Not-Testamentary Dispostions Flashcards
Undelivered Deed
(1) A deed purporting to make a present transfer which is retained by the Grantor with instructions to be delivered on death, or is delivered to a third party with similar instructions (if the delivery to a third-party is revocable until death) is not an effective disposition.
(2) A deed delivered to a third party with irrevocable instructions that it be delivered to a grantee at the time of the grantor’s death is a valid grant of a remainder interest, reserving in the grantor a life estate.
Deed Effective on Death
A delivered deed construed to be effective only on the grantor’s death is not an effective transfer, but may be construed as a conveyance of a remainder interest, reserving a life estate in the grantor.
Deed Conveying All Property Owned at Death
Such a deed is invalid unless it is construed to convey a present interest, and as such can convey only the property owned by the grantor at the time the deed is executed.
Promise to be Performed at Death
A binding contract, performable at death, is effective if there is a present obligation (i.e. consideration).
Gift of a Check
If not negotiated or paid before death, whether or not made in contemplation of death or conditioned on both, a gift of a check is invalid.
Revocable Gifts
A revocable gift cannot be a valid inter vivos transfer, though such a gift could be sustainable if it is a gift causa mortis (i.e., one made in contemplation of possible death from a specific, immediate peril) and is revocable if the contemplated peril does not result in the donee’s death.
Joint Tenancy with Right of Survivorship
SC recognizes JTRS when the title document expressly includes a right of survivorship.
Smith v. Cutler: Wife conveyed 1/2 of her property interests to husband “for and during their joint lives and upon the death of either, to the survivor of them,” which was interpreted to vest each as tenants in common with indestructible rights of survivorship. The effect was that
the husband could not destroy the wife’s right of survivorship by demanding judicial partition because they were not joint tenants with right of survivorship.
Revocation by Operation of Law
(1) Marriage: a willl is not revoked by subsequent marriage of the testator, but the spouse is protected from inadvertent omission by being able to claim a share equal to the intestate share as an omitted spouse.
(2) Divorce: a divorce, annulment, or order terminating marital rights voids provisions in the will favoring the divorced spouse.
Testamentary gifts to such a spouse lapse and appointments of the former spouse are ineffective.
Revocation by subsequent writing of the testator
A will may be revoked in whole or in part by the execution of a subsequent will or codicil if:
(1) the writing revoking the will is executed with the formalities of execution of a will; AND
(2) the testator has testamentary capacity and intent to revoke; AND
(3) the subsequent writing expressly (by language stating intent to revoke) or impliedly (by making a gift that is irreconcilably inconsistent with the prior will) revokes the prior will; OR
(4) the instrument, executed like a will, states only that it revokes the testator’s will without replacing the will with new dispositions
Revocation by Physical Act of Testator
(1) Acts constituting revocation (combined with intent to revoke:
a. burning
b. tearing
c. canceling
d. obliterating
e. destroying
(2) Presumption of intent: if after the testator’s death, the will is found with erasures, cancellations, or significant tears, there is a rebuttable presumption that the testator revoked the will. Declarations of the testator are admissible on the issue of revocation.
(3) Missing will presumed revoked: If the testator was known to have his last will in his possession or had ready access to it, and it cannot be found on his death, it is rebuttably presumed that he destroyed, and thereby, revoked it. (If the presumption is overcome (i.e., a third party destroyed the will without the testator’s knowledge or consent), the will may be probated if its
contents can be proved.)
(4) No addition by subtraction: a partial revocation can only delete gifts and cannot add to any devise except the residuary.
(5) Duplicate wills: If the testator has executed duplicate wills and, with the intent to revoke, destroys one, both are revoked.
Act without Intent
The following activities cannot revoke a will because intent is lacking:
(1) a purported revocation by act or instrument when the testator lacks mental capacity;
(2) undue influence or fraud resulting in a purported revocation;
(3) accidental destruction of a will;
(4) unauthorized destruction by a person other than the testator;
(5) tentative markings intended to indicate changes to be made in a future will
Intent WIthout Act
The following manifestations of intent do not constitute a revocation:
(1) oral revocation
(2) unexecuted subsequent instrument
(3) destruction outside of testator’s presence
(4) subsequent instrument signed by testator but not executed with will formalities
Dependent Relatie Revocation
Dependent relative revocation
If the testator intended to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth.
Revival of a Revoked Will
(1) Presumption against revival: when a second will has revoked a first will, and the second will is revoked, the revocation of the second will does not revive the first will, except in limited circumstances:
a. Second will revoked by physical act: The revocation of a second will, where the second will would have revoked
the first had the second remained effective, revives the
first only if there is clear, cogent, and convincing
evidence of testator’s intent to revive the first will.
b. Second will revoked by third will: only revives the first
will to the extent that it appears from the terms of the
third will that the testator intended the first will to take
effect.
