Wills Flashcards
(35 cards)
I don’t have a Will. What will happen to me?
Property passes by INTESTATE succession of whatever state you’re in
If the decedent leaves a surviving spouse and issue
Most States: the surviving spouse will receive a certain portion of the
estate and the issue will take a percentage
UPC: surviving spouse will receive the entire estate if all issue are
issue of the surviving spouse.
Intestate Succession
Any property not passing by a valid will or by operation
of law will be governed by a state’s applicable intestacy
statute.
If the decedent leaves only a surviving spouse and no issue,
Most States: Spouse will receive entire estate.
UPC: Spouse gets everything but some states require grandparents and parents to get a portion.
I died with no spouse?
It goes to the issue of the dead person (kids, grandkids).
I was a lonely person that played sudoku and drank spindrifts under a gravity blanket all day and had no issue or spouse.
PARENTS - SISTER AND BROTHER - NIECES AND NEPHEW - REMOTE ANCESTORS.
What if my kids die before me?
Divide up your assets.
Per capita is like the “fair method” = all the issue get equal amounts.
Per stirpes is the old school “unfair” method = all the issue get different amounts. if you have more kids, each of your kids gets less.
(MOST STATES/UPC) Per Capita at Each Generation: Divide evenly at first generation, then pool the shares of predeceased individuals and divide EVENLY among their issue – issue get SAME AMOUNTS. Basically let’s say Testator has three kids but two died before he died and his estate is worth $10. One of his dead children who died before him had two kids and another of his dead children who died before him had three kids. So the SURVIVING child will get $3.33 and the 5 grandkids of testator will all get $1.33. Simple and fair, right?
Per Stirpes: Divide evenly among Testator’s living children then issue gets DIFFERENT amounts based on how many of them there are on the branch. So let’s say testator has three children and two die before him… and one of his dead children had two kids and another had one kid. So his SURVIVG child gets $3.33 (same as before), but then the one grandchild of his one dead kid gets a FULL $3.33 because he had no siblings lol, and the two grandchildren of his other dead child get $1.66 (they basically got screwed over since they had siblings… which wouldn’t happen in per capita at each generation).
How do I make a will?
(1) Testamentary capacity… aka the “are you completely insane” test. You must be able to discern:
(a) Nature and extent of your property (what kind of stuff do you have)
(b) The NATURAL objects of your property (do you know who your relatives and friends are?)
(c) The disposition that you are making of the property (do you even know what is happening and who you are giving all this property to?)
(d) The ability to connect all the above elements together to form a coherent plan
Mental capacity is PRESUMED and the burden is on the will challenger to show you were suffering from a mental defect
(2) Testamentary intent (you need to actually intend that this document is a will, you can bring in outside evidence for this. Maybe the person thought they were shading in the eyelids of a picture of a llama instead of writing a will)
(3) Legal Capacity (basically… you need to be 18)
(4) Complies with state law formalities (HINT: The question will usually TELL us there is a law or statute in the state we’re in, then we can use that to help us analyze the formalities. i.e. In July 2019 MEE the question gave the state’s holographic will requirements then talked about whether the state recognized a holographic will, etc.)
Will Execution Formalities
Most states require: (1) writing, (2) attestation (witnessed by at least two witnesses), (3) signed by testator.
MNEMONIC: WAS. Written. Attested. Signed.
UPC: (1) writing, (2) signed by testator or some other individual in the testator’s “conscious presence” and by the testator’s direction, (3) signed by at least two individuals within a reasonable time after witnessing the signing of the will (this can be anyone) or NOTARIZED
The UPC follows the “conscious presence” test… so the testator only needs to know you’re signing it by using their SENSES directly. The MEE could try to trick you like you heard someone sign it through a phone or some shit. This won’t work. Your spiderman senses need to be operating to sense it when they are actually nearby. The minority “line of sight” rule is that the testator needs to actually SEE you sign it. Let’s be real… this has like a 97% chance of appearing in the problem if Wills comes up so don’t fuck this one up.
Interested Witnesses
Common law allowed NO TAKERS to witness (anyone receiving a benefit under the will).
A few weird scenarios the MEE tests:
Taker McWilerson is there but there are also two disinterested takers (some states will allow this so long as there are a total of two non-takers).
Taker McWilerson is there and he’s an HEIR. Some states will then reduce his gift to what his INTESTATE share would have been.
The UPC just says fuck it, Taker McWilerson can be there. Because the whole point of the interested witness rule is to prevent undue influence and fraud, and these problems aren’t alleviated by leaving Taker McWilerson out (who is almost always there at the REQUEST of testator). So under the UPC it won’t change anything.
I have my Will! But wait… I want to make changes to my Will. How do I do it?
CODICIL TIME.
A codicil is a supplement to a will made after the will was made. It can modify, amend or revoke the will.
The codicil still has to be signed by the testator and witnessed by two witnesses. A valid codicil republishes the will (the republished will is then deemed to be executed on the same day as the codicil).
Can my codicil cure defects in my will? Maybe.
Some MEE problems throw in a scenario where the will may have interested witnesses, and so long as the codicil has two disinterested witnesses, it cures the defect. But for the most part if your will is totally fucked up the codicil can’t save it.
Okay I’ve got my Wills and my Codicils… I’d like to incorporate by REFERENCE some other random documents that I put in a desk drawer into my will. Can I do that?
Yes! You can incorporate extrinsic random documents even if they don’t meet any of the formalities of a will! They have to meet THREE requirements though:
(1) The writing is in existence at the time the will is created,
a. Bar Exam TRICK: It may not have been around at the time the Will was published, but if it’s around at the time the CODICIL is published… it can be incorporated. Sorry NCBE… we will not be returning in July.
(2) The language of the will actually MANIFESTS intent for the document to be incorporated (in one problem the testator said something like I want that document to “republish” my will and this wasn’t enough… it was kind of the same thing but republish means something different than incorporate – make arguments on both sides),
(3) The language of the will DESCRIBES the writing with particularity to allow it to be identified (does it actually describe it or is the testator playing a little fast and loose with his words? Hit them with law school analysis on this)
We have a will, a codicil, and many documents in our desk drawer incorporated by reference. Now we want to light the will on fire. How can we revoke it? Two ways.
PHYSICAL ACT REVOCATION
The testator needs to (1) INTEND to revoke it, and (2) the will must be burned, destroyed, torn or cancelled by the testator (or someone at his direction and in his presence).
Revocation by Subsequent Will or Codicil
You can execute a subsequent valid will or codicil to revoke the old will but it will ONLY revoke to the extent it CONFLICTS with the old will. UNLESS you actually say in the new will or codicil “I’m revoking all the shit in the first will in it’s entirety” - you gotta expressly revoke the whole damn thing my future barristers.
Great then I can just cross stuff out and substitute gifts and write all over the will to cancel it?
Kind of.
Common law approach: Words of cancellation must come in contact with words of the will to revoke it.
UPC Approach: Words of cancellation are valid even if they did not come into contact with the words of the will.
If I give my friend a motorcycle can I just cross motorcycle out and type in “Bookshelf”?
No. This is an MEE ULTRA TRICK: Sometimes they have people “typewrite” changes on their will and try to trick your sleep deprived mind into thinking you are looking at a HOLOGRAPHIC will or codicil. It’s not Holographic because it’s TYPED. (holographic wills must be handwritten).
What the hell is a holographic will or codicil?
This is just about the riskiest thing you could do in all of Wills law. You take out a pencil and just write a bunch of shit on a sheet of paper and sign it (holographic will) with no witnesses around. Or you pencil up your actual will and add in changes then sign it (holographic codicil). This creates chaos in the probate system because people can challenge whether it was the testator’s real handwriting and creates all this ambiguity, etc.
What if I revoke a will but I had a mistaken belief as to a law or fact?
HOT TOPIC ALERT: DEPENDENT RELATIVE REVOCATION (DRR)
The court basically looks at your will and says “this guy really didn’t understand what he was doing… he revoked his will or bequest because he thought his new will or codicil would be valid… we need to reform it to match closer to what he wanted.”
The court is looking at what the Testator ACTUALLY WANTED. Say something on the test like “this is an intent-effectuating doctrine” for maximum points.
But remember that what you revoked has to share a SUFFICIENTLY CLOSE IDENTITY with what you originally wanted
Can I advance some gifts to people before I die? They are broke and need my stuff ASAP.
Harmless error rule under UPC
Harmless error rule, an
improperly executed will still be valid if the party seeking to have it validated proves (1) by clear and convincing evidence, (2) that the decedent intended the writing to be his
will.
Generally, the greater the departure from the necessary execution formalities, the harder it is to prove the testator’s
intent.
Interested Witnesses
Under the common law, the signing of the will must be witnessed by two disinterested witnesses (individuals who are
not receiving a benefit under the will).
However, most states provide for two exceptions in which the will remains valid despite being witnessed by an interested witness: (a) if the interested witness is an heir (any gift to that witness is reduced to their intestate share); OR (b) if another disinterested witness was present so that there were still a total two disinterested witnesses.
Codicils
A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil MUST satisfy the same formalities as a will to be valid.
Most courts hold that a codicil CANNOT republish an invalid will.
Holographic Wills & Codicils
A holographic will (or a written alteration to a will) is a handwritten will that is NOT witnessed. Not all states recognize holographic wills. In the states that do, some
require that the writing also be signed by the testator.
In most states, a document or writing may be incorporated into a will by reference if:
(1) it was in existence at the time the will was executed; (2) it is sufficiently described in the will; AND (3) the testator intended to incorporate it into the
will.
The Uniform Probate Code (UPC) permits a document or writing bequeathing tangible personal property (other than money) to be incorporated into the will if it:
(1) was signed
by the testator; AND (2) describes with reasonable certainty the items and the devisees.
A will is revoked by physical act if:
(1) the testator intended
to revoke the will; AND (2) the will is burned, torn,
destroyed, or cancelled by the testator (or someone at his direction and in his presence).
Words of cancellation?
Under the common law, words of cancellation are valid only if they come in physical contact with words of the will (i.e. written over).
Under the Uniform Probate Code, words of cancellation are valid even if they did not physically contact the words of the will.
