Other Flashcards
(14 cards)
What does it mean that a party who caused the death of another cannot recover under a will?
In most states and the UPC, a party who feloniously and intentionally kills T is not entitled to any benefit from decedent’s estate by will or intestacy, under life insurance or otherwise. Property passes as if the killer predeceased decedent.
Will acquital at criminal law allow the killer of T to take under the will?
No. Standard is preponderance of the evidence in a civil trial instead.
Is someone named and bequested items in a will required to take it?
No. They can renunciate their interest but they must do so before acceptance and will be treated as if a party predeceased decedent.
What is a living will?
A statement of an adult individual’s desires with respect to life-sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment when the individual becomes terminally ill or is in a persistent vegetative state.
How to execute a living will and how to revoke a living will?
Execute: In writing, signed by an adult T or by another at his direction. Most states require witnesses but not all.
Revocation: Any manifestation of intent to revoke at any time before death without regard to principals mental or physical state.
What is the Durable Healthcare power?
A durable healthcare power is used by one person to appoint an agent to make healthcare decisions for the principal such as giving consent to medical treatment, accessing principal’s medical records, and admitting or discharging principal from a healthcare facility.
How is a Durable Healthcare power executed and revoked?
Execution: In writing, signed by adult principal or another at his direction, and by two adult witnesses.
Revoke: by written or oral notice of revocation to either the agent or the principal’s healthcare provider. Can also be revoked by executing a new durable healthcare power.
What is required to have standing to contest a will?
Any person who would take more as heir if there were no will or as beneficiary under a prior will.
What is required to prove lack of testamentary capacity?
Burden of proof is on the contestants.
The Test is:
1. Did T understand the nature of the act he was doing?
2. Did T know the nature and character of his property?
3. Did T know the natural objects of his bounty?
4. Did T understand the disposition he wished to make?
Will old age, physical frailty, sickness, failing memory and other similar circumstances be enough to negate a will?
No.
Would T previously being declared incompetent and having a guardian appointed be enough to negate a will?
This is evidence of lack of capacity but it does not raise a conclusive presumption because the test for establishing incompetency to establish a guardian is not the same as the four step test to determine if T had testamentary capacity.
What is an insane delusion?
A distinctive form of testamentary incapacity: where T is otherwise sane, but the will is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, and where the will is the product of the insane delusion.
What is the test for determining whether there was undue influence in the making of the will?
Burden of proof is on contestants, who must show:
1. Existence and exertion of the influence;
2. Effect is to overpower the mind and will of the testator;
3. The result is a will that would not have been executed but for the influence.
Influence is not undue unless the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator but of the one exerting the influence.
Hypo: Will includes this clause: “Any person who contests this will shall forfeit his legacy.” A son, who was left only $10,000 in the will, claims that the testator lacked capacity and that the will was the product of undue influence. What is the effect of this clause (sometimes called “in terrorem”) on the Son’s claim?
If the son contests and wins, then for public policy reasons, there is no problem. It is struck and the clause is void.
However, if the son contests and loses, then it depends. If the son had probable cause for bringing the contest, then it will not be enforced and the son can still receive the $10,000. If, however, the son did not have probable cause to bring the suit, then it will be enforced and the son will get nothing.
