Elective share statute- right of renunciation/ Will contests

Question 1

is an renunciation automatic

Answer 1

NO. first must

1) renounce will then
2) file for elective share

Question 2

in IL what is a spouses share if decedent was survived by descendants

Answer 2

1/3

Question 3

in IL what is a spouses share if decedent was not survived by descendants

Answer 3

1/2

Question 4

compare spouses share if person died intestate

Answer 4

spouse gets 1/2 if decedents or

ALL if no decendants

Question 5

time frame spouse must file notice of election of renunciation

Answer 5

7 months

Question 6

who may make the election of renunciation

Answer 6

anyone on behalf of incapcacited spouse with COURT APPROVAL

-but if spouse dies before an election is made, not made

Question 7

under the UPC does the right of renunciation apply to trusts etc

Answer 7

YES.
- elective share applies to the AUGMENTED ESTATE, which includes lifetime transfers in which the grantr retained the power to revoke, or to invade, consume or dispose of principal

Question 8

does IL include non-probate transfers of spouses right of election

Answer 8

NO

• does not apply to non-probate transfers
• so could set up trust and put all assets in trust to disinherit wife essentially

Question 9

what does the T have to have for sufficient capacity to make will

Answer 9

1) understand the nature of the act he doing (executing will)
2) know the nature and approximate value of his property
3) know the natural objects of his bounty
4) understand the disposition he was making

Question 10

who has the burden during a will contest

Answer 10

the person making the will contestants

Question 11

are mere facts that T was old, frail, or drank a lot or had memory lapses enough to attack lack of testamentary capacity

Answer 11

no

Question 12

if a person is adjudicated of incapacity does that mean they cannot make will

Answer 12

NO

• different legal tests
• jury could find that T signed in lucid interval

Question 13

undue influence factors

Answer 13

controlled by dominant influence over power

1) EXISTENCE and exertion of the influence
2) EFFECT of which was to overpower the mind and will of T
3) PRODUCT is a will (or gift) that would not have been made but fore the influence

Question 14

is evidence of opportunity, susceptibility or unnatural disposition enough to show undue influence

Answer 14

NO

1) opprotnity: mere fact 1 kid lived next doro
2) susceptibility: mere fact T was very old in bad health
3) unnatural disposition:

Question 15

what if a person is in confidential or fiduciary relationship with P

Answer 15

where confidential or fiduciary relationship was active in procuring the will, that person will receive a substantial benefit under the will, there is a
PRESUMPTION OF UNDUE influence that can be overcome by CLEAR AND CONVINCING EVIDENCE

Question 16

what is the rule for no-contest clauses in the majority

Answer 16

1) lose right if lose

X/C: had PROBABLE CAUSE FOR THE CONTEST

Question 17

what is the rule for no-contest clauses in IL

Answer 17

ALWAYS FORFEIT even if probable cause, and lose.

Question 18

typical statutory order of preference for appointment of a personal representative

Answer 18

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

Question 19

does a prenupital agreement waive a spouses right for voluntary gifts

Answer 19

NO. waiver does not apply to voluntary gifts or bequests.

- ex: if valid prenup but later included in will, prenup does not bar the will.

Question 20

Fraud inducement

Answer 20

when the T intends to execute the instrument of will and to include particular contents of that instrument, but fraudulently induced into making THIS will, or some particular gift therein, by misrepresentations as to facts which influence their motivation

Question 21

Fraud in the execution

Answer 21

when there is a misrepresentation as to the nature of the contents of the instrument (not know executing will)

Question 22

does fraud invalidate a will

Answer 22

YES, but ONLY IF the T was in fact deceived by and acted in reliance on the misrepresentation (ie the T would not have made the will or gift had he known of the true facts)

Question 23

what does finding of fraud require

Answer 23

showing that

1) the T has been willfully deceived as to the character or content of an instrument
2) as to extrinsic facts that would induce the will or a particular disposition OR
3) with respect to facts material to a disposition