MEE

Question 1

All decedent’s descendants are also descendants of surviving spouse and surviving spouse has no descendants

Answer 1

Surviving spouse takes entire estate

Question 2

No descendants of D survives D but D has surviving parent

Answer 2

Surviving spouse takes $300,000 and 75%

Question 3

All of D’s issue are also issue of SS and SS has other issue

Answer 3

SS takes $225,000 and 50%

Question 4

D has issue not related to SS

Answer 4

SS takes $150,000 and 50% of the remainder of the estate

Question 5

Posthumously-born children

Answer 5

The child is the child of the deceased husband if the child is born within 280 days of his death

Question 6

Equitable adoption

Answer 6

Either: (1) a relationship started during the child’s minority and established by clear and convincing evidence that a legal barrier prevented adoption; or (2) a foster parent agreed with the genetic parents to adopt the child and the foster parent treated the child as his own

Question 7

Children born out of wedlock

Answer 7

Cannot inherit from natural father unless (1) father subsequently married natural mother; (2) father held child out as his own and lived with the child or provided support; (3) paternity is proven by clear and convincing evidence after the father’s death; or (4) paternity is adjudicated during the father’s lifetime by a preponderance of the evidence

Question 8

Per capita with representation

Answer 8

Property is divided equally among the first generation with at least one living member; share of a non-living member of that generation passes to the living issue os the member

Question 9

Per stirpes

Answer 9

Issue equally share the portion the deceased ancestor would have taken if living

Question 10

Per capita at each generation

Answer 10

Property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue

Question 11

Valid will requirements

Answer 11

(1) Writing signed by the testator; (2) two or more witnesses; and (3) testator has present testamentary intent

Question 12

Meaning of “signed by testator”

Answer 12

Some states require signature at end; others say anywhere is valid but portion after signature is invalid; don’t need formal name; someone else may sign for testator if in testator’s presence and at testator’s direction

Question 13

Testator’s capacity

Answer 13

At least 18 and of sound mind; T knows: nature and extent of her property; persons who are the natural objects of testator’s bounty; disposition she was trying to make; and testamentary plan

Question 14

UPC witness signing

Answer 14

Must sign within a reasonable time after witnessing testator sign or acknowledge the will

Question 15

Presence - Line of sight (traditional) test

Answer 15

Testator and witnesses see (or have opportunity to see) each other sign the will

Question 16

Presence - Conscious-presence (modern) test

Answer 16

Testator and witness must be aware through any sense that each is signing the will

Question 17

Interested witness (common law)

Answer 17

An interested witness is not competent as a witness; the will is invalid unless there are at least two disinterested witnesses

Question 18

Interested witness (purge theory)

Answer 18

A gift to witness is denied to the extent of the amount in excess of W’s intestate rights

Question 19

Compliance

Answer 19

UPC - Substantial compliance

Common law - strict compliance

Question 20

Holographic will

Answer 20

Handwritten documents; must be signed by T; witnesses not required; date required in some states; testamentary intent; handwritten changes after will completed are effective

Question 21

Codicil (execution)

Answer 21

The same formalities as for a will must be observed’ changes or additions to a will

Question 22

Codicil (effect)

Answer 22

Republishes the will as of the date the codicil was executed; may validate an invalid will

Question 23

Revocation - Subsequent instrument

Answer 23

Revocation - prior to T’s death

can be express or implied by the terms of a subsequent instrument; later document controls when there are inconsistencies

Question 24

Revocation - Destruction with intent to revoke

Answer 24

Burning, canceling, tearing, obliterating, or destroying a material portion of the will

Most states - requires defacement of some language of the will

Rebuttable presumption of revocation - when a will once known to exist cannot be found

Question 25

Third party revocation (destruction)

Answer 25

3rd party can revoke for T if done at T’s direction and in T’s conscious presence

Question 26

Revocation - Operation of law

Answer 26

Revokes will provisions for the former spouse unless contrary to T’s intent (UPC)

Question 27

Partial revocation

Answer 27

Permitted, but if a revoked gift falls outside of residuary, revocation is not given effect until re-execution or republication of will

Question 28

Alteration

Answer 28

T cannot increase a gift by cancelling words in the will, but can decrease a gift as long as the alteration is made to the existing language rather than through the addition of new language to the will

Question 29

Lost wills

Answer 29

Duplicate original is permitted

Burden on proponent - proof by clear and convincing evidence

Question 30

Revocation of codicils

Answer 30

Revives the will

Question 31

Republication (implied) - Common Law

Answer 31

Automatic revival of the original will upon revocation of a subsequent will; followed in just a few states

Question 32

Republication (implied) - UPC

Answer 32

Look for testator’s intent, based on (1) whether the second will is revoked by act or by a later will; and (2) if the second will is revoked by an act, whether the first will was wholly or partially revoked by that second will

Question 33

Republication (UPC) - Second will revoked by another new will

Answer 33

The previously revoked will is only revived if the terms of the new will show that T intended the previous will to take effect; no extrinsic evidence

Question 34

Republication (UPC) - Second will revoked by physical act

Answer 34

Extrinsic evidence permitted

Whole revocation - presumption that T did not intend to revive the first will; burden on the proponent of the first will

Partial Revocation - presumption that T intended to revive the revoked parts of the previous will; burden on the challenger of the first will

Question 35

Dependent Relative Revocation (DRR)

Answer 35

T’s revocation of the will is disregard if it was based on a mistake of law or fact and would not have been done but for that mistake

Question 36

Joint will

Answer 36

A single instrument that serves as the will of more that one person

Does not by itself create a presumption of a contract not to revoke

Question 37

Reciprocal will

Answer 37

Identical or reciprocal provision in separate wills

Does not by itself create a presumption of a contract not to revoke

Question 38

Contract not to revoke

Answer 38

If evidence establishes the contract becomes irrevocable upon death of first party; a constructive trust is imposed on property transferred by the second party in violation of the contract

Question 39

Specific gifts

Answer 39

Property distinguished with reasonable accuracy from T’s other property

Question 40

General gifts

Answer 40

Property to be satisfied from general estate assets

Question 41

Demonstrative gifts

Answer 41

Property to come from a particular source

Question 42

Residuary gifts

Answer 42

Property remaining after all specific, general, and demonstrative gifts are made

Question 43

Incorporation by reference

Answer 43

Another writing not executed with testamentary formalities may dictate the distribution of T’s property if it:

(i) existed at time of execution of the will;
(ii) is intended to be incorporated; and
(iii) is described in the will with sufficient certainty to permit identification

Question 44

Acts of independence significance

Answer 44

Designation of a beneficiary or disposition by reference to some unattested act or event occurring before or after the execution of the will or T’s death if the act or event has some significance apart from the will

Question 45

Lapse

Answer 45

If the beneficiary dies before T, the gift lapses and passes to the residuary beneficiary, or if none, via intestacy

Question 46

Anti-lapse statute

Answer 46

If the beneficiary was T’s relative and left issue, then the issue succeeds to the beneficiary’s gift

Question 47

Residuary lapse (CL & UPC)

Answer 47

CL - lapsed residuary interest passes by intestacy

UPC - a lapsed residuary interest passes to the remaining residuary beneficiaries

Question 48

Void gifts

Answer 48

Gift to a beneficiary, who unbeknownst to T, is already deceased when the will was executed

Anti-lapse statute also applies to void gift