Wills Flashcards
(96 cards)
1
Q
What is a putative spouse and how is one treated for purposes of inheritance?
A
When a marriage is not valid but at least one spouse believes in good faith that it is, then the spouses are termed “putative” and qualify as spouses for inheritance purposes
2
Q
What kind of will is valid even if witnesses do not sign it, as long as they sign affidavits before a court officer?
A
A self-proved will.
Under the UPC, a will that is executed with attesting witnesses may be made self-proved by the acknowledgement of the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form.
3
Q
How does the UPC treat the inheritance rights of a person adopted by a stepparent?
A
The adoption does not curtail the inheritance rights of either natural parent, and adds in inheritance rights through the stepparent, resulting in the child standing to inherit through three different people: two natural parents and the stepparent/adopted parent
4
Q
What kind of will need not be witnessed?
A
A holographic will.
A holographic will is one that is completely handwritten and signed by the testator
5
Q
If a testator executes a will, then adopts a child, then dies without revising the will, what is the presumption regarding the omission of that adopted child?
What can overcome this presumption?
A
In such a case, a presumption is created that the omission of the child was accidental.
This can be rebutted by evidence that
1) the omission was intentional
2) the testator had other children when the will was executed and left substantially all of the estate to the other parent; OR
3) the child was provided for outside of the will with the intent that it be in lieu of a provision in the will
6
Q
How does a decedent’s estate pass according to the parentelic approach?
A
Under this approach, a decedent’s estate would first pass to the decedent’s parents and their issue; if there are none, then to the decedent’s grandparents and their issue, and so on
7
Q
According to the Uniform Testamentary Additions to Trusts Act (UTATA) what happens when a will attempts to pour over estate assets into a trust not executed in accordance with the Statute of Wills?
A
A will may still pour over assets into such trust as long as the trust is identified in the will and its terms are set forth in a written instrument.
Note: if these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable.
8
Q
What kind of will is generally valid only for the disposition of personal property in contemplation of immediate death?
A
Noncupative (oral) wills
These wills are invalid under the UPC and most states. Where valid, they require at least two witnesses, can devise only a limited amount of personal property, and may require that the testator die within a prescribed period after making the oral will
9
Q
What is a supplement to a will that alters, amends, or modifies the will, rather than replacing it?
A
A codicil.
A codicil must be executed with the same formalities as a will, but need not be executed with the same formalities as the will that it alters, amends, or modifies. An attested will may be altered, amended, or modified by a holographic codicil and a holographic will may be altered, amended, or modified by an attested codicil. A valid codicil republishes the will as of the date of the codicil and may even validate an invalid will if the codicil refers to the will with sufficient certainty to identify or incorporate it, or if the codicil is on the same paper as the invalid will.
10
Q
What are the requirements for an international will?
A
- In writing
- Signed
- Witnessed by two individuals
- Witnessed by a third person who is authorized to act in connection with international wills and who must prepare a certificate to attach to the will
11
Q
How does the revocation of a will differ from the revocation of a codicil?
A
Revocation of a will revokes all codicils thereto, whereas revocation of codicil does not revoke a will, but rather revises it.
12
Q
What is a demonstrative legacy?
A
When a legacy be paid from a particular source. A testator can also direct that, if the source of the demonstrative legacy is insufficient, it can be paid out of general assets.
13
Q
What are the requirements for a will incorporating by reference another writing not executed with testamentary formalities?
EID
A
EID
Exist Itended Described
The other writing must:
1. Exist at the time the will was executed
2. Be intended to be incorporated, AND
3. Be described in the will with sufficient capacity so as to permit its identification
14
Q
When a gift is adeemed, what is the beneficiary entitled to?
LPCF
A
LPCF
Left Price Condemnation Foreclosure
- Whatever is left of the specifically devised property,
- The balance of the purchase price owing from the purchaser of the property
- Any amount of condemnation award for the taking of the property, to the extent unpaid upon death, OR
- Property acquired from the foreclosure of a security interest on a specifically devised note
15
Q
Wills: What is the Acts of Independent Significance Doctrine?
A
The Acts of Independent Significance Doctrine allows a will to provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will / testator’s death, if the act or event has some significance apart from the will.
While similar to the republication by codicil and incorporation by reference, the acts of independent significance doctrine is the only one that applies to future acts or events.
16
Q
What is Quasi-Community Property?
A
Quasi-community property is separate property that would have been community property had the parties been domiciled in a community-property state when acquired. It is treated as community property for distribution purposes.
16
Q
When a gift is to an entire class and one member of the class predeceases the testator, what results when there is no anti-lapse statute applicable?
What happens when there is an anti-lapse statute applicable?
A
No anti-lapse statute applicable: only the surviving members take
Anti-lapse statute applicable: the issue of the predeceased member take the member’s share. The majority of states and the UPC apply the anti-lapse statute first, before the determination of the class gift.
16
Q
What are the three property management options for property transferred to minors pursuant to a will or intestacy?
GCT
A
GCT
Guardianship Custodianship Trusteeship
Because minors lack the legal capacity to hold property, the law provides three management options:
1. Guardianship
2. Custodianship (via will only)
3. Trusteeship (via will only)
17
Q
What happens when encumbered property is specific devise? (Majority Rule)
A
In most states, the specific devisee of encumbered property takes subject to the mortgage, notwithstanding the fact that the will contained a clause directing the executor to pay the decedent’s debts.
18
Q
What comprises the marital-property of a decedent’s agumented estate, and how much of that may a surviving spouse claim as the elective share?
A
The UPC subjects property acquired BEFORE and DURING marriage to the “marital property” portion of the augmented estate to which the surviving spouse is entitled.
Under the UPC, the surviving spouse may take an elective-share amount equal to 50% of the value of the marital-property portion of the augmented estate.
19
Q
A spouse omitted from a will is entitled to an intestate share unless:
A
- A valid prenuptial agreement exists,
- The spouse was given property outside of the will in lieu of a disposition, OR
- The spouse was specifically excluded from the will
20
Q
Six Fiduciary Duties of a Power of Attorney
A
- Exercise the powers for the benefit of the principal and in accordance with reasonable expectations
- Act in good faith
- Separate the assets of the principal from agent
- Exercise reasonable care, competence, and diligence
- Account for all transaction made on behalf of the principal
- File an accounting of the administration whenever so directed by the court
21
Q
When a will is executed that bequests security, and then additional security is later acquired, how is that additional security treated under the UPC?
A
Additional security acquired after the will was executed will be included with the bequest of security accounted for in the will.
Note: This is different than under common law, which treats gift of securities differently depending on whether the bequest was specific or general. The UPC has rejected this approach of classifying the type of bequest.
22
Q
Wills: What is the majority rule for the requirements of a valid disclaimer?
WSP
A
WSP
Writing Signed Period
Most jurisdictions require that the disclaimer be:
1. In writing
2. Signed
3. Filed within a certain period after the decedent’s death
23
When is the value of an inter vivos gift determined?
The value is determined at the time the recipient takes possession or enjoys it, whichever is first.
24
What does the Uniform Transfer to Minors Act do?
The Uniform Transfer to Minors Act (UTMA) appoints a custodian to use property transferred to a minor at the custodian's discretion on the minor's behalf without court approval and with no accounting requirement. The custodian must turn any remaining property over to the minor upon the minor's attainment of age 21.
25
When is a life insurance policy considered to be part of a decedent's estate?
When the policy's beneficiary is the estate itself.
26
What happens when a beneficiary dies before the testator or before the statutory requirement for survival following the testator's death?
Common Law: the gift failed and went to the residue of the estate unless the will specified otherwise.
Modern Rule: almost all states have Anti-Lapse Statutes.
Anti-Lapse Majority Rule: if gift was made to a close relation (often required to be related by BLOOD; thus, not a spouse) to the testator, and the relation predeceased the testator but left issue, the issue succeeds to the gift, unless specified otherwise in the will. If there is no such issue, the gift passes to the esate.
27
When the language of an anti-lapse statute does not address a particular type of devisee and that devisee predeceases the testator, what happens to the property intended to pass to that devisee?
The intended devise goes to the devisee of the residual, or in the absence of such passes by means of intestacy.
28
Wills Vocab
Decedent
Will
Testate
Intestate
Codicil
Probate
Intestate Succession
Decedent - someone who has died
Will - legal document used to dispose of the decedent's property
Testate - decedent dies with a will
Intestate - decedent dies without a will
Codicil - a supplement that either amends or revokes a decedent's will in whole or in part
Probate - judicial process for administering and settling a decedent's estate
Intestate Succession - a default estate plan, developed by the legislature, for distributing property when the decedent dies intestate
29
Wills Vocab 2
Heirs
Spouse
Issue/Descendants
Ancestors
Collaterals
Heirs - individuals entitled to receive property by intestate succession
--living people do not have heirs
Spouse - decedent's marital partner
Issue/Descendants - decedent's lineal line (i.e. decedent's kids, their kids, etc.)
Ancestors - decedent's parental line (i.e. parents, grandparents, etc.)
Collaterals - decedent's relatives through an ancestor (i.e. siblings, cousins, aunts, uncles)
30
What relevance does intent have in intestacy distribution?
NONE.
Intestacy is a default estate plan developed by the legislature. The decedent's actual intent is irrelevant
31
What are heirs?
Heirs are individuals entitled to take an intestate share of decedent's estate. To take from a decedent, the individual must survive the decedent
32
What happens, regarding inheritance, when there is a simultaneous death?
Key Components:
-Treat as though each predeceased the other
-120 hours between deaths is required for an alternate presumption
The UPC follows the Uniform Simultaneous Death Act (USDA) to control the situation where the decedent and heir die at the same time. If there is insufficient evidence to determine who survived whom, the property will pass as though each had predeceased the other. Under the USDA, an heir must be proved by clear and convincing evidence to have survived the decedent by 120 hours.
33
Is an unmarried cohabitant legally a "spouse?"
NO.
A spouse is a legally-married partner
34
Spousal Share (intestacy):
If a decedent is survived by a spouse and descendants from that spouse, and surviving spouse has no other descendants...
Surviving spouse takes the entire estate
35
Spousal Share (intestacy):
If a decedent is survived by a spouse and a parent, but no descendants...
Surviving spouse takes $300,000 and 75% of the remainder of the estate
36
Spousal Share (intestacy):
If decedent is survived by descendants who are also descendants of the surviving spouse, and the spouse has no other issue...
Surviving spouse takes $225,000 and half of the remainder of the estate
37
Spousal Share (intestacy):
If decedent is survived spouse and by issue not related to the surviving spouse...
Surviving spouse takes $150,000 and half of the remainder of the estate
38
Spousal Share (intestacy):
If decedent is survived only by spouse and not by any descendants or parents...
Surviving spouse takes the entire estate
39
What happens when an intestate decedent dies without heirs?
The decedent's property escheats to the state
40
How are biological and adoptive children treated differently under intestacy?
THEY AREN'T.
Issue includes a decedent's lineal line, where a parent-child relationship exists, and adoptive children inherit from decedent just like biological children.
This, of course, includes when a stepparent adopts spouse's children as their own, but a child adopted by a stepparent maintains their inheritance rights from the other biological parent. Thus, if a divorced father remarries, and his new wife adopts father's child as her stepchild, the child can still inherit from the biological mother.
41
When is there a rebuttable presumption that a child born after the death of a husband is the husband's posthumous biological child?
If the child is born within 280 days of the husband's death, there is a rebuttable presumption that the child is the husband's and the child will inherit from the husband as if child was born before the husband died.
If the child is born more than 280 days after the husband's death, the child will have to prove parentage in order to inherit from the husband.
This 280 day cutoff has been increased to 300 days in jurisdictions that have adopted the Uniform Parentage Act.
42
How is per stirpes inheritance calculated?
-Estate will be divided equally according to lineal line, with the division occurring at the first generation.
-Each living issue and each deceased issue with issue of their own will receive one equal share.
-Thus, if Parent X had four children, and one died with issue, and one died without issue, the two living children will receive 1/3 share of estate and the children of the deceased issue will equally divide the 1/3 share that their parent would have received.
43
How is per capita with representation inheritance calculated?
-Estate will be divided equally according to the first generation with living members. Thus, if a decedent's children are all dead but at least one has children (grandchild/ren) of their own, the estate will be divided by the number of living members and non-living members with issue at the grandchild's generational level.
-Any deceased members at the grandchild's generational level who leave their own issue will have their share divided equally among their issue.
-Thus, if decedent X dies but is predeceased by his two children, but one of his two children had four children (A, B, C, and D), and grandchild A is alive but B, C, and D are dead, this is still the generation where the estate will be evenly divided. If B left two children and C left one child, A would take 1/3 of the estate, B's two children would each take 1/6, and C's child would take 1/3.
-Any of the members of the dividing generation who have died but did not leave issue will not be included in the division nor will they receive a share.
44
How is per capita at each generation inheritance calculated? (UPC)
-Estate will be divided equally according to the first generation with living members. Thus, if a decedent's children are all dead but at least one has children (grandchild/ren) of their own, the estate will be divided by the number of living members and non-living members with issue at the grandchild's generational level.
-Any deceased members at the grandchild's generational level who leave their own issue will have their issue receive a portion of the estate.
-However, unlike per capita with representation, under per capita at each generation the generation following the dividing generation will have all of its members dividing the leftover shares (those of deceased members with issue at the dividing generational level) equally.
-Thus, if decedent X dies but is predeceased by his two children, but one of his two children had four children (A, B, C, and D), and grandchild A is alive but B, C, and D are dead, this is still the generation where the estate will be evenly divided. If B left two children and C left one child, A would take 1/3 of the estate, B's two children and C's one child would split the remaining 2/3 of the estate evenly.
-In other words, cousins and siblings at the same generational level all take the same equal share, divided evenly from the shares that would have gone to the deceased members of the dividing generation.
-Any of the members of the dividing generation who have died but did not leave issue will not be included in the division nor will they receive a share.
45
What are the requirements of a valid will?
SWT
SWT
Signed Witnesses Testamentary
1. Signed writing
2. Witnesses
AND
3. Testamentary intent**
**Testamentary intent requires that the testator be 18 years old and of sound mind!
The entire will be must written
The will must be signed by the testator (some states require it at the bottom, other states and the UPC allow a signature anywhere on the will). In a state that allows a signature anywhere, though, anything below the signature will not be given effect.
The UPC does not permit oral/video wills
A formal signature is not required, so long as it indicates the testator's desire to sign
46
How many witnesses are required and what must they do in order to make a will valid?
TWO witnesses must be "present," and must sign the document, though not necessarily at the same time.
Majority:
Testator must sign or acknowledge the will in the presence of the witnesses; AND
Witnesses must sign in the presence of the testator
UPC:
Witnesses must sign within a "reasonable time" of the original signature by the testator, thus the testator and witnesses do not have to sign in one another's presence
47
What are the two different approaches to defining the "presence" of witnesses to a will?
Line of Sight (Traditional approach) - witnesses and testator must observe or have the opportunity to observe the signing of the will. They must, therefore, be in the same room and visible to one another
Conscious Presence (Modern approach) - witness or testator must be AWARE that the act is being performed, even if she cannot see it
UPC adopts conscious presence ONLY for the situation where the will is signed by another on behalf of the testator
48
What is an interested witness?
An interested witness is a witness to the signing of a will who has a direct financial interest in the will
Common Law: interested witnesses are not competent to witness the will
Purge Theory: many states use the purge theory to reduce a witness's inheritance beyond intestate share
UPC: abolishes the interested witness doctrine; if a witness is acting improperly, there are other ways of addressing it (undue influence or fraud).
49
Wills: Purge Theory
Under the Purge Theory, which has been adopted by many states, if a witness (or witness's spouse) has a direct financial interest under a will, their acting as a witness will not affect the validity of the will
BUT
Probate court will "purge" any gain due to the interested witness under the will that is in excess of what the witness would take under intestate succession
EXCEPTIONS
No purge of testate share if:
-There were two other disinterested witnesses
OR
Interested witness would take a share under intestate succession
AND
Interested witness takes the lesser of intestate share or bequest
50
What are the requirements of a testator to validly execute a will (requirements of the testator as a person, not requirements of the will)?
PAM
PAM
Present Age Mind
Present Testamentary Intent: testator must have present testamentary intent to make a testamentary transfer
Competency: A testator must be at least 18 years old and of sound mind. Competency is measured at the time of the signing. Subsequent incompetence will NOT invalidate a will
51
What is the effect of a failure of will formalities?
Common Law (majority rule): strict compliance with will formation formalities (witnesses, writing, signature, testamentary intent)
Modern View (UPC & minority): substantial compliance with statutory formalities. Even if formality is not met, a court will nevertheless admit a will to probate if there is clear and convincing evidence that the decedent intended the document to serve as his will
52
What is a holographic will?
A holographic will is an informal, handwritten will. It does NOT need to be witnessed, but it MUST be signed.
Some jurisdictions require that EVERY marking on the paper must have been done by the testator or the will is invalid
UPC: only the material provisions MUST be in the testator's handwriting
Intent: look for words or phrases that suggest intent. UPC expressly authorizes looking to extrinsic evidence to establish intent.
53
What is a codicil?
A codicil supplements a will, but does NOT replace the underlying will. A codicil must be executed with the same formalities as a will.
Formal codicil: must be signed, witnessed, etc.
Holographic codicil: must be in testator's handwriting
A formal will can be amended by a holographic codicil, and vice versa
54
What types of property are passed on at the time of a decedent's death without probate or will?
Joint tenancy: avoids probate because it has a right of survivorship
Revocable Trust: avoids probate because it is an inter vivos transfer
Pour-over will: avoids probate because it distributes property under a trust
POD Contract: avoids probate because it distributes by an inter vivos transfer
Deed: avoids probate because it is an inter vivos transfer (assuming the deed contains or carries intent of passing to a new person at or after decedent's death). Even an oral expression to an independent 3d party about who the deed should go to upon decedent's death is valid.
54
Are life insurance policies devisable?
NO.
Life insurance policies are not devisable because they are considered an inter-vivos gift. Some states permit a will to name a new beneficiary, but the majority rule is that the beneficiary named on the policy is the rightful beneficiary
55
What are the three ways to revoke a will?
SPO
SPO
Subsequent Physical Operation
A will can be altered or revoked, in full or in part, at any time up until testator's death. This means a will is "ambulatory"
1. Subsequent Instrument
2. Physical Act
3. Operation of Law
56
How does a subsequent instrument revoke a will?
Express Revocation: a later writing that expressly revokes a prior will
Implied Revocation (i.e. inconsistency): Later writing is inconsistent with prior will
-So long as it is validly executed, a later document controls
Is it a new will or a codicil?
-Original will has residuary gift and later writing does not = later writing probably a codicil
-Original will does not have a residuary gift and later writing does = later writing probably a new will
57
What types of physical acts will revoke a will?
IA
IA
Intent Act
Intent: testator must intend for the physical act to revoke the will
Act: A testator can revoke a will in part or in whole by engaging in a physical act of destruction, such as tearing, burning, or crossing stuff out.
The effect of destroying specific langauge:
Majority: the particular language in question must be destroyed
UPC: only requires that destructive act affect some part of the will
58
What are the consequences and actions that can be taken in the event of a lost will?
When it is known that a will exists but it cannot be found at the time of the testator's death, a rebuttable presumption is formed that the testator revoked the will by physical act.
Burden is on the proponent to show will's existence by CLEAR AND CONVINCING evidence.
-Duplicate originals can be admitted (another version of the original, signed and attested)
-Copies cannot be admitted
58
What is the effect of a divorce on the provisions of a will?
Divorce:
-in most jurisdictions, a divorce revokes all will provisions in favor of the former spouse, UNLESS there is evidence that testator wanted the will's gifts to ex-wife to survive
-UPC: invalidates all gifts to the ex-spouse as well as to ex-spouse's relatives
-A mere separation will not affect the rights of a spouse
-If a divorced couple remarries before the testator dies, the will provisions relating to former spouse or domestic partner are revived, because they have married each other again
59
3d Party Revocation of a Will - a third party can revoke a will on behalf of a testator when:
DP
DP
Direction Presence
A third party can revoke a will on behalf of a testator when:
-it is at the testator's direction; AND
-In the testator's conscious presence
60
Revocation of a Will and the effect on Codicils
By revoking a will, the testator also revokes any codicil attached to the will,
BUT the opposite is not true:
By revoking a codicil, the underlying will is revived in its pre-codicil form
61
Republication of a Will - UPC (majority rule)
UPC (majority rule) does not recognize automatic revival of a revoked will. UPC focuses on the testator's intent and applies a hybrid approach depending on:
1. Whether the second will is revoked by act or by another, later will
AND
2. If the second will IS revoked by an act, then whether
a) the first will was wholly or
b) partially revoked by that second will
If second will is revoked by another new will, the previous will is only revived if the terms of the new will show that the testator intended the previous will to take effect. In this instance, the court will NOT consider any extrinsic evidence in determining the revivability of the first will
If the second will is revoked by a physical act, the burden of establishing the testator's intent depends on whether the first will was wholly or partiall revoked by the second will.
If the second will wholly revoked the first will, the court will not revive the first will unless the proponent can prove otherwise. Court CAN consider extrinsic evidence.
If the second will only partially revoked the first will, the court will presume the testator intended to revive the revoked parts of the first will, unless challenger of the first will proves otherwise. Court CAN consider extrinsic evidence.
62
Republication of a will - common law (minority approach)
At common law, the revocation of a will or codicil that had revoked another will automatically revived the original will
63
Republication of a will - no-revival approach (many states follow, but not a majority)
Second will is treated as two legal instruments, each with its own effective date:
1) A revoking instrument that is effective upon its execution
2) a dispositive instrument effective upon the testator's death
64
Dependent Relative Revocation (DRR)
"But for the mistake, the testator would not have revoked the first will."
Dependent Relative Revocation provides a safety valve for testators who revoke a will on the basis of a mistake
Mistake could be one of law or fact, and the DRR invalidates the mistaken revocation and revives the earlier revoked will. Typically it will be that a party revoked an earlier will but the new will was not valid; DRR will revive the first will so the decedent does not die intestate.
Buzzwords to use: revocation, mistake, causation, safety valve
65
Which doctrine of construction does will interpretation use?
Plain Meaning Doctrine:
courts give the words in wills their plain meaning. Unless the testator explicitly states that a word has a different than usual meaning, the court will interpret the will exactly as it is written, using the common definition of all words
66
Wills: incorporation by reference
A will may incorporate an extrinsic document that is not testamentary in nature if:
EID
EID
Existence Intends Described
1. The document is in existence at the time of execution (UPC waives this requirement if it only disposes of personal property)
2. The testator intends the document to be incorporated into the will;
AND
3. The document is described in the will with sufficient certainty to permit its identification
67
Wills: Lapses
A testamentary gift would lapse (fail) if an intended beneficiary did not survive the testator, and failed gifts would be dumped into the residuary gift
68
Wills: Anti-Lapse Statutes
RI
RI
Relationship Issue
Anti-Lapse Statutes provide an alternative disposition for lapsed goods, typically that the gift goes to the issue of the intended beneficiary rather than the residuary gift
Requirements:
1. Protected relationship - lapsed gift was intended for a relative of the testator
2. Survived by Issue
If the requirements of the statute are not met, the lapsed gift goes to the residuary under the common law
69
Special Rules for Class Gifts
Under the common law, class gifts were an exception to the lapsed gift rule
-If a member's gift lapses, the rest of the class share that member's gift
-But if the deceased member is protected by an anti-lapse statute, the outcome may be different, depending on the language of the anti-lapse statute
70
Wills: Abatement & Abatement Hierarchy
IRGS
The estate does not have sufficient funds to pay debts or make gifts. In this case, the gifts will be abated, or reduced, in specific order
Abatement Hierarchy:
1. Intestate property (first to be abated)
2. Residuary gift
3. General gifts
4. Specific gifts (last thing to be abated, most protected)
71
Wills: Ademption by Extinction
When a piece of property is no longer in the estate at the testator's death...
Identity Theory / Traditional Rule: the devise is extinct and the devisee takes nothing
Intent Theory / UPC Rule: look to testator's intent at the time she disposed of property for facts that suggest the ademption was intended or not.
-UPC tries to avoid ademption and provides for beneficiary to take replacement property on a specific gift
71
Types of Testamentary Gifts
SGDR
1. Specific gift: a gift of a particular piece of property
2. General gift: a gift of property satisfied from general assets of estate
3. Demonstrative gift: a general gift from a particular source. Demonstrative gifts, if capable of being satisfied, are treated as specific gifts. Otherwise they are general gifts.
4. Residuary gift: left over
72
Wills: Ademption by Satisfaction
Requirements
IW
IW
Intent Writing
Applies when a testator satisfies a specific or demonstrative gift, either in whole or in part, by an inter vivos transfer
Requirements:
1. Testator inteded the gift to adeem
AND
2. Intent must be supported by writing
73
Will Ambiguity - Latent
A latent ambiguity is one that arises upon the attempted administration of the estate property, such as when the will directs that property go to "my brother" but the decedent had two brothers
Extrinsic evidence can be used to resolve a latent ambiguity
74
Will Ambiguity - Patent
A patent ambiguity is one that is clear on its face, when there is contradictory language in the will that is immediately apparent.
Traditional Rule: had to be resolved without looking to extrinsic evidence
Modern Rule: Extrinsic evidence permitted for resolution
75
How does a court handle a mistake in a will?
Courts are not forgiving when it comes to mistakes in wills. Courts tend to honor the language of the written will, not the alleged intended devisee
76
Rights of the Surviving Spouse
SHAPE
SHAPE
Social Homestead Allowance Personal Elective
A surviving spouse is entitled to the following statutory rights upon decedent spouse's death:
1. Social security & pension plans
2. Homestead exemption
3. Personal property set asides
4. Family allowance for reasonable living expenses during probate
AND
5. Elective share
77
Surviving Spouse's Elective Share & Waiver
WDIC
WDIC
Writing Disclosure Independent Counsel
Spouse's elective share is a forced share and could change the gifts to other beneficiaries
UPC: forced share is 50% of the decedent's augmented estate
Augmented Estate: UPC subjects property acquired before marriage, as well as during marriage, to the elective share
Waiver: surviving spouse can waive the right to an elective share if:
1. The waiver is in writing after a fair disclosure of its contents,
AND
2. The spouse is represented by independent legal counsel
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When can a court modify a trust?
A court may modify a trust if events that were unanticipated by the settlor have occurred and the changes would futher the purposes of the trust.
To the extent possible, the modification must be made in accordance with the settlor's probable intention.
The court does NOT need to seek beneficiary consent to make the modification.
Generally, when strict adherence to the terms of a trust frustrate the settlor's/testator's purpose, the terms can be modified to better align with the purpose.
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When can a court modify the terms of a trust even if circumstances have not changed in an unanticipated manner?
IWA
IWA
Impracticable Wasteful Administration
The court may modify the terms of a trust that relate to the management of trust property if continuing the trust on its existing terms would be
1. impracticable
2. wasteful
OR
3. impair the trust's administration
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Trusts/Wills: What is the doctrine of cy pres?
Under the cy pres doctrine, in an effort to carry out the testator's intent, a court may modify a charitable trust to seek an alternative charitable purpose if the original charitable purpose becomes
1. illegal,
2. impracticable,
OR
3. impossible to perform.
The settlor's intent controls, and a charitable beneficiary creates the presumption that the settlor had a charitable purpose in mind for the trust.
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Wills: What is a lapse and what is the effect of one?
A lapse occurs when a beneficiary under a will predeceases the testator. The effect of such depends on the jurisdiction.
Common Law: if a beneficiary died before testator or before the point they must survive until to inherit, the gift FAILS and goes to the residue of the will. This occurs even if the will left property to someone who was already deceased.
Anti-Lapse Statutes: state laws that prevent the failure of a devise in the event of a lapse.
a) Majority: IF the gift was made to a predeceasing relation of testator (degree determined by statute), the issue succeeds to the gift unless the will states to the contrary. Most statutes require that the devisee be a grandparent, descendant of grandparent, or stepchild of testator. Most statutes apply only to testatmentary gifts
b) UPC & Modern Trend: anti-lapse protection may also apply to nonprobate transfers
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When does a healthcare power of attorney become effective?
Upon the incapacitation of the principal
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What is a power of attorney?
An authorization to act on someone else's behalf in a legal or business matter
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How must an agent authorized under a health-care power of attorney conduct itself in this capacity?
An agent must make a healthcare decision in accord with the principal's instructions or other known wishes. If such instructions do not exist, the agent must make decisions in accordance with the agent's determination of the principal's best interest.
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How do typical healthcare POA statutes treat potentials for civil liability?
The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith.
Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney.
An agent is thus only held responsibile for intentional misconduct, not for unknowingly doing something wrong.
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Why do typical healthcare POA statutes shield agents from being subjected to slayer statutes that would prevent them from inheriting from the deceased principal?
Because allowing a slayer statute to apply to a healthcare POA would undermind the purpose of the POA, which is to appoint a trusted family member to act in good faith on the patient's behalf. If such conduct prohibited the agent from taking under the decedent's will, the patient would not appoint potential heirs as agents and potential heirs would refuse to serve.
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When a testator does not own a specifically devised asset at the time of death, how does the ademption by extinction operate?
The ademption by extinction will cause the devise to fail and the devisee takes nothing - not even the sale proceeds. Instead, proceeds from the sale of the specifically devised asset will become part of the general estate.
This would be the case if property is sold or foreclosed on after the will is executed, and even applies when the proceeds are identifi
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What is the difference between ademption and lapse?
An ademption occurs when the devised property no longer exists at the administration of the will. This causes the devisee to take nothing, insofar as the adeemed property is concerned.
A lapse occurs when the beneficiary has predeceased the administration of the will. This causes either a) the devise to fail and the property to go to the residual gift or estate OR b) an anti-lapse statute applies.
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When a state's laws of intestate succession deprive nonmarital biological children of the parent's estate, what is the result?
Laws that treat biological marital children differently than biological nonmarital children are unconstitutional on their face and thus invalid.
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When can a nonmarital child inherit from their natural father?
Again, laws barring nonmarital children from inheriting from their parents are unconstitutional. However, in order for a nonmarital child to inherit from their father, one of the following must be true:
1. The father subsequently married the natural mother
2. The father held the child out as his own and either provided support or received the child into his home
3. Paternity was proven by clear and convincing evidence after the father's death
4. Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence
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