Date of “death” is date of JOD
Pretermitted Child Statute
child born or adopted after execution of will
Entitled to take share equal to intestate share unless he received an advancement equal to his intestate share, the omission was intentional or T had other children and left most of his property to the other parent of the pretermitted child.
What is the effect of republication of will by codicil on status of pretermitted child?
It may change child’s status - so a child born before republication is NOT entitled to protection of statute.
Difference between a joint will and a mutual will
Joint will is a will of two or more persons executed as a single instrument.
Mutual wills are separate instruments with reciprocal provisions
If T contracts not to revoke will, and revokes it anyway, what can beneficiaries do?
They can sue to have a constructive trust imposed on the assets of the estate in their favor.
Survivor in contract not to revoke wills cannot revoke will after party dies.
What are the requirements for a contract relating to a will?
Must be in writing, signed by the agreeing party in the presence of two witnesses.
Any such agreement is valid in Fla if valid under the laws of the jurisdiction in which it was created.
What happens if the execution of the will was procured by fraud, duress, mistake or undue influence?
Will is void. If only part was procured that way, only that part is void.
Time in which will contest must be filed
An interested person who is served with a Notice Of Administration must file any objection within 3 months from the date of service of the notice.
Alternatively (if not service) at hearing for appointment of a personal representative
Who has BOP that T lacked capacity
The will contestant
How can someone establish undue influence?
§ (1) Influence on T;
§ (2) Overpowers mind and free will of T so that free will is DESTROYED;
§ (3) T’s will (or portion of it) would not have been executed but for influence
Burden of Proof - on the contestant
Pleading ,begging, nagging not enough to destroy free will
When is there a presumption of undue influence?
- Substantial gift;
- to one in a confidential relationship with T; AND
3 Who was active in procuring the will
Effect of Gift to Lawyer and Other Disqualified Persons
Gift to lawyer or person related to lawyer is VOID if lawyer prepared or supervised the execution of the instrument
N/a if lawyer is related to T
-This prohibition CANNOT BE WAIVED
How to prove a will is VOID due to FRAUD
o T must have been willfully deceived as to the character/content of the instrument or to extrinsic facts that would induce will
o 2 Types of Fraud
(1) Fraud in the Inducement - knowingly false representation causing T to make will differently (affected part invalid)
(2) Fraud in Execution - forced signature, didn’t know signing a will (entire will is invalid)
What if T is fraudulently PREVENTED from making will
Courts will impose a constructive trust in favor of those who would have taken if the will had been made.