Wills

Question 1

intestacy overview

Answer 1

if a person dies without a will or will is invalid, estate is distributed following intestacy rules

1. surviving spouses
2. issue

*if dies intestate with no heirs, property escheats to the state

Question 2

surviving spouses

Answer 2

To be entitled to take under an intestacy statute, the surviving spouse generally must have been legally married to the decedent.

Putative spouses: Even if a marriage is not valid, as long as one party believes in good faith in its validity, the spouses are termed putative and qualify as spouses for inheritance purposes.

Uniform Probate Code: The surviving spouse must be legally married to the decedent at the time of death, and there must be clear and convincing evidence that he/she outlived the decedent by 120 hours to take by intestacy.

1. UPC Approach
   - The surviving spouse gets 100% of the estate if all of the decedent’s descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants.
   - The surviving spouse gets $300,000 and 75% of the remainder of the estate if no descendant is alive at the time of decedent’s death, but there is a surviving a parent of the decedent.
   - The surviving spouse receives $225,000 and 50% of the remainder of the estate if all of the decedent’s issue are also issue of the surviving spouse, and the surviving spouse has other issue.
   - If the decedent has issue not related to the surviving spouse, then the surviving spouse receives $150,000 and 50% of the remainder of the estate.
   - If the decedent has a spouse but no descendants or parents, then the surviving spouse takes the entire estate.
2. Community Property Rules—do not apply unless the exam question states that the jurisdiction applies CP rules. At death, the surviving spouse is entitled to:
   - Their own 1/2 of the CP; and
   - The decedent’s 1/2 of the CP.
   - Therefore, the surviving spouse will take 100% of the CP.

Question 3

issue

Answer 3

lineal descendants of the testator, including children, grandchildren, and great-grandchildren. adopted children take the same as non-adopted

*do the spouse first to see how much is left for kids

1. per stirpes (common law):
   - The surviving issue take in equal portions the share that their deceased ancestor would have taken, if living.
   - The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive.
2. per capita with representation:
   - If the surviving issue are not of equal kinship, the property is divided at the first generation in which at least one member survives the decedent.
   - The shares that would go to the member that predeceased the decedent would go to his/her issue.
3. per capita at each generation (UPC):
   -Property is divided into as many equal shares as there are members of the nearest generation of issue who survive the decedent and deceased members of that generation with issue who survive the decedent.

• adoption usually severs child’s relationship with natural parents
• stepparent creates parent-child relationship does not prevent adoptee from inhering from other biological parent
• if child is born within 280 (UPC: 300) days of husband’s death, rebuttable presumption child is husband’s

Question 4

execution of wills overview

Answer 4

formal execution requirements: signed writing, witnesses, & testamentary intent

• capacity
• testamentary intent
• attested wills
• holographic wills
• codicils
• will substitutes

Question 5

capacity

Answer 5

testator must be at least 18 years old and of sound mind (determined at the time of execution)

Whether the testator had the ability to know:
- The nature of the act
- The nature and character of her property
- The natural objects of his bounty; and
- The plan of the attempted disposition

*The person challenging the will (“the contestant”) bears the burden of proving that the testator lacked the requisite mental capacity at the time of the execution of the will

Question 6

testamentary intent

Answer 6

Testator must have the present intent to make a testamentary transfer.

Question 7

attested wills

Answer 7

1. writing & signature: will must be in writing and signed by testator (formal signature not required)
   - in some states, signature must be at bottom or will is invalid
   - in other states (& UPC), signature can be anywhere and will is valid, but whatever words comes after signature is invalid
2. witnesses:
   - most jurisdictions: T must sign/acknowledge the will in the presence of the two witnesses; and witnesses must sign in the presence of the testator.
   - UPC: two witnesses must sign within a reasonable time of T

“in the presence of”
- Traditional/old rule: line of sight: Witness and testator must observe or have the opportunity to observe the signing of the will (in same room)

• Modern rule: conscious presence: be aware a will is being signed, don’t actually need to observe
  *UPC adopts Conscious Presence only for the situation where the will is signed by another on behalf of the testator.

interested witness (a witness who has a financial interest in the will)
- old rule, will is valid, but purge theory: probate court purges amount she’d take in excess of intestate succession (unless 2 disinterested witnesses, or amount she’d get in intestate succession is more)
-UPC abolished interested witness doctrine

*A valid codicil to the will can cure the interested witness problem, allowing the interested witness to take fully under the will.

Question 8

substantial compliance

Answer 8

*discuss if will not validly executed

common law/majority: strict compliance

UPC & modern (minority): if a will is not executed in compliance with the law, the will is treated as if it had been executed in compliance if the proponent of the will establishes by clear & convincing evidence that, at the time the testator signed the will, the testator intended it to constitute the testator’s will

Question 9

holographic wills

Answer 9

• after discuss existence of a valid attested will, always analyze whether there’s a valid holographic (informal, handwritten) will (no witness requirement)
  1. T must sign the instrument
  2. how much writing
  -some jurisdictions: any markings not in the testator’s handwriting invalidate the will
  UPC: T must handwrite the “material provisions” of a holographic will (who takes, what they take, in what shares)
  3. intent: look for words or phrases that suggest intent. UPC expressly authorizes looking to extrinsic evidence to establish intent

Question 10

codicils

Answer 10

Supplements the underlying will; doesn’t replace it

Generally, must be executed with same formalities as a will (can be attested or holographic)

Republication date: A validly executed codicil republishes a will as of the date of the codicil.

A valid codicil executed after the original will may cure problems that existed at the execution of the will, such as an insufficient number of witnesses or the presence of interested witnesses (as long as on same document as original will or incorporates by reference original will - will such specificity that can identify)

Question 11

will substitutes

Answer 11

A decedent can avoid probate by transferring property via a will substitute, including:

Joint Tenancy: right of the right of survivorship;

Trust: A trust may achieve the results of a will.

Pour-Over Will: includes a clause wherein some or all of the decedent’s probate property is given to the trustee of the decedent’s inter vivos trust.

POD (payable on death) Contract: Avoids probate because it distributes by an inter vivos transfer;

Deed: Avoids probate because it is an inter vivos transfer.

-A deed of property can serve as a will substitute for transferring property upon the death of the landowner.
-If a grantor (owner of land) delivers a deed to a third party (agent) with instructions to give the deed to a person (grantee) upon the grantor’s death, the deed will serve as a will substitute and the deed will be transferred to grantee upon the grantor’s death.
-For deed to be transferred, the grantor must have present intent to convey the deed to the grantee at the time that the deed is given to a third party (agent) to hold and then give to the grantee upon the grantor’s death.

Question 12

revocation overview

Answer 12

wills are ambulatory: capable of being changed any time until T’s death

can be revoked in full or in part

three ways to revoke a will:

1. subsequent instrument
2. physical act
3. by operation of law

*revocation of codicil

Question 13

subsequent instrument

Answer 13

*oral revocation is not enough

Express revocation: A later writing expressly revokes a prior will

implied revocation: later writing is inconsistent with prior will(s). So long as it is validly executed, a later document controls.

*distinguish between a codicil and a new will. look for a residuary gift:
- if original will has a residuary gift and later writing does not = later writing is probably a codicil.
- if original will does not have a residuary gift and later writing does = later writing probably a new will.

Question 14

physical act

Answer 14

A testator may also revoke a will in part or in its entirety by engaging in a physical act of destruction, such as tearing, burning, or crossing stuff out.

To revoke a will, the testator must intend for the physical act to revoke the will.

Destroying specific language
- Majority: The particular language in question must be destroyed.
- UPC: Only requires that destructive act affect some part of the will.

lost wills: if a will, once known to exist, cannot be found at T’s death, creates rebuttable presumption that T revoked the will by physical act
- burden on proponent to show by clear and convincing evidence that will exists
- duplicate originals can be admitted to probate, but copy of original cannot

Question 15

revocation by operation of law

Answer 15

In most jurisdictions, divorce revokes all will provisions in favor of the former spouse.

Exception: There is evidence that testator wanted the will to survive

The UPC goes a step further, invalidating gifts not just to the ex-spouse, but to the ex-spouse’s relatives as well.

*Separation does not affect the rights of a spouse. And if a divorce action is merely pending and has not yet been finalized, the will provisions in favor of the other spouse are not revoked.

By contrast, a subsequent marriage does not revoke a will because a surviving spouse is entitled to take an elective share.

Question 16

special revocation cases
-third party revocation
-revoking codicils

Answer 16

third party revocation:
A third party can revoke on behalf of a testator if:
- At the testator’s direction; and
- In the testator’s conscious presence.

revoking codicils:
- by revoking a will T also revokes any codicil attached to it, but
- if T revokes a codicil, the underlying will is revived in its original form

Question 17

revival

Answer 17

1. republication:
   - If an instrument that revoked a prior valid will is later revoked, the prior will may be republished
   - Under the modern UPC approach, outcome depends on method of later instrument’s revocation
   - Later instrument revoked by new will—previously revoked will is only revived if the terms of the new will show that the testator intended the previous will to take effect
   - Later instrument revoked by physical act—extrinsic evidence of testator’s intent to revive the original will is admissible
2. dependent relative revocation (DRR):
   - allows court to revive a revoked will when T revoked will under a mistaken belief of law or fact
   - must show T would not have revoked original will but for mistaken belief (e.g. thought new will was valid but isn’t)

Question 18

construction overview

Answer 18

construction of a will requires a court to determine the terms of the will and how to distribute the estate

• integration
• incorporation by reference
• acts of independent significance
• classification
• abatement
• ademption

Question 19

integration/plain meaning doctrine

Answer 19

courts tend to give words their plain meaning & assume T meant the plain meaning of what he said

Exception: The will states otherwise (e.g., by defining terms).

Under the doctrine of integration, the will consists of all pages that are:
- Present at the time of execution; and
- Intended to form part of the will.
Intent can be shown by:
- Physical connection of the pages (stapled or paper clipped together); or
- The ongoing nature of the language of the will (pages are not attached, but page numbers indicate that the pages follow each other).

Question 20

incorporation by reference

Answer 20

Will refers to a document outside the will itself.

A will may incorporate an extrinsic document that is not testamentary in nature, if:
(1) The document is in existence at the time of execution (The UPC will waive this rule if the document disposes only of personal property);
(2) The testator intends the document to be incorporated into the will; and
(3) The document is described in the will with sufficient certainty to permit its identification.

*A validly executed codicil can incorporate an invalid will and make the terms of the will valid.

Question 21

acts of independent significance

Answer 21

A testator can dispose of property based on some act or event that is unrelated to the execution of the will.

E.g. “I devise my stamp collection to my daughter-in-law at the time of my death.” T-Bone may or may not have a daughter-in-law at the time he writes the will. The stamp collection goes to his daughter-in-law at the time he dies.

*This doctrine applies to acts that occur in the future (i.e., after the execution of the will). That makes it different from both incorporation by reference and republication by codicil.

Question 22

classifying gifts

Answer 22

specific gift: gift of particular piece of property (specific car, my stamp collection)

general gift: gift of personal property satisfied from general assets (10k to A)

demonstrative gift: general gift from particular source
(100k to J from bank of america account, but if funds not sufficient, rest paid out of general funds)

residuary: anything left over (the rest of my property to X)

Question 23

abatement

Answer 23

if the assets of the estate are insufficient to pay all the debts of T and legacies, a court will “abate” or reduce the gifts to pay the debts.

court will abate gifts in this default oder:

1. intestate property (property not addressed in the will)
2. residuary bequests
3. general bequests
4. specific bequests (& demonstrative gifts)

–> specific gifts are the last items to be sold/reduced in order to pay off debts of the estate; intestate property is the first item to be sold/reduced

Demonstrative legacies are treated as specific legacies for abatement purposes to the extent that they can be satisfied, and otherwise as general legacies.

Question 24

ademption

Answer 24

1. ademption by extinction: when will makes specific devise of property but property no longer in estate at T’s death

• traditional rule: devisee takes nothing (does not apply to general or demonstrative gifts)
• UPC: look at T’s intent at time she disposed of property. Look for facts that suggest the testator intended the ademption.

*UPC tries to avoid ademption. The UPC provides for the beneficiary to take replacement property on a specific gift.

2. ademption by satisfaction:
   Applies when a testator satisfies a specific or demonstrative gift, either in whole or in part, by an inter vivos transfer.
   (1) The testator must intend for the gift to adeem; and
   (2) Intent must be supported by a writing.

Question 25

lapse and anti-lapse
-special rules for class gifts

Answer 25

common law: if beneficiary dies before testator, gift to beneficiary lapses (fails). Failed gifts would be dumped into the residuary gift.

modern anti-lapse statute: if beneficiary was in a protected relationship (blood-related) to T, beneficiary’s surviving issue (child, grandchild) will take in his place

Special rules for class gifts:
Common Law:
- Exception to the lapsed gifts rule
- If a member’s gift lapses, the rest of the class share that member’s gift.

• If the lapsed member is covered by an anti-lapse statute, that rule controls and his issue take.
• If the lapsed members is NOT covered by an anti-lapse statute, the rest of the class members share the lapsed member’s gift.

*if a residuary divided in 2 and 1 dies (and anti-lapse doesn’t apply),
-common law: 1/2 goes to T’s heirs (who would take under intestate succession)
-UPC: goes to other person in residuary

Question 26

ambiguities & mistakes

Answer 26

latent ambiguity: not ambiguous on its face
-e.g. “to my brother” but i have two brothers

patent ambiguity: ambiguous on its face
-e.g. lists address as “11” at one point and “12” at another

Traditional Rule:
- Patent ambiguities had to be resolved without looking to extrinsic evidence;
- Extrinsic evidence was admissible to resolve latent ambiguities.

Modern Rule: Most courts allow both ambiguities to be resolved with extrinsic evidence.

Mistakes: Courts tend to be less forgiving when it comes to mistakes.
- Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when the testator is unaware that she was signing a will.
- Extrinsic evidence is not allowed if the mistake involves the reasons behind the testator making the will or a particular gift.

Reformation: Under the UPC, a court may reform (edit or revise) a will that is unambiguous if there is clear and convincing evidence that:
- There is a mistake of law or fact; and
- The testator would want it to be revised or rewritten.

Question 27

power to transfer overview

Answer 27

• Rights of the Surviving Spouse
• Gifts to Testator’s Children
• Bars to Succession

Question 28

Rights of the Surviving Spouse

Answer 28

A surviving spouse is entitled to a number of means of support:
- Social security and pension plans;
- Homestead exemption;
- Personal property set asides;
- Family allowance for reasonable living expenses during probate; and
elective share.

Elective Share
- A surviving spouse can elect to take a forced share.
- The spouse’s elective share will change the gifts to other beneficiaries.
- UPC: Forced share is 50% of the decedent’s augmented estate (includes property acquired before the marriage, as well as property acquired during the marriage)

Waiver
- Surviving spouse can waive the right to an elective share, if:
(1) The waiver is in writing after a fair disclosure of its contents; and
(2) The spouse is represented by independent legal counsel.

Question 29

Gifts to Testator’s Children
-advancements
-omitted children

Answer 29

Advancements:
- A lifetime gift to a child that is treated as satisfying all or part of the child’s intestate share.

Common Law:
- Any lifetime gift is presumed to be an advancement of that child’s intestate share.
- The child had the burden to show that an item was an outright gift.

UPC: A gift is an advancement only if:
- The decedent declared in a contemporaneous writing that the gift was an advancement (or the heir acknowledged as such in writing); or
- A writing indicates that the gift should be taken into account in computing the division of property of the decedent’s estate.

Calculating effect of advancement - “Hotchpot” analysis:
- Add the value of the advancements back into the intestate estate.
- Divide the resulting estate by the number of children taking.
- Deduct the child’s advancement from the child’s intestate share.

Omitted Children

Intentional disinheritance: a parent can intentionally disinherit his children.

Unintentional disinheritance: The testator has a child after executing a will and dies without amending the will.
- If the testator had no other children when the will was executed, then omitted child takes her intestate share.
- If the testator had at least one child at the execution of the will, and the will devised property to at least one of those children, then the omitted child takes an equal share from the portion of the property already devised to the other child.

Question 30

Bars to Succession
-slayer rule
-disclaimer
-elder abuse

Answer 30

Slayer Rule
- A beneficiary who murders the decedent is barred from taking under the decedent’s will.
- A beneficiary who murders the testator is treated as if he predeceased the testator.

*doesn’t apply to involuntary manslaughter or self-defense

• UPC: Allows the killer’s issue to take, when relevant (i.e., anti-lapse statute or intestate succession distribution)

Disclaimer
- A person may disclaim a testamentary gift.
- Requirements: The disclaimer must:
(1) Be in writing, signed, and filed with court; OR declared to the person in charge of distributing the estate; AND
(2) Identify the decedent, describe the interest being disclaimed, and define the extent of the disclaimer.
- Timing: Must disclaim within 9 months of the decedent’s death

Elder Abuse: Someone who is convicted of financial exploitation, abuse, or neglect of a person under her care is prohibited from inheriting from that person.

Question 31

will contests overview

Answer 31

Objections to the validity of a will

• Only an interested party has standing to challenge a will (someone who would receive a financial benefit under the will or take under intestate succession but not under the will)
• Interested party must file a contest claim within 6 months after the will is admitted to probate.

UPC: forfeiture clauses are only enforced against contests without any probable cause (if beneficiary contests, loses share under will)

• insane delusion
• undue influence
• fraud

Question 32

insane delusion

Answer 32

A false belief to which the testator adheres in spite of all reason and evidence to the contrary.

The testator has general capacity, but has an insane delusion as to some belief.

Objective test:
- Measure the testator’s insane delusion against the actions of a rational person in the testator’s position.
- A belief is an insane delusion if the rational person could not have reached the same conclusion.

Causation: The contestant must show that the insane delusion was a but for cause of the testamentary disposition/property distribution

Question 33

undue influence

Answer 33

General rule: Undue influence occurs when mental or physical coercion is exerted by a third party on a testator with the intent to influence the testator such that he loses control of his own judgment.

If undue influence is shown, the will may be invalidated in whole, or in part.

A presumption of undue influence arises when:
(1) The principal beneficiary under a will stands in a confidential relationship to the testator (attorney, physician, clergy member);
(2) That person participated in the execution of the will; and
(3) The gift to that person was unnatural or consists of the majority of the estate.

After the presumption is raised, the beneficiary bears the burden of proving that there was no undue influence.

If he cannot meet the burden, the court will invalidate either the entire will or the part of the will giving the gift to that person.

Majority view: A contestant traditionally must show four elements:
(1) Susceptibility: The testator was susceptible to being influenced.
(2) Motive: The influencer has reason to benefit.
(3) Opportunity: The influencer had opportunity to influence.
(4) Causation: The influencer caused an unnatural result.

Question 34

fraud

Answer 34

The contestant bears the burden of showing that the beneficiary engaged in an unlawful misrepresentation at the time of the conveyance.

Beneficiary made misrepresentation with:
(1) The intent to deceive the testator; and
(2) The purpose of influencing the testamentary disposition.

Fraud in the Inducement: The misrepresentation causes the testator to make a different will than the testator would have otherwise made.
-Must show that the testator would not have made the gift if he had known the truth

Fraud in the Execution: A misrepresentation as to the character or contents of the will (i.e., testator does not know he is creating a will or is not told the true content of the will)

A constructive trust is the most common remedy for fraud.

Question 35

filing under UPC

Answer 35

Probate proceedings must be brought within 3 years of death, after which there is a presumption of intestacy.

A party requesting probate can choose to have it occur through informal (ex parte) or formal probate (notice).

Question 36

creditors

Answer 36

Non-claim statute
- Bars a creditor from making a claim on the decedent’s estate after a certain time period has elapsed
- If a claim is not brought within that window, the claim is barred.
- The exact timeline is based on the statute.

The personal representative must provide notice to the creditors of the estate.

Seven classes of creditors (from most important to least important):
- Administrative expenses;
- Medical and funeral expenses;
- Family allowances;
- taxes;
- Secured claims;
- Judgments against the decedent;
- All other claims.

Question 37

personal representative

Answer 37

person who acts on behalf of estate during probate process

• administrator: appointed by court
• executor: named in will

Any person with the capacity to contract may serve as a personal representative.

duties:

• inventory and appraise the estate
• locate & contact interested parties, including creditors
  -Satisfy debts, including taxes, burial expenses, and support;
• Close the estate.
• duty of loyalty and care (no self-dealing, can’t do business with estate)

The personal representative gets paid from the estate.

Choosing a Personal Representative: if the will does not name a personal representative, the following priority applies:
- A surviving spouse who is a devisee;
- Other surviving devisee;
- Surviving spouse (if not a devisee);
- Other heirs of the decedent;
- 45 days after decedent’s death, any creditor.

Question 38

Power of Appointment

Answer 38

Describes the ability of the decedent (donor) to select an individual (donee) to dispose of certain property under the will

• Power is personal to the donee (only the donee can appoint)

1. General power
   - No conditions or restrictions on the donee’s power
   - The donee can appoint herself or one of her creditors as the owner of the property.
   - If the donee fails to exercise the power, the property reverts back to the donor’s estate.
2. Special power
   - The donor can specify certain individuals or groups as the objects of the power.
   - In doing so, the donor limits the donee’s power.

Question 39

Power of Attorney

Answer 39

An authority to act on another’s behalf in a legal or business matter

Principal/agent relationship. To be valid, it must be:
(1) In writing;
(2) signed; and
(3) dated.

Three Types: General, Special, Advance Health Care Directives

1. General: Covers all affairs during a person’s period of incapacitation.
2. Special: Limits the authority to specific subject matters (i.e., resolving a particular business deal).
3. Advance Health Care Directives

a. Living will
- Dictates the care the individual wants in the event the individual is not able to make those wishes known.
- The agent’s job is to see that the directive is enforced.

b. Durable power of attorney for health care
- Appoints an agent in the event the principal becomes incapacitated and is unable to make medical decisions.
- Allows the agent to stand in the principal’s shoes and make decisions for her.

*An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.

*The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith.

Question 40

Ancestors and Remote Collaterals

Answer 40

If no surviving spouse or issue exist, then the property may be distributed to:
- Decedent’s ancestors (e.g., parents, grandparents, great-grandparents); and
- More remote collateral relatives (i.e., those related to the decedent through a common ancestor, such as siblings, cousins, aunts, and uncles).

UPC Approach—If there is no surviving spouse or descendant, then the estate passes in the following order to the individuals designated below who survive the decedent:
- To the decedent’s parents equally if both survive, or to the surviving parent;
- Then to the descendants of the decedent’s parents (decedent’s siblings);
- Then the estate passes to the decedent’s maternal and paternal grandparent, one-half to each, or to the descendants of the decedent’s maternal and paternal grandparents if the grandparents are deceased;
- Then the entire estate passes to the decedent’s nearest maternal and paternal relative; and
- If there are no surviving relatives, then the estate escheats to the state.

*If a person dies without a will and without surviving spouse or issue to succeed to the decedent’s estate, then the property may be distributed to the decedent’s ancestors and more remote collateral relatives.

*Under the parentelic approach, detailed in the UPC, collateral lines are followed until a live taker is found, at which point the decedent’s property is distributed. A decedent’s estate would first pass to the decedent’s parents and their issue (the decedent’s siblings). If there are none, then to the decedent’s grandparents and their issue (uncles, cousins, etc.), and so on.

*Under the degree-of-relationship approach, those with closer degrees of relationship to the decedent take to the exclusion of more remote relatives. The degree of relationship is calculated by counting the number of relatives between the living taker and the decedent using the closest common ancestor.
*There can be a tie under the second approach so split equally, or the parentelic approach can be used as a tiebreaker in the event that the degree-of-relationship approach results in a tie between living takers, with those in the closer collateral line taking to the exclusion of those more remote.

Question 41

Non-Marital Children

Answer 41

The common-law rule was that if a child was born out of wedlock (i.e., mother and father are not married when child is born), then she could not inherit from her natural father.

The modern trend adopted by most jurisdictions is that an out-of-wedlock child cannot inherit from her natural father unless:
- The father subsequently married the natural mother;
- The father held the child out as his own and either received the child into his home or provided support;
- Paternity was proven by clear and convincing evidence after the father’s death; or
- Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.

Question 42

Conditional Wills

Answer 42

A testator may write a will that says the will is to take effect only if a certain condition occurs.

Courts do not look favorably on conditional wills. If possible, the court will construe such language as a mere explanation or instruction, rather than a condition for the will to take effect.

Question 43

Conflict of laws

Answer 43

1. Validity of a Will
   - Common law approach—determined under the law of the state where the testator was domiciled at the time of his death
   - UPC approach—determined (i) under the law of the place where it was executed, or (ii) if it was valid where the testator is domiciled, has a place of living, or is a national at the time of death
2. Personal Property—law of the place where the testator was domiciled at the time of death governs
3. Real Property—law of the place where the property is located governs

Question 44

Alteration

Answer 44

A testator cannot increase a gift to a beneficiary by canceling words in his will.

A testator may be able to decrease the gift as long as the alteration is made to the existing language of the will rather than through the addition of new language.

Question 45

Ademption: Stocks & Life Insurance Contracts

Answer 45

1. Stocks (Securities)
   - Common law: a stock dividend is a property interest distinct from stock given by a specific bequest. A bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares is deemed to include any additional shares of that security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions.
   - UPC: A bequest of a security (stocks) that was owned at the time the will was executed will include any additional shares of that stock or of another stock as long as the action was initiated by the corporate entity. A stock dividend is treated like a stock split instead of a cash dividend, so the beneficiary will also receive the stock dividends.
2. Life Insurance Contracts
   - If an insured dies while a life insurance policy is in effect, the policy proceeds are payable to the named beneficiary.
   - Although the owner of a life insurance policy typically retains the right to change the named beneficiary without obtaining that beneficiary’s consent, the owner must do so in accordance with procedures specified in the life insurance contract.
   - Life insurance contracts almost never permit a change of beneficiary by will, and courts have almost invariably upheld such restrictions.

Question 46

Effect of prenup

Answer 46

A spouse may waive in whole or in part, before or during the marriage, the right to receive property that would pass by intestate succession or by testamentary disposition in a will that was executed before the waiver.

However, the waiver in the prenuptial agreement does not apply to subsequent gifts or bequests made voluntarily.