Wills Flashcards
(185 cards)
1
Q
Will Formation Requirements
A
1) Testamentary Intent
2) Testamentary Capacity
3) The will must comply with the state’s Wills Act Formalities
2
Q
Will Formation Requirement (1) Testamentary intent: What is it?
A
- An intention for the document to take effect after death.
- Did the testator believe the document would be their will?
3
Q
Will Formation Requirement (2) Testamentary Capacity: What is it?
A
- 18 years old or older
- Of sound mind
4
Q
Will Formation Requirement (3) Comply with the Wills Act Formalities: What is it?
A
- In a writing
- Signed by Testator
- Witnesses present (usually sign as well)
5
Q
What are the 4 justifications of formalities?
A
1) Ritual
2) Evidentiary
3) Protective
4) Channeling
6
Q
Ritual Justification: Why?
A
Ceremony shoes the weight and significance of the will.
7
Q
Evidentiary Justification: Why?
A
A will provides evidence that you meant to do something.
8
Q
Protective Justification: Why?
A
- If done properly, a will ensures someone is not easily taken advantage of.
9
Q
Channeling Justification: Why?
A
- If all wills look alike, it makes it easier for courts to determine if wills are valid. (Same reason all checks look the same).
10
Q
2 Occasional formalities in making a will:
A
- Publication Requirement: Testator must state that this will is their will.
- Subscription Requirement: Signature of the Testator must be at the VERY END of the WILL. (Best practice)
11
Q
Presence: Line of Sight Test (Traditional)
A
Witness must be in a position that if they wanted to look at the will they could.
12
Q
Presence: Conscious Presence Test (Modern)
A
Sight, hearing, general consciousness…The witness must know the testator is signing the will.
13
Q
What is strict compliance with the Wills Act Formalities?
A
- Smallest error will put the estate out of probate, even with no evidence of fraud or lack of capacity.
- Enforcement is easy.
14
Q
Covid and the Wills Act Formalities
A
Zoom/Remote was okay during Covid but not so much anymore.
15
Q
Can different languages be used in Wills and still comply with the formalities?
A
-Yes, but it requires getting extra translators.
16
Q
Will Formality: Signature: What does it establish (2 things)
A
1) Finality (signature authenticates document)
2) Genuineness
17
Q
Will Formality: Signature: What works as a signature?
A
1) Any mark
2) In a writing
3) That the testator intended to be an authenticator.
(Preferably placed at the end of the will)
(An “X” could work no problem)
(Other people are allowed to sign for testator depending on jurisdiction)
18
Q
Will Formality: What is Subscription?
A
- The signing of the will at the end of the will by the testator.
19
Q
Will Formality: What if Subscription in wrong spot?
A
A court could deny probate if the will is signed in the wrong spot.
20
Q
Will Formality: Writings
A
-Physical medium that allows marks.
-CDs, audios, videos don’t work.
- this protects rituals, protects form fraud and encourages use of a lawyer.
(THIS IS TYPICALLY NOT DEFINED IN STATUTE)
21
Q
Will Formality: Witnesses: What if a will is contested?
A
Most witnesses will need to be called to testify if the will is contested.
22
Q
Will Formality: Witnesses: What if witnesses die or lose mental capacity?
A
Prove Up the will: have to find the individuals to verify the witness’s signature.
23
Q
Will Formality: What is an Attestation clause?
A
Boiler-Plate language placed after the testator’s signature and before witness signatures.
24
Q
Will Formality: What is a self proving affidavit?
A
Separate document from the will attached to the back of the will.
Executed in front of a notary with a statement from the witnesses that the will was executed properly.
(This replaces sworn testimony of the witnesses.
25
Best practice for self-proving affidavit and attestation clause?
A good attorney should include both.
26
Will Formality: Witnesses: What should witnesses be?
Witness should be:
1) Competent
2) Of Age
3) A Disinterested Party
27
Will Formality: Witnesses: What happens if there is an interested witness under common law?
An interested witness would cause a full strike of the will.
28
Will Formality: Witnesses: What happens if there is an interested witness under modern law? 1st and 2nd Gen:
1st Gen Purging Statute: Complete purge, strikes out anything the witnesses was supposed to get.
2nd Gen Purging Statute: Partial Purge, purge to the extent it exceeds what would be taken in intestacy. (purged gift falls to residue, if no residue then intestacy).
29
Will Formality: Witnesses: What happens if there is an interested witness under UPC?
UPC says let the witnesses take, but it could be evidence of fraud or undue influence.
30
Will Formality: Witnesses: Can a lawyer be a witness?
Yes, lawyers can be witnesses.
31
Will Formality: Witnesses: What if a spouse is a witness?
Spouse should not be a witness because they are an interested party.
32
Will Formality: Witnesses: Can there be an interested witness at all?
No, ensure any potentially interested witnesses don't take under the will.
33
Will Formality: Execution Ceremony: 2 things to do
1) Make a will good in any jurisdiction.
2) The amount of procedure is based off of how likely you believe the will might be contested.
34
Will Formality: Execution Ceremony: General things to do (best practice)
- Print out will with numbered pages and secured by 1 single staple.
- Get at least 2 disinterested witnesses.
- Bring everyone involved in the ceremony into the room (NO FAMILY)
- Clean table (with line of sight/conscious presence)
- Have testator sign.
- Testator asks witnesses to sign.
- Attestation clause read aloud.
- Witnesses sign.
- Will is valid.
- Then do the self proving affidavit (witnesses sign and notary notarizes).
35
Will Formality: Execution Ceremony: Who holds onto the validly executed will?
- Lawyer, in a lockbox or filed with the state.
36
Will Formality: Execution Ceremony: 2 Ways to handle a will mistake?
1) Substantial Compliance
2) Dispensing Power (Harmless Error) (UPC-503)
37
Will Formality: Execution Ceremony: How to fix a will mistake: Substantial Compliance
- Overlook formal defects if:
-The document expresses the decedent's testamentary intent.
-It's form sufficiently approximated the statutory formality and enable a court to conclude that the document serves the purposes of the Wills Act.
38
Will Formality: Execution Ceremony: How to fix a will mistake: Dispensing Power (Harmless Error) (UPC)
- Dispenses will formalities when there is a clear and convincing evidence that the testator intended their document to be their valid will.
- Strong evidence is handwritten notes with attorney testimony.
39
Will Formality: Do any states just use a notary?
Some do. Notaries meet all function of a will formality. Also, people hold notaries in high regard of formality so it meets testamentary function.
40
Will Formality: Fixing a will: (4) Issues with dispensing power
1) Do we know what clear and convincing evidence is?
2) How easy is it to determine testamentary intent?
3) People will care less about formalities.
4) More litigation.
41
Holographic Wills: How many jurisdictions recognize?
About half.
42
Holographic Wills: What is it?
A handwritten and signed will.
(slightly ritualistic, sort of evidentiary, not protective, does not serve channeling function).
43
Holographic Wills: Why have them?
- More people can have wills.
-Private
-Good for emergencies.
44
Holographic Wills: Worries
Deception (failing protective function), knowledge of regular people (failed evidentiary function), what really is a will what happens if what they make does not look like a will)
45
Holographic Wills: How does signature work?
- At the end is best, but a handwritten name at the top of the holograph has been held as a signature.
46
Holographic Wills: Can a lawyer handwritten will be a holograph?
Absolutely not.
47
Conditional Will: What is it?
Written as if the will becomes operative if death arises from a specific event or time frame.
48
Conditional Will: What do courts do?
- Ignore the conditional language.
- Uphold the rest because of clear intent.
- A specific enough event may be overcame.
49
Holographic Wills: 3 ways to handle preprinted Will forms?
1st Gen: Needs to be entirely handwritten and signed.
2nd Gen: (UPC "Material Provisions"): Important stiff must be handwritten like signature and material provisions.
3rd Gen: (Material Portions) All important stuff handwritten, the portions that show intent may be printed.
50
Holographic Wills: Preprinted Will forms what does AR use?
2nd Gen
3rd Gen
51
Will Revocation: How
1) intent to do so
2) Have capacity
3) Act or Affirmative Step
52
Will Revocation: Act or Affirmative Step: 2 things?
A) Physical act (tearing up a will)
B) Through a subsequent writing that meets the Wills Act formalities. (explicitly with a clause in a new will or through implication).
53
Will Revocation: What about partial revocation?
Partial revocation by physical act is recognized in most jurisdictions.
54
Will Revocation: Is Harmless error recognized by the UPC?
NO
55
Will Revocation: Harmless Error Requirements:
1) Intent
2) Affirmative Act (to s subsequent writing)
56
Will Revocation: Codicil: What is it?
- Subsequent Writing
- An amendment to an earlier will.
57
Will Revocation: Codicil: What about a holograph and a will together?
- A holograph and formal will won't supersede each other but will work together.
58
Will Revocation: Codicil: 4 general rules
- Revoking a codicil does not revoke a will.
- If you revoke a will, the codicil for it is also revoked.
- If you revoke a will, you must perform the formalities to get it back.
- Revoking just one duplicate of a will revokes them all.
59
Will Revocation: Physical Act: What is it?
- Doing something to deface or destroy a will.
- Must be done by the testator or at their discretion.
- (If done with discretion it must be done in testator's presence).
60
Will Revocation: Physical Act: UPC stance?
- UPC does not care if the physical act "touches the words" of the will for revocation.
61
Will Provisions: What if provisions conflict?
- The provision made closer to the time of death controls.
- This shows their intent.
- If the will is not completely replaced then the provision is just a codicil.
62
Will Revocation: Intent: What is the presumption?
If a will remains with a testator until death and is found mutilated, the court will rule the will was revoked.
63
Will Revocation: Intent: What if we can't find the will?
If we know the testator had the will but can't find it now, then the will is presumed to be destroyed.
64
Will Revocation: Intent: What if someone claims someone other than the testator destroyed the will?
If it is disputed the will is missing or destroyed by someone other than the testator there must either be clear and convincing evidence or preponderance of the evidence based off jurisdiction.
65
Will Revocation: Intent: What if the will is missing without testator fault?
There must be clear and convincing evidence of the will's contents.
66
Will Revocation: Dependent Relevant Revocation (DRR): What is it?
-Testator gets 2nd best option.
- If you knew there was an issue with the 2nd WIll you would not have revoked the 1st.
- So pretend the revocation of the 1st will did not happen.
67
Will Revocation: Dependent Relevant Revocation (DRR): Rules
1) A valid will that is revoked as plan to get a new will.
2) A mistake of law or fact in the new will is present.
- MAJ: Shown in the will itself.
- MIN: Shown through extrinsic evidence.
3) DRR may be closer to what decedent wants compared to intestacy.
68
Will Revocation: Revival: Generally
- In general, revocation of a later will does not revive the older will.
- In states with revival, court can revive the will if the testator destroys 2nd will with the intent to revive the first will.
- NOT IN AR
69
Will Revocation: Revocation by Operation of Law: What is it?
- Revocation by divorce.
70
Will Revocation: Revocation by Operation of Law: What happens?
- Will remains, but
-Divorce instantly revokes any provisions in testator's will that leave property to ex-spouse. (ex is treated as predeceasing the testator).
71
Will Revocation: Revocation by Operation of Law: What happens in AR?
- In AR there needs to be a final divorce decree.
72
Will Revocation: Revocation by Operation of Law: What are some issues?
- Does not auto revoke insurance, UPC cuts out relatives of spouse automatically.
73
Will Revocation: What happens when you get married or have child?
- A will is not automatically revoked if you get married or have a child.
74
Will Revocation: Revocation by Operation of Law: UPC
- UPC revoked gifts to relatives of ex upon divorce.
- UPC also prevents exes from taking non-probated assets.
75
Components of a Will: 4 Important Doctrines
1) Integration of Wills
2) Republication by Codicil
3) Incorporation by reference
4) Act of Independent Significance
76
Components of a Will: What is the default rule?
1) Integration of Wills
77
Components of a Will: Integration: Rule
- All papers that are present at the time of execution and are intended to be part of the will are treated as part of the will.
-(if pages aren't there when executed, then they aren't part of the will).
78
Components of a Will: Integration: Generally
- The pages meant to be part of integration should be similar in format and follows the Wills Act Formalities.
- This doctrine does not come up with professional drafted wills.
79
Components of a Will: Republication by Codicil: When should this doctrine apply?
- Doctrine should apply if it advances testator's intent.
80
Components of a Will: Republication by Codicil: Rules
- A validly executed will is treated as being re-executed as of the date of the codicil.
- The formalities must be proper on the codicil.
81
Components of a Will: Republication by Codicil: Generally
- The idea is that the will is re-done at the date of the most recent codicil.
- The new formalities of the codicil essentially re-execute the will.
82
Components of a Will: Republication by codicil: How often should this doctrine be used?
- In a can. A codicil after divorce could lead to an awkward situation.
83
Components of a Will: Incorporation by Reference: What is it?
- Way around the integration doctrine
- Permits court to give testamentary effect to documents NOT present at the time of the Wille execution ceremony.
84
Components of a Will: Incorporation by Reference: Rule (UPC)
- If you mention a document in your will it can become part of your will.
1) The will must show intent and sufficiently describe the document.
2) Can only give away tangible personal property
3) Testator must sign the document.
85
Components of a Will: Incorporation by Reference: Old Approach
Must show:
1) Document in existence at time of will execution
2) Will has to manifest intent to incorporate the document
3) Will must sufficiently describe the document being incorporated.
86
Components of a Will: Incorporation by Reference: Is it confusing?
It can be, a memorandum and a notebook are different things but there is an argument to say they are really the same.
87
Components of a Will: Act of Independent Significance: How does it kick it?
- For it to kick in, one things has to be able to change after the will execution.
- This means the person or thing was left vague in the will intentionally.
88
Components of a Will: Act of Independent Significance: Default Rule on changing testamentary intent.
testator may not change their testamentary scheme without redoing the will and formalities.
89
Components of a Will: Act of Independent Significance: Rule for this doctrine
When a person getting a gift can change, or the gift itself can change, can you articulate a good reason other than control over the testamentary scheme? (literally ANY reason)
90
Components of a Will: Act of Independent Significance: Reiteration of the Rule
A will provision that is affected by outside act or events is valid if, and only if, those act or events have motive, purpose, or significance separate from their affect on the will (ANY REASON)
91
Components of a Will: Act of Independent Significance: When is the doctrine relevant?
1) When the will reference facts or events to determine the beneficiaries of the will.
2) When the will reference facts or events to determine the property that an ascertained beneficiary will receive.
92
Testamentary Capacity: What must the testator be capable of?
Testator must be capable of knowing:
1) Nature and Extent of their property.
2) Natural Object to their bounty (kids, spouses, etc)
3) Understanding disposition of their property. (what the will is doing)
4) (Sometimes) How the first 3 elements come together and affect the will.
93
Testamentary Capacity: Is the mental capacity test a knowledge test?
It is not an actual knowledge test.
94
Testamentary Capacity: How can a testator act?
- Weird, erratic, cruel, mean, eccentric.
- All of these things don't mean you lack capacity.
95
Testamentary Capacity: How much mental capacity does a testator need?
Only a MOMENT of CLARITY.
96
Testamentary Capacity: What is the justification for having capacity?
Protecting the family.
97
Testamentary Capacity: Who carries the burden to show a lack of capacity?
MAJ: Contestant of the Will carriers the burden to show the testator lacked capacity.
98
Testamentary Capacity: Is capacity presumed?
We assume capacity is present after a duly executed will.
99
Testamentary Capacity: Insane Delusion: What is it?
An irrational belief that can't be corrected.
100
Testamentary Capacity: Insane Delusion: MAJ Rule
1) If the testator had ANY factual basis for the belief, then it is NOT insane delusion.
101
Testamentary Capacity: Insane Delusion: MIN Rule
2) Could a rational person believe the same thing (objective test)
102
Testamentary Capacity: Insane Delusion: Generally
3) Have to show the insane delusion affects the disposition under the Will.
- MAJ: The insane delusion materially affects the disposition.
- If it is a close call (sometimes not) the $ goes to the person who was deserving.
- (sometimes the story matters more than the law)
103
Testamentary Capacity: Insane Delusion: Super basic.
- Testator crazy in just one subject.
104
Testamentary Capacity: Mental Capacity: Super basic.
The testator is crazy all over.
105
Testamentary Capacity: What do contestants usually do?
Contestants often bring both general mental capacity and insane delusion claims at the same time.
106
Testamentary Capacity: What portion of the will is affected by insane delusion?
Only the portion of the will effected by the insane delusion fails, the insane delusion could potentially impact the whole will.
107
Will Challenge: Undue Influence: What is it?
-An outside actor uses mental or moral exertion to remove a testator's free agency.
- The will does not show intent.
- Bad actor substitutes testator's intent for their own.
- Someone in a position of power is present.
- Testator is weak and feels like they had no control.
108
Will Challenge: Undue Influence: Can a will enter probate?
A will CAN NOT enter probate if undue influence is present.
109
Will Challenge: Undue Influence: What are the 2 kinds of undue influence?
1) Testator's free will overcome by pressure from another.
2) Testator is tricked because testator is not mentally as present, or a relative/close advisor influence them.
110
Will Challenge: Undue Influence: What does it mean when "the testator's free will is overcome by pressure from another"?
- Testator believes there is no real choice present but to succumb.
- Influence, coercion.
111
Will Challenge: Undue Influence: How do courts allow contestants to prove UI?
Courts allow circumstantial evidence, but it leads to a burden shifting framework.
112
Will Challenge: Undue Influence: Burden Shifting Framework for UI?
(A) A presumption of UI must show 2 things:
(1) Confidential relationship between testator and wrongdoer?
(2) Suspicious Circumstances present?
When a presumption of UI is established...
(B) Wrongdoer can overcome presumption but must show the testator acted:
(1) Freely
(2) Voluntarily
113
Will Challenge: Undue Influence: What is a confidential relationship between testator and wrongdoer?
- A relationship where we think the other person is not able to act in a self-serving way.
- Like a fiduciary relationship
- (Special Trust, Lawyers, Caregivers)
114
Will Challenge: Undue Influence: Types of confidential relationships?
- Fiduciary Relationships
- Reliant Relationships (special trust)
- Dominant-Subservient Relationships (caregiver)
115
Will Challenge: Undue Influence: What counts as a "suspicious circumstance"?
- Secrecy
- Weekend Condition
- Drafting a Will (Wrongdoer Involved)
- Huge change in a new will.
- Unnatural distributions.
116
Will Challenge: Undue Influence: What to do if UI is present?
- Strike down parts of the will affected by UI. (Could end up being the whole will).
117
Preventing Will Challenge: No Contest Clause: What is it?
- Clause where if any beneficiary contests the will loses their gift. (Most states recognize).
118
Preventing Will Challenge: No Contest Clause: Goal?
- Deter will contests.
- Goal is ONLY effective if the testator leaves potential contestants with a significant bequest in the will.
119
Preventing Will Challenge: Recital: What is it?
- When a will contest is foreseen, testator could explain why some beneficiaries are favored over other.
120
Preventing Will Challenge: Recital: Where should it go?
- Not in the will itself.
- Could provoke a contest out of spite.
- If the testator says something that is false it can serve as the basis for libel.
121
Preventing Will Challenge: Recital: How to do it right?
- Make a notarized document outside of the will and make sure facts are not too specific and that they are accurate.
- Too specific = potential contest.
- Not accurate = specific contest.
122
Ethical issues present for lawyers when making a will:
- A lawyer that is also a beneficiary should NOT draft the will. (UNLESS, it is a close relationship and natural distribution is present).
- Lawyers may serve as executors.
- Lawyers may be witnesses.
- BUT CAN NOT BE BOTH EXECUTOR AND WITNESS.
123
Will Challenge: Fraud: What is it?
- Occurs when the testator is tricked and changes their will based on that trick.
124
Will Challenge: Fraud: 2 types of fraud?
1) Fraud in the inducement
2) Fraud in execution
125
Will Challenge: Fraud: Fraud in the inducement definition:
Intentional misrepresentation of circumstances that lead testator to execute a will.
126
Will Challenge: Fraud: Fraud in execution definition:
Misrepresentation of character or content of pages signed.
127
Will Challenge: Fraud: Elements (4)
1) Misrepresentation (knowingly making a false statement).
2) Intent to defraud. (Made statement intending to deceive the testator.)[Has to intend the wrong of which the result is a FORESEEABLE result]
3) Result. (Testator deceived).
4) Causation. (Misrepresentation must lead the testator to alter their testamentary scheme).
128
Will Challenge: Fraud: What about failure to disclose?
Failure to disclose is not usually fraud.
129
Will Construction: What is ambiguity?
- The words have an uncertain meaning.
130
Will Construction: What is a mistake?
- The words don't reflect the testamentary intent.
131
Will Construction: 2 Traditional Blackletter law approaches?
1) Plain meaning rule (take the plain meaning of the words).
2) No reformation rule (we do not fix mistakes in wills)
132
Will Construction: Exceptions: Ambiguity: 2 types of ambiguity?
1) Patent (appears on face of will)
- Traditionally: may only look at 4 corners of the will for evidence of intent.
2) Latent (problem exists upon distribution)
- traditionally: Extrinsic evidence allowed for clarification.
133
Will Construction: Ambiguity: 2 types of Latent ambiguity?
1) Equivocation (when 2 or more persons or things fit the description)
2) When 2 or more persons or things partially fit the description and non exactly fit.
134
Will Construction: Ambiguity after Estate of Cole?
- Modern Rule: court collapsed latent and patent requirement so extrinsic evidence would be allowed universally.
135
Will Construction: Ambiguity: What types of extrinsic evidence clear up ambiguity?
- Things that get said out loud.
- Objective stuff:
- Phone logs
- texts
- emails
- stuff to determine intent of testator.
136
Will construction: Mistake: What usually happens?
- usually mistakes take plain meaning of the will and don't get fixed.
137
Will construction: Mistake: What happened in the Gibbs case that was clever?
- Court could not change a mistake, but they ignore "details of mere identification" which created an ambiguity and then extrinsic evidence was allowed.
138
Will construction: Mistake: what did Duke establish?
- An unambiguous will can be reformed if clear and convoking evidence can establish:
1) Mistake
2) Testator's intent at the time the will is drafted
139
What is a General Devise?
A monetary gift that can be satisfied through general assets of the estate.
140
What is a Specific Gift?
Gift of particularly described item of property.
141
What is a Demonstrative Gift?
Gift of particular amount of $ to be drawn to the greatest extent possible from a specific fund. (If where it is being drawn can’t satisfy request then the over amount is drawn from the general fund).
142
What is a class gift?
Gift to a group of an indeterminate number of people at the time of will execution.
143
What is a Residuary Devise?
Sweep up, catch all clause, that distributes everything not already given away.
144
Where do lapsed gifts fall?
- Lapsed gifts fall to the residuary, and if no residuary then they fall to intestacy.
145
Lapse: What do you do if you see a lapsed gift?
1) Does anti-lapse apply?
2) Is it a class gift?
146
Lapse: What happens if the beneficiary dies before the testator but after the will is made?
The gift has lapsed.
147
Lapse: What happens if the beneficiary dies before the will is executed?
The gift is said to be void.
148
Lapse: What happens if there are multiple takers of the residuary and 1 residuary predeceases the other? MAJ and MIN
MAJ: The predeceased share is reallocated to other shares evenly.
MIN: No residue of the reside rule. (If one residuary presences the other than it all falls to intestacy).
149
Lapse: Anti-Lapse Legislation: What states have it?
Every state but LA.
150
Lapse: Anti-Lapse Legislation: RULE
Rule: If you make a gift to a close blood relative and lapse occurs, then that gift is given to their issue (kids usually).
151
Lapse: Anti-Lapse Legislation: "Issue" (UPC)
UPC says issue is grandparents to descendants of grandparents. (brothers, sister, nieces, nephews, and kids)
- WOULD NOT go to wife or friend but dad/brother instead.
152
Lapse: Anti-Lapse Legislation: "Issue" AR
Descendants.
153
Lapse: Anti-Lapse Legislation: How to contract around:
- If you are specific about what you want (and who you want after someone may die before you die) you can subvert anti-lapse statutes.
"leave my car to X, should X predecease me I leave my care to my friend Y."
154
Lapse: What if every member of the residuary lapses?
Anything that would normally for to the residuary then falls to intestacy if the residuary itself lapses.
155
Lapse: What if a member of a class dies?
MAJ: Distribute among other class members the share of the deceased class member.
(Anti-Lapse applies to class gifts where close blood relationship is present"
156
Lapse: UPC rules on boilerplate?
UPC does not allow boilerplate terms like "and heirs assign forever..."
157
Defining Classes: What is a class?
A class is a "group with a label"
158
Defining Classes: Traditional Test?
Was the testator group minded?
159
Defining Classes: Modern Test:
A group label needs to be present.
160
Defining Classes: What if an individual is named in the class?
In most staters, if an individual is named then there is no class.
161
Defining Classes: What evidence to show a class exists?
Use extrinsic evidence to support the opinion a class exists, even if there is the possibility of an obvious class.
162
Ademption: What is it under the common law?
"Identity Theory"
163
Ademption: Why have it?
- Suppose to best show testator intent
- Specific gift are ones of emotion.
164
Ademption: Pushbacks
- Specific gifts are not always of emotion, but ways to divide property.
- Also, what if the testator had no intent to get rid of the property but it was a freak accident?
165
Ademption: Identity theory key question:
Was the removal voluntary?
166
Ademption: Involuntary transfer rule key question:
Was the removal involuntary?
- If so, beneficiaries get financial compensation.
167
Ademption: 3 Exceptions
1) Insurance Proceeds
2) Changes in Form (like stocks, the form changes but not the substance)
3) People who receive specific gifts try to reclassify the gift as a general devise.
168
Ademption: Involuntary Transfer Rule:
Identity rule will not be applied when the item is involuntarily removed from the estate.
169
Ademption: Involuntary Transfer Rule: Who has the burden?
Challenger to the will has the burden to prove the property was involuntarily transferred.
- Has to prove "did the testator have the opportunity to change their will"?
170
UPC: Involuntary Transfer Rule:
If the specific devise is no longer in the estate then the challenger must show the transfer was involuntary taken to subvert Identity Theory.
171
UPC: Replacement Rule
If the testator replaces something with a new devise then the beneficiary gets that upgrade.
(Must determine what was purchased first, for what purpose, costs, etc.)
172
UPC: General Intent Theory:
If the specific devise does not fit into the other categories, and we can't find the thing, you can get the monetary equivalent of the gift if you can show ademption was NOT in the testator's estate pan.
173
Ademption: UPC 3 ways to still take if property is gone.
1) Involuntary Transfer Rule
2) Replacement Rule
3) General Intent Theory
(All 3 may be tried by a challenger, but only 1 can actually be used to take).
174
Abatement: What is it?
When there is not enough money to pay for all requests made in a will.
- Creditors ALWAYS get paid first.
175
Abatement: Default order of payout
- Creditors, then
1) Pay Specific Devises
2) Pay General Devises
3) Pay Residuary
176
Abatement: How to handle a demonstrative devise?
- Demonstrative Devises are treated as a specific devise to the extent the payout covers the amount of $.
- Then when the payout is tapped out, the remaining $ bequeathed (if any) is treated as a general devise.
177
Abatement: What if there is not enough money to cover all general devises?
- Pro-Rate the amounts (divide what is left to reflect the share the people should have gotten)
- So split remaining $ up between general devisees in accordance with the % their share should have been.
178
Abatement: UPC Concern:
Residuary is typical suppose to be the biggest gift and is paid last, so if a spouse is the residuary and is getting stiffed, the court may flip the script and change the abatement order t put the residuary first.
179
Bars to Inheritance: General Rule
Moral unworthiness is not a bar to inheritance.
180
Bars to Inheritance: Slayer Statute
Killers of Decedent widely barred from taking under intestacy and inheritance, and they are treated as if they predecease the decedent.
181
Bars to Inheritance: Disclaimer: What is it?
- Person declines to take property either by will or intestacy. (Treated as predeceased)
182
Bars to Inheritance: Disclaimer: Why?
- tax Purposes
- Creditors (federal government can always claw back money even if it is disclaimed for their credit purposes)
- People also just disclaim so the property falls to their heirs (who usually need it more).
183
Who created the idea of substantial compliance?
John Langbein
184
Ademption By Extinction:
If the property is no longer part of the estate, beneficiary gets nothing.
185
Ademption gets its base word adeem from...
Adimo...Lating for "take away"
