Ch 4: Will Contracts Flashcards
(14 cards)
What do will contracts include? (T)
Will contracts include contracts to make a will, contracts to revoke a will, and contracts to die intestate, all of which are controlled by contract law.
What is the writing requirement for will contracts? (T)
Proof of contract can be established if:
i) The will states the material provisions of the contract;
ii) The terms are contained in a written contract; or
iii) The will expressly references the contract and extrinsic evidence proves the terms.
Regarding the writing requirement for will contracts, what does the UPC require? (T)
The UPC requires that the contract be in writing and be within the will to be enforced through probate. Otherwise, the contract must be enforced through contract law.
Regarding will contracts, what is the consideration requirement? (T)
Like any other contract, consideration is required for a will contract to be enforceable. The beneficiary’s promise to care for the testator in exchange for a bequest is sufficient consideration.
How can will contracts be enforceable in most states? (T)
To be enforceable in most states, a contract to make or not make a will must be in writing and signed by the party to be charged. Otherwise, the plaintiff may recover only his consideration, including the fair market value of any services rendered.
Typically, when can a breach occur in a will contract? (T)
Typically, the breach is not effectuated until after the testator’s death. So, there is no remedy for breach while the testator is still alive.
What is a joint will? (T)
A joint will is signed by two or more persons and is intended to serve as the will of each person.
What is a joint will that is not reciprocal? (T)
A joint will that is not reciprocal is merely the individual will of each person signing the same document (and is treated as if there are separate wills).
What is a will that is both joint and reciprocal? (T)
A will that is both joint and reciprocal is executed by two or more persons, with reciprocal provisions, and shows on its face that the devises were made in consideration of the other.
What are reciprocal wills? (T)
Reciprocal wills are separate, individual wills that have identical or reciprocal provisions.
In reciprocal wills, is there a contract between the parties to dispose of property in a particular way? (T)
Because reciprocal wills are separate, there is no contract between the parties to dispose of the property in a particular way. Therefore, either party can modify his will without the other’s consent or knowledge.
In most jurisdictions, and under the UPC, does the mutual execution of a joint or mutual will crease a presumption of a contract not to revoke the will? (T)
In most jurisdictions, and under the UPC, the mutual execution of a joint or mutual will does not create a presumption of a contract not to revoke the will. However, if a contract not to revoke is proved, and the second party attempts to make an inter vivos transfer that violates the contract, or attempts to revoke her will after accepting the benefits under the first party’s will, then a constructive trust may be imposed for the benefit of the original beneficiaries.
What happens in a joint will contract when one party dies? (T)
In a joint will contract, when one party dies, the transaction becomes an irrevocable contract regarding the survivor.
During the exam, if a fact pattern includes a joint will, what should you consider? (T)
If a fact pattern includes a joint will, then consider whether the issue of a contract not to revoke is being tested.
