Decedents' Estates Flashcards
(6 cards)
The first issue is whether Testator effectively revoked the gift of the portrait to Adam and effectively changed this gift to Charles.
When he died, Testator was a domiciliary of State A, so State A law governs. State A permits wills to be completely or partially revoked by a physical act or by cancellation when accompanied with an intent to revoke the will or codicil. The majority of jurisdictions and the common law require a cancellation by striking through to actually cross or cover the text of the will. A writing on the back of the will,
will not suffice. The UPC provides that a revocation can be written anywhere on the will, as long as there is also intent to revoke. State A law also provides that unsigned holographic wills or codicils are valid. A holographic will is one that is entirely in the testator’s handwriting. A codicil will revoke a prior will if, when read together, the terms contradict. The later validly executed codicil will control.
Application
Here, concerning the gift to Adam, the writing does not cross out any of the language of the will, but is on the back. In most jurisdictions, this will not suffice to revoke. But, if the jurisdiction follows the UPC this can revoke. Further, Testator clearly had an intent to revoke because he did not want Adam to have the portrait anymore. Because State A law allows unsigned holographic wills, the codicil on the back of the will is considered valid. It is entirely in the Testator’s handwriting and evidences an intent to change
his will. Moreover, the terms of the codicil conflict with the original will; the original will gave the portrait to Adam, but the codicil gives the portrait to Charles. Thus, the terms of the codicil will control, and Charles will receive the portrait.
The next issue is whether the Testator effectively revoked the gift of the bookcase to Beth and substituted it with the motorcycle.
The rules regarding revocation stated above remain the same. When a testator revokes a gift relying on a mistake of law regarding the efficacy of the gift, the court may apply the doctrine of dependent relative revocation. In order for this doctrine to apply, the testator must revoke relying on a mistake of law, and the court must find that, but for the mistake, the testator would not have completed the
revocation.
Application
When the Testator scratched out the phrase antique bookcase, he physically crossed through that language. Further, he typed a different gift - motorcycle - evidencing an intent to revoke the gift of the bookcase. Thus, the gift of the bookcase was effectively revoked. But the gift of the motorcycle was not effective. As stated previously; in order to be valid, a holographic unsigned and unattested gift must be entirely in the testator’s handwriting. The typed word motorcycle was not in the Testator’s handwriting and was thus not effective.
Beth will receive nothing, unless the court applies the doctrine of dependent relative revocation. Here, it seems that the Testator had no ill feelings about Beth receiving the bookcase and merely wanted her to receive the motorcycle instead. But there is no strong evidence of this. If the court determines that the Testator would not have revoked the gift but for his mistake concerning the validity of his motorcycle amendment, the court will undo the revocation
and give the bookcase to Beth. She will not receive the motorcycle regardless.
The next issue is whether the letter signed and dated June 15, 2015, was effectively incorporated by reference.
In order for a document separate from a will to govern the disposition of property mentioned in the will, the document must be incorporated by reference. In order to be incorporated by reference, there are three requirements: (1) the document must have
been in existence at the time the will was executed, (2) the will must evidence an intent to incorporate the document, and (3) the document must be sufficiently identified in the will.
Application
Here, the document was in existence because it was signed and dated June 15, 2015, and the will was executed July 1, 2015. Further, there is a clear intent in the will for the document to govern
the disposition of the tangible personal property. Finally, the document is sufficiently identified because the date of the document is clear, and the Testator identified exactly where it could be found - the night table drawer in his bedroom along with the will (where it was, in fact, ultimately found). For these reasons, the letter was incorporated by reference, and the letter’s terms govern. Donna receives all of the tangible personal property not otherwise
effectively disposed of. This includes the motorcycle which was not effectively given to Beth. This would also include the bookcase if the court does not apply the doctrine of dependent relevant revocation, as discussed previously. The gift to Donna does not include the money, which is not tangible personal property.
The $10,000 was not effectively disposed of by the will, so it will pass via intestacy. Absent a living spouse, children, or parents, a testator’s gift will pass in equal shares to his siblings. Testator has no living spouse, children, or parents. He does have two siblings - Adam and Beth. Thus, Adam and Beth will each receive $5,000 from the bank account.
