Wills

Question 1

Incorporation by reference (3 sentences)

Answer 1

The first issue to consider is whether any part of the first will is valid, either by republication or incorporation by reference. Most states require that the will be signed by the testator and two witnesses, who must sign in the testator’s presence. The UPC and a majority of states also recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator.

Question 2

Republication of an invalid will by codicil

Answer 2

A will is treated as having been executed (republished) on the date of the last validly executed codicil. However, to be republished, the will must have been validly executed.

If a first will is not executed, it may not be republished. The second document will be valid as a partial will rather than a codicil.

Question 3

How does one incorporate a document by reference?

Answer 3

A document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will. To incorporate a document by reference: (i) the document must be in existence at the time the will was executed, (ii) the language of the will must sufficiently describe the writing to permit its identification, and (iii) the will must manifest an intention to incorporate the document.

Question 4

Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to whom?

Answer 4

Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to the decedent’s children and descendants of deceased children.

Question 5

Parents and collateral kin never inherit if the decedent is survived by ______ or more _____ descendants.

Answer 5

Parents and collateral kin never inherit if the decedent is survived by children or more remote descendants.

Question 6

Slayer statutes, what do they mean and when do they apply?

Answer 6

One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate; the property passes as though the killer predeceased the decedent. Slayer statutes apply only when the heir kills the decedent whose estate is at issue; they do not apply to bar someone from taking a share of an estate because she killed another person—even if that person is the source of the decedent’s property

Question 7

Does a specific bequest fail if it ceases to exist?

Answer 7

Generally, when specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed. Under the identity theory applied in most states, the ademption doctrine is an objective test that does not take into account the testator’s probable intent.

Question 8

What is the more lenient test for ademption?

Answer 8

Some courts have adopted a more lenient intent test, under which the beneficiary is entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substitute property

Question 9

Under the UPC, a specific devisee has the right to any real property owned by the testator at death that was acquired as a ________ for the _____ _____ property

Answer 9

Under the UPC, a specific devisee has the right to any real property owned by the testator at death that was acquired as a replacement for the specifically devised property

Question 10

Under the common law rule, a specific bequest of stock includes _________ but not ____________.Under the UPC and the statutes of many states, a specific bequest of stock includes ________.

Answer 10

Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend. Under the UPC and the statutes of many states, a specific bequest of stock includes stock dividends

Question 11

What happens if the conservator causes ademption of a gift?

Answer 11

Under a well-recognized exception to the ademption doctrine, if conservator is appointed for the testator after the will is executed and the property is sold by the guardian, the beneficiary is entitled to the sale proceeds—at least to the extent they have not been expended for the testator’s care

Question 12

Effect of divorce on gifts to former spouse

Answer 12

If a testator is divorced after making a will, all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator.

Question 13

Absent a ________, a bequest in a validly executed will remains in full force regardless of the subsequent relationship of the parties

Answer 13

Absent a revocation, a bequest in a validly executed will remains in full force regardless of the subsequent relationship of the parties

Question 14

Gifts to relatives of former spouses under UPS

Answer 14

Under the Uniform Probate Code, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse; thus, under this view, the gift to Child would be revoked and pass by the laws of intestacy (bonus)

Question 15

What are the three options of intestate distribution?

Answer 15

In most states, if a decedent is not survived by a spouse or descendants, her intestate property passes to her parents and/or siblings (and children of deceased siblings). In most states, the intestate property is distributed per capita with representation, meaning the property is divided at the first generational level at which there are living takers, with the share of each deceased person at that level passing to his issue by representation.

Some states follow a per capita at each generational level type of distribution that divides at each level. A few states use a strict per stirpes distribution, under which the stirpital shares are always determined at the first generational level regardless of whether there are living takers.

Question 16

Is a will valid?

Answer 16

Most states require that the will be signed by the testator and two witnesses, who must sign in the testator’s presence. The UPC and a majority of states also recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator

Question 17

What is a holographic will?

Answer 17

a holographic will is an unattested will entirely in the testator’s handwriting.

Question 18

Is the beneficiary on the life insurance policy or the beneficiary within the will entitled to life insurance proceeds?

Answer 18

Life insurance proceeds are a nonprobate asset and pass to the beneficiary outside of the estate. A life insurance policy is a contract, and the disposition of the proceeds is governed by the terms of the contract. A will cannot change the beneficiary designation unless the terms of the contract permit it.

Question 19

Disposition of personal property

Answer 19

For the disposition of items of personal property, many states and the UPC dispense with the requirement that the document be in existence at the time the will is executed if the writing is signed by the testator and the items and devisees are described with reasonable certainty.

Question 20

Anti-lapse statutes

Answer 20

May save predeceasing B gifts. All states have some form of anti-lapse statute that saves the gift if the predeceasing beneficiary was in a certain degree of relationship to the testator and left descendants who survived the testator. Most statutes require that the predeceasing beneficiary be related to the testator by blood and do not save a gift to a predeceasing spouse—even if he left descendants who survive the testator.

Question 21

Abatement order

Answer 21

When an estate’s assets are not sufficient to pay all claims and satisfy all bequests and devises, gifts abate (are reduced). Unless the testator specifies an order of abatement, gifts abate in the following order: intestate property, the residuary estate, general legacies, and specific devises and bequests.

Question 22

What must a contestant show to establish undue influence? When does a presumption arise?

Answer 22

To establish undue influence, the contestants must show: (i) influence was exerted on the testator, (ii) the effect of the influence was to overpower the mind and free will of the testator, and (iii) the product of the influence was a will that would not have been executed but for the influence.

A presumption of undue influence arises when: (i) there is a confidential relationship between the testator and the beneficiary-influencer, (ii) the beneficiary participated in procuring or drafting the will, and (iii) the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence. Once elements of the presumption are shown, the burden shifts to the proponent of the will to prove that it was not induced by undue influence.

Question 23

Is a will–in part procured by undue influence–wholly void or only void in part?

Answer 23

A will is void if its execution is procured by undue influence; if only a part of the will was so procured, only that part is void, and the remainder of the will is given effect

Question 24

Who takes in the residuary if one of the shares lapses?

Answer 24

At common law and in some states, if a testator’s residuary estate is bequeathed to two or more beneficiaries and one of the shares lapses, that share “falls out of the will” and passes by intestacy. Most states have replaced this rule by statute, under which the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue.

Question 25

What is a specific bequest?

Answer 25

A specific bequest is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described

Question 26

Effect of disclaimer

Answer 26

A beneficiary may disclaim any interest, and the interest passes as though the disclaimant predeceased the decedent. The gift may be saved in favor of the disclaimant’s surviving descendants if she falls within the purview of the jurisdiction’s anti-lapse statute; otherwise, the gift fails and becomes part of the residuary estate. A typical anti-lapse statute provides that the surviving descendants take by substitution only when the predeceasing beneficiary is a descendant of the testator. A few states’ anti-lapse statutes are even broader, applying to any relative of the testator or any beneficiary at all

Question 27

Proving intent to create a will.

Answer 27

For a will to be valid, the testator must intend that the particular instrument operate as his will. The use of language such as “This is my last will” raises a presumption of testamentary intent, but the presumption is rebuttable. Generally, extrinsic evidence is admissible to show testamentary intent and, presumably, lack of testamentary intent

Question 28

How do you revoke a will?

Answer 28

A will may be effectively revoked by operation of law, by a subsequently written instrument, or by physical act. **Subsequent instrument:** To revoke a will by written instrument, there must be a present intent to revoke, and the instrument must be executed with the same formalities as are required for the execution of a will. In states that recognize holographic wills, a valid holographic will may revoke a typewritten, attested will. **Physical act:** The statutes of each state specifically prescribe the acts sufficient to revoke a will. Generally, these acts are burning, tearing, obliterating, or canceling a material portion of the will. Under the common law rule, the act must be shown to have had an actual effect on the will or its language. Under the UPC, the words of cancellation must be on the will itself but need not touch any of the words of the will. If a will is lost or found mutilated, the presumption arises that the testator mutilated the will with intent to revoke.

Question 29

Interested witnesses

Answer 29

At common law, if one of the two necessary attesting witnesses was a beneficiary, the will could not be probated. Most states have purging statutes that eliminate the interest rather than render the will invalid; thus, the will is valid, but the gift to the witness-beneficiary is void

Question 30

Contract to make a gift in a will

Answer 30

While at common law a contract to make a gift by will need not be in writing unless land is involved, some states have enacted statutes requiring all contracts to make a gift by will to be in writing. Under the UPC, a contract to make a will can be established only by: (i) provisions in the will stating the **material provision**s of the contract; (ii) an **express reference** in a will to the contract **and extrinsic evidence proving the terms of the contract**; or (iii) a writing **signed** by the decedent evidencing the contract

Question 31

If the nieces are unsuccessful on their contract claim, they can pursue a quantum meruit claim for the reasonable value of the services that they rendered to Banks. A claim will be recognized where, as here, there was a reasonable expectation among the parties that the nieces would be compensated for their services

Question 32

What if a charitable trust's purpose is made impossible or illegal?

Answer 32

If the testator had a general charitable intent and it is impossible or impractical to use the gift for the purpose indicated, the doctrine of cy pres allows the court to apply the property to another purpose as close as possible to the original one. Application of the cy pres doctrine is not limited to charitable trusts; it also applies to outright bequests to charities where, as here, the named charity is not in existence at the testator’s death.

Question 33

Integration of a will

Answer 33

“Integration” of a will is the process of embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution. The will proponent must show that the **pages were present when the will was executed and were intended** by the testator to be part of the will. Witness testimony and other extrinsic evidence is admissible to prove integration requirements. Intent and presence are presumed when: t**here is a physical connection of the pages**, there is an **internal coherence** by provisions running from one page to the next, or the pages, when read together, set out an **orderly** **dispositive** plan.

Question 34

Codicil

Answer 34

A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will. A codicil need not be a separate document; it may appear on the same piece of paper as the will it amends. Under the state statute in this case, a codicil is not valid unless it is signed by the testator and two attesting witnesses

Question 35

Under the doctrine of dependent relative revocation, a court may __________ a revocation if the revocation was due to a **mistake of law or fact** ***and*** would not have occurred but for the testator’s mistaken belief that another disposition of his property was valid. The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed, to do than would an intestate distribution

Answer 35

Under the doctrine of dependent relative revocation, a court may **disregard** a revocation if the revocation was due to a **mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of his property was valid.** The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed, to do than would an intestate distribution