Changes in Family after will/ problems associated with T's gifts/ reference to acts outside will/ other will doctrines

Question 1

in IL what if T marries after a will is executed

Answer 1

marriage following execution of a will has NO effect on the will
- elective share statute, marriage has no effect on will

Question 2

what is the effect of T marrying after the execution of w will under the UPC

Answer 2

if a T writes a will and marries after, the omitted spouse takes an intestate share of T’s share

Question 3

what does divoroce do of a will

Answer 3

FINAL DECREE of divorce or annulment REVOKES ALL GIFTS AND FIDUCIARY APPOINTMENTS in favor of former spouse
- acts as if former spouse had predeceased the T

Question 4

what need to happen for the divorce or annulment to get the former spouse out of will

Answer 4

must be FINAL DECREE OF DIVORCE no revocation of gift if divorce action has been filled and is still pending

Question 5

does divorce decree rule apply to insurance policies

Answer 5

no those pass outside probate

Question 6

T’s child was born AFTER executed will

Answer 6

pretermitted child:

• if ALIVE at time of will then statute does not apply
• if BORN AFTER execution of will, than get as as intestate share

Question 7

what is the x/c of pretermitted child

Answer 7

UNLESS it appears from the will that the omission was intentional, then do not get intestate share

Question 8

what is th republication by codicil rule for premitted children

Answer 8

if a republication by codicil and child was alive at that time, than the date of the last codicil governs the date of execution
- so if alive at time of codicil and no mention of child, than does not get intestate share

Question 9

ex: of specific devise or bequest

Answer 9

a gift of specifically described property

ex: to blackacre to S

Question 10

demonstrative legacy

Answer 10

a gift of general amount from a specific source

ex: sum of 25k from sale of shell stock

Question 11

general legacy

Answer 11

give 10k to my nephew

Question 12

abatement

Answer 12

when there is not enough money to pay everyone

Question 13

who gets paid first for abatement

Answer 13

1) specific bequests
2) general legacies
3) residuary clauses
4) intestate property

Question 14

how is a demonstrative legacy treated udner abatement

Answer 14

as specific property (last to abate)

- but only to the extent of value references assest; treated the same as general legacy to the extent of any excess

Question 15

ademption

Answer 15

whre a will makes SPECIFIC GIFT in property and is not owned by the testator at death
- does not matter to used proceeds to property

Question 16

what is the only property that applies to ademption problem

Answer 16

SPECIFIC PROPERTY

Question 17

does it matter if proceeds are traceable for sale under ademption

Answer 17

NO

- does not matter if proceeds are used to buy new property, still ademped and do not have rights to that property

Question 18

equitable conversion

Answer 18

entered into K to SELL property but died B4 the K was fully performed, take the PAYMENTS of the sale of land

Question 19

what if T is incacapacited and someone else sold the property for ademption problem

Answer 19

divisee has right to general legacy of the proceeds of sale

Question 20

what is the rule for when T is incapacitated and property is sold by someone other than T for ademption problem

Answer 20

right to proceeds but only to the extent that

1) they are traceable and not
2) used for medical care or treatment of T

Question 21

what is the rule for stock SPLITS in IL

Answer 21

additional shares under stock splits are allowed

Question 22

what is the rule for stock dividends under IL

Answer 22

NOT allowed.

Question 23

what is the rule for specific bequest of encumbered property in IL

Answer 23

a specific legatee of encumbered property is NOT entitled to have the lien exonerated unless will states so
- person getting property must continue to pay off the mortgage

Question 24

what is the rule for specific bequest of encumbered property in CL

Answer 24

absent contrary provisions, liens specifically devised property are EXONERATED from the residuary estate

Question 25

what is doctrine by incorporation

Answer 25

an extrinsic document not present when will was executed

Question 26

what needs to happen for doctrine by incorporation

Answer 26

1) document MUST BE IN EXISTENCE at time will was executed AMD
2) will MUS REFER to the document being in existence and
3) will must reasonably identify the document

Question 27

what does the UPC allow for valid dispostion for doctrine of incorproation

Answer 27

will may refer to a written statement that disposes of

1) tangible personal property (but not money) not specifically devised in will.
- Must be signed by T, describe property with reasonably certainty.
- may be written before or AFTER the will is executed and can be altered at any time

Question 28

what does acts of independent significance apply to

Answer 28

TANGIBLE PROPERTY and CASH ONLY

Question 29

plain meaning rule

Answer 29

when no ambiguity, extrinsic evidence is NOT ALLOWED to change the plan meaning of the words

Question 30

is patent ambiguity allowed for extrinsic evidence

Answer 30

yes. (mistake on its face)

Question 31

are latent ambiguity allowed for extrinsic evidence

Answer 31

yes, b/c there is a misdiscription

Question 32

what type of extrinisc evidence is allowed for patent and latent ambiguity

Answer 32

1) facts and circumstances: evidence about family relationship
- ( not testimony of friend)
- attorney testimony allowed who prepared will

Question 33

what if the extrnisic evidence does not cure the ambiguity

Answer 33

it fails, no ascertainable B, goes to residuary

Question 34

factors in IL to determine if K not to revoke wills

Answer 34

where MOST of the following are found

1) will labeled JOINT AND MUTUAL
2) will leaves entire estate to SPOUSE
3) will disposes of all their property in a UNIFIED way
4) there is a common dispositive scheme on death of the survivor

Question 35

under the UPC when is a will contractual

Answer 35

will is NEVER contractual unless will expressly states that K exists

Question 36

what are reciprocal wills

Answer 36

separate wills containing reciprocal or mirror provisos

Question 37

are reciprocal wills presumed to be contractual

Answer 37

NO, unless clear and convincing evidence of a K

Question 38

in IL what effect does a disinheritance clause have on stuff passing by intestacy

Answer 38

partial intestacy words of disinheritance of the will are INEFFECTIVE

Question 39

rule for disinheritance clause have on stuff passing by intestacy of UPC

Answer 39

negative bequest rule, a will can provide how property SHALL NOT be disposed of, allowing effect, and distributed as though disinherited person predeceased the t

Question 40

when will the courts not enforce unlawful conditions for wills

Answer 40

public policy against

1) encouraging divorce and
2) TOTAL restraint on marriage

Question 41

is a partial restriant on marriage valid (ex: only if they marry a certain religion type)

Answer 41

YES partial restraints on marriage are allowed

Question 42

slayer statute test

Answer 42

killer forfeits interest in victims estate if he

1) INTENTIONALLY AND UNJUSTIFIABLY causes the death of another
- acts as if predeceased victim

Question 43

can a civil court hold a person intentionally and unjustifiably killed T and slayer statute applies>

Answer 43

YES, do not need a criminal conviction

Question 44

where the slayer statute does NOT apply

Answer 44

1) joint tenancy, does not forfeit their share owned, just destroy the j/t relationship and get tenants in common

Question 45

does the slayer statute apply to life insurance

Answer 45

YES

Question 46

il statute on elder abuse

Answer 46

abuse of elderly or disabled person, person forfeits all interests in estate if convicted of

1) criminal abuse or neglect or
2) financial exploitation of elderly or disabled person

Question 47

non probate assets

Answer 47

1) right of survivorship (j/t, j/t bank accounts)
2) contract: insurance benefits, benefits under retirement plan
3) revocable trust

Question 48

can a party change the insurance k by a will?

Answer 48

NO. under insurance law, must transfer K by K only and not by will

Question 49

satisfaction

Answer 49

IL a lifetime gift to a child is preemptively in satisfaction of the prior legacy.

• A lifetime gift to anyone other than a child does not trigger presumption of satisfaction; the gift will be deemed in satisfaction of the legacy only if the T intended the gift to be in satisfaction.

Question 50

IL: satisfaction of child

Answer 50

IL a lifetime gift to a child is preemptively in satisfaction of the prior legacy.

Question 51

IL: satisfaction of anyone other than child

Answer 51

A lifetime gift to anyone other than a child does not trigger presumption of satisfaction; the gift will be deemed in satisfaction of the legacy only if the T intended the gift to be in satisfaction.

Question 52

when is the only time satisfaction can apply

Answer 52

a gift cannot be in satisfaction of a bequest in a will that has not been yet executed.
- Will must be executed before satisfaction applies

Question 53

Effects of child being adopted and inheriting from natural parents

Answer 53

usually, once a child is adopted, their rights to inherit from and through their natural parents is severed.

Question 54

x/c where child is adopted and can inheriting from natural parents

Answer 54

Under UPC, a parent-child relationship continues to exist b/w both natural parents and the adoptee when the child is adopted by a relative of a natural parent- but only for the purposes of the child inheriting from the natural parents.

Question 55

Statute where appointing personal representative of estate if not named in will

Answer 55

1) a person named as executor of will
2) the surviving spouse, if a will Beneficiary
3) any will beneficiary
4) the surviving spouse
5) any other heir
6) after 45 days, a creditor.

Question 56

who can be a personal representative

Answer 56

any person with capacity to contract

Question 57

CL: stock dividened

Answer 57

a specific bequest of stock includes additional shares produced by stock split but not STOCK DIVIDENDED

Question 58

MAJORITY/ UPC: stock dividend

Answer 58

a specific bequest of stock includes stock dividends.

Question 59

UPC rule for adeemption

Answer 59

a specific devisee has the right to any real property owned by the T at death that was ACQUIRED as a REPLACEMENT for the specifically devised property.

Question 60

descendant vs. decedent

Answer 60

1) descendant: child, or grandchild of T

2) decedent: person who died

Question 61

what is abatement

Answer 61

the process of reducing gifts