Wills Flashcards
(110 cards)
1
Q
Will requirements for validity and admissibility in probate
A
(1) legal capacity
(2) testamentary capacity
(3) testamentary intent
(4) formalities
2
Q
legal capacity exists when
A
at the time of will drafting, the testator is over 18 and of sound mind
3
Q
testamentary capacity exists when
A
at the time of will execution, testator had the capacity to understand
(1) nature of the act of executing a will
(2) nature and extent of their property gifting
(3) who is the natural objects of their bounty, i.e., their family
(4) able to create a scheme of distribution
old, ill, addict, adjudicated insane are evidence of lack of testamentary capacity, but not conclusive
4
Q
testamentary intent exists when
A
testator has the present intent of the document operating as a will.
5
Q
when testamentary intent is uncertain, courts determine whether
A
(1) testator intended to dispose of their property as a gift to take effect on their death
(2) the document in question was intended to accomplish that disposition.
6
Q
Will formalities of due execution
A
(1) in physical writing, or some allow e-wills
(2) two competent, usually disinterested attesting witnesses
(3) testator signature in the physical presence of each witness
(4) witnesses’ sign in the testator physical presence
(5*) sign at the end, publish to the witnesses “this is my will”, witnesses sign in each other’s presence
7
Q
UPC Will formalities
A
same but allows for notary witness signature
8
Q
UPC Harmless Error in Execution
A
If the will fails the formalities, the UPC allows the proponent to establish by clear and convincing evidence that the testator intended the document to be their will.
9
Q
Holographic Will
A
a will written entirely in the testator’s handwriting with no attesting witnesses
10
Q
Attested wills with holographic changes
A
if the jurisdiction does not recognize holographic wills, then the change will not be effective and may be a revocation.
If the jurisdiction recognizes, then the change will be given effect as a holographic codicil
11
Q
A bequest is
A
a gift of personal property, not in a will. Ex. “$20,000 to A.”
12
Q
A legacy is
A
a gift of personal property, usually money, in a will. Ex. “$20,000 to A on my death.”
13
Q
A devise is
A
a gift of real property
14
Q
A specific devise is
A
a gift of a particular item of real property distinct from other estate property “I leave Scotsdale located at 4444 Vaquero Drive to Thomas.”
15
Q
A specific legacy is
A
a gift of a particular item of personal property distinct from other estate property “I leave my Razerblade Stealth 2013 13inch to Ben.”
16
Q
A specific bequest but of a general nature is
A
a gift of a property that is not distinguishable from the rest of estate property until death. Ex. “I leave my computer to Ben.”
17
Q
A general legacy is
A
a gift of general economic benefit payable out of the general assets of the estate without naming the asset
Ex. 100 shares of XYZ stock but T never owned those during his lifetime. Intended for estate to purchase and gift
18
Q
A demonstrative legacy is
A
a gift of a general amount of economic benefit from a particular fund
19
Q
Under the identity theory, Ademption by Extinction is
A
when a specific devise or bequest is not identifiable in the estate at death, the gift is adeemed and the intended beneficiary takes nothing.
20
Q
Statutory Exceptions to ademption by extinction
A
(1) replacement property with another similar item that the beneficiary could reasonably be intended to receive
(2) purchaser of the adeemed property still owes money, beneficiary gets the remaining proceeds
(3) proceeds from condemnation, insurance, or guardian sale
21
Q
Ademption of Gift by Satisfaction,
A
is like advancement intestacy, testator gives a testamentary gift after the execution of the will intending it to satisfy their inheritance. Requires
(1) a writing in the will.
(UPC) says satisfaction in the will, testator has contemporaneous writing, or the devisee acknowledges in writing
If it is specifically devised property that was advanced and the same property is in the will, then there is no writing requirement, thus an ademption and a satisfaction of the gift.
22
Q
Accessions in Property Devised
A
After execution, special rules for beneficiary taking or not taking probate property
Specific property’s change in value is irrelevant
Income from land goes to the estate, improvements go to specific devisee
Purchasing new stocks goes to residuary
Receipt of bequeathed stocks by dividend goes to residuary, UPC goes to specific beneficiary
23
Q
Exoneration of Liens
A
Common law, specific devised property have liens exonerated by the estate funds.
UPC and modern, beneficiary takes subject to, unless the will says otherwise
24
Q
Abatement of Testamentary Gifts
A
reducing classes of testamentary gifts pro rata in an order when the estate cannot pay all the claims. Reduction order
(1) intestacy shares
(2) residuary estate
(3) general legacies
(4) demonstrative legacies
(5) specific bequests and devises
25
Lapse of Testamentary Gift
beneficiary predeceases by death, disclaimer, slayer, divorce, annulment
26
No residue of a residue
common law, when anti-lapse statute does not apply, the other residuary beneficiaries do not share a predeceased residuary beneficiaries share because it passes by intestacy.
Modern law, when anti-lapse statute does not apply, they may share the predeceased residuary beneficiaries share.
If anti-lapse statute applies, then the residuary beneficiaries descendants take the share and the other residuary do not share the share.
27
Class gifts
only the surviving members of the class take a share of the gift, unless will says otherwise or the anti-lapse statute applies.
28
Patent Ambiguity
on it's face, no sensible meaning
CL, no extrinsic evidence
Modern, extrinsic admissible to provide meaning, NOT fill in
29
Latent Ambiguity
on its face, meant something, but in fact is ambiguous and needs meaning
extrinsic evidence
30
Not ambiguous, but Mistake
CL, words are clear, application is clear, plain meaning rule bars extrinsic evidence of mistaken intent
Modern, allows extrinsic to carry out true intent.
31
Will incorporates another document
requires
(1) intent to incorporate document into the will
(2) doc in existence at time of will execution *UPC allows for will stating later list of tangible personal property to be incorporated
(3) doc is sufficiently identified, referenced, and described in will.
32
Acts or Facts of Independent Significance
Permits the testator to change the disposition of his property without changing the will if there is a valid purpose for avoiding the will formalities.
The property owned and the beneficiaries under the will at the time of execution may validly change because the testator's later acts have independent legal significance other than avoiding the will formalities
Applies to:
(1) specific gifts of a general nature, my car to A then sells and buys a nicer car
(2) class gifts, my money to my employees and then fires employees
(3) gifts to "my spouse"
(4) gifts of contents, my safety deposit box then takes everything out
33
Republication of Valid Will by Codicil
Codicil must have valid formalities, but the will and the codicil combine to speak from the date of the last codicil's execution
34
Validation of Defective Will by Valid Codicil
Old will is not republished but validated by incorporating the defective will as a document incorporated by reference if so intended, and sufficiently identified referenced and described in will.
35
Contractual Wills
the execution or nonrevocation as such is the consideration for a contract. K law applies, which means SoF applies, which means the K is in a signed writing and the Will must reference the K
36
Revocation of Will requires
(1) Testamentary Capacity
(2) Before Death
(3) By operation of law, subsequent instrument, or physical act,
37
Revocation by Operation of Law
(1) Marriage after Execution - CL, no effect. UPC, omitted spouse intestate share unless terms intended or made in contemplation
(2) Final Divorce or Annulment after Execution - revokes all gifts and rights from ex, UPC goes far to family of ex.
(3) Omitted Child - revoked as if abated from residue share *unless all given to parent
38
Revocation by Operation of Law
(1) Marriage after Execution - CL, no effect. UPC, omitted spouse intestate share unless terms intended or made in contemplation
(2) Final Divorce or Annulment after Execution - revokes all,
39
Intestate Share for Surviving Spouse
Most states, 1/2 or 1/3 if had children and all if no children
UPC, all if had children and all if had no children and no parents
40
Intestate Share for Nonmarital Children
They always inherit from mother
May inherit from father if (1) marries mother (2) paternity test
41
Intestate Share of Half-blood
Most states and UPC, no distinction from full blood so inherit equally
42
Intestate Share of Posthumous Children
Most states allow person to be an heir
Some states have a statutory birth deadline
43
Intestate Share of Stepchildren
Generally, don't inherit from stepparent unless adopted.
But adoption by estoppel may allow inheritance if prove they promised to adopt.
44
Intestate Share of Adopted Children
Generally, they are treated the same as biological children taking and giving through the adoptive parents.
Some states, varying, cut off inheritance from the biological parents.
45
Intestate Share of Surviving Parent
UPC and some states give entire estate
Other states give 1/2 to surviving parent and sibling.
46
Advancement and Effect on Intestate Share
Advancement is a lifetime gift to an heir with the intent that it reduce their intestate share through hotchpot.
Common law, substantial gift to children presumed an advancement.
Modern law, substantial gift to any heir presumed not an advancement unless prove intent.
UPC and some states, must prove (1) decendent declaration in a contemporaneous writing and (2) heir's acceptance in a later writing.
47
Intestate Share of Successors to Advancee
Most states, if the advancee predeceases the decedent, advancement applies to their share.
UPC, advancement is presumptively not binding on successors to predeceased advancee unless the decedent's writing says.
48
Probate Share of Predeceased Heir
Generally, a person cannot take as an heir or will beneficiary if they predecease the decedent or testator.
49
Simultaneous Death and Effect on Probate Share
When there is NO evidence that heir survived decedent for even minutes, the Uniform Simultaneous Death Act treats each person as having survived the other.
The revised USDA and the UPC apply the 120 hour survival rule for an heir to take from the decedent.
When there is evidence of survival, the property passes from first decedent to second decedent and then to the second decedent's heirs.
50
Disclaimer and Effect on Probate Share
A person cannot be forced to take their probate share
To disclaim and for federal tax purposes, one must sign a writing, acknowledge to notary, and file with court within 9 months of decedent's death or their 21st birthday.
Disclaimer estopped if accepted property or any of its benefits.
If disclaimer effective, treated as predeceased, which passes to the next heir or beneficiary or if estate interest was a life estate accelerates a remainder
51
Slayer and Effect on Property Interest
A person cannot take any interest or benefit in property if they feloniously and intentionally caused the death of a decedent.
Their rights to take any property or benefit passes as if they predeceased either by operation of a slayer statute or a constructive trust.
Murder conviction is conclusive, others require proof of unlawful or intentional by preponderance of the evidence
52
What is a will
an instrument executed with certain formalities during a person's lifetime that either (1) directs the disposition of their personal and real property, (2) appoints a personal representative to discretionarily dispose of such property, or (3) revokes a prior will to have property distributed in intestacy.
53
What is a codicil
A supplemental instrument that modifies a will.
54
Compliance with Will formalities
Common Law, complete compliance is required
UPC, substantial compliance for minor errors is permitted
55
Compliance with Will formalities
Common Law, complete compliance is required
UPC, substantial compliance for minor errors is permitted
55
Applicable Law for Will Validity
For purposes of validity to be admissible,
- personal property, forum applies the law of the domicile at death
- real property, forum applies the law of the situs, i.e. where the real property is located.
56
Applicable Law for Will Construction and Provision application
forum applies it's own law for construction and provision application
57
Savings Statute for Will Validity
A will is admissible to any probate court when the will has been validly executed by the laws of (1) the forum jurisdiction (2) forum where executed (3) forum where testator domiciled at execution or (4) where domiciled at death.
58
Legal Capacity
18 and sound mind
59
Testamentary Capacity
At the time of will execution, Testator understand executing a will, extent of property, available family members, order of disposition.
Parole and circumstantial evidence at that time admissible
Mental issues and Ailments some evidence of lack of capacity but if requirements met, then conclusive.
60
Testamentary Intent
Present intent that instrument is their will. When instrument's testamentary intent not clear, must show testator (1) intended to dispose of property (2) intended disposition only upon death (3) intended the instrument to accomplish this.
- Promises to make a will or deliver deed in future is not a will.
- Parole evidence admissible to show document was not meant to have any effect.
61
Formal Requirements of an Attested Will
To be valid and admissible at probate, must meet due execution requirements which are generally (1) in writing (or electronic form) (2) signed by testator (or another with direction and presence) in the presence of each of two competent attesting witnesses (3) two competent attesting witnesses who sign in testator's presence (or UPC signed by notary)
Additional requirements are (1) signature at bottom (2) publication to witness that this is my will (3) witness's sign in each other's presence
62
Testator Signature
any mark with intent to be signature either by testator or by their proxy if directed and present.
order of signatures unimportant if part of one contemporaneous transaction
most states and UPC, placement of signature unimportant
63
Competent Attesting Witnesses
Competence means, at execution, the witness is competent enough to testify at trial. some require age.
No knowledge of contents required.
CL, a beneficiary would not count and could invalidates the will by too few witnesses. All states count it but purge the beneficiaries any bequests. UPC, no purging.
64
Witness in presence of testator
Testator to sign in the witness' presence. Physical presence is required.
Majority, courts use use conscious presence test (1) each party was conscious of where the other parties were and what they were doing and (2) the act of signing took place within the general awareness and cognizance of the other parties.
Minority, courts use scope of vision test finding that the witness was in such close proximity that they could have seen the signing with slight bodily alteration.
65
Attestation Clause
prima facie evidence of due execution with formalities
66
Self-Proving Affidavit
erceites that all the elemetns of due execution were performed, sworn by T and witnesses before a notary.
functions as a deposition and elminates need for parties to come to court.
67
UPC Harmless Error Rule in Execution
Court given authority to ignore hamrless errors if proponent proves by clear and convincing evidence that T intended instrument to be will even with defects
68
Holographic Will and Requirements
A will in the T's handwriting with NO attesting witnesses
(1a) Entirely in T handwriting (1b) most states and UPC permit some typewritten if all material portions handwritten
(2) Signed anywhere
Unlike attested wills, later handwritten line changes of holographic wills are effective.
69
Attested Will into a Holographic Codicil
If the jurisdiction permits holographic wills, a handwritten line change to an attested will may be construed as T making a holographic codicil.
70
Ademption by Satisfaction
After will execution, gift to beneficiary.
Generally, no ademption if no (1) testator contemporaneous writing, (2) will instructions, or (3) beneficiary's written acknowledgement.
71
Attested Will into a Holographic Codicil
If the jurisdiction permits holographic wills, a handwritten line change to an attested will may be construed as T making a holographic codicil.
71
Appreciation and Improvements of Property During Life
Income from property goes to general estate
Improvements go to specific devisee
72
Appreciation and Improvements of Property After Death
goes to beneficiary because they are the owner at death.
73
Acquired Securities after Will Execution
Common Law, specific bequest of stock beneficiary receives those owned and later acquired by split, but not dividend.
UPC, beneficiary gets those owned and later acquired by split, dividends, mergers, and reorgs.
Beneficiary does not take later acquired securities by purchase or reinvestment.
74
Taking Property Subject to Liens
Exoneration
CL, beneficiary is entitled to exoneration
UPC and many states, beneficiary not entitled to exoneration unless will provides.
75
Estate insufficient to pay off debts
Abatement
Follow the testator's order of abatement otherwise pro rata
(1) intestacy
(2) residuary estate
(3) general legacy
(4) demonstrative legacy
(5) specific bequest and devises
76
Beneficiary Predeceased Testator
Lapsed Gift
Order of passing is
(1) express language of will,
(2) anti-lapse statute
(3) residuary clause
(4) intestacy
77
Express language of Will
Common Law, if will gave gift with words of survivorship, the anti-lapse statute does not apply and the gift passes to the residuary clause or intestacy.
UPC, survivorship language does not negate the anti-lapse statute
Class gifts presumptively require survivorship
78
Anti-Lapse Statute
The gift passes by substitution if (1) predeceased beneficiary was in a close relationship with testator (2) that predeceased beneficiary had descendants
79
Residuary Clause Lapse
Common Law, no residue of a residue rule, if residuary estate held by two or more beneficiaries one of whom predeceases, their share passes to intestacy.
Most states, allow them to share pro rata
80
Beneficiary Dead at time of Execution
gift is void
81
Rules of Will Construction
Courts
(1) favor the construction that avoids intestacy
(2) the last provision defeats contradictory earlier provision
(3) construe provisions as whole, not parts
(4) ordinary meaning and technical meaning
(5) no surplusage
82
Combination Wills
Joint Wills - two testators, one will, same provisions
Mirror Wills - two testators, two wills, same provisions
Contractual Will - will executed or not revoked as consideration for a K.
83
Proof of Contractual Will
Governed by K law, must prove elements of the K.
CL, may prove by extrinsic evidence.
Modern, requires proof of elements in (1) writing or (2) will language identifying and incorporating the K.
Proponent has no presumption of promise not to revoke by the mutuality of Will provisions
84
Revocation of Contractual Will
If both parties alive, contractual will may be revoked by mutual agreement.
Contract will irrevocable on death.
85
Breach of Contractual Will
No remedy during T's lifetime because can comply until death.
T's repudiation of the Contractual Will after beneficiary substantial performance entitles damages, equitable relief, quantum meruit (value of services)
T's death in breach of K, beneficiary entitled to constructive trust for benefit of the bargain.
If mutual contractual wills and one party dies, beneficiary of promise not to revoke of other party has actual for breach of contract not to revoke if second party then disposes of property. entitled to constructive trust.
86
A and B enter into a contract not to revoke their wills. Both wills dispose of a particular item of property.
A and B alive. A revokes will. B receives notice. B sues.
- No relief because B alive and can change will
A and B alive. A revokes will. B has no notice. A dies. B sues.
- No relief because B alive and can change will
A and B alive. A does not revoke will. A dies in compliance with K. B revokes will. Beneficiary sues.
- no relief because B alive and not in breach until death.
A and B alive. A does not revoke will. A dies in compliance with K. B attempts to dispose the particular item of property obtained from A's estate. The beneficiary sues.
- Yes relief in the form of a constructive trust in favor of beneficiary because A died in reliance on B's promise. B would be unjustly enriched if dispose of that particular property.
A and B alive. A does not revoke. A dies in compliance with K. B revokes will. B makes new will. B dies.
- Yes relief, will probated but a constructive trust tin favor of the beneficiary of the contractual will because A died in reliance on B's promise and B unjustly enriched if allowed an alternative disposition.
87
Power of Appointment
the presently exercisable or testamentary authority of the donee of that power to designate within the limits of the donor of that power to decide who takes what and in what manner.
88
General Power of Appointment
Exercisable in favor of anyone, himself, his creditors, or creditors of his estate.
89
Special Power of Appointment
exercisable in favor of limited class of appointees which excludes those allowed by general power
90
Creditors Reaching Appointive Assets
Since the donee does not own the assets he was appointed to dispose of, donee's creditors cannot reach appointive assets if does not exercise general power.
If does exercise power or even appoint another to excercise, donee's creditors can reach the appointive property.
If the donee is also the donor of the general power, the creditors can reach regardless of excercise
91
Revocation
Generally, any person with testamentary capacity may revoke their will at any time before death even if in breach of contractual will not to revoke.
92
Methods of Revocation
(1) operation of law
(2) subsequent instrument
(3) physical act
93
Revocation by Operation of Law
(1) Married after Will Execution
(2) Final Divorce or Annulment after Execution
(3) Child before Execution
(4) Child after Execution
94
Married after Will Execution
generally, has no effect on the prior disposition.
However, in some states and the UPC, omitted spouse is entitled to a spousal share unless will (1) omission was intentional, (2) has provisions for new spouse, (3) was made in contemplation of marriage.
95
Final Divorce or Annulment after Will Execution
Generally, in most states, will is still valid but revokes all gifts and appointments in favor of ex-spouse by reading as if predeceased.
However, in some states and the UPC, the revocation extends to ex-spouses relatives who are not relatives of testator.
96
Child before Execution of Will
Generally, omission is intentional, especially if estate given to spouse
97
Child after Execution of Will
Most states have statutes to presume that T intended to provide for child born after execution if had thought of it. If entire estate not given to spouse, entitled to a forced, revoked share from the residuary estate under abatement rules
98
Full Revocation by Physical Act
Generally, a will or codicil may be revoked by T's physical act such as burning, tearing, cancelling, or obliterating a material portion of the will while having the concurrent intent to revoke, not by mistake or accident.
A proxy may do T's physical act if at T's direction and in their presence.
99
Partial Revocation by Physical Act
Most states allow T to make a partial revocation of a material portion of the will if there is sufficient extrinsic evidence that T did the act and intended it to be a partial or total revocation.
Some states treat partial revocation as ineffective and construe the will as originally written.
100
Revocation Effect on Subsequent, Previous, and Duplicate Instrument
Revocation of
- a will revokes all the subsequent codicils. (like chopping down the tree).
- a subsequent codicil does not revoke a will (like chopping down the trees)
- two executed duplicates will revokes both unless there is evidence that done to avoid confusion.
- an unexecuted copy does not revoke the original executed will even with intent to revoke!
101
Revocation by Subsequent Instrument
All or part of an executed will may be revoked or altered expressly or by inconsistency in a subsequent instrument executed with same formalities.
Expressly: "I hereby revoke all previous wills and codicils."
Inconsistency:
(1) full disposition of the testator's property is fully inconsistent, thus fully revokes prior will,
(2) partial disposition of testator's property that is inconsistent with previous dispositions, thus partial revocation
102
Presumptions in Revocation
Presumption of revocation when will last seen in their possession or control but can't be found in that location or found in mutilated condition, presumed revocation. Extrinsic evidence admissible to overcome.
Presumption of no revocation when will found in normal location with no suspicious circumstances, ex. attorney in possession or amongst valuable papers
Presumption of no revocation when will last seen in 3rd party possession or in possession of someone adversely affected.
103
Revival of Revoked Will - UPC Approach
(1) if the original will was wholly revoked by a later will and the later will is then also revoked, then both remain revoked and there is no revival unless circumstances or T statements that intended to restore the earlier will.
(2) if the original will was partially revoked by a later will and the later will is then revoked, the original will is revived for those provisions unless circumstances or T statements that did not intend to revive.
104
Revival of Revoked Will - Automatic Approach
the later revoking will was never effective because it was revoked before death thus automatically reviving the original will.
105
Revival of Revoked Will - None Approach
The revoking clause is effective when executed, thus the original will is still revoked and may only be revived by re-execution.
106
Conditional Revocation
(1) Express - revoking instrument states that a revocation is effective on an event
(2) Implied conditional Revocation (Dependent Relative Revocation) when testator revoked their original will on the mistaken belief that their later second will would be effective but fails. But for their mistaken belief, they would not have revoked their original because they prefer the original to intestacy.
107
Dependent Relative Revocation
(1) If T's revocation of will 1 was impliedly conditioned on the validity of Will 2, and
(2) T would have preferred Will 1 over intestacy as evidenced by the similarity of Will 1 and Will 2's provisions
Then will 1 should be revived.
108
UPC Harmless Error Rule in Revocation
proponent must prove that T's second instrument that fails the will requirements was intended to be a partial or complete revocation of the original will or an aleration of the original will.
