Vocab Flashcards

Question

UPC Relaxation of Will Formalities

Answer 1

1. both witnesses don't have to be present at same time 2. allows notary instead of witnesses (not widely adopted) 3. witnesses don't have to sign immediately 4. witnesses don't have to be disinterested

Answer 2

the person signing and the document being signed must be in witness' line of sight

Answer 3

witness was there and knows what is going on

Answer 4

separate document signed by the testator and witnesses and notarized - can be used in lieu of testimony from witnesses during probate process says the same thing as attestation clause in a will, just in past tense

Answer 5

Judicial doctrine where courts accept a will without all formal requirements if 1. the T intended the instrument to be their will 2. whether the document substantially complies with will act requirements

Answer 6

legislative doctrine that allows courts to dispense with formal requirements of a will if they determine that the mistake is a harmless error

Answer 7

Requirements: 1. writing 2. signed by T 3. reflects testamentary intent 3 Versions: 1. entirely in T's handwriting 2. material portion of T's handwriting (scissors approach) 3. material portions with extrinsic evidence - read handwritten portions in the context of typed portions

Answer 8

1. by writing that meets all requirements of a will 2. by physical act that (1) meets requirements of statute (2) is done with the intention of revoking the will 3. partial revocation

Answer 9

if T undertakes to revoke her will upon a mistaken assumption of fact or law, under doctrine of DDR, the revocation is ineffective if T would not have revoked the will but for the mistaken belief

Answer 10

If T has one will, executes will 2, revokes will 2, then dies, what happens? Majority: will 1 is revived without re-execution if T intends it to be Minority: will 1 cannot be revived without re-execution

Answer 11

statutes provide that a divorce presumptively revokes any provision in a will for decedent's divorced spouse

Answer 12

marriage doesn't revoke a will created before marriage, but surviving spouse is allowed to take their intestate share before the rest of the estate plan is followed

Answer 13

minority: marriage followed by birth revokes will executed before marriage majority: pretermitted child statutes give child born after execution of will a share in parent's estate

Answer 14

Majority: T executes will 1, T executes will 2, T revokes will 2, will 1 is revived automatically Minority: revoked will cannot be revived unless re-executed with formalities or republished

Answer 15

all papers that are present at the time of execution and are intended to be part of the will are treated as part of the will

Answer 16

once you have written a codicil to a will, the will to which you have written the codicil is revived, republished, given effect

Answer 17

Allows for writing that was in existence but not present at the time of execution and that was not itself executed with testamentary formalities to be absorbed into T's will. 4 Requirements: (1) writing (2) in existence at time of execution (3) language in will describing an intent to incorporate (4) writing described sufficiently to permit identification UPC: doctrine applies if the language of the will manifests this intent and describes the writing sufficiently to permit identification

Answer 18

if beneficiary or property designations are identified by reference to acts/events that have a lifetime motive and significance apart from their effect on the will, the gift will be upheld under the doctrine of acts of independent significance

Answer 19

Requirements: (1) nature and extent of their property (2) natural objects of their bounty (3) the disposition they are making (4) how these fit together to form an orderly disposition they are making

Answer 20

Requirements: (1) holds a belief contrary to all evidence (2) no moving them from that belief (3) the belief causes them to write a will based on it

Answer 21

Requirements: (1) testator is susceptible to undue influence (2) alleged undue influencer/beneficiary had the opportunity to exert undue influence (3) unnatural will showing the effect of the undue influence Opportunity to exert undue influence usually means that a confidential relationship existed - dependence and reliance on an unworthy person is what drives the doctrine

Answer 22

Allows T to go through probate during lifetime to ensure that intent is carried out

Answer 23

in inducement: intended to alter disposition, induce someone to make, revoke, or not make will based on a lie in execution: lie about character of testamentary disposition - will itself is misrepresented to the T, signed but thought to be something different Requirements: (1) misrepresentation (2) intent to deceive (3) purpose is to influence testator disposition

Answer 24

Requirements: (1) expectancy (reason to think one would inherit) (2) intentional interference through tortious conduct (3) causation (4) damages

Answer 25

Words in a will are given their plain meaning - extrinsic evidence can only be admitted to resolve ambiguities, but plain meaning cannot be disturbed by extrinsic evidence

Answer 26

court can't reform will to reflect T's intent, even if there is a clear mistake - words written in will are only means to ascertain T's intent

Answer 27

multiple people or no one matches the exact language of a will, ambiguity not evident on face of will; traditional wills law will correct

Answer 28

abiguity evident on fact of will - just by looking at it, you can tell there will be a problem carrying it out; traditional wills law will not allow courts to fix

Answer 29

sometimes courts will say that reformation is permissible if there is clear and convincing evidence showing T's intent, there was a mistake at time of execution

Answer 30

if beneficiary predeceases T: (1) see if will provides for this event (2) if not provided for, and if a specific or general bequest, to the residuary (3) if the residuary is also dead, passes by intestacy

Answer 31

provide a substitute taker when beneficiary dies before T majority: share goes to beneficiary's children, limit applicability to beneficiaries who are T's children minority: share goes as provided for in a will, apply to anyone in a will or a broader range of descendants Process: (1) look at will and follow if possible (2) if no, see if named beneficiary survived by issue and if beneficiary fits within anti-lapse statute (3) if no issue/not part of class, to residuary (4) if no residuary, intestacy

Answer 32

common law: if it's a specific bequest and T doesn't have the thing when they die, property adeems and the beneficiary gets nothing (identity theory) UPC: if a specifically devised item isn't in an estate, beneficiary may nonetheless be entitled to replacement/cash value of original item, depending on whether B can show that it is what T would have wanted (intent theory)

Answer 33

if T intended an intervivos gift to be in satisfaction of what they get in will, they get nothing; if not, can still take upon death of T

Answer 34

common law presumption is to pay off debts first, before distributing estate to beneficiaries, because that's what T would have wanted

Answer 35

What happens when T has insufficient assets to pay off debts; abatements happens in order of: (1) creditors (2) disinherited spouse (3) residuary (4) general devisees (5) specific and demonstrative devisees (may be reduced pro rata)

Answer 36

Language: trustee is to hold property for settlor for life, upon S's death, all to B. S is trustee. Trust is revocable. How to make it work: transfer property to trust and put pourover provision in will - fund the trust to avoid probate. Name the trust as the beneficiary of any nonprobate property and assign personal property. Creditors: can reach if trust is revocable or trustee has a general power of appointment

Answer 37

Policy used to insure against lost income of wage earner. Owner of policy gives small amount of $ each month, when owner dies insurance company gives lump sum to beneficiaries. Cannot change beneficiary by writing in a will.

Answer 38

Can't apply state statute to sever beneficiary's right to take upon divorce because this is covered by ERISA - fed law preempts state. UPC: all governing instruments that transfer wealth at death should be treated the same way a will would be, but this doesn't always work because Egelhoff

Answer 39

1. POD: owned by A, payable on death to B during life: A is the only one with control at death: B gets control 2. Agency acct: B as agency for A during life: A or B can access. B's access must be for the benefit of A. at death: passes according to A's estate plan during A's incapacity: B's agency terminates 3. Joint tenancy: A + B as joint tenants during life: A + B both control at death: if A dies, B gets full control/ownership

Answer 40

person authorizes someone to manage financial affairs if they become incapacitated - still have authority to act for themselves

Answer 41

ability to control property/ability to give to someone else; exercisable in favor of holder of power, holder's creditors, estate, creditors of estate - treated as if donee/holder owns the property

Answer 42

not exercisable in favor of holder, holder's creditors, estate, creditors of estate; treated as if holder does not own anything for tax purposes

Answer 43

all earnings during marriage are owned equally by the spouses - exceptions are gifts and inheritance; spouse entitled to 1/2 of community property when other spouse dies

Answer 44

marriage has no effect on property ownership during marriage - each person owns their stuff

Answer 45

issue: 1/3 life estate, 25k outright no issue but kindred: 1/2 life estate, 25k outright no issue and no kindred (never happens): 25k plus 1/2 of rest outright

Answer 46

surviving spouse is entitled to a share of augmented property (all of the probate and non-probate property of both the person who died and their spouse) based on length of marriage rule: 15+ years married get 1/2 process: subtract property owned by surviving spouse from 1/2 of augmented estate, so if they already have money/are provided for, they get less

Answer 47

- avoid probate - avoid taxes - maintain control - avoid creditors - ensure responsible use by beneficiaries - protect land from certain uses - provide for minor children - share property amongst people

Answer 48

- allows for investment - encourages hard work - natural right - allows charitable bequests - control over children - incentivize kids to take care of parents

Answer 49

- doesn't encourage spending, hurts economy - lack of revenue for welfare system - avoid dynastic wealth - doesn't protect kids - encourages litigation - parental control can be harmful/misguided

Answer 50

legislature can limit, control, abolish testamentary disposition - only limit is can't abolish BOTH devise (will) and descent (intestacy) must be reasonable, constitutional, not contrary to public policy -- these are reasons courts will override testamentary disposition

Answer 51

property that has to go through court process to transfer after T dies Process: executor or administrator mashals assets, pays creditors, distributes assets by terms of will or laws of intestacy

Answer 52

property that does not have to go through court process to transfer Types: JT, trust, K with POD/TOD provision, life insurance, retirement plan, etc.

Answer 53

1. spouse 2. children/descendants/issue 3. parents/ancestors 4. collateral 5. escheats to state

Answer 54

1. spouse takes all if there are no children and no parents OR if all children are children of the relationship 2. spouse takes almost all if surviving spouse has children not of the marriage OR if the decedent spouse has kids not of the marriage 3. surviving spouse takes lump sum first if they don't get everything - kids usually don't get anything because threshold is high

Answer 55

2 rules: 1. sufficient evidence: if there is no sufficient evidence of order of death, each was deemed to have predeceased the other, so neither inherits from the other 2. 120 rule: one spouse has to survive the other for 120 hours in order to inherit

Answer 56

split second rule: problem is that it's too hard to determine who died first in a plane/car accident, etc.

Answer 57

divide at generation after decedent regardless of whether anyone is alive

Answer 58

initial division of shares is made at closest generation in which one or more descendants are alive, but the shares of deceased persons at that level are treated as one pot and dropped down equally among reps at the next generation

Answer 59

divide at first generation someone is alive

Vocab Flashcards

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