Wills Flashcards
Intestacy - main methods
spouse takes share: may be decreased if children of spouse also survive, if parents survive
descendants take share of estate not passing to surviving spouse
- per stirpes: property is divided at the first generation and continues in that proportion
- per capita with representation: property is divided at the first generation with living heirs; subsequent generations take in proportion to their predecessors’ interest
- per capita at each generation: property is divided at the first generation with living heirs; subsequent generations have equal shares
if no descendants, pass to parents; descendants of parents; grandparents or their descendants; nearest kin; escheat to state
intestacy problems: advancement, simultaneous death, disclaimer
advancement: must be in writing, acknowledged to show intent to be an advancement; goes into hotchpot
death:
- USDA: if order of death can’t be established, property of each decedent disposed of as if had survived the other
- 120-hour rule: person must outlive by 120 hours to inherit
disclaimer: must be written, signed, acknowledged before a notary, filed in appropriate court within 9 months of death
Requirements for wills (formal vs. holographic)
- legal capacity (age 18)
- testamentary capacity (sound mind)
- testamentary intent ~ intend instrument to be a will
Formal:
formalities: writing, signature by testator/proxy, two attesting witnesses who sign in testator’s “conscious presence”/”scope of vision”
- -> SPLIT in whether witness can be interested; some would allow to only take lesser gift
Holographic wills: entire will must be in the testator’s handwriting, no witnesses required
extensions of wills (codicil, incorporation by reference, appointment)
codicils: must be executed with the same formalities as a will; work to republish the will
~NOTE: if the first will is invalid, treat codicil as incorporating by reference
incorporation by reference: document must exist at the time will executed, be described in the will, will shows intent to incorporate. but can adjust list of tangible PP after will’s execution.
appointment: general power can be exercised in favor of the donee, special can’t. can be presently exercisable vs. testamentary.
~appointive property can’t be subject to spousal share; creditors can’t reach unless a general share/appointee exercises right
~residuary clause won’t create testamentary power (need to mention the power); can give a blanket exercise of power
Other ways to add
- integration: pages present at execution of the will
- acts of independent significance: meaning outside the will, can be referenced
- pour-over to inter vivid trust
revocation of wills (3) + revival
- by operation of law: marriage/divorce
- by written instrument: same formalities as will, inconsistencies in a later instrument invalidate earlier
- by physical act, with intent to revoke
revival:
- destroy revoking instrument (some states will automatically revive)
- reexecute with formalities, republish by codicil
- dependent relative revocation: if testator revokes and the subsequent will is invalid –> disregard revocation if mistake of law/fact, mistaken belief another disposition was valid, results from disregarding revocation are closer to testator’s intent
Types of testamentary gifts
- devise = real property
- bequest = personal property (specific bequest = distinguishable from the rest of the estate)
- general legacy = nonspecific gift of personal property (money)
- demonstrative legacy = gift paid from a particular source/fund
changes after will’s execution: ademption, accessions, abatement, lapse
ademption: when gift fails because specific devise/bequest is no longer in the estate; can be partial; testator’s intent is irrelevant
- -> exceptions: insurance proceeds/condemnation awards, property subject to executory contract, securities from a merger/consolidation, property sold by guardian, replacement property, balance of purchase price
- -> or ademption by satisfaction; when inter vivid transfer intended to replace gift, in writing
accessions: increase in value after execution of will
~if before testator’s death: income goes to estate, improvements to real property to devisee
~if after testator’s death: pass to beneficiary
~stock splits + stock dividends: under CL dividends wouldn’t pass, today they do
abatement: intestacy first, then residuary estate, general legacies, demonstrative legacies, specific bequests/devises
lapse: anti-lapse statute means that beneficiary’s descendants take (if beneficiary in correct degree of relation to testator), unless a contrary will provision (rights of survivorship) –> generally to descendant, parent, grandparent; NOT spouse
~residuary estate: under CL, unclaimed portion passed intestate; today remaining beneficiaries split
contracts relating to wills
- can enter into a contract to make, not revoke, die intestate
- proof by: provisions in will on terms of contract, reference in will, writing evidencing contract
- remedies: damages/constructive trust, no remedy during promisor’s lifetime (still have opportunity to change)
-joint wills/mutual wills don’t raise presumption they were executed pursuant to a promise not to revoke
ways family is protected in will interpretation
- spousal share gives spouse right to a % of estate despite will
- pretermitted child statutes: for after born or after-adopted children; unless omission appears intentional, testator clearly left to other children, testator provided for omitted children elsewhere
- homestead: protect family home
- family allowance
- exempt personal property
standing/grounds for will contest
-standing = any person whose interest would be directly affected by will’s admission to probate; they bear BoP
-grounds =
~defective execution
~revocation
~lack of testamentary intent/capacity = insane delusion
~undue influence
~fraud
~mistake
definition of undue influence, fraud, mistake for will contests
undue influence
influence existed, overpowered mind and free will of testator, result caused by influence (consider opportunity, relationship, ability to resist, involvement in drafting/execution)
–> presumption of UI: confidential relationship, beneficiary active in procuring/drafting/executing will, provisions unnatural
fraud
- testator willfully deceived as to 1. character/content of instrument, 2. extrinsic facts, 3. facts material to disposition
- elements = false representation, knowledge of falsity, testator RB, caused disposition
- fraud in the factum creates a lack of testamentary intent; fraud in the inducement causes gifts to be set aside
mistake/ambiguity
- in factum: creates lack of testamentary intent
- in inducement: will won’t be set aside unless on the face of the will
- patent ambiguity–most courts allow extrinsic evidence, but can’t fill blanks
- latent ambiguity–can admit extrinsic evidence
- no ambiguity/mistake–plain meaning rule vs. modern rule allowing extrinsic evidence
- modern courts may allow reformation if testator’s will proven by clear & convincing evidence
non probate property
- inter vivos gifts
- inter vivos trusts
- remainder and executory interests
- co-owned property
- life insurance/contracts
- bank arrangements
- deeds
–> these all pass to the beneficiary outside of a will
