WILL - Challenges and Other Impt Rules Flashcards
(43 cards)
When will provision incoporating document by reference document be valid?
(1) in existence when will was executed
(2) language of incorporation shows intent
(3) Document is descibed sufficiently to permit identification
What will court do with separate writing identifying devises of personal property?
- must be tangible property - can’t be stocks/bonds or real property
- Written statement or list - referred in D’s will
- writing must be signed and describes the property sufficiently
- list can change after execution without affecting the will
What happens to will if there is fraud, duress, mistake or undue influence?
- Will is void if execution procured by fraud, duress, mistake, undue influence
- Will **partly voided ** if only some provisions were procured fraudulently
- revocation also void if procured fraudulently
What is the undue influence rule?
Whether such control was exercised over mind of D so as to overcome his fee agency and free will to substitute the will of another
* causing D to do what he wouldn’t have otherwise done
When is undue influence presumed?
Where there is:
(1) substantial beneficiary
(2) who has a confidential relationship with D
(3) who was actively involved in procuring the will
– then burden shifts to beneficiary to prove a reasonable explanation
What if there isn’t a relationship between D and beneficiary?
It’s ok that D prefers a stranger over blood - but undue relationship could be found where there are suspicious circumstances like an “unnatural” gift
What should you know about Fraud in Factum and Fraud in the inducement?
Fraud in factum - renders will void
* ex: A tells D to sign K for sale, hiding that it’s a will
Fraud in the inducement - fraud as to why D should sign usually still be valid and enforceable
What if there’s mistake?
Mistake of Fact - D left P out because they thought P was dead - usually not voided unless the mistake is readily clear on its face
Mistake about NATURE of will - thought the will was a mortgage - VOID
What about mixed up signature on reciprocal wills? Traditionally voided b/c of no intent, but now allowed when it’s clear and the court will reform the wills
What is the Penalty Clause for Contesting a will?
Any will provision that tries to penalize a beneficiary for challenging the will or other proceedings is UNENFORCEABLE
- called intorrerum clause
When can a person contests a will?
Only after the death of D
- will doesn’t go into effect until after death b/c you can always revoke a will before death
What do you need to know about Electronic Wills?
(1) signature can be electronic
(2) witnesses can sign in the presence of one another through audio/video technology
(3) can be authenticated/notorized as part of online notary session
(4) witness hears signer make statement about signing it and then signs it will comply with requirements
Simultaneous Death Law
When it appears that spouses (or two people die with reciprocal wills) died simultaneously - property is disposed of as if that person survived
How does simultaneous death law work with 2+ beneficiaries designated to take by survivorship?
the property is disposed of in parts to be distributed to those who would have taken if each designated beneficiary had survived
Simultaneous Death Act where joint tenants or tenants by entirety is involved
distributed 1/2 to each person’s estate as though each had survived
What if it’s proven one spouse dies minutes after other spouse?
FL does not have 120 hour rule -
Any amount of time is enought for D1 to inherit as though he survived
- Caveat* - if will has provision that if they die resulting from a common disaster, property should be divided a certain way, then court will give effect to that provision
What is a lapsed gift?
Gift lapses when beneficiary dies before D (but was alive at the time of execution)
lapses = gift fails and goes into residue
FL Anti-Lapse Statute - who does it apply to?
beneficiaries who are a grandparent, a descendant of a grandparent, or an adopted child of the testator.
- ex. D devises gift to nephew but nephew predeceases D. Nephew qualifies as a descendant of a grandparent, he would fall under anti-lapse statute.
Anti-lapse Statute - What happens when a qualifying beneficiary predeceases D OR dies before execution of D’s will?
the deceased beneficiary’s interest passes strict per stirpes to their lineal descendants.
This means the distribution follows generational line, ensuring equal shares for descendants at the same generational level.
Ex. D devises gift to nephew. but nephew pre-deceases D. Nephew qualifies. He has 4 children - each would get equal shares.
Compare anti-lapse statute for wills and for trusts
Wills - applies only to beneficiaries who are grandparents, descendants of grandparents, or stepchildren of the testator.
Trusts - ANY beneficiary with surviving descendants, unless the trust document indicates a contrary intent.
- broader application of anti-lapse statutes to trusts compared to wills
Anti-lapse - Devises to multigenerational classes -
IF the class qualifies under the anti-lapse statute: How does it work where a D devises something “to Grandchildren” and one predeceases D but has children that survive.
the anti-lapse statute ensures that the deceased member’s share passes to their descendants strict per stirpes—meaning it’s divided equally among the branches of the family
- so dead grandchild’s share goes to his children instead
Anti-lapse - devises to classes:
What if the class is without family descendants and one member of the class predeceases D?
The remainder of the class absorbs the share of the predeceased
Anti-lapse - devises to classes
What if the class contains both descendants and friends?
If a class contains both family descendants (e.g., “my grandchildren”) and non-family members (e.g., “my friends”), the anti-lapse statute will only protect the shares of the family members who predecease the testator. The shares of non-family members who predecease the testator will lapse unless the will specifies otherwise.
Reformation to Correct Mistakes - when will a court reform terms of a will?
The court may reform terms of a will, even if unambiguous, to conform with D’s intent AND terms were mistake of fact or law, whether expression or inducement
