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1

What are the five statutory requirements that must be satisfied to validly execute a will?

  1. The testator must be 18 years of age or older;
  2. The will must be written;
  3. The will must be written with testamentary intent;
  4. The testator must sign the will;
  5. Two attesting witnesses who witness the testator signing the will must also sign.

2

What counts as a valid signature when executing a will?

  • Any mark, whether a namer, initials, or "X," as long as the testator intended the mark to serve as a signature.
  • Another person may make the mark on behalf of the testator if the testator is present and so directs.

3

When has a witness "been present" to witness the testator sign the will?

UPC & Majority: Under the Conscious Presence Test, the testator and witness are in each other's presence if they are conscious of where the other is and of what the other is doing.

Minority: Under the Scope of Vision Test, the testator and witness are in each other's presence if they could see each other sign were they to look.

4

Under the Uniform Probate Code, under what circumstances can a defectively executed will be validated?

If the wills proponent establishes by clear and convincing evidence that the testator intended the document to be her will.

 

5

Under the Uniform Probate Code, under what circumstances are no witnesses required to validly execute a deed?

When the will is signed by both the testator and a notary public.

6

How does the placement of the signature affect the will's contents?

UPC & Majority: If the clause is present at the time that the will is signed, the signature's placement does not matter.

CL & Minority: If the clause is present at the time that the will is signed, clauses above the signature are valid, and clauses below the signature are invalid.

7

What is a "holographic" will and what is its effect?

A holographic will is a handwritten will.

  • UPC & Half of States: A holographic will is valid if the will's material provisions (the identity of property the beneficiaries to recieve that property) are in the testator's handwriting and the testator signed it.
  • Other Half: A holographic will is not entitled to probate unless it is signed by two witnesses.

8

Which state's law applies in determining a will's validity as applied to property in that state?

UPC and Vast Majority: The will is valid if it is valid in:

  • The state in which the will was executed;
  • The state in which the testator was domiciled when they died;
  • The state in which the testator was domiciled when they executed the will.

9

What is the Interested Witness Rule?

Majority: The beneficiary-witness loses their legacy unless:

  1. There were two or more disinterested attesting witnesses; OR
  2. The witness-beneficiary would be an heir if there were no will. If this is the case, she takes the lesser of (1) the amount given in the will and (2) the intestate share.

UPC and Minority: Abolishes the interested witness rule.

10

What is a Self-Proved Will?

A testator may execute a self-proved will by properly executing a will and then, along with the witnesses, signing a self-proving affidavit under oath before a notary public. The formalities of execution are conclusively presumed for self-proving wills.

11

How may a will be revoked?

(4 methods.)

Revocation by . . .

  1. Physical Act;
  2. Proxy;
  3. Inconsistency;
  4. Operation of Law (Divorce);

12

Revocation by Physical Act

(and what is an adequate act?)

A will is revoked by physical act if the testator (1) intends to revoke the will and (2) engages in a physical act that damages, destroys, or cancels the will.

  • Majority: The physical act must touch the language of the will.
  • UPC and Minority: The cancelation may appear anywhere on the will.

13

  1. What if the testator is found with a mutilated copy of their will at the time of their death?
    1. What if the will was last seen in the testator's possession and control, but it cannot be found after their death?

  1. Presumed that the testator mutilated the will with the intent to revoke.
  2. Presumed that the testator destroyed the will with the intent to revoke.

14

Revocation by Proxy

Revocation of a will by a person other than the testator is valid only if the person revokes (1) at the testator's direction and (2) in the testator's presence.

15

Revocation by Inconsistency

(Will and subsequent Codicil)

If a will and a codicil are inconsistent, the two are read together to the greatest extent possible. The later document controls with respect to inconsistencies that cannot be read together.

16

Revocation by Inconsistency

(Will and subsequent Will)

  • If the subsequent will does not revoke the first and has no residuary clause, treat the second will as a codicil to the first.
  • If the subsequent will does not revoke the first but has a residuary clause, then the second will revokes the first.

17

Revocation by Operation of Law (Divorce)

What about separation?

UPC and Majority: If divorce follows the execution of the will, the divorce revokes all provisions in favor of the former spouse and the will is construed as if the former spouse were dead.

  • Mere separation does not affect a spouse's rights unless the spouses have separated and completed a property settlement.

18

Interlineation and the Dependent Relative Revocation

Generally, an interlineation functions as a revocation unless the will is re-executed or the will is republished by codicil.

Under Dependent Relative Revocation, the revoked clause may be reinstated if (1) the revocation was based on a mistake of fact or law and (2) but for the mistake, the testator would not have made the revocation. If the interlineated gift is larger, reinstate the gift. If it's smaller, maintain the revocation.

19

Revival of a Revoked Will

UPC and Some States: If the testator revokes a subsequent will, the previous will is revived if:

  1. The previous will still exists;
  2. The testator wanted the previous will to be revived; and
  3. The subsequent will was revoked by a physical act.

Other States: If a testator revokes a subsequent will, the previous will will not be revived. The testator must re-execute the will or republish it by codicil. However, the court will apply Dependent Relative Revocation to determine whether to reinstate the subsequent will. It will do so if the testator would not have revoked the subsequent will had she known that the prior will would not have been revived.

20

Incorporation by Reference

(What about lists of tangible personal property?)

An extrinsic document may be incorporated into a will by reference if:

  1. The writing existed at the time the will was executed;
  2. The will manifests the testator's intent to incorporate the document; and
  3. The will describes the writing sufficiently to identify it.

Many states and the UPC make a statutory exception for wills that reference a writing that disposes of tangible personal property (not money) that isn't disposed of in the will. The writing must be signed by the testator and must describe the property with reasonable certainty.

21

Act of Independent Significance

Acts that have an independent lifetime motive may impact a will. This isn't a problem so long as they have an independent lifetime motive.

⇒ For example: "I devise my car to Olive." Then I sell my car and replace with a much nicer one. Olive gets the new car.

22

Lapse

(General Rule)

When a beneficiary named in the will dies before the testator, the gift to the beneficiary lapses unless it is saved by the state's anti-lapse statute. Under the UPC, the anti-lapse statute applies when the predeceasing beneficiary is the testator's grandparent or a lineal descendant of a grandparent who leaves issue who survive the testator. The gift goes the the issue.

⇒ Note the the beneficiary's will, if she has one, doesn't matter.

23

Class Gift Rule

(Lapse)

When there is a gift by will to a class of persons and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.

⇒ Remember to apply the lapse statute first.

24

Lapse in Residuary Gift

UPC and Majority Rule: If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue UNLESS the state's anti-lapse statute applies.

CL: If a residuary beneficiary predeceases the testator, then their share "falls out of the will" and passes by the laws of intestacy.

25

Types of Gifts

(What's the order for abatement?)

  1. Specific Devise - A gift of a specific asset.
  2. Demonstrative Legacy - A gift of a specific pecuniary amount with funding instructions.
  3. General Legacy - A gift of a pecuniary amount with no funding instructions.
  4. Residuary Bequest - A gift of the residue.
  5. Intestate Property - Property that is intestate for some reason.

To abate: start from the bottom and work up!

⇒ Abatement applies when the testator's estate is partially insolvent. It also applies to satisfying funeral expenses, administration expenses, and creditor claims.

26

Ademption

(Common Law Rule and UPC Exceptions)

Common Law and Majority: At common law and in the majority of states, a gift is adeemed if the item is not in the testator's possession at the time of her death. The testator's intent is immaterial.

UPC Exceptions

  1. If the testator executes a will and is subsequently declared incompetent, then proceeds relating to a specific devise (sale by conservator, condemnation award, insurance proceeds) must be paid to the specific devisee as a general legacy.
  2. Specific devisee has right to remaining property and:
    • Any purchase price owing at the testator's death;
    • Any unpaid condemnation award;
    • Any unpaid fire or casualty insurance;
    • Any real or tangible property acquired as a replacement for similar property;
    • Property acquried as a result of a foreclosure of a security interest on speficially devised note.

27

Increases to Property After Will Execution

(Stocks: Splits, Dividents, and Mergers)

Splits and Dividends

  • Common Law: If the stock splits, the devisee gets all the resulting stock. If the increase is a dividend, the devisee only take the original stock.
  • UPC: Whether the additional stock results from a split or a dividend, the devisee takes all of the stock.

Mergers - Shareholder stock replaced after merger with new stock.

  • Common Law: A specific devisee is not entitled to securities of another entity owned by the testator as a result of a merger or similar action initiated by the original entity.
  • UPC: A specific devisee is entitled to securities of another entity owned by the testator as a result of a merger or similar action initiated by the original entity.

28

Devise of Encumbered Real Property

(Does a lien pass with the land?)

UPC and Majority: A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. Moreover, a general direction in the will to pay debts does not show such an intent.

Common Law and Minority: The devisee may demand that the executor pay off the indebtedness so that it passes to her free and clear.

29

How can you tell whether a gift of stock or securities is specific?

  • "My 100 shares of XYZ stock" → Specific. If the testator sells prior to her death, then the gift is adeemed.
  • "100 shares of XYZ stock" → Not specific. The personal representative will buy shares to fund the gift. 

30

Is extrinsic eidence admissible to clear up a latent ambiguity?

What happens if the ambiguity can't be resolved?

  • Yes, extrinsic evidence is admissible.
  • If the ambiguity isn't resolved by extrinsic evidence, then the gift fails.