Wills

Question 1

Patent vs. Latent Ambiguities

Answer 1

Patent: Appears on the face of the instrument.
Latent: When the language could benefit more than one person or could apply to different properties.

Once there is an ambiguity, both direct and circumstantial evidence of the donor’s intent may be considered.

Question 2

Personal Property List

Answer 2

Recognized by the UPC — Exactly what it sounds like! Will be valid as long as it is signed, but it does not have to be attested.

Unlike other documents incorporated by reference, it does not have to be in existence at the time that the will is executed.

Real property and/or money not included. (Only personal property)

Question 3

Spouse’s Elective Share

Answer 3

1/2 of the value of the marital property portion of the augmented estate. A surviving spouse can choose to decline to take under the will/intestacy statute and instead take their elective share.

Able to be waived in a pre-nup; can be elected even if they were purposefully excluded from the will.

Must be elected within 9 months of death, or within 6 months after probate.

Question 4

Facts of Independent Significance

Answer 4

A will may provide for the designation of a beneficiary by reference to some future act. Fact must hold some significance apart from an attempt to change a will.

For example, “Whatever car I have at the time of my death goes to whoever I am married to at my death.”

Question 5

Incorporation by Reference

Answer 5

An unattested document will be incorporated by reference if:

1. The extrinsic document being incorporated was in existence at the time that the will was executed;
2. The will manifested an intent to incorporate;
3. The will described the extrinsic document sufficiently to identify it.

Question 6

Disposition to Inter Vivos Trusts

Answer 6

Recognized under UTATA. If a testator makes a contribution to a trust that is in existence at the time of the testator’s death will be a valid disposition.

Similar elements as a personal property list, but can include money and real property (whereas a PPL cannot).

Question 7

Undue Influence

Answer 7

Undue influence is sufficient to void a will if:
1. The contestant can prove that the wrongdoer exerted such influence over the testator that it overcame the testator’s free will.
2. The influence caused the testator to make a transfer that they would not have otherwise made.

Taking into account SODA —
(1) Susceptibility, (2) Opportunity, (3) Disposition, and (4) Appearance.

Question 8

Interpreting the Will

Answer 8

Wills are always construed in accordance with the discernable intent of the testator!

Question 9

Harmless Error Rule

Answer 9

Because the law favors testate succession over intestate succession, any attempt to make a will (even a defective or failed one) will be validated if the proponent of the document proves by clear and convincing evidence that the testator intended the document to act as their will.

Question 10

Joint Will

Answer 10

One will — two testators.

Under the UPC, joint wills and mutual wills are still revocable by either party at any time. Minority jurisdictions presume that the parties can’t revoke the will without the consent of both parties.

Question 11

Mutual Will

Answer 11

Two wills/testators — mirror image of each other.

Under the UPC, joint wills and mutual wills are still revocable by either party at any time. Minority jurisdictions presume that the parties can’t revoke the will without the consent of both parties.

Question 12

Integration Rule

Answer 12

(1) Any piece of paper actually present at the execution of the will that is (2) intended to be a part of the will, will be integrated into the will. (I.e., you don’t have to sign every page of your will)

Exception — Documents incorporated by reference.

Question 13

Testamentary Capacity

Answer 13

Must be determined at the time that the will was executed.

18+. Must be of sound mind (not a high bar).

Testator must hold the ability to understand:
- The nature/condition/extent of their property;
- The nature of their disposition/transfer;
- The names and relationships to the natural objects of their bounty.

Question 14

Advancement

Answer 14

Any gift given during life will be treated as an advancement against inheritance if:

1. There is a writing contemporaneously by the decedent; OR
2. There is any writing/acknowledgement by the heir/recipient.

Question 15

Disclaimer

Answer 15

Rejection of one’s testate/intestate share. Can’t disclaim after you claim. Usually done to avoid creditors or for tax purposes.

Must file a formal disclaimer in order to refuse. To refuse, one must:
1. Disclaim in writing;
2. Describing the interest disclaimed; and
3. Sign and deliver/file the disclaimer.

Question 16

Transplantation Theory

Answer 16

**Majority Jurisdictions **— Adopted children can no longer inherit from their biological parents.

Minority Jurisdictions — A child who is adopted to a relative of the biological parent (via an intra-family adoption) may still inherit from their biological parent.

Does not apply to stepparent adoption, or if they are adopted after the death of their biological parent.

Question 17

Demonstrative Transfer

Answer 17

Hybrid of specific and general transfers. A bequest of a sum certain to be paid out of a particular fund. If the funds/stock are not in existence at the testator’s death, the legatee is entitled to satisfaction from the general estate.

For example, “$100 from my Capital One account.”

Question 18

Intestate Surviving Spouse’s Elective Share, with Surviving Children and Surviving Stepchildren

Answer 18

Surviving spouse takes $225,000, plus 1/2 of the balance of the intestate estate. If there is anything remaining, it goes to the decedent’s descendants.

Question 19

Standing to Contest a Will

Answer 19

Only those who will have a beneficial interest if they succeed in their challenge have standing to contest a will.

Heirs will always have such an interest, and thus always have standing (even if they are unnamed).

Question 20

General Legacy

Answer 20

Payable out of the general assets of the estate.

Example, “$100 to Bob.”

Question 21

Dependent Relative Revocation

Answer 21

If a revocation was conditioned on a mistake of fact or law, then you can undo or “lift” that revocation if that is what the Testator would have wanted.

“The Law of Second Best” — Trying to get as close to what the Testator would have wanted.

Question 22

Probate Estate/Transfer

Answer 22

Any personal or real property that passes at death, either under the will or through intestate.

Question 23

Formal Requirements of a Will

Answer 23

All wills require:
1. Testamentary capacity,
2. Testamentary intent, and
3. The appropriate formalities (vary depending on the kind of will).

Question 24

Formal Requirements of a Will (Document Itself)

Answer 24

1. A “reasonably permanent record” (writing);
2. Signed (or a proxy signature within the conscious presence of the testator), and
3. Witnessed/Attested to.

Question 25

UPC Approach for Representation

Answer 25

1. Go to the first generation with at least one surviving member.
2. Count the number of roots, NOT live people.
3. Allocate a share to each living member in that generation.
4. Combine the remainder and distribute to anyone left over in the next generation.

Question 26

Omitted Heirs: Children Living at the Time the Will was Executed

Answer 26

A testator has the right to disinherit a child — an omitted child who was already alive at the time the will was executed has no protection in probate. There is also no elective share, like a spouse.

Question 27

Omitted Heirs: Children Not Alive at the Time the Will was Executed

Answer 27

Child is entitled to an intestate share, unless the omission was intentional. If there is another child alive that was included in the will, then the omitted unborn child will get their proportional share.

Exceptions:
1. The will devised most or all of the estate to the omitted child’s other parent.
2. The face of the will reflects that the testator intended the omission.

Question 28

Slayer Act

Answer 28

You can’t inherit from someone that you caused the death of, with the exceptions of deaths caused by recklessness, accident, or negligence.

The “slayer” will be deemed to have predeceased the testator.

Question 29

Simultaneous Death

Answer 29

Majority/UPC View: Heir/spouse must survive the other by at least 120 hours (5 days), or they will be considered to have predeceased the decedent, even if the decedent technically died before them.

Minority View: Survival by an instate is enough.

Question 30

In Terrorem Clause

Answer 30

“No-Contest Clause”; “To Strike Terror”

Clause that attempts to disqualify anyone contesting the will from taking under it.

Courts do not favor In Terrorem Clauses, and will construe them narrowly. If the will is being challenged for fraud, a court will not hold the clause valid at all.

Question 31

Later Valid Wills

Answer 31

Revocation by a later valid will can be express, but it can also be revoked with inconsistencies in the later valid will.

If a later valid will makes a complete disposition of the testator’s estate, it is presumed that the testator intended it to replace, rather than supplement, the previous will.

Question 32

Revival

Answer 32

Generally, once a will is revoked it cannot be revived. However, a properly executed codicil will revive a will if it was made with the intent to revive (i.e., with a new signature, witnesses, etc.).

Question 33

Grounds for Contesting a Will

Answer 33

1. Undue Influence
2. Lack of Testamentary Capacity
3. Fraud
4. Mistake
5. Ambiguities (Latent or Patent)

Question 34

Contemporaneous Acts Rule

Answer 34

Witnesses can sign before a testator as long as everyone was acting within the same contemporaneous act (same event/act/time frame).

Question 35

Revocation of a Will

Answer 35

Requires:
1. Intent, and either
2. A physical revocatory act (burning, tearing, crossing out, etc.) or,
3. A later valid will, or,
3. Divorce.

Question 36

Testamentary Intent

Answer 36

Can be inhibited by undue influence (most common), fraud, or mistake.

Testator must intend for the document to act as a will.

Question 37

Copies of Wills

Answer 37

Executed Copies: Function as an original; revocation of the executed copy will act as an effective revocation.

Unexecuted Copies: Have no legal effect.

Question 38

Three Types of Wills

Answer 38

(1) Oral (nuncupative); (2) Holographic; and (3) Attested/Formal Will

Question 39

Presumption of Undue Influence

Answer 39

Undue influence will be presumed when there is (1) a confidential relationship with the testator and (2) suspicious circumstances surrounding the will.

Court will consider factors such as the susceptibility of the testator, reasonable notions of unfairness, whether the testator had independent advice from an attorney/advisor, etc.

If undue influence is found, the court will void the parts of the will that benefitted the undue influencer.

Question 40

Self-Proving Will

Answer 40

Satisfied with a Self-Proving Affidavit. Satisfy all execution requirements automatically.

Question 41

Intestate Surviving Spouse’s Elective Share, with Surviving Children who are Not Descendants of the Surviving Spouse (Evil Step Mom)

Answer 41

Surviving spouse receives $150,000, plus 1/2 of the remaining balance of the intestate estate. The rest, if any, will go to the decedent’s descendants.

Question 42

Anti-Lapse Statute

Answer 42

A gift will be saved from lapse if:

1. The predeceasing beneficiary was closely enough related to the testator (usually blood, immediate family), and
2. The predeceasing beneficiary was survived by descendants. Those descendants will then take under the Anti-Lapse Statute.

Question 43

Interested Witness

Answer 43

Also called a “witness beneficiary”. Under the UPC, an interested witness is acceptable. However, some states will “purge” the interested witness’s share of the estate.

Question 44

Stock

Answer 44

Must look to whether the testator intended the gift to be general or specific (i.e., “MY 50 shares,” vs. “50 shares”).

Specific gifts of stock may be adeemed, AKA, the heir is out of luck if the testator did not own at the time of death.

General gifts cannot be adeemed. The person is entitled to the shares or the value of the shares.

Question 45

No-Exoneration Rule

Answer 45

Property encumbered by a lien will pass to the designated beneficiary with the lien intact. The debt is no exonerated.

A will may specify that an executor pay the debt before transferring, however it must be specific/not boilerplate.

Question 46

Lapse

Answer 46

Occurs when a beneficiary predeceases the testator. The gift intended to pass to the deceased beneficiary will then “lapse”.

At common law, a lapse in the body will fall to the residuary. If there is no residuary, it will fall to intestacy.

If there is a partial lapse in the residuary, it will pass to the other residuary members.

Question 47

Intestate Surviving Spouse’s Elective Share with No Parents

Answer 47

Under the UPC, the surviving spouse will receive 100% of the estate, whether or not there are kids, as long as the kids are biological descendants of the surviving spouse. The spouse is presumed to care for their biological children.

Question 48

Attestation

Answer 48

Requires either:

1. Signatures by at least two individuals within a reasonable time after witnesses; or
2. Acknowledgement by the testator before a notary public or other individuals authorized by law to take acknowledgements.

Question 49

Lost Wills

Answer 49

If a will was known to be in the testator’s possession at the time of their death, but cannot be found, the law presumes that the testator destroyed it with the intent to revoke. If the will was not in the testator’s possession, the presumption is not raised.

Question 50

Intestate Surviving Spouse’s Elective Share with Surviving Parents, but No Kids

Answer 50

Surviving spouse receives $300,000, plus 3/4 of the remaining estate. If there is anything left, the parents will inherit.

Question 51

Restrictions on Charitable Dispositions

Answer 51

May be invalid if it exceeds a certain proportion of the testator’s estate.

Historically, there was a restriction on charitable dispositions that were made closely enough to the testator’s death, however, this is no longer enforced.

Question 52

Two Types of Fraud

Answer 52

Fraud in the Execution: Fraud as to the nature and content of the writing itself. Makes the entire will invalid.

Fraud in the Inducement: Fraud as to the intrinsic facts that induce someone to take action affecting the distribution.

Question 53

Abatement

Answer 53

Occurs when the assets of the testator’s estate are not sufficient after payment of all claims to creditors to satisfy the bequests.

Question 54

Order of Abatement

Answer 54

1. Property that would pass through intestacy.
2. Residuary bequests.
3. General bequests.
4. Demonstrative bequests.
5. Specific bequests.

Question 55

Strict/Pure Per Stirpes

Answer 55

1. Go to the child level (whether or not they are all dead).
2. Count the number of “live roots”/children (even if they are all dead).
3. Divide down as needed.

Question 56

Modified Per Stirpes

Answer 56

1. Go to the generation with at least one living member.
2. Divide down.

Question 57

Specific Bequests/Devises

Answer 57

A gift by will of something that can be distinguished/identified. Satisfied by the delivery of that thing.

Question 58

Holographic Will

Answer 58

Exist in most jurisdictions. Are not attested. Are completely written by the testator.

Under the UPC, only material portions and the signature must be in the testator’s handwriting.

Question 59

Codicils

Answer 59

An instrument executed after a will, either attested to or holographic, that adds to, explains, or deletes from the will. Meant to be a supplement, not a replacement.

Will be treated as if it were written and executed at the date of the original will.

Validly executed codicils can cure most defects from the original will if it is incorporated by reference.

Question 60

Marital Property Portion of the Augmented Estate

Answer 60

Spouse’s elected share will always be 50% of the marital property portion of the augmented estate.

However, the marital property portion will be measured on a sliding scale depending on the length of the marriage (UPC).

The longer the marriage, the higher the marital property portion.

Question 61

Ademption by Extinction

Answer 61

“Ademption” = “Failure”

When property devised is no longer in the testator’s estate at death. Can occur ONLY with a specific bequest/devise. A general gift cannot adeem by extinction.

Question 62

Ademption by Satisfaction

Answer 62

When the stator makes an inter vivos gift of property to the beneficiary of a general or residual disposition. Must have had clear intent that the inter vivos gift adeemed with bequest-devise. Devisee must also acknowledge in writing that the gift satisfied the will.