Demi-will

Question 1

Read: PA Simultaneous Death Act and lapse

Answer 1

Rule: Pennsylvania simultaneous death act provides that if a testator and testator’s beneficiary die at the same time, and it is impossible to determine who died first, t’s beneficiary will be treated as predecessing testator for purposes of distributing his estate.

Here, t and t’s beneficiary( biological son) died in a plane crash at the same time, and it is not possible to determine who died first thus t’s beneficiary will be treated as predeceased for distribution of estate.
—-

Rule: Generally, when beneficiary predecesses T, gift to beneficiary lapses unless saved by anti lapse statute. Pa has antilapse statute which provides that if t leaves gift in will to his issue, and his issue predecessors him, the lapsed gift will be saved if his issue leaves issue.

Here, Since son pred T, t’s gift to son would lapse. However since son is t issue and leaves his own issue (Tina) the pa lapse statue saves his bequest. Thus, sons estate will pass to Tina.

Question 2

Read: lapse

Answer 2

Rule: Generally, when beneficiary predecesses T, gift to beneficiary lapses unless saved by anti lapse statute. Pa has antilapse statute which provides that if t leaves gift in will to his issue, and his issue predecessors him, the lapsed gift will be saved if his issue leaves issue.

Here, Since son pred T, t’s gift to son would lapse. However since son is t issue and leaves his own issue (Tina) the pa lapse statue saves his bequest. Thus, sons estate will pass to Tina.

Question 3

Revocation of Wills

“POSR”

Answer 3

In Pennsylvania, a will may be revoked by POSR (i) physical act, (ii) operation of law, or (iii) subsequent instrument.

1. Physical act: T must posesses intent + physical act
   (Result: Extrinsic evidence is permissible to determine whether T intended that revocation be partial or full.
2. Operation of Law
   (marriage, birth, adoption, divorce)
   Divorce effectively revokes a will (all provisions in favor of former spouse are revoked)
   Marriage (gifts abated to extent to satisfy spouse share)

Child(gifts abated to extent to make up share for predettermined child)

3. Subsequent instrument
   Where codocil makes no reference to the will, and contains inconsistent terms, if possible, they will be read together. To the extent possible, as to the inconsistencies involved, the later document controls and revokes inconsistency of prior will.

DRR will apply if strike out and higher gift number

Question 4

Incorporate by Reference

Answer 4

To incorporate extreinsic evidence by reference:

1. writing must be in existence at time will was executed
2. manifest an intent to incorporate document
3. describe writing sufficiently to permit its identification

Acts having an indepenedent lifetime motive may have impact on will

Question 5

Revocation of Wills- Subsequent Instrument (Codicil)

What if they are inconsistent?

Answer 5

Where codocil makes no reference to the will, and contains inconsistent terms, if possible, they will be read together. To the extent possible, as to the inconsistencies involved, the later document controls and revokes inconsistency of prior will.

Question 6

Revocation by Divorce vs. Seperation

Answer 6

Revocation of will may be effected by divorce. Unless it shows that the will was to survive the divorce, divorce revokes all provisions in decedent’s will, revocable trust or life insurance policy. IF THEY

Mere seperation has no effect on Sheila’s right via revocation.

Question 7

DRR?
Define
when does it apply?

Answer 7

Rule
DDR allows us to disregard a revocation, which is based on mistake of law or fact if the court is satisfied that, but for the mistake, T would have never made the revocation.

Applies where T strikes out gift (10 dollars) and rights in higher number next to it (15)

Does not apply if gift goes from 10 to 4

Question 8

LAPSE

Answer 8

Under Pennsylvania, when beneficiary named in the will, the gift lapses, unless saved by the antilapse statute.

The pennsylvania statute applies when the predeceasing beneficiary is T’s descendent sibling or child of sibling who leaves issue who survive testator

Question 9

Execution of Wills: requirements?

Answer 9

a) General Requirements
i) 18 years or older
ii) Signed at the end of the will
iii) Disposes of property
iiii) No witnesses required if the testator signs himself
b) Self-

Question 10

Revocation by T

Answer 10

Revocation
a) General Rule
i) Intent to revoke
ii) Physical act (burn, tear, cancel, obliterate, or destroy)
iii) If T was in possession and control until time of death and
will is lost or destroyed, presumption that T revoked the
will

Question 11

Revocation by 3d party?

Answer 11

i) At T’s direction, proved by 2 witnesses

ii) In T’s presence

Question 12

Lost Will, what must p show?

Answer 12

by clear and convincing evidence

ii) Copy from attorney is sufficient
iii) Testimony by an interested witness is insufficient

Question 13

Inconsistent Will and Codocil

how will they be read?

Answer 13

i) Will and codicil read together to the extent possible
ii) If there is an inconsistency, the later document controls and
revokes the prior inconsistencies
iii) If a later will has a residuary clause, it revokes the first will

Question 14

If there is will and codicil what happens if the will is revoked?

what happens if codicil is revoked?

Answer 14

i) Revocation of a will revokes all codicils

ii) Revocation of codicil does not revoke will

Question 15

Divorce- revocation

Answer 15

Divorce
i) General Rule: Divorce revokes all provision in favor of an exspouse
ii) Exception: Will shows T’s intention that the will would
survive the spouse
iii) NOTE: Separation (no divorce) does not affect the rights of
the wife

Question 16

to incorporate extrinsic evidence what are requirements

Answer 16

a) Writing is in existence at the time the will was executed
b) Will must manifest an intent to incorporate the document
c) Will must describe the writing sufficiently to permit its
identification

Question 17

Abatement

Rule

Answer 17

a) Gifts are sacrificed to satisfy funeral expenses, expenses of
administration, and creditor’s claims in the following order:

Crew— IRGD

i) Intestate Property
ii) Residuary Bequests
iii) General Legacy
iiii) Demonstrative Legacy
v) Specific Devise or Bequest
b) Specific Devise or Bequest

“I devise Blackacre to my son John.”
Legally Significant Words: “I devise my car to John.” Which Car? Determined at the time of death

Question 18

Ademption*** JUST TESTED IN 2018

Answer 18

Where the gift is gone or destroyed, beneficiary takes nothing

i) Applies to specific gifts ONLY
ii) Does not apply where T is incompetent UNLESS the will was
executed before T was declared incompetent

Question 19

exception to ademption

Answer 19

Exception: Specific devisee gets a general legacy equal to the amount of the remaining specifically devised gift

i) Balance of the purchase price in contract that is executory at
T’s death

ii) Amount of a condemnation award
iii) Amount of fire or casualty insurance proceeds
iiii) Stocks: dividends and other stock as a result of merger etc.

Question 20

Exoneration of Liens

Answer 20

a) Specific devisee of encumbered property is not entitled to have
the debt paid off by the residuary
b) Exception: T’s intent to do so is clear in the will. (NOTE:
General direction to pay debt is insufficient)

Question 21

Ambiguities & Mistakes

Answer 21

a) Plain Meaning Rule: Cannot disturb the plain meaning of a will
regardless of mistakes
b) Latent Ambiguity: Extrinsic evidence is admissible to resolve a
latent ambiguity. Otherwise, the gift goes to the residue.

Question 22

Inheritance

Answer 22

a) Surviving Spouse
i) No issue or parent = everything
ii) Parent but no issue = First 30,000 + ½ of the balance
iii) Spouse and issue = First 30,000 + ½ of the balance
iiii) Spouse and issue but

Question 23

Share not Going to Spouse or If no Surviving Spouse

Answer 23

i) Issue
ii) Parents
iii) Brothers, sisters, and their children

Question 24

Distribution

Answer 24

i) Per capita if all are same degree of relationship
ii) Otherwise, by representation
iii) Exception: Will states “to my descendants by right of representation”

Question 25

Children Born Out of Wedlock:

Answer 25

Biological child cannot inherit
from decedent (bio parent) unless
i) Marriage to other biological parent
ii) Decedent held child out as his/hers and either received the
child into his/her home or provided support or
iii) Clear and convincing evidence of paternity

Question 26

Adoption

Answer 26

Adoption
i) Adoption cuts off inheritance rights from the natural parents
ii) Exception:
stepparent adoptions do not cut off the inheritance rights from natural parent if the natural parent marries the
stepparent and the stepparent adopts
iii) Class gifts to “children” included adopted children

Question 27

Simultaneous Death Act (120-Hour Rule)

Answer 27

i) Intestate succession +

ii) Survivor must survive the decedent for 120 hours (5 days) in order to take

Question 28

Advancements (Intestacy) RECENTLY TESSTED

Answer 28

i) Common Law: Any lifetime gift was considered advancement

ii) In Pennsylvania: No presumption of advancement unless either the decedent or the heir acknowledge the advancement
in writing

Question 29

Rights of Surving Spouse

a) Pretermitted Spouse (Marriage to Testator after the Will was Executed)

Answer 29

1. General Rule: Spouse gets the intestate share UNLESS exceptions:
   (1) Will gives spouse a greater share or
   (2) Will was executed in contemplation of the marriage
2. ELECTIVE SHARE
   (A) ELECTIVE ESTATE
   Equal to the net testamentary estate AND the following lifetime donative transfers to the spouse or others:
   (1) Transfers retaining the power to revoke for the decedent’s
   benefit (e.g., revocable trust)
   (2) Property interests with rights of survivorship (joint tenancy
   with right of survivorship; joint accounts)
   (3) Transfers in excess of $3000 made by decedent within a year of death (i.e., gifts to mistresses)

(B) ELECTIVE SHARE
One-third (1/3) the elective estate excluding
nontestamentary transfers
(1) Insurance policies
(2) Trusts
(3) Pension plans
iii) Waiver: Right to take elective share can be waived in writing after fair disclosure (watch for prenup)

Question 30

Predetermined Child

Answer 30

11) Pretermitted Children
a) Defined: Born/adopted after the execution of the will
b) Share: entitled to the child’s intestate share UNLESS it appears
from the will that the omission was intentional
c) Caveat: NEVER take property away from the spouse to satisfy
the pretermitted share

Question 31

Children believed to be dead

Answer 31

12) Children Believed to be Dead

a) No relief for child when T under mistaken belief that child was dead when will was executed UNLESS will states the mistake
and reasons why child is omitted (“I leave everything to X because my child is dead—otherwise my child would’ve gotten
everything”)

b) Exception: fraud in the inducement: constructive trust imposed
for the child believed to be dead

Question 32

Conduct Barring Party from Sharing Estate

a) intentional killing

Answer 32

a) Intentional Killing
i) Felonious and intentional killing of the decedent
ii) Killer cannot benefit from the killing by will, intestacy,
elective share, life insurance, contract or otherwise
iii) Property passes as if killer predeceased the decedent
iiii) Joint property: half passes to victim’s estate and half to killer
for life with remainder to victim’s estate
v) Acquittal is not controlling: “preponderance of the evidence”
standard

Question 33

Conduct Barring Party from Sharing Estate

b) desertion

Answer 33

Inheritance and elective share rights of spouse are forfeited if the spouse willfully and maliciously deserts or otherwise fails to support his or her spouse for a year or more

Question 34

Will Contests

a) Standing

Answer 34

i) Any person whose share would increase if the will were invalid
ii) Personal representative must defend
iii) If personal representative wants to challenge the will, he/she
must resign as representative

Question 35

Will Contests

b) Lack of Testamentary Capacity

Answer 35

i) Generally (Any of the following renders T incapacitated)
(1) T did not understand the nature of the act
(2) T did not know the nature and character of his property
(3) T did not know the natural objects of his bounty or
(4) T did not understand the disposition he wished to make

ii) Other Rules
(1) Capacity must relate to circumstances at time of execution
(2) Mere old age or physical frailty, sickness, failing memory,
etc. not sufficient for lack of capacity
(3) Adjudication of incompetency is not conclusive (apply the
factors above)

Question 36

Lack of Testamentary Capacity

d) Undue Influence:

Answer 36

i) General Rule: Burden of proof on contestants to show
(1) Existence and exertion of influence
(2) Effect is to overpower the mind and will of testator
(3) Result is a will that would not have been executed but for
the influence
ii) Presumption: Presumption of undue influence arises when
principal beneficiary under the will stands in the confidential
relationship to the testator (attorney-client etc.) draws up or
procures the execution of the will

Question 37

e) Forfeiture Clauses

Answer 37

i) Clause will not be enforced against claimant as long as
claimant had probable clause
ii) If claim is spurious, the clause will be enforced

Question 38

TRUSTS

1) Requirements

Answer 38

a) Trust: Trustee holds legal title to property for the benefit of the beneficiaries
i) No magic words required
ii) Cannot be wishes or desires

b) Res: subject matter of the trust.
Must be certain and identifiable trust property

c) Beneficiaries:

i) Private trust must have ascertainable beneficiaries
ii) Charitable trust need not have ascertainable beneficiaries
d) Trustee: must have one or more trustees
i) Trust does not fail for want of a trustee
ii) Court will appoint a trustee

Question 39

2) Revocable Trusts

Answer 39

a) Defined: Settlor reserves the right to revoke, alter, or amend trust
and obtain income from the trust during his lifetime
b) Rule: Revocable trusts are valid
c) Pour-Over Trust: IF the trust exists before or concurrently
executed with a will, the testamentary gift to the trust is upheld

Question 40

3) Ineffective Testamentary Trusts

Answer 40

a) Secret
i) Defined: Absolute devise with oral promise to hold on trust
ii) Oral evidence is admissible to show the existence of the trust
iii) If proven, constructive trust is imposed as equitable remedy
b) Semi-Secret
i) Defined: Devise “in trust” with oral agreement
ii) Resulting trust is created for the benefit of T’s heirs

Question 41

4) Charitable Trusts

Answer 41

a) Not subject to Rule Against Perpetuities or Rule Against
Accumulations
b) Must be for charitable purposes (education, medicine, religion,
science, government parks, etc.)
c) When specific purposes can no longer be accomplished, trust can
be reformed under cy pres doctrine (“as near as possible”). Look
at intent of settlor

Question 42

5) Spendthrift Trusts

Answer 42

a) Defined: Income interest in trust is interest in property
b) General Rule: Creditors cannot get trust property from
beneficiary
c) Exceptions
i) Alimony
ii) Child support
iii) Necessities have been provided by the creditors to the
beneficiary
iiii) Settlor is trust beneficiary

Question 43

Trust Administration

a) Self Dealing

Answer 43

i) Trustee cannot buy or sell trust assets to the trustee
ii) Trustee cannot borrow trust funds
iii) Trustee cannot sell assets from one trust to another
iiii) Corporate trustee cannot purchase its own stock as a trust
investment

Question 44

Trust Administration

b) Prudent Investor Rule:

Answer 44

b) Prudent Investor Rule:

Trustee must manage property as a
reasonably prudent person would
i) Keep trust productive
ii) Balance return with potential risk
iii) Maintain marketability
iiii) Diversify investments
v) No commingling
vi) Delegation: reasonable care in selecting agents for delegation
of duties

Question 45

Trusts

c) Liability for Breach:

Answer 45

Beneficiary can
i) Ratification: Ratify the transaction and waive the breach
ii) Surcharge: sue for the resulting loss
iii) Trace: in self-dealing cases, beneficiary can trace the profits
and recover the profits
iiii) NOTE: Each breach is judged separately

7) Termination
a) Most States
b) Pennsylvania
c) Settlor

Question 46

2008 July

• Lost will
• Can a photocopied will be admitted to probate where original was misplaced the will prior to his death?

Answer 46

Yes. The executed photocopy of George’s will should be admitted to probate if Melinda’s testimony is found credible to rebut the presumption that George destroyed the original document.

In order for the proponent of a missing will to overcome the presumption that the will was revoked or purposefully destroyed, the proponent must prove that “1) the testator duly and properly executed the original will; 2) the contents of the will were substantially as appears on the copy of the will presented for probate; and 3) when the testator died, the will remained undestroyed or revoked [sic] by him”