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Flashcards in KS: Wills Deck (54):
1

Validity Requirements

*Must be 18 or over
*Must be in writing --KS does not give special breaks for holographic wills --must still have two witnesses if in testator's own handwriting
*Testator must sign will
*at end of will
*in presence of two witnesses
*who sign in testator's presence

2

Oral (nuncupative) Will validity:

Valid to dispose or personal property if: it is spoken during testator's last illness before at least one witness, it is reduced to writing within 30 days and the writing is then recognized by two competent witnesses
*But can't use oral will to modify a written one

3

T's signature

any mark will serve as signature if it is so intended

4

Signature at end of will

If portion of will follows the T's sig--
* Clause present at time of execution: will is totally invalid because of statutory noncompliance
*Clause added after execution: will is valid, clause is not

5

In presence of two witnesses
*Conscious Presence Test:

Witnesses are in the testator's presence if they are in the general awareness and cognizance of other parties-- they know where the other is and what the other is doing.

6

In presence of two witnesses
* Interested witness

Does not result in the denial of probate of a will, but the beneficiary-witness loses her legacy unless:
There were two disinterested attesting witnesses, or witness would be an heir if there were no will (heir takes lesser of amount given in will or intestate share).

7

Who sign in T's presence

KS does not require witnesses to sign in each other's presence-- just in T's presence.

8

Republication of a will

Will is treated as having been executed on the date of the the last validly executed codicil thereto, so republication by codicil cures defects in the execution of the will to which it relates

9

Kansas gives full faith and credit to wills that are valid where:

They are executed
Testator was domiciled at death
Testator was domiciled at execution

10

Proving Wills

Burden of proof is on proponents; if will has attestation clause, burden is shifted to contestants

11

Self-proved wills

If testator and witnesses sign a self-proving affidavit under oath before notary public; affidavit recites all elements of due execution and formalities of execution are presumed, will can be admitted to probate without the testimony of either witnesses.

12

Challenges to Wills: Undue influence

Requires existence and exertion of influence, effect to overpower the mind of the testator; and a will would not have been executed but for the influence

13

Challenges to Wills: Presumption of undue influence

arises upon a showing that principal beneficiary under the will who stands in a confidential relationship to the testator draws or procures the execution of the will that makes an unnatural disposition

14

Challenges to Wills: Fiduciary relationship

includes any relationship of blood, business, friendship, or association in which the testator places special trust in one who is in a position to exercise influence over the testator

15

Challenges to Wills: undue influence-- Mere pleading

Mere pleading or cajoling the testator does not amount to undue influence

16

Challenges to Wills: Standing

Any person whose share of the estate would increase were the contest successful has standing

17

Challenges to Wills-- Will Contest

Must be brought within one year after will being admitted to probate
- will must be admitted to probate within 6 months of T's death
- Beneficiary can petition for probate beyond the 6 month period if the will was intentionally and wrongfully withheld from probate for more than 6 months
- Petition must be filed within 90 days after the beneficiary learns of and has access to the will

18

Challenges to wills-- lack of capacity

burden to show capacity is on the proponents of the will
- T must understand the nature of the claims of the persons he wants to include/exclude
- T knew the nature and character of his property
- T knew the natural objects of his bounty
- T understood the disposition he wished to make
- appt of a guardian or adjudication of incompetency does not raise conclusive presumption of lack of capacity

19

Challenges to Wills -- insane delusion

Must be casual connection between delusion and will

20

Challenges to Wills-- No-contest clause

If clause is contested, gift will not be invalidated unless challenger had no probable cause to challenge the will

21

Incorporation by Reference
* To incorporate an extrinsic document:

Document must be in existence at time will was executed
Will must refer to writing as being in existence
Will must manifest an intention to incorporate the document
Will must describe the writing sufficiently to permit its identification
*KS allows will to refer to written statement or list that disposes of tangible personal property (other than money or property used in trade or business) not specifically disposed of by the will; the list must be dated an either signed by T or be T's handwriting and it must describe the property with reasonable certainty (can be written before or after will executed; may be altered at any time)

22

Intestate Succession
*Decedent survived by spouse:

If no descendants, spouse takes entire estate
If descendants, spouse takes 1/2 of estate

23

when there are descendants and spouse gets 1/2

Spouse gets family allowance, homestead/allowance in lieu of homestead in addition to share of estate under will or by intestacy-- rights take precedence over creditor's claims

24

Family Allowance:

clothes, library, pictures, musical instruments, furniture, household goods, and one car plus up to $50K of money or other property

25

Homestead:

home and 160 acres if outside city

26

Dower

spouse is entitled to 1/2 of all real property other spouse possessed during lifetime

27

Elective Share:

spouse is entitled to share in augmented estate; allows surviving spouse to renounce the decedent's will and instead take a percentage based on the length of the marriage of the augmented estate

28

Augmented estate

is reduced by family allowance and homestead/allowance in lieu of homestead
augmented estate includes the probate estate, any non probate transfer to the spouse and others, and any property owned by spouse at time of decedent's death
Faction of augmented estate is 3 times the years of the marriage, or $50K whichever is greater
Amount of augmented estate is reduced dollar for dollar by spouse's dower and value of property included in the augmented estate which passes to the spouse from the decedent and by a fraction of property already owned by the state

29

Decedent not survived by spouse

All to issue, if any
if no issue, to parents or surviving parent
if no issue or parents, half to mother's heirs and half to father's heirs
no inheritance beyond relationships in the 6th degree --escheats to the state

30

In KS

issue take per stirpes.

31

Probate estate does not include

property passing by right of survivorship
property passing by K-- life insurance, employee plan death benefits,
payable on death and transfer on death transfers
property held in trust, including a revocable trust
property over which the decedent had a power of appt

32

An heir or will beneficiary may disclaim his or her interest in a signed and acknowledged writing before

Before acceptance, and within 9 months after the latest of the decedent's death, the date the interest vests, or the disclaim ant's 21st birthday
anti-lapse statute can make the gift go to your kids

33

illegitimate children cannot inherit from transfers fathers unless:

acknowledgement of paternity or
adjudication of paternity before or after the father's death or
parents attempt to marry 300 days after birth or
genetic tests indicate a greater than 96% chance that he is the father

34

Advances

any lifetime gift to child, descendent or heir is presumed to be an advancement of his intestate share to be taken into account in distribution of the intestate's share
- satisfaction: lifetime gifts to a child are presumed to have been made in satisfaction of general or residuary gifts to the child in the T's will
- does not apply to gifts made before the execution oa will because the gift could not have been made with any intent to satisfy a legacy

35

Revocation by physical act requires

intent to revoke and a physical act --burning, tearing, canceling, obliterating
- act of revocation on one executed copy revokes all executed copies
- writing void on back of or in margin is NOT sufficient to revoke-- language must cross some of the language of the will
- must be on will itself or on executed copy--can't revoke a Xerox of will

36

Revocation by Proxy

must be at T's direction and in T's presence
*attorneys can be liable in malpractice for messing up client's will
KS DOES NOT allow for partial revocation by act, but can revoke a specific gift it the will is re-executed or republished by codicil.

37

Presumptions for revocation: Will in T's possession from time of execution until death and found in mutilated condition after death:

Presumed that T mutilated with intent to revoke

38

Presumptions for revocation: Will last seen in T's possession and control not found after T's death

Reason it can't be found is because T destroyed it with intent to revoke

39

Lost Will Statute

contents must be clearly and distinctly proved, usually by a copy or through testimony of two people who read the will

40

Codicils and later wills

Where codicil makes no reference to will but contains slight inconsistencies, the will and codicil are read together to the extent possible--but the later document controls on any inconsistent provisions, and thereby revokes the inconsistency in the prior will
- A second will is treated as a codicil to the first when the second will does not expressly revoke the first
- Revocation of a will revokes all codicils thereto, but revocation of a codicil to a will not automatically revoke the will--it is presumed that the T intended his will as originally executed

41

Divorce

Divorce following a will revokes all provisions in favor of the ex-spouse; marriage alone has no effect on an earlier will---marriage plus the birth of a child will revoke the entire earlier will

42

Doctrine of relative revocation

allows disregard of revocation based on , induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T would never have made the revocation
- court compares the consequences of undoing will to revocation with not undoing it to determine if doctrine should be applied
the later, revoked will, will be revived

43

Lapse, Ademption, Exoneration of liens
* When beneficiary named in the will dies before or within 120 hours of T,

The gift laps (fails and passes to residuary beneficiary)
- Unless it is saved by an anti-lapse statute

44

Anti-lapse statute

Applies when the predeceasing beneficiary is the spouse, descendant or other 6th degree relative of the T who leaves issue (children or GC)--issue split under the will as substitutes for beneficiary
*when there is a gift by will to a group of persons generically described as a class and some class members predecease the T and the lapse statute does not apply, the surviving class members takes types of gift

45

Specific devise or bequest

my care or blackacre (eg.)
- specific devisee is entitled to a general legacy equal to the amount of any of the sales proceeds that were not expended for T's care
Insurance payment collected after T's death is payable to specific devisee if gift is stolen or destroyed
Specific devisee of securities is entitled to shares of another entity acquired by merger, consolidation, reorganization or similar corporate initiated activity.

46

Demonstrative legacy

hybrid of general legacy and funding instructions--"the sum of $5000 to be paid out of stock of the proceeds of the sale of my ACME stock"
- ademption does not apply

47

general legacy

gift of pecuniary amount

48

residuary bequest

rest, residue, and remainder

49

intestate property

when there is partial intestacy for some reason--all of the residuary beneficiaries predecease the T and the anti-lapse statute does not apply

50

Order of Abatement

Intestate property
Residuary bequest
General legacy
demonstrative legacy
specific bequest

51

Ambiguities and mistakes

extrinsic evidence is not admissible if there is no ambiguity in the will
It is admissible if there is a LATENT ambiguity
Court will not fill in the blanks

52

Administration of Wills

Administrator must publish notice of administration advising all creditors to present claims within 4 months --all claims are barred after 4 months
Exceptions:
- known or reasonably discovered creditors: must send actual notice
- claims by secured creditors: may still proceed against security interest
- claims for costs of administration
- federal claims and claims by state taxing authorities

53

Creditors are paid in order of:

Reasonable and necessary funeral expenses and claims for reimbursement by Medicaid; administration expenses and expenses of last illness; judgments against decedent; all other claims paid pro rata

54

Right of retainer

personal representative may deduct any amount due the decedent from an heir, legatee or devisee's share of the estate; amounts may be deducted even for debts barred by SoL and applies even when the debtor predeceases the decedent and the anti-lapse statutes applies to substitute the debtor's issue into the decedent's will