Wills Flashcards
(23 cards)
Valid will requirements vs holographic wills
Valid will- in writing, signed with present testamentary intent, in the presence of 2 witnesses
holographic wills- in T’s handwriting, signed by T, need not be witnessed- validity varies, UPC will probably allow via showing of intent
incorporation
does not need testamentary formalities, so long as it:
- existed at time the will was executed, 2. T intended writing to be incorporated, and 3. writing is described with sufficient certainty
Abatement
Gifts by wills are abatement when assets of estate are insufficient to pay all debts.
CL rule for children vs majority
CL - out of wedlock, cannot inherit.
Majority- inherit if: subsequent marriage, if father held out child as his own, if paternity was proven via clear and convincing evidence, or of P was otherwise adjudicated
Three forms of revocation
- by subsequent writing
- physical destruction of will
- operation of law
Omitted children rules
If: birth of child post execution of will AND:
no living kids at execution: presumption of accidental ommission and will be able to get intestate share
1+ living kid: get to share whatever the kids get
(they get 0, new kid gets 0)
Omitted child exceptions
- it appears intentional
- T had other children at execution and left estate to coparent
- T provided for kid outside the will
codicils
executed with same formalities of a will, republishes will at date of codicil
How a validly executed codicil can validate an invalid will
If it refers to the will with sufficient certainty to ID and incorp it, or if it is on same paper as initial will
Stock dividends and estates
CL - stock dividend is a distinct entity from the stock in a bequest
Modern - bequest of certain number of shares includes additional shares acquired via dividend, split, or merger but not cash dividends or proceeds
Replacement gifts
CL- you get nothing, you lose, good day sir
UPC- bene can get property aquired as a replacement property or proceeds upon argument - fact intensive
Per stripes vs per capita
Pure - half goes to each kid, and their lineage shares
Modified - all living get a share of that kids amount
per capita - oldest alive sets the amount each member in that class can pass down
Who is a child
adopted kids, children born out of wedlock, halfbloods BUT NOT step children
Dispensing power
upon proof via clear and convincing evidence, a court can validate an invalid will
Key to remember with slayer
MUST be felonious and intentional - not a bar if not felonious and intentional
order of abatement
intestate property, residuary, general devise, specific devise
Reqs for mental capacity
if T knows
1. nature and extent of property, 2. persons who are natural objects, 3. nature of instrument they’re signing, and 4. what they’re signing
To prove undue influence, P must show
- Susceptibility, 2. opportunity by alleged wrong doer, 3. influencer had a disposition to exert undue influence, 4. will appears to be product of undue influence
Revocation by subsequent will
If new will disposes of entire estate, presumed to have replaced the prior will
if subsequent will does not fully dispose, it revokes up to the inconsitency
Dependent relative recovation
if a revocation was based on a mistake of fact or law, then undo revocation if thats what T would want
Usually used when there is a close identity b/t bequest revoked and what T intended
Codicil to revoked wills
Codicils will revive revoked wills via incorporation on date of codicil
Integration
If issue of integration, proponent must show that the will offered for probate is actually the will
Facts of independent significance
valid so long as they’re nontestmentary facts - IE “all my shoes to X” Ok, “give all my shoes to the those on my paper filed as Last Instructions in my desk” not OK
