Quiz #1

Question 1

Testamentary Freedom

Answer 1

Testators (people who make wills) and settlors (people who make trusts) enjoy the “nearly unrestricted right to dispose of their property as they please”
Dispositional Control: The Privilege of Saying who gets your property and how much they get. The main function of the law is to facilitate rather than regulate.
Rule Against Perpetuities: Prevents settlors from creating interests that remain contingent for too long in the future.

Question 2

Probate Court

Answer 2

Courts of limited jurisdiction (varies by jurisdiction), generally empowered to determine the validity of a decedent’s will, to appoint a personal representative, to settle some disputes and to accept the final report from the personal representative when the process ends.

Question 3

Net Probate Estate

Answer 3

The probate estate after deduction for family, exempt property, and homestead allowances, claims against the estate, taxes for which the estate is liable.

Question 4

Informal Probate

Answer 4

As long as no one objects to informal probate, personal representatives perform their duties without court supervision. If there is a will contest or a dispute about the management of the descendant’s property, the case must go through formal probate.

Question 5

Formal Probate

Answer 5

Court supervises the administration of the estate. The larger the estate and the greater the # of interested parties, the greater the chances it will lead to formal probate.

Question 6

Determination of Death

Answer 6

A person is declared dead as a matter of law upon sustaining irreversible cessation of all circulatory and respiratory functions.
There is a presumptive declaration of death following a prolonged absence (typically 5 years) or exposure to a catastrophic event.

Question 7

Incapacity & Planning for Death

Answer 7

2 Types of Advance Treatment Directives:

1) Instruction
2) Proxy Directives

Members of the patient’s family authorized to act as surrogate:
The Spouse (unless legally separated)
An adult child
A parent
An adult brother or sister

3 Possible ways of managing property on behalf of incapacitated persons:

1) Conservatorships (Britney Spears)
2) Durable Power of Attorney
3) Trusts

Question 8

Digital Assets

Answer 8

Congress passed the Stored Communications Act of 1986 to extend the 4th amendment style protections to the physical world into cyberspace.
Lawful consent to access digital assets: will/trust/other record
Revised Fiduciary Access to Digital Assets Act (adopted in Wa & 40 other states)

Question 9

Disposition of Final Remains

Answer 9

Common Law: No property interest in your body after death
Williams v. Williams: “There can be no property in a dead body”
Today: Law is more likely to enforce the decedent’s preferences

Question 10

The Slayer Rule

Answer 10

Seeks to prevent killers from inheriting from their victims
The killer may not serve in a fiduciary capacity
Slayer status predicated upon felonious and intentional killing
Possible to be exonerated in criminal court but still stripped of inheritance rights in probate court (lesser evidentiary standard)
Some courts extend the rule to indirect beneficiaries

Question 11

Disclaimers

Answer 11

May refuse to inherit
A person who disclaims is treated as having predeceased the decedent for purposes of distributing the decedent’s estate.
Relation-Back Doctrine: A valid disclaimer “relates back” to immediately before the decedent’s death, meaning that the disclaimant never gained possession of the disclaimed property.
Once an individual makes a valid disclaimer, the disclaimer becomes irrevocable
Disclaimers are not always effective, for example, a disclaimer by an insolvent heir may be considered fraudulent.

Question 12

Intestate Definition

Answer 12

Without a Valid Will

UPC: Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs.
Most Americans die without making a will (roughly 65%)
Intestate succession applicable only to decedent’s probate property
In most states intestate estate distributed in the following order:
Surviving Spouse
Descendants
Parents
Descendants of Parents
Grandparents
Descendants of Grandparents
Step Children/Step-grandchildren
Intestacy is structurally unsuitable for non traditional families
Guardianship issues are important considerations for parents with minor children

Question 13

Collateral Relatives

Answer 13

Descendants of a decedent’s ancestor.

1st line collaterals: Descendants of the decedent’s parents
2nd line collaterals: Descendants of the decedent’s grandparents

Question 14

Laughing Heirs

Answer 14

Relatives so distant they likely never knew the decedent and are likely to laugh at a “windfall” inheritance.

Question 15

Escheat

Answer 15

If there are no takers under the UPC, the intestate estate passes to the state.

Question 16

English Per Stirpes

Answer 16

Emphasizes equality if distribution among the decedent’s children, dead or alive. It does not matter that some predeceased children produced more descendants than others, the stock of each child of the decedent receives the same allocation.

Question 17

Modern Per Stirpes (UPC 1969)

Answer 17

Similar to English with one key difference, division into shares occurs in the 1st generation below the decedent in which there is at least one living individual. This treats the nearest generation with a living relative as the baseline for dividing the estate among the stocks.

Question 18

Per Capita at Each Generation (UPC 1990)

Answer 18

Emphasizes horizontal equality by giving the same share to each member of the same generation.

“Equally near, equally dear”

Question 19

Half-Blood

Answer 19

In some jurisdictions (Like Florida & Missouri), a relative by half-blood only inherits half the amount of a relative by full-blood.

UPC: Relatives of half-blood inherit the same share they would inherit if they were the whole blood.

Question 20

Adoption (UPC)

Answer 20

(A) Same rule applies to child and adult adoption.
–UPC § 2-116: “[I]f a parent-child relationship exists or is established under this [subpart], the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession.”
(B) Creates inheritance rights between adoptee and adoptive family.
–UPC § 2-118(a): “A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parents.”
(C) Severs inheritance rights between adoptee and genetic family.
–UPC § 2-119(a): “Except as otherwise provided . . . , a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.”
(D) Adoptee retains inheritance rights with genetic family where:
–Adopted by a stepparent (UPC § 2-119(b))
–Adopted by a relative of a genetic parent (UPC § 2-119(c))
–Adopted after death of both genetic parents (UPC § 2-119(d))
–Adopted by functional parent following assisted reproduction (UPC § 2-119(e))

Question 21

Advancements (UPC & Common Law)

Answer 21

Common Law: Presumed to be advancements but could be rebutted by evidence to the contrary

UPC: Reverses the Common law presumption. Inter vivos gifts are NOT usually considered advancements.

UPC 2-502: Requires a reasonably permanent record
Generally electronic communications are not considered unless printed (depending on the jurisdiction)

UPC 2-109(c): If donee predeceases the donor, ignore advancement and distribute the property as you would have without the advancement (does not bar inheritance from donee’s child)

Question 22

Intestate Succession (Order)

Answer 22

Surviving spouse•
Descendants•
Parents•
Grandparents•
Descendants of deceased spouse•
Escheat

Question 23

Intestate Succession:
Surviving Spouse’s Share
No Parents Survive

Answer 23

2-102(1)(A)-(B)–Decedent’s surviving spouse will take ALL of decedent’s intestate estate if:
-No parent or descendant survives the decedent OR
-All descendants of decedent that survive decedent are also descendants of the surviving spouse
AND
surviving spouse has no descendant that survives decedent.

Question 24

Intestate Succession:
Surviving Spouse’s Share
Parents Survive
No Descendant

Answer 24

2-102(2)–When decedent is survived by a spouse AND a parent but no descendant
the spouse gets the first $300,000 + ¾ of the intestate estate balance.

Question 25

Intestate Succession: Surviving Spouse's Share Survived by Spouse AND Descendants (both shared and exclusive to surviving spouse)

Answer 25

2-102(3)–When decedent is survived by a spouse AND descendants that are descendants of the surviving spouse, but descendants exclusive to the surviving spouse also survive the decedent =the surviving spouse takes the first $225,000 + ½ of the balance of decedent’s intestate estate.

Question 26

Intestate Succession: Surviving Spouse's Share Survived by Spouse AND 1+ Descendants (Not descendants of surviving spouse)

Answer 26

2-102(4)–When the decedent is survived by a spouse AND one or more of the decedent’s surviving descendants ARE NOT descendants of the spouse = the spouse takes the first $150,000 + ½ of the balance of decedent’s intestate estate.

Question 27

UPC 2-103 Share of Heirs Other than Surviving Spouse

Answer 27

(a) Any part of the intestate estate not passing to a decedent's surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent: (1) to the decedent's descendants by representation; (2) if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent if only one survives; (3) if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation; (4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents: (A) half to the decedent's paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and (B) half to the decedent's maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent's maternal grandparents or either of them if both are deceased, the descendants taking by representation;(5) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent's relatives on the side with one or more surviving members in the manner described in paragraph (4).(b) If there is no taker under subsection (a), but the decedent has:(1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse's descendants by representation; or(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.18

Question 28

Will Requirements

Answer 28

1)Testamentary intent 2) Testamentary capacity - 18 or more years old and Sound Mind (UPC 2-501) 3)Compliance with testamentary formalities(2-502)

Question 29

3 Dimensions of Testamentary Intent

Answer 29

–Donative testamentary intent: whether the will expresses an intent to make gifts that become effective upon decedent's death –Operative testamentary intent: Whether the decedent intended a document that expresses donative intent to become legally effective –Substantive testamentary intent: Interpretation of the testamentary language expressed in the decedent's will

Question 30

Testamentary Capacity

Answer 30

Sound mind = simultaneously understand in a “general way” 1.The nature and extent of the property Does not require exhaustive inventory Requires an understanding of property ownership 2.The testator's relation to those who would naturally claim a substantial benefit from his will, AND Not limited to heirs, but includes those individuals or entities that T would naturally favor in a devise; those that shared close relationships with T 3.Practical effect of the will as executed

Question 31

Ascertaining Testamentary Capacity

Answer 31

Prevailing rule–Contesting party bears burdens of production and persuasion that T lacked capacity Minority rule (NY and TX) –Will proponent bears burdens of production and persuasion as part of admitting will to probate

Question 32

Testamentary Capacity

Answer 32

Timing–“Sound mind” is relevant at time of will’s execution, not before or after Admissible evidence –Court will admit extrinsic evidence to evaluate capacity, including evidence from subscribing witnesses to the will and medical personnel Relatively low bar Adjudication of mental incapacity is not dispositive of testamentary capacity; nor is mental weakness, old age, physical weakness, alcohol, drug abuse, eccentricity, penuriousness (extreme frugality), passion, or prejudice– Relevant question is was testamentary capacity present at the time of the will’s execution

Question 33

Testamentary Capacity: Lucid Intervals

Answer 33

A person suffering from diminished capacity can nevertheless make a will if executed during a “lucid interval.” –In some states such as New Jersey, the lucid interval doctrine does not apply to an individual who has been adjudicated incompetent by court order. “A testator needs only a lucid interval of capacity to execute a valid will, and this interval can occur contemporaneously with an ongoing diagnosis of mental illness, including depression or progressive dementia. [O]ld age and physical weakness are not necessarily inconsistent with testamentary capacity.”

Question 34

Testamentary Capacity: Insane Delusion

Answer 34

T believes a fact regarding a person who is a natural object of T’s bounty is true, when it is false; –Note that religious beliefs are not “facts” that can trigger an invalid shift in devise or devise T’s wrong belief is irrational —no credible evidence exists to support T’s belief;•Yet T is unwavering in his belief; and T’s belief in fact’s veracity causes T to make a devise T would not have made otherwise

Question 35

Circumstantial Evidence Undue Influence

Answer 35

Absent direct evidence of undue influence, circumstantial evidence is sufficient to raise an inference of undue influence if the contestant proves: –Testator was susceptible to undue influence; –The alleged wrongdoer had an opportunity to exert undue influence; –The alleged wrongdoer intended to exert undue influence; and –The alleged wrongdoer appears to have caused testator to make a devise testator would not have otherwise made.

Question 36

Undue Influence Susceptibility

Answer 36

``` T’s susceptibility –Age –Financial and/or business experience –Intelligence –Physical, mental, emotional health –Proximity of natural objects of bounty ```

Question 37

Undue Influence: Opportunity

Answer 37

•Opportunity to exert undue influence –Confidential relationship exists •Fiduciary relationships generally presumptively confidential because the agent has a settled legal obligation not to abuse the principal’s trust. •Reliant relationships and dominant-subservient relationships are confidential when the facts show that the testator placed special trust or was subservient to the alleged wrongdoer.

Question 38

Undue Influence: Intent

Answer 38

The alleged wrongdoer intended to exert undue influenced –Restatement does not elaborate on this element –Suspicious circumstances support an inference that wrongdoer intended to unduly influence T.

Question 39

Duress

Answer 39

``` Duress Elements and Proof •Arises when actor unlawfully threatens T with harm •Elements Unlawful threat of harm -Use of violence -Threats to T or T’s family -Withholding of food or medicine ``` T makes devise in will that he would not have made but for threat of harm * Proven with same types of proof noted above on undue influence * Evidence must be clear and convincing

Question 40

Fraud Elements

Answer 40

1) Wrongdoer knowingly or recklessly makes a false representation of material fact –Failure to disclose is not a false representation, unless Wrongdoer is in a confidential relationship with T 2) Wrongdoer intends representation to lead T to make a devise T would not otherwise make 3) T reasonably believes representation 4) But for the representation, T would not have devised his property as he did

Question 41

Fraud (Forms)

Answer 41

•Inducement –Actor’s lie concerns a matter that induces T to devise property in a certain way –Representation includes concealing facts or not disclosing facts •Execution (or factum) –Actor’s lie concerns the execution of the document itself Substituted document Substituted sheet within document

Question 42

Remedies: Fraud/Duress/Undue Influence

Answer 42

Remedies Fraud, Duress, mistake, and undue influence that taint the execution of will –Render will void; or –Render portion of will void •Fraud, Duress, mistake, and undue influence that taint the revocation of will –Render revocation of will void; or –Render revocation of portion of will void •Equity –Constructive trust –Restitution

Question 43

General Requirements for Revocation

Answer 43

``` T must have (1) Capacity to revoke - Capacity—not specifically addressed in the statute, but case law provides that same capacity needed for testamentary intent is needed for revocation - Sound mind The nature and extent of the property; The testator's relation to those who would naturally claim a substantial benefit from his will; AND Practical effect of the will revocation (2) Intent to revoke Intent is to destroy the will for the purpose of terminating the testamentary scheme in the will Concurrence of intent and act necessary (3) Legally effective revocation - Writing Express Implied - Act ```

Question 44

Impact of Revocation

Answer 44

``` Revoked will (or will provision) not admitted to probate Unless an exception applies, revoked probate property falls to -Default taker; if none, then to -Residue; if none, then to -Intestate succession Exceptions - Revival - Dependent Relative Revocation ``` * *Absent a showing of testator’s intent to the contrary - When a testator wholly revokes a will, testator revokes all codicils to the will. - When a testator revokes a codicil to the will, the will, absent the codicil, remains in effect.

Question 45

Attest

Answer 45

to authenticate by signing as a witness

Question 46

Revocation by Subsequent Writing UPC 2-507(a)(1) *Express revocation

Answer 46

Will or any part of a will is revoked - Execution of a subsequent will that revokes previous will * Expressly * “I hereby revoke all prior wills.” * “This will revokes any previous will.” * Unclear---“This is my last will and testament”

Question 47

Revocation by Subsequent WritingUPC 2-507(a)(1); (b)-(d) | *Implied Revocation

Answer 47

Will or any part of a will is revoked - Execution of a subsequent will that revokes previous will * By implication - Wholly revoke/replace previous will * Subsequent writing makes a “complete disposition of testator’s estate” - Partially revoke/supplement previous will * Subsequent writing does not make a “complete disposition of testator’s estate”

Question 48

Subsequent writing wholly revokes a will when... | (UPC 2-507):

Answer 48

- Execution of a subsequent will that revokes previous will - Wholly revokes previous will if T intends subsequent will to replace previous will - Presume subsequent will to replace previous will when subsequent will completely distributes T’s probate estate - Overcome presumption with CCE - If not overcome, previous will wholly revoked and subsequent will operative

Question 49

Subsequent writing is a supplement when... | UPC 2-507

Answer 49

* Presume T intended subsequent will supplement rather than replace previous will when subsequent will does not make complete distribution of T’s probate estate - Overcome presumption with CCE - If not overcome, subsequent will revokes previous will ONLY to the extent that subsequent will is inconsistent with previous will

Question 50

Overview of UPC 2-507: Revocation

Answer 50

(a) authorizes revocation by either subsequent writing or physical act - (a)(1) speaks to subsequent writing - authorizes writings that expressly revoke or do so by implication - (a)(2) speaks to physical act - Authorizes a wide array of physical acts (b) -(d) addresses the impact of a subsequent writing that revokes a previous will by implication.

Question 51

Revocation by Subsequent Writing UPC 2-507(a)(1)

Answer 51

Will or any part of a will is revoked - Execution of a subsequent will that revokes previous will * Expressly * “I hereby revoke all prior wills.” * “This will revokes any previous will.” * Unclear---“This is my last will and testament”

Question 52

Will Formality: | Writing

Answer 52

Common Law: Hard copy essential Current UPC: “Reasonably permanent record”

Question 53

Will Formality: | Writing-T's Signature or Subscription

Answer 53

Common Law: Signature = any symbol T can generate, besides electronic signature, that signals T’s intent to sign the document Current UPC: Same

Question 54

Will Formality: | Writing-Proxy

Answer 54

Common Law: Proxy ok as long as in T’s presence and at T’s direction Majority: presence = conscious presence test—T must be aware that another is signing on T’s behalf Minority: presence = scope of vision test—T must be able to see proxy sign Current UPC: Same; proxy OK. Applies the conscious presence test: T must be aware that another is signing on his behalf; awareness derived from any of T’s operational senses

Question 55

Will Formality: | Writing-Location of T’s signature or subscription

Answer 55

Common Law: Majority: Does not matter where T signs, beginning, middle, or end Minority: Subscription (T must sign at end) Current UPC: Follows majority: T may sign anywhere on document

Question 56

Will Formality: | Writing- Testimonium

Answer 56

Common Law: Not required, but good practice Current UPC: Same

Question 57

Will Formality: | Number of Witnesses

Answer 57

Common Law: 2 competent witnesses Current UPC: 2 competent witnesses OR notary

Question 58

Will Formality: | Location of T’s signature or subscription

Answer 58

Common Law: Majority: Does not matter where T signs, beginning, middle, or end Minority: Subscription (T must sign at end) Current UPC: Follows majority: T may sign anywhere on document

Question 59

Will Formality: | Testimonium

Answer 59

Common Law: Not required, but good practice Current UPC: Same

Question 60

Subsequent writing wholly revokes a will when (UPC 2-507):

Answer 60

- Execution of a subsequent will that revokes previous will - Wholly revokes previous will if T intends subsequent will to replace previous will - Presume subsequent will to replace previous will when subsequent will completely distributes T’s probate estate - Overcome presumption with CCE - If not overcome, previous will wholly revoked and subsequent will operative

Question 61

Subsequent writing is a supplement when... | UPC 2-507

Answer 61

* Presume T intended subsequent will supplement rather than replace previous will when subsequent will does not make complete distribution of T’s probate estate - Overcome presumption with CCE - If not overcome, subsequent will revokes previous will ONLY to the extent that subsequent will is inconsistent with previous will

Question 62

Will Formality: | Witnesses- Legal Capacity

Answer 62

Common Law: Legal capacity = minors ok if competent Current UPC: Silent

Question 63

Will Formality: | Witnesses-Attestation Capacity

Answer 63

Common Law: Understand significance of oath to tell truth Be able to distinguish fact from fiction Current UPC: Silent

Question 64

Will Formality: | Witnesses- Attestational Intent

Answer 64

``` Common Law: W must witness: T sign will; T acknowledge T’s signature; OR T acknowledge that the document is T’s will ``` Current UPC: Same

Question 65

Will Formality: | Witnesses-Publication

Answer 65

Common Law: Majority: T need not publish (declare instrument as will) to Ws. Thus, Ws need not know they are “witnessing” a will Minority: T must publish will Current UPC: Follows Majority

Question 66

Revocation by Physical Act | UPC 2-507(a)(2)

Answer 66

- T may revoke his will or codicil by * Burning, tearing, canceling, obliterating, or destroying it * Burn, tear, or cancel is effective even if burn, tear, or cancellation does not touch any words on the will. * May be partial or total * At common law, minority of jurisdictions do not allow partial revocation by physical acts * WA severely limits partial physical act revocations - Proxy revocation is legal if done in T’s conscious presence and at T’s direction

Question 67

Analytic Framework for Revocation

Answer 67

(1) Revocation effective? (2) Partial or total revocation? - If partial, distribute property pursuant to will and in light of portions revoked * Consider whether codicil present; if so, incorporate changes into document - If total, treat will as void, absent application of revival or dependent relative revocation

Question 68

Lost Will Presumption

Answer 68

Would a court presume T revoked T’s will when.... * Original will, last seen in T’s possession, is not found at T’s death. - Yes, presume revoked. Jurisdictions split on whether preponderance or CCE is needed to overcome presumption. - Restatement uses preponderance standard - Multiple original wills are found together at T’s death, but one of them is destroyed by physical act? - No; no presumption of revocation. Probate one of the originals.

Question 69

Will Formality: | Witnesses-Order of Signatures

Answer 69

Common Law: T and Ws must sign as part of the same transaction, does not matter whether T or W signs first. Current UPC: Order of signatures is not important

Question 70

Will Formality: | Witnesses-Type of Signature

Answer 70

Common Law: W may use mark (same as T) or proxy Current UPC: Same

Question 71

Will Formality: | Witnesses-Location of Signature

Answer 71

Common Law: Majority- W’s may sign anywhere; should follow T’s signature Minority-subscription (Ws must sign at end) Current UPC: Silent

Question 72

Will Formality: | Witnesses-Timing & Place of Signature

Answer 72

Common Law: Majority: Ws must both sign in T’s conscious presence, but Ws need not sign in each other’s presence Minority: Ws must sign in T’s conscious presence and in the conscious presence of each other Current UPC: Ws must sign within a reasonable time after witnessing T’s signature or acknowledgements Ws need not sign in T’s presence Ws need not sign in each other’s presence Ws may sign after T’s death, as long as doing so is a reasonable time after witnessing T’s signature or acknowledgements

Question 73

Will Formality: | Interested Witnesses

Answer 73

Common Law: Majority: Will valid, but gift to interested W generally limited to the amount the W would take at intestacy, if any Exception Interested W is supernumerary (extra W b/c have two other disinterested Ws) Current UPC: Interested W may take from will

Question 74

Will Formality: | Witnesses-Attestation Clause

Answer 74

Common Law: Not required, but good practice Memorializes Ws’ observations of an authentic and voluntary will execution T had sound mind and complied with testamentary formalities; Ws must read and understand the clause Courts treat will with attestation clause as prima facia evidence of facts certified Creates a rebuttable presumption of validity Current UPC: Same

Question 75

Will Formality: | Witnesses-Self-Proving Affidavit

Answer 75

Common Law: Not required, but good practice Like attestation clause, it memorializes Ws’ observations of an authentic and voluntary will execution Because it is sworn and notarized, the document is admissible evidence of T’s state of mind and compliance with will formalities. (in the absence of the affidavit, if contested, at least one W would need to be called to testify as to execution) Current UPC: Same

Question 76

Will Formality: | Noncupative Wills

Answer 76

Common Law: Majority- Oral will invalid Small minority -Oral will valid for personal property made by T who is a sailor, soldier, or on deathbed. Generally, must have two witnesses; Oral will valid when T is in imminent peril of death before disinterested witnesses; T dies from the peril; and T’s oral will is reduced to writing and probated shortly after T’s death Current UPC: Follows Majority Rule

Question 77

Will Formality: | Wills from Other States of Nations

Answer 77

Common Law: Will executed in another state or nation is valid if its execution complies with: (1) the law where the executor seeks to probate it; (2) the law of the state where T executed it; (3) the law where the testator was domiciled at the will’s execution; OR (4) the law where T was domiciled at death Current UPC: Same

Question 78

Will Formality: | Holographic Wills

Answer 78

Common Law: Majority-Unwitnessed will is valid as long as material portions are handwritten, and the will bears T’s signature. Minority- entire will must be in T’s handwriting; limit wills to soldiers or sailors Smaller minority-unwitnessed wills are not valid Current UPC: Follows majority rule Material portions are those that distribute property to devisees Immaterial portions are those not directly related to T’s testamentary scheme, such as the date or generic introductory provisions

Question 79

Will Revival Majority/ Minority

Answer 79

Common Law *Majority rule •An earlier revoked will is presumptively revived upon the revocation of a subsequent will, unless testator’s statements or other evidence reveals that testator did not intend to revive the earlier will. *Minority rule •Once revoked, a will remains revoked. Revocation of a later will (that revoked a previous will) cannot revive the original will.

Question 80

Revival UPC

Answer 80

*UPC Rule 1) Wholly Applies when: •Subsequent will wholly revokes previous will. •Later, T revokes the subsequent will by physical act. •Previous will remains revoked, unless revived. –Revived when: •Circumstances indicate that T intended the previous will to take effect: –T’s statements at the time of revoking subsequent will –Other evidence (will terms; facts circumstances supporting revocation of subsequent will)–“All relevant evidence of intention” 2) Partly Applies when: •Subsequent will partly revokes previous will. •Later, T revokes subsequent will by physical act •Revoked part of previous will is revived, unless facts indicate that T did not intend the revoked portion of the previous will to take effect. 3)Subsequent will partly or totally revokes previous will. •Later, T revokes subsequent will by writing a later will. –Previous will remains revoked whole or in part, UNLESS, the previous will or revoked part of the previous will is revived. –Revival occurs when the terms of the later will indicate that T intended the previous will to take effect.

Question 81

Dependent Relative Revocation

Answer 81

•Purpose –Protect T’s intended disposition of property at death •Effect –Court ignores revocation and transfers property pursuant to revoked will •Rule –When T physically revokes a previous will on the condition that newest will is valid transfer of property, but newest will fails for lack of capacity or testamentary formalities =As a result, absent application of doctrine, T’s property would pass through intestacy •Time is a factor, look for the revocation to occur in close proximity to the execution of the newest will —look for continuous scheme –But circumstances support an inference that T prefers revoked will to intestacy •Will 2 is similar to will 1, suggesting that T intended a similar testamentary scheme •Testamentary scheme is different from intestacy –Look at testamentary plan; similarities in plan suggest that T preferred plan to intestacy –Court will “restore” previous will and transfer T’s property pursuant to the previous will, rather than passing property through intestacy.

Question 82

Revocation by Operation of Law

Answer 82

``` •T’s Marriage •T’s Divorce –Revokes gifts in favor of spouse –Severs survivorship interests •T’s Omitted Children •Beneficiary’s Death •Slayer Beneficiary –Revokes gifts in favor of slayer –Severs survivorship interests •Gift Alienation –Ademption by Extinction –Ademption by Satisfaction ```

Question 83

Contracts Concerning Testamentary Succession

Answer 83

•Contract law generally governs promises to make a will, not revoke a will, or die intestate .•Formation of such contracts is generally governed by wills law formalities. •Breach of a contract concerning succession can give rise to a claim for damages against or equitable relief from the decedent’s estate. •Examples: –Caregiver promises to provide lifelong care for testator in exchange for a bequest.