w Flashcards
A will is valid if it complies with the applicable State law.
Under the Uniform Probate Code (UPC), a written will is
valid if its execution complies with the law of the place:
(a)
where executed; OR (b) of testator’s domicile, abode, or
nationality at the time of (i) death or (ii) signing the will.
(LOW)
Under the common law, a will is invalid if it does not meet
all the requirements of the state’s law. Some states will find
a will valid if the decedent
substantially complied with the
state’s requirements
(medium)
Under the Uniform Probate Code’s harmless error rule, an
improperly executed will still be valid if the party seeking
to have it validated proves
(1) by clear and convincing
evidence, (2) that the decedent intended the writing to be his
will. Generally, the greater the departure from the necessary
execution formalities, the harder it is to prove the testator’s
intent.
(medium)
Under the Doctrine of Integration, a document will be
integrated into a will if the testator:
(1) intended it to be part
of the will; AND (2) the document was physically present at
the will’s execution. Thus, all pages of a will that are together
when the last page is signed and witnessed are deemed to
have been validly executed. Integration may be proven by
extrinsic evidence or witness testimony.
(medium)
A court may use an act of independent significance to fill in
any gaps of a will. Acts of independent significance are those
with significance
outside of the will-making process.
(low)
Under the common law, an earlier will was automatically
revived if a subsequent will was revoked.
Under the modern view, most states permit revival of revoked
wills only under certain circumstances:
(a) a will revoked by
physical act will be revived if a testator shows intent for its
revival; OR (b) a will revoked by subsequent instrument can
be revived if the testator republishes the will by a subsequent
will or codicil that complies with the will execution
formalities.
(medium)
Under the Uniform Probate Code, if a will was only partially
revoked by a subsequent instrument, the revoked provisions
will
automatically be revived UNLESS the testator did not
intend their revival.
(medium)
In most states, contracts to execute mutual wills are
enforceable. To be enforceable, the agreement MUST
expressly state that the parties intend their wills to be a
binding contract between them. There must be a specific
reference to the contract upon which the joint wills are based
and there must be specific, express intent that the parties
desire the contract. If a party breaches a valid agreement
to execute mutual wills
a court will probate the new will
and then impose a constructive trust in favor of the original
intended beneficiaries under the contractual will.
(medium)
The execution of a joint will or mutual wills DOES NOT
create a presumption of a contract not to revoke a will. The
Uniform Probate Code does not address revocation of
contractual wills, but some states recognize revocation if there
is
sufficient notice before one of the parties dies.
(medium)
The terms of a will determine how the testator’s assets are
distributed. A will takes effect and is construed at the time of
testator’s death. For distribution purposes, a will is treated as
if it was executed
immediately before the testator’s death, and
the estate is comprised of the property owned by the testator
at the time of death.
(medium)
A beneficiary listed in a person’s will DOES NOT have any
interest in the estate property
prior to that person’s death.
(medium)
When assets are distributed by Per Capita at Each Generation,
the estate is divided into as many equal shares as (1) surviving
descendants in the generation nearest to the decedent, and
(2) deceased descendants in that same generation who left
surviving descendants (if any). Each surviving descendant in
the nearest generation is allocated one share. The remaining
shares, if any, are
combined, and then divided in the same
manner among the surviving descendants of the deceased
descendants. This method provides equal shares to those in
the same generation.
(low)
Under Modern Per Stirpes (also known as per capita by
representation), the estate is divided into as many equal
shares as there are (1) surviving descendants in the generation
nearest to the decedent, and (2) deceased descendants in
that same generation who left surviving descendants (if
any). Each surviving descendant in the nearest generation is
allocated one share. The remaining shares, if any
drop down
and are divided in the same manner among the then living
issue of the deceased descendants.
(low)
Per stirpes means that each branch of the family is to receive
an equal share of an estate. Under a per stirpes distribution,
the assets should be divided at the first generation of which
there are living takers. Each living and non-living person in
that generation is entitled to one share. Those shares going to
non-living persons
drop down directly to their issue.
(medium)
States use different methods to determine heirship.
Under the Civil-Law Consanguinity Method, all persons in
the same degree of relationship of the deceased individual
take equal shares. For example, a deceased person’s uncle
and niece are in the same third-degree of relationship, and
both are entitled to equal shares of the estate.
Under the Parentelic Method, (adopted by the UPC), assets
are passed in the following order:
first to the spouse,
descendants, and parents of the decedent; then to siblings,
nieces and nephews of the decedent; to find further heirs,
this method then looks down the lines of descendants from
ancestors of the deceased. For example, if a deceased person
is survived by both an uncle and niece, then the niece would
be the only heir
(medium)
Generally, courts DO NOT allow extrinsic evidence in order
to correct a testator’s mistake of fact or law.
However, both the Uniform Probate Code and the
Restatement (Third) of Property: Wills & Donative Transfers
ALLOWS even an unambiguous will or donative document
to be reformed if it’s established by clear and convincing
evidence:
(1) what the donor’s intention was; AND (2) that
a mistake of fact or law affected the specific terms of the
document.
(low)
The Revised Uniform Simultaneous Death Act (RUSDA)
provides that if there is no proof by clear and convincing
evidence that one person survived the other by 120 hours
(5 days), then the property is distributed as if that person
predeceased the other person. Thus, it is presumed that
each person outlived the other when distributing their
estate. If RUSDA applies and two deceased people owned
property as joint tenants, RUSDA creates a fiction that the
rights of survivorship are severed and the property passes as if
the two people held the property as tenants in common.
(medium)
At common law, there was no residue of a residue rule. Any
residuary shares of a decedent’s estate that were invalid,
passed to the testator’s heirs via intestate distribution. Under
the modern view, if the residue is devised to two or more
persons, any residuary beneficiary’s share that fails will pass
to the other residuary beneficiaries. This rule only applies if
the anti-lapse statute does not produce a substitute taker for a
beneficiary who fails to survive the testator.
(medium)
A condition on a gift in a will/trust that prohibits a first
marriage or requires divorce are void as against public
policy, and will be treated as though the restriction had not
been imposed. However, a restraint on marriage may be
upheld if:
(a) it is a restraint on remarriage (i.e. a condition
tied to the surviving spouse’s interest); OR (b) the language
of the devise or bequest indicates that its intended purpose
is to take care of a person’s daily needs until they are able to
obtain such support through marriage.
(medium)
When a testator/grantor includes a provision to govern his
property in the event he dies without issue, but fails to include
a provision regarding his death in the event he dies with issue,
some courts infer a gift to issue. However, other courts hold
that the gift fails and passes to the testator/grantor’s estate.
(low)
A person who was gifted securities (shares of stock) in a will
is entitled to
additional shares owned by the testator that
were acquired as the result of stock splits or stock dividends.
(medium)
Under the common law, a specific devise of real property
DID NOT pass subject to any mortgage, and the mortgage
was paid from the estate. Under the modern view, a specific
devisee of real property
assumes the mortgage (unless
explicitly stated otherwise), regardless of a general directive
in the will to pay debts
(low)
A prenuptial agreement between spouses waiving rights
to each other’s assets upon divorce
DOES NOT apply to
voluntary gifts or bequests.
(low)
A conditional or contingent will is one that takes effect only
upon the occurrence of some uncertain event. If the condition
is not satisfied (or the contingency fails), the will is rendered
inoperative and void.
To determine if a will is conditional, the court will look at the
testator’s intent. The testator’s intent to make a conditional
or contingent will must be clear from the language of the
will. A mere statement of motive for making the will is NOT
enough.
Additional factors a court will consider are:
(1)
the circumstances surrounding the execution of the
document; (2) any statements made by the decedent
following the execution of the document; (3) the
manner in which the document was kept after the
time for the purported contingency had lapsed; (4) the
decedent’s education and knowledge of the law; (5)
whether any subsequent testamentary documents were made; (6) whether the contingency bears a reasonable
relation to the disposition of the decedent’s property;
(7) whether a finding of a conditional will means that
the deceased died intestate; (8) whether effectuating
the terms of the will would be equitable under the
circumstances; and (9) such other relevant factors that
bear on the issue at hand.
