Wills Flashcards
1
Q
what are the statutory formalities for a will?
A
T must be 18 or over
Will must be written
- anything that is a oral is NOT a will
have testamentary intent
T must sign the will
Two attested witnesses who witness T’s signing
2
Q
will an X serve as signature on a will?
A
yes!
signature may be another person at T’s direction, in T’s presence
3
Q
what is the special uniform probate code (UPC) provision?
A
a court can validate a defectively executed will if the will proponent establishes by clear and convincing evidence that the testator intended the document to be his will.
A will that is signed by the testator and a notary is valid without the need for any witnesses.
4
Q
what is a notarial will?
A
the testator either dictates its provisions to the notary or hands him an instrument declaring that it contains his will.
5
Q
what happens if a portion of the will follows the testator’s signature?
a clause present at the time of execution
A
some states– wills must be signed “at the end” of
UPC and the majority: the will including that clause is valid
everything above = good
everything below= bad
6
Q
what happens if a portion of the will follows the testator’s signature?
a clause added after execution
A
uniform- will valid but addition is NOT valid
7
Q
EXAMPLE:
T writes a document in her own handwriting that reads “this is my last will. I revoke all earlier wills. i leave everything to the YMCA.”
T signs the instrument. Is it admissible to probate?
A
1/2 of states: holographic will not allowed. Not entitled to probate unless 2 attesting witnesses.
UPC and some other states is valid if material provisions in own handwriting and signed by them.
8
Q
what are material provisions?
A
ID property
beneficiaries
9
Q
what is a holographic will?
A
a will written in the testator’s handwriting
10
Q
EXAMPLE:
T in hospital bed with contagious disease when will executed. Two witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind screen “this is my will. it loos ok; where do I sign?” After T signs, will brought out to hall. witnesses sign in hall. has will been validly executed?
A
Minority rule- scope of vision test: (line of sight) witness only if to see T sign; if they were too look
Majority rule- conscious presence test: witness if they are conscious of where T is and what they are doing.
11
Q
EXAMPLE:
T is a domiciliary of Pennsylvania and owns some real estate in state x. while on vacation in Florida, T executed a will that meets the requirements for valid will in Pennsylvania but not in State X. later T dies after having changed his domicile to New York. Is the will valid for purposes of disposition of the state X real estate?
A
Common law and a few remaining states:
NO, no control over real estate unless comply with their law.
UPC and majority:
Yes, will be given affect in an ancillary proceeding if meets tests
Place of execution
Domicile at death
Domicile at execution
PRIM: administration is where T died and was domiciled
ANCILLARY= every state real property
12
Q
“I give to my faithful nurse Nell the sum of $30K” Nell is one of two attesting witnesses to the will. Is the will admissible to probate?
A
OLDER (MAJORITY) RULE: interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless:
- there were two disinterested attesting witnesses (supernumerary rule);
OR
- witness- beneficiary would be an heir if there were no will, in which case she takes lesser of (1) amount given in will OR (2) intestate share
NELL LOSES!
UPC AND MODERN TREND: interested witness rule abolished. “ a will or any provision thereof is not invalid because the will is signed by an interested witness”
NELL WINS!
interested witness situation frequently raises undue influence issue.
13
Q
what is self-proved wills?
A
at time will is signed by T and attesting witnesses (or some time thereafter, in T’s lifetime), T and witnesses sign self-proving affidavit under path before notary public.
affidavit recites all elements of due execution.
Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed.
14
Q
EXAMPLE:
in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document. Will revoked?
A
YES!
Cancelled– must have both act + intent
15
Q
what does revocation by physical act require?
A
intent to revoke
Physical act
typical statute refers to: burned, torn, cancelled, obliterated or destroyed
16
Q
EXAMPLE:
in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document.
what if VOID was written on the back of the will?
what if VOID was written on the face of a copy of the will?
A
VOID was written on the back of the will:
helpful to clarify intent BUT not critical
MOST STATES: must cross some of the language off the will- any language doesnt count
UPC: is cancelled because can appear
VOID was written on the face of a copy of the will:
not good in any state- must cross language that appears on the will.
17
Q
EXAMPLE:
in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document.
what would be the presumption if:
Will in T’s possession from time of execution until deasth and found in mutilated condition after T’s death
A
T did mutilating with intent to revoke
18
Q
EXAMPLE:
in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document.
what would be the presumption if:
Will last seen in T’s possession and control not found after T’s death.
A
T destroyed it with intent to revoke
19
Q
EXAMPLE:
t calls her attorney, the place where the will is located, and orders her attorney to destory T’s will. The other is never carried out.
will revoked?
A
No!
20
Q
EXAMPLE:
t calls her attorney, the place where the will is located, and orders her attorney to destory T’s will. The other is never carried out.
what if the attorney had revoked the will according to T would the will have been effectivley revoked?
A
NO
21
Q
what is needed when revoking a will by another person?
A
must be:
at T’s direction
and in T’s presence
22
Q
EXAMPLE:
t calls her attorney, the place where the will is located, and orders her attorney to destory T’s will. The other is never carried out.
if will was not revoked, how could it be probated, given that it was destroyed?
A
by satisfying the lost wills statute
23
Q
Lost will statute?
A
in UPC and most states:
lost will requires formal proceeding where proponents have burden or proving the contents of the lost will.
copy and one witness or other “clear and convincing proof”
24
Q
T’s 2010 will leaves blackacre to X, her diamond ring to Y and reside to Z. T’s 2013 codicil leaves $5K to Y and her diamond ring to M. Codicil does not expressly revoke earlier will.
who takes what?
A
M: the ring
Y: $5K no ring
X: Blackacre
Z: residue
REMEMBER: attorney can be sued in negligence or messing up the will.
25
what is a codicil?
amendment to will
26
what happens when a codicil does not make reference to the will and contains inconsistent provisions?
to the extent possible the will and codicil are read together.
but to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.
27
what happens if there are 2 wills and the second does not revoke the first?
if the second will has no residuary clause, it is presumptively a codicil to the first. there is an implied revocation only to the extent of the inconsistency.
if the second will has a residuary clause: revokes the 1st will in its entirety by inconsistency
28
what is the UPC rule when it comes to revocation by 2nd will or codicil?
revocation of a will revokes all codicils thereto BUT revocation of a codicil to a wills does not revoke the will
29
T's will devises entire estate "to my wife, sheila, if she survives me; if she does not survive me, in trust for my children" the will names Sheila as executor " if she is able"; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.
who takes what? who serves as executor?
UPC and most states: divorce following a will revokes all provisions in favor of the ex-spouse; construe as if she were dead.
30
T's will devises entire estate "to my wife, sheila, if she survives me; if she does not survive me, in trust for my children" the will names Sheila as executor " if she is able"; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.
T and Sheila marry each other again?
Sheila comes back into the will
31
T's will devises entire estate "to my wife, sheila, if she survives me; if she does not survive me, in trust for my children" the will names Sheila as executor " if she is able"; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.
T and Sheila separate without a divorce?
mere separation does not affect the will
32
T's will devises entire estate "to my wife, sheila, if she survives me; if she does not survive me, in trust for my children" the will names Sheila as executor " if she is able"; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.
what if they separate without a divorce BUT they have a separation agreement?
then the agreement will be considered a waiver by her of the her rights; construe as if she is dead.
33
T's will devises entire estate "to my wife, sheila, if she survives me; if she does not survive me, in trust for my children" the will names Sheila as executor " if she is able"; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.
will their divorce revoke a provision for Sheila in T's revocable inter vivos trust?
Yes, write her out of both the will and the trust
34
T's typewritten will made a bequest of $10K to my friend X. subsequent to the wills execution, T drew a line through the figure $10K and wrote in above it $15K. T then signed his name in the margin opposite the change.
has the 10k bequest to X been revoked?
Yes, revoked by physical act- can revoke the entire will or only part of it.
35
T's typewritten will made a bequest of $10K to my friend X. subsequent to the wills execution, T drew a line through the figure $10K and wrote in above it $15K. T then signed his name in the margin opposite the change.
can the interlineation be given effect?
No unless:
after change T either re-executed (signed again with a witness)
OR
T re-publishes by codicil (makes changes to will by codicil)
36
what is the dependent relative revocation?
allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfies that, but for the mistake. T never would have made the revocation.
37
in 2008, T executes will-1 which devise his residuary estate "in trust to pay the income to my grandson G until he attains the age of 30, at which time to distribute the principal to G"
in 2013, T executes a new will, Will-2 "hereby revoking all wills heretofore made by me" will 2 devises his residuary estate to G outright. importation part of the story: T does not destroy Will-1. In 2015 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeepper, "you know, i think the property should be held in trust for G after all". with this he destroys Will-2 with the intent of reviving Will-1. T dies in 2017. He is survived by G and by his daughter s, whom he detests.
who takes what?
has Will-1 been revoked?
has will-2 been been revoked?
Will-1 been revoked:
yes in 2013 at the executrion of will 2; if will 2 expresses revocation of #1 then earlier wills are revoked
will-2 been been revoked:
yes by physical act
38
in 2008, T executes will-1 which devise his residuary estate "in trust to pay the income to my grandson G until he attains the age of 30, at which time to distribute the principal to G"
in 2013, T executes a new will, Will-2 "hereby revoking all wills heretofore made by me" will 2 devises his residuary estate to G outright. importation part of the story: T does not destroy Will-1. In 2015 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeepper, "you know, i think the property should be held in trust for G after all". with this he destroys Will-2 with the intent of reviving Will-1. T dies in 2017. He is survived by G and by his daughter s, whom he detests.
did revocation of will-2 revive will-1?
some states:
No, only way to set #1 will be to re-execute or republish by codicil
UPC and some other states: Not automatically, is revived if 3 tests are met:
1. it still exists
2. T wanted it revived
3. will 2 must have been revoked by physical act
39
in 2008, T executes will-1 which devise his residuary estate "in trust to pay the income to my grandson G until he attains the age of 30, at which time to distribute the principal to G"
in 2013, T executes a new will, Will-2 "hereby revoking all wills heretofore made by me" will 2 devises his residuary estate to G outright. importation part of the story: T does not destroy Will-1. In 2015 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeepper, "you know, i think the property should be held in trust for G after all". with this he destroys Will-2 with the intent of reviving Will-1. T dies in 2017. He is survived by G and by his daughter s, whom he detests.
in states, where Will-1 is not revived. what other issue is raised by these facts?
can we get will 2 back using DRR?
40
T's will after making several specific bequests, devised Blackare "as designated in a mem, that I plan to write and that will be found attached to this will"
after T's death, her will and a signed but unwitnessed typewritten note were found in an envelope maked "my will". the accompanying note read: I give blackacre to the american cancer society. The note was dated 2 months after the date of the will.
T's sole heir was a distant cousin whom she was not fond and from whom she had not heard for many years. Who takes blackare?
No American Cancer society because that memo was not given affect.
41
to incorporate an extrinsic document by reference what needs to happen?
writing must be in existence at time will was executed
will must manifest an intent to incorporate the document
will must describe the writing sufficiently to permit its identification.
42
can holographs incorporate non-handwritten material by reference?
YES!
43
T's will after making several specific bequests, devised Blackare "as designated in a mem, that I plan to write and that will be found attached to this will"
after T's death, her will and a signed but unwitnessed typewritten note were found in an envelope maked "my will". the accompanying note read: I give blackacre to the american cancer society. The note was dated 2 months after the date of the will.
T's sole heir was a distant cousin whom she was not fond and from whom she had not heard for many years.
what if the facts above were the same BUT that the reference was to a memo "that i have written" and the typewritten note was dated 2 months before the will was executed?
close but still maybe NOT
the issue is the 3rd requirement does not describe the writing
44
T's will after making several specific bequests, devised Blackare "as designated in a memo, that I plan to write and that will be found attached to this will"
after T's death, her will and a signed but unwitnessed typewritten note were found in an envelope marked "my will". the accompanying note read: I give blackacre to the american cancer society. The note was dated 2 months after the date of the will.
T's sole heir was a distant cousin whom she was not fond and from whom she had not heard for many years.
what if the will made reference to "a memo that i plan to write that makes disposition of various items in my home that are dear to me"
the accompanying note, written 2 months after the will was executed, lists various items of furniture and personal effects and names a beneficiary for each item.
EXCEPTION FOUND IN THE UPC AND MOST STATES:
will may refer to written statement or list that disposes of tangible personal property (other than money) not specifically disposed of by the will.
the written list must be signed by T and must describe the property with reasonable certainty.
May be written before or after the will executed; may be altered at any time.
PROPERTY CAN NOT BE:
money
real estate
stocks/bonds
45
I devise the automobile that I own at death to my nephew, Ned. I give the sum of $1K to each person who is in my employee at death.
3 months after the will was executed T trades his volkswagen in on a new cadillac; the effect is to increase the value of the gift to Ned from $1K to $9k. 6 months after that T fires 2 longtime employees and hires 3 new ones.
Then T dies.
what is the effect of these events on T's will?
he modified the will by his acts
acts having ID lifetime motive may impact on the will as well
as long as can find a life time motive, then is okay!
46
T executes will in 2009, it provides (inter alia) I give the sum of $5K to my sister, Paula. Paula dies in 2010; she is survived by her husband H an 2 children. Paula has a will which leaves all of her estate to H. T dies in 2015. who takes the $5K?
Paula's 2 kids split the $15K
47
when does the UPC lapse statute apply?
when the predeceasing beneficiary is T's grandparent or a lineal decedent of grandparent who lives (issue who survives T)
THIS RESTRICTS APPLICATION OF THE ANTI-LAPSE STATUTE
DOES NOT APPLY TO GIFT TO NON-RELATIVE including Spouse
48
what happens when a beneficiary named in the will dies before T?
when beneficiary named in the will dies before (or (UPC) within 120 hours of) the testator, the gift lapses and falls to the residue and passes as part of the residuary estate
UNLESS it is saved by the state's anti-lapse statute
49
T executes will in 2009, it provides (inter alia) I give the sum of $5K to my sister, Paula. Paula dies in 2010; she is survived by her husband H an 2 children. Paula has a will which leaves all of her estate to H. T dies in 2015.
what of the fact that Paula left a will devising all her property to H?
doesnt matter because anti-lapse goes to decedents- H will get Paula's property; kids get money
50
I devise Blueacre to the children of my good freind, john. I leave the residue of my estate to X.
At the time T executes his will, John has 3 kids (A, B, C)
thereafter, during T's lifetime, John has another kid (D) and his son A dies leaving a child A jr.
Then T dies, he is survived by John, John's three kids B, C, D, John's kid, A, Jr. and by X.
who takes blueacre?
B,C, and D split Blueacre equally
this is based on John's kids at death
51
what is the class gift rule?
when there is a gift by will to a group of persons generically described as a class and some class member predeceases T and the lapse statute does not apply, the surviving class members take.
52
I devise Blueacre to the children of my good freind, john. I leave the residue of my estate to X.
At the time T executes his will, John has 3 kids (A, B, C)
thereafter, during T's lifetime, John has another kid (D) and his son A dies leaving a child A jr.
Then T dies, he is survived by John, John's three kids B, C, D, John's kid, A, Jr. and by X.
what if the gift were to the children of my bother John?
back under the anti- lapse statute
goes to B,C, D and A jr share in BA.
anti-lapse statute saves A's share for A Jr.
53
I devise all the rest, residue and remainder of my estate in equal shares to my good friend, alan andrews, my business partner Betty Bates and my sister Carla.
Alan andrews predeceases T, leaving a child (alan Jr) who survives T. T, widower, is also survived by betty, by carter, and by an only child stephen.
who takes the residuary estate?
1/2 betty
1/2 carla
they are the surviving residuary beneficiaries
54
what is the UPC majority rule about when a residuary estate is devised to 2 or more people and the gift to one fails?
the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue.
55
I devise all the rest, residue and remainder of my estate in equal shares to my good friend, alan andrews, my business partner Betty Bates and my sister Carla.
Alan andrews predeceases T, leaving a child (alan Jr) who survives T. T, widower, is also survived by betty, by carter, and by an only child stephen.
what if Carla predeceased T leaving a child Carla Jr. who survived T? Andrews and Bates also survived T.
Back under the anti-lapse
1/3 each to andrews, 1/3 to bates. 1/3 to carla jr.
56
abatement
in what order are the gifts sacrificed to satisfy funeral expenes, expenses of administration, creditors claims?
RULE: start at the bottom and work up the list
use intestate property to pay off expenses
57
what is this an example of?
i devise blackare to my son john
specific devise or bequest
58
what is this an example of?
i give the sum of $5k to be paid out of the proceeds of sale of my acme stock, to my sister sarah
demonstrative legacy
59
what is this an example of?
i give the sum of 10k to my daughter donna
general legacy
60
what is this an example of?
i give all the rest, residue, and remainder of my property to my wife, agnes
residuary bequest
61
what happens when there is a partial intestate property?
"all of the residuary beneficiaries predecease T, and the case is not covered by the anti-lapse statute
62
i devise blackare to my son john
BUT
what if years before her death T sold blackacre, which was specifically deviesed to John.
what is the effect on the devise to John?
adeemed
will says take BA if there is NO BA then takes nothing.
restricted to specific gifts
63
i give the sum of $5k to be paid out of the proceeds of sale of my acme stock, to my sister sarah
WHAT IF: T sold her acme sotkc and did not own any such stock at her death.
does ademption apply to the gift to sarah?
no ademption does not apply to demonstrative gifts . will fund gifts with other gifts will has
64
what is the doctrine of ademption?
how is it applied under common law?
how is it applied under the UPC?
where the property specifically devised was not the estate for any reason what is to happen next
common law: T's intent is deemed to be immateral
UPC: T's intent is material BUT several statutory provisions apply to avoid ademption
65
UPC statutory provision applied to avoid ademption:
will executed before T declared incompetent:
if specifically devised property is sold by conservator, or if the condemnation award or insurance proceeds relation to the property are paid to the conservator then what does the specific devisee have?
a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds
unless
T's disability has been adjudicated to have ceased and T survives the adjudication by one year.
66
UPC statutory provision applied to avoid ademption:
will executed before T declared incompetent
what does the specific devisee have the right to?
to the remaining specifically devised property and
any balance of purchase price owing from purchase when contract is still executory at T's death.
COMMON LAW: equitable conversion would apply, and T would no longer own real property, but merely a claim to the remaining purchase price.
any amount of condemnation award for taking of the property to the extent unpaid at T's death
any amount of fire or casualty insurance proceeds unpaid at death
any real or tangible personal property acquired as a replacement for other similar property.
property acquired as a result of a foreclosure of a security interest on specially devised note.
67
I give and bequeth my painting to my daughter dora. the painting was incinerated in 2017. The painting was insured and the inraunce compamny duly paid its full value of $150K to T. Subsequently T dies.
Is dora entiteld to the insurance proceeds?
No dora is adeemed
there was no indication that T was incompetent
if insurance policy is unpaid then she would be able to get back T rec'd the funds before.
68
T's will leaves his "Buick" to his son, james. subsequently T sells the Buick for $5K and purchases a new BMW convertible for $40K case. is james entitled to the BMW at T's death?
Common law: NO
UPC: Yes, example of real/tangible property as replacement
69
I bequeth my 100 shares of stock in Tax Shelters to my son, Simon. At his deasth T owned 200 shares of stock in Tax Shelters consisting of the 100 shares he woned when he executed the will, plus 100 shars distributed to T by the corproation 6 months after the will was excuted.
How many shares does Simon take?
COMMON LAW: 2 approaches-- stock split and Stock dividends
Stock splits: simon gets all 200 shares
stock dividends: simon is limited to only 100 shares
UPC: all 200 shares! a specific devisee takes "any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.
70
what is the UPC rule for shares distributed by will?
a specific devisee takes "any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.
71
what is the common law approach for shares distributed by will?
stock splits and stock dividends
stock splits-- they would get all that the stock associated with the account that was promised to them.
72
I bequeath my 100 shares of stock in Tax Shelters to my son, Simon. At his death T owned 200 shares of stock in Tax Shelters consisting of the 100 shares he owned when he executed the will, plus 100 shares distributed to T by the corporation 6 months after the will was executed.
what if instead, Tax shelters was acquired by Ling-Temco-Vought and was a part of the merger each shareholder was given one share of LTV for every 2 shares of Tax Shelters, Inc. At T/s death he owned 50 shares of LTV stock.
Does Simon get the LTV stock?
common law: no adeemed
UPC: YES! a specific devisee is entitled to securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.
73
I bequeth my 100 shares of Coronado common stock to A; bequeth 200 shares of baker company stock to B. Thereafter T sells all of her coronado stock and all of her Baker stock.
what are A's rights?
what are B's rights?
A= adeemed
B= the prevailing construction is not specific then gift of value of 200 shares to be paid in kind.
REMEMBER: general items= specific= adeemed;
not specific= not adeemed
74
I devise Gatoracre to my son. I devise my residuary estate to my wife.
At T's death Gatoracre is subject to a mortgage that is a security for anote on which T was personally liable.
T's osn demands that the executor pay off the indebtedness so that Gatoracre will pass to him free and clear of the encumbrance.
is he entitled?
Common law: Yes
UPC: No!
Son takes the land subject to the indebtedness
75
a specifick devisee of encumbered property is _________ entitled to have the encrumbrance paid out of the residuary estate unless the will shows such intent.
a general direction in the will to pay debts does not show such intent
NOT
76
I give $5K to my nephew, John Paul Jones. At the time t executed the will he had 2 nephews whose names were James and Paul. T never met nor corresponded with either nephew and no nephew named John Paul Jones ever existed. Who takes the money?
in the absence of evidence. the gift will fall to the residuary.
77
I give $5K to my nephew, John Paul Jones. At the time t executed the will he had 2 nephews whose names were James and Paul. T never met nor corresponded with either nephew and no nephew named John Paul Jones ever existed.
suppose T had a nephew named John Paul Jones who he hadnt seen for 10 years. After T's death, Paul comes in and says " theres been a mistake, T told me this was for me in the will. The stenographer says "i made a mistake it was to say Paul's name"
is this evidence admissible?
MOST STATES: no because evidence violates the plain meaning rule. does not disturb the plain meaning of the an ambiguous will with evidence.
UPC: YES
78
under the UPC what happens when a will was drafted incorrectly and names the wrong person to receive the distribution?
A court may reform the terms ofa will, even if unambigous to conform the terms to the testator's intent if it is provided by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law.
in determining the testator's original intent, the court may consider extrinsic evidence even though the evidence contradicts an apparent plain meaning of the will.
79
common intestacy rules:
if survived by spouse but not issue or by parent who does the estate go to?
entire estate to the spouse
80
common intestacy rules:
if survived by spouse and issue all of whom are also issue of spouse who does it go to?
the entire estate to the spouse
81
common intestacy rules:
if survived by the spouse and issue at least one of whom is not issue of the spouse who does it go to?
the spouse is commonly given a fixed amount off the top and a fraction of any excess.
UNDER UPC:
the spouse takes the first $100K and one half of any excess
82
common intestacy rules:
share not going to spouse or all of the estate if no spouse
all to issue if any-- who is that?
children or grandkids
83
common intestacy rules:
share not going to spouse or all of the estate if no spouse
if no issue then to who?
parents or survivor
84
common intestacy rules:
share not going to spouse or all of the estate if no spouse
if no issue or parents?
brothers, sisters, decedents of them
85
common intestacy rules:
share not going to spouse or all of the estate if no spouse
what is the majority rule for how the issue take?
they take per capita (equally) if all are of the same degree of relationship otherwise they take by representation.
86
what is a probate estate?
an estate that could have been controlled by a will had T executed one.
it does not include life insurance, property held in trust, right of survivorship property, securities or bank accounts registered in payable on death (POD) or transfer on death (TOD) form or property T id not own at death.
87
Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.
If Maude dies intestate, can Chld inherit from Maude?
yes because her kid
88
Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.
If Frank dies intestate. Can Child inherit from Frank?
No unless frank marries Maude
OR
Adjudication of paternity or after Frank's death
89
Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.
If steve dies intestate. Can child inherit from steve?
no unless adoption by estoppel-- unperformed agreement to adopt
90
Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.
shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.
If Mr or Mrs. Anderson die intestate, can Cliff inherit?
Yes
91
Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.
shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.
If cliff dies intestate, can Mr. or Mrs. Anderson inherit from him?
Yes
92
Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.
shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.
if maude dies intestate, can cliff inherit from her?
No gives him rights to adoptive family and sever his rights with his bio family.
93
Stepparent adoption:
If W marries H1 and has a child C. H1 dies and W married H2 who adopts C.
can C inherit from H1's family?
Yes bc his relationship with his bio dad was never severed
94
Orphan adoption:
both natural parents die and C is adopted by close family member. who does C inherit from?
C continues to inherit from other family members.
95
do class gifts to " all of my issue" does that also include adopted children?
yes
96
rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.
rancher died intestate. Is wife an heir for purposes of intestate distribution?
Original Simultaneous Death Act: Yes
Revised Simultaneous Death Act: No
97
Original Simultaneous Death Act:
if H and W die simultaneously, then H's estate would be distributed as if W predeceased him.
But if there is evidence that W survived H (even for a few minutes) then W takes as H's heir.
98
Revised Simultaneous Death Act ( UPC)
when passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120 hours (5 days)
99
rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.
rancher died intestate.
NOW: Rancher left will that states " all my estate to wife" if the jurisdiction has the revised simultaneous death act, does wife take under the will?
No has to survive by 5 days
100
rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.
rancher died intestate.
NOW: Rancher left will that states " all my estate to wife if she survives me by 2 days. " if the jurisdiction has the revised simultaneous death act, does wife take under the will.
then would be allowed to take
101
rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.
rancher died intestate.
NOW: wife is named as beneficiary on ranchers' life insurance policy.
no has to survive by 5 days.
102
rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.
rancher died intestate.
NOW: wife and rancher owned Redacre as joint tenants.
no survivor so will distribute 1/2 to wife estate and 1/2 to rancher estate
103
H, a widower, gives his daughter A land worth 12K on A's birthday and tells his other kids (B and C) that they will receive similar gifts when they reach 25. H dies before the other gifts are made. H dies intestate leaving an estate worth 78K. At H's death A's land is worth 15K.
how should H's estate be distributed?
IF IT WERE AN ADVANCEMENT:
78K + 12k= 90K
brought into the hotchpot
the 90K would be divided equally 3 ways of which A deemed to have already received 12K of her share.
Result: A gets 18K B takes 30K and C takes 30K
104
what are the common law and UPC approaches to a lifetime gift given as an advancement of the estate?
COMMON LAW (minority): any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate's estate.
UPC (majority): no advancement unless:
1. the will provides for this treatment
2. declared as such in a contemporaneous writing by the decedent that the gift is to be deducted by the devise or is in satisfaction of the devise
OR
3. acknowledged as such in writing that the gift is in satisfaction
105
what does the doctrine of advancement apply to?
intestate estates
106
what does the satisfaction doctrine apply to?
testate estates
107
what is the surviving spouses' right to homestead?
the right to live in the home for as long as the spouse chooses.
UPC: the spouse gets a cash allowance in lieu of homestead
108
what is the surviving spouses' right to exempt property
household furniture, car, furnishings, appliances, personal affects, in a fixed amount
109
what is the surviving spouses' right to family allowance
reasonable allowance in money out of estate for maintenance of family during administration
110
Rights of surviving spouse
was will written before marriage?
what are the spouses' rights?
MOST STATES: marriage after a will has no effect on the will.
UPC: the effect of marriage following execution of will is that the pretermitted spouse is entitled to an intestate share (what would have taken if not dead)
UNLESS:
it appears from the will that omission was intentional
T made other provision for spouse by transfer outside will and the intent that the transfer be in lieu of provision in the will is shown by statements of the testator, the amount of the transfer or other evidence.
111
what is an elective estate (common law)
includes the net testamentary estate
the probate estate - exempt property- family allowance- funeral expenses, expenses of administration and allowable creditor's claims.
112
what is an elective estate (UPC)
elective estate includes:
| transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit.
113
what is an elective estate (UPC)
elective estate includes:
transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit.
transfers with retained right to possess or enjoy the income from the property
transfers held by decedent and another in right of survivorship form
transfers within 2 years of death to extent aggregate transfers to any one donee in either year exceeded the gift tax annual exclusion
114
what is the elective share a fraction of (common law)?
of the elective estate by interests received by spouse which are included in the elective estate are treated as if in satisfaction of the elective share.
IDEA keep spouse from double dipping
115
what is the elective share a fraction of (UPC)?
the max elective share is increased to one-half but the share a spouse actually gets depends on the duration of the marriage.
in effect, the elective share vests at a rate of 3% a year until it reaches a max of 50% after 15 years.
116
elective share is in addition to....
exempt property, family allowance, and homestead
117
an elective share may be waived by....
written contract after full disclosure
118
to claim an elective share a surviving spouse must...
file election within a set period of T's death
119
H and W were married in 1998. Later that same year, H executed a will leaving all of his property to W if she survived him, otherwise to M, his mother. in 2004, H and W had a child, A. W died in childbirth. in 2017 H died in a car crash accident. He had never revoked or modified his 1998 will.
what are A's rights to share in H's estate?
A is protected; A will get entire estate
120
a pretermitted child is....
a child or adopted after will is executed
UPC: child is entitled to take an intestate share
121
H and W were married in 1998. Later that same year, H executed a will leaving all of his property to W if she survived him, otherwise to M, his mother. in 2004, H and W had a child, A. W died in childbirth. in 2017 H died in a car crash accident. He had never revoked or modified his 1998 will.
what if-- H had executed a codicil after A's birth. In the codicil he named Smith instead of B as executor; in all other respects he reaffirmed and ratified the previous will.
Do we have a pretermitted child situation?
No bc of the doctrine of re-publication by codicil.
122
believing child (doughboy) to be dead, T executed will leaving all of her estate to her spouse if spouse survives her, otherwise to John and Jane in equal shares.
John and Jane were T's other 2 kids.
T's spouse predeceased her and T died survived only by John, jane and Doughboy who as it turns out, was not dead.
what are doughboy's rights?
here would be 1/3 each
123
what is the UPC approach to child though to be dead?
if at the time of execution of will, T fails to provide in her will for living child solely because she believes child is dead, child is treated as pretermitted.
124
what is the UPC approach to child though to be dead?
if at the time of execution of will, T fails to provide in her will for living child solely because she believes child is dead, child is treated as pretermitted.
125
what is conduct barring a party from sharing in the estate?
a person who kills and intentionally kills the T is NOT entitled to any benefit from T's estate by will or by intestacy or under life insurance.
Property passes as if the killer predeceased T.
Jointly held property with right of survivorship passes 1/2 to killer and 1/2 as if killer predeceased T
126
Renunciation
when does this take place and what is the result?
before acceptance, an heir, devisee or appointee of a power of appointment may renounce his interest in writing in whole or in part within 9 months after the death of decedent.
results in property passing as if renouncing party predeceased decedent unless will provides otherwise.
127
what is a living will?
a living will is a statement of an adult individual's desires with respect to life sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment when the individual becomes terminally ill or is in a persistent vegetative state
128
how must a living will be executed?
in writing
signed by an adult testator
or
by another at his direction
Uniform healthcare decisions act does not require witnesses, most states do.
the usual requirement is that there by 2 adult witnesses
129
how must a living will be revoked?
by any manifestation of intent to revoke (including physical act) at any time before death without regard to the principal's mental or physical condition
130
what is a durable healthcare provider?
used by one person to appoint an agent to make healthcare decisions for the principal such as giving consent to medical treatment, accessing principals medical records, and admitting or discharging principal from a healthcare facility.
the instrument does not become operative until the principal loses capacity
131
who is eligible to serve as an agent for a durable healthcare provider?
any person except an unrelated person who is associated with the principals healthcare facility
132
how must a durable healthcare provider executed?
```
in writing
signed by an adult testator
or
by another at his direction
the usual requirement is that there by 2 adult witnesses
```
133
how must a durable healthcare provider be revoked?
unless otherwise stated in the power, by written or oral notice of revocation to either the agent or the principals' healthcare provider.
A durable healthcare power is automatically revoked by the execution of a later durable healthcare power.
134
who is liable under a durable healthcare provider?
an agent under a durable healthcare provider is not civilly or criminally liable or subject to discipline for unprofessional conduct for healthcare decisions made in good faith.
135
probate of will
a will is not effective unless it is admitted to probate.
in most states impose civil liability on anyone who fails to deliver a decedents will to the court
136
appointment of personal representative
the person who administers the estate is called a personal representative
some states refer to this person as an executor if the decedent nominated the person in his or her will and an administrator if the decedent died intestate
137
priority of appointment
if there is a will, priority goes first to the person nominated in the will then typically to the surviving spouse unless disinherited in the will, then to other will beneficiaries
138
bond requirement
unless waived in the decedent's will, a PR must post bond
139
power to sell property
in the absence of an explicit authority by will, a PR must usually get a court order to sell real property
140
inventory requirement
the pR must file an inventory of all assets of the estate
the inventory must include the value of the property
141
publication of notice to creditors
PR must publish notice of administration in the legal notices section of the newspaper.
the PR must send actual notice of administration to all known or reasonably discoverable creditors.
this starts a short statute of limitations.
exception for secured creditors.
142
who can contest a will?
any person who would take more as heir if there were no will or as beneficiary under a prior will
143
will contests
what if there is lack of testamentary capacity?
burden of proof is on the contestants
the test:
Did T understand the nature of the act he was doing?
Did T know the nature and character of his property?
Did T know the natural objects of his bounty?
did T understand the disposition he wished to make?
144
will contests
what if there was an insane delusion?
a distinctive form of testamentary incapacity: where T is otherwise sane by the will is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, where the will is the product of the insane delusion
145
will contests
undue influence?
burden of proof is on the contestants, who must show:
existence and exertion of the influence
effect is to overpower the mind and will of the testator
the result is a will that would not have been executed but for the influence
146
will contests
influence undue?
unless the the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator but of the one exerting the influence.
may be shown as the entire will or as to one gift in the will.
