Wills Flashcards
(37 cards)
1
Q
Wills
- Statutory Formalities
A
- Testamentor must have capacity.
- Must be 18 years old (Most states).
- Must be executed with testamentary intent, present intent – Sham instrument not given effect.
- T must sign the will, any mark intended to be a signature, or Signature of another at T’s direction and in T’s presence.
- Two attesting witnesses – Witness T’s signing or acknowledgement of previous signature. Sign in presence of each other
2
Q
Wills
- Capacity to make a will
A
- T must understand the nature of the act he was doing. (Ordinary Affairs of life)
- T must know the nature and character of his property.
- T must know the natural objects of his bounty.
- T must understand the disposition he wished to make. (Understand the meaning of the will provisions).
3
Q
Wills
- In the Presence
A
- Traditional rule - The testator and witnesses required to be in line of sight.
- Majority Trend - Satisfied If testator and witnesses can use any senses they possess to enable them to, know that the other is at hand and to know what he is doing.
4
Q
Wills
- Presumption of
Undue Influence
A
– A presumption of undue influence arsies when:
a. There was a confidential relationship between the testator and a beneficiary – That is the testator placed unusual amount of confidence in and relied on beneficiary.
b. Beneficiary was active in procuring, drafting, or executing the will: and
c. The will provisions unnaturally favor that beneficiary.
5
Q
Wills
- Undue Influence
- When occurs - Definition
A
a. Influence was exerted.
b. The effect of the influence was to overpower the mind and free will of the testator;
c. The resulting testamentary disposition would not have been executed but for the influence.
- Circumstantial evidence alone is not sufficient to establish undue influence.
6
Q
Wills
- Undue Influence
- Factors
A
- Susceptibility to influence.
- Mental and physical condition.
- Power and opportunity of beneficiary to influence.
- Whether will makes an unnatural disposition
- Sudden change from former will
- Beneficiary role in execution
- Things showing true will was overborne.
7
Q
Wills
- Interested Witness
A
- Majority – The will is valid, but the interested witness will lose legacy, unless;
1. There were two disinterested attesting witnesses; or
2. Witness-beneficiary would be an heir in intestacy, in which case she takes lesser of the will or intestate share. - Minority, UPC – Rule abolished, a beneficiary can attest to the will.
8
Q
Wills
- Self Proving Will
A
Testator and witnesses sign a self-proving affidavit which recites elements of execution and sign under oath before notary.
- Raises conclusive presumption that formalities were met.
9
Q
Wills
- Revocation
- Express
A
- Revocation can be made in clause of a new will, hereby revoking all other wills and intent this be final.
10
Q
Wills
- Revocation
- Physical Act
A
- Elements
a. Intent to revoke
b. Physical act, tearing, cutting, burning, obliterating, destroying, canceling
- Act of revocation on one executed copy, revokes all executed copies.
11
Q
Wills
- Dependent Relative Revocation
A
- Equitable doctrine - The court may disregard a revocation that would not have occurred if not for the mistake of Testator that an accompanying disposition would be valid.
- If the new disposition is invalid, the accompanying revocation is also invalid.
- Testator crosses out some gift and writes in a different disposition.
- Testator executes a new will invalid for want of formalities, tears up the old will. DRR may make revocation of first will invalid.
12
Q
Wills
- Lost Will
- Presumption
A
- If a will is last seen in possession of testator and later cannot be found, a preemption arises that it was destroyed with intent to revoke.
- If will last seen with person adversely affected by will, no presumption arises.
13
Q
Wills
- Patent Ambiguity
- Latent Ambiguity - Two types
A
- Patent Ambiguity - One apparent from the face of the document. Refers to something twice. Two clauses that each could be the residuary clause.
- Latent Ambiguity - One only discoverable by considering extrinsic evidence
- Two Types
a. Where there are two or more persons or things exactly measuring up.
b. Where no person or thing exactly measures up, but two or more fit the description imperfectly.
14
Q
Wills
- Evidence - Patent Ambiguity
- Evidence - Latent Ambiguity
A
- Patent - Extrinsic evidence allowed to determine intent, Excluding evidence of testator’s declarations about intent.
Example - Evidence about property, motive of testator, relation to the parties. - Latent - Extrinsic evidence allowed including testator declarations to show intent. This is an exception to the general bar of introducing evidence of testator’s declarations.
15
Q
Wills
- Revival
A
- A codicil works to republish the will it amends, and will revive the will it amends if previously revoked.
- Revoking a will that revoked an earlier will, does not revive the will it revoked. Both remain revoked.
16
Q
Wills
- Incorporation by reference
- Elements
A
- Writing must be in existence at time will was executed.
- Exeption – See tangible personal property list other card. - Will must manifest an intent to incorporate the document
- Will must describe the writing sufficiently to permit its identification
- Description and circumstances must produce a reasonable certainty that the document in question is the one referred to in the will.
17
Q
Wills
- Incorporation by reference
- Tangible personal property list
A
- UPC and many states allow a will to refer to a written statement or list that disposes of tangible personal property (other than money).
- May be made after execution.
- Requirements - Must be written and signed.
- Must describe property with reasonable certainty.
18
Q
Wills
- Choice of Law
- Two types of potential grounds
- Ancillary Administration - Issue
A
- Primary Administration – In domiliciary state.
- Ancillary Administration – In states where testator owns real property.
- Ancillary jurisdiction over valid will, not valid in ancillary state.
- Minority - Treat as invalid and died intestate.
- Majority - Allows will in ancillary proceeding if meets one or more of the tests:
1. Place of execution – Does the will comply with the law of the state of execution.
2. Domicile at death – Does the will comply with the law of the state where he died.
3. Domicile at execution – Does the will comply with the law of the state where domiciled when he executed the will.
19
Q
Wills
- No Contest Clauses
A
- Majority - If the challenge is made and wins, the clause will not be enforced.
- Some states - If challenge brought with probable cause, clause will not be enforced.
- Minority - No good faith exception, enforce clause.
20
Q
Wills
- Kinds of gifts
A
- Specific devise – Specific asset and that asset only. My car. My bank accounts. When the person dies, the gift will translate to a specifically identifiable gift.
- Demonstrative Legacy – Hybrid, gift of pecuniary amount, will gives instructions as to the funds and how they should come. I give $5000 to be paid out of the proceeds of sale of my Acme stock.
- General Legacy – Gift of a pecuniary amount; give $10,000.
- Residuary bequest – All the rest, residue, and remainder of property.
- Intestate property – When there is a partial intestacy for some reason.
- All residuary beneficiaries were not close relatives and all predeceased the testator.
21
Q
Wills
- Lapse
A
- A gift lapses if the beneficiary predeceases the testator or within 120 hours (if applicable statute). The gift fails and goes to the residue and passes as part of the residuary estate.
22
Q
Wills
- Anti-Lapse Statutes
A
- Most states have Anti-lapse statutes. These prevent gifts from lapsing when given to close relatives. Generally do not apply to spouses.
- Generally – If the predeceased left issue, the residuary share would not fail and the issue of the close relative deceased would take the share.
23
Q
Wills
- Adoptive Children
A
- Treated the same as natural children of the adopting parents. No inheritance in either direction between adopted child and natural parents.
- Exceptions
a. When natural parent marries an adopting parent. - Child is adopted by a close relative.
- Parent dies leading to adoption - UPC and minority – If a parent (say father) dies while married to mother, the mother remarries and H2 adopts. The child can still inherit from his father H1. If orphaned because parents died, he can inherit from them even if adopted as orphan.
24
Q
Wills
- Transfers in fraud of marital right
A
- Gift made in fraud of the marital rights of the surviving spouse to share in estate shall be treated as testamentary disposition and may be recovered from the donee.
- Factors
a. Lack of consideration
b. Retention of control by transferor over an asset in question.
c. Transfer of disproportionately high value when compared with total estate.
d. Lack of open and frank disclosure by the transferor to surviving spouse.
25
Wills
| - Effect of Divorce
- Nearly all states have statutes which prevent ex-spouse from taking under a will executed during marriage.
- Most revoke gifts to ex-spouse relatives.
26
Wills
| - Per capita with representation (per stripes)
- Skip generation with no survivors and divide at first generation with survivors. Split it there, and pass it through non-surviving members to their heirs.
- Not UPC approach which would recombine the any shares of deceased members and distribute to the next generation equally.
27
Wills
| - Advancement
- Common Law – Treated all gifts to descendants was presumed to be an advancement of his intestate share, to be taken into account in distribution.
- Majority Rule – No advancement unless (no presumption).
1. Declared as such in a contemporaneous writing by the decedent.
2. Acknowledged as such in writing by the heir.
28
Wills
| - Satisfaction
- Gift made to a beneficiary with intent to satisfy all or some of the will gift.
29
Wills
| - Disclaimer of Gift
If disclaimed, the interest passes as if the disclaiming party predeceased the decedent.
- Requirements
1. Must be in writing
2. Must be irrevocable
3. Must be filed within nine months.
- Must not have accepted the property or nay of its benefits.
30
Wills
| - Homicide Rule
- Deny gifts to a person in the wrong for the death of testator
- Must be intentionally kills the decedent.
- Must be shown to be the cause by preponderance of the evidence. An acquittal in criminal trial not controlling.
31
wills
- Ademption
- Change in form doctrine
- Ademption – A specific bequest that the testator no longer possess at death. Gift adeemed.
- Does not apply to demonstrative or general legacies. Something else will be sold.
- Limited to specific gifts. Everything else is adjusted to be given how it can be.
- Chang in form - Doctrine to soften the harsh results. When it seems intent was not to a deem, declares that property was changed.
32
Wills
| - Abatement
- When there is not enough to complete all will devises, gifts will be abated in order by type.
In what order are gifts sacrificed to pay funeral, administration and creditors.
- List from first to abate: Intestacy, Residuary, General, Demonstrative, Specific.
33
Wills
| - Exoneration
- Exoneration – At common law, the liens like mortgages were paid from the residuary estate.
- UPC and most states, the taker takes subject to mortgages and liens unless T makes clear the intent that these be paid from estate.
34
Wills
- Pretermitted Children
- Pretermitted Spouse
- Children - Born or adopted after will is made. Allowed an intestate share, unless:
a. It appears from the will that omission was intentional.
b. H left substantially all estate to parent of pretermitted child.
c. Provided for child outside will and intended transfer be in lieu of provision in will.
- Spouse - Majority – Marriage after a will has no effect on a will.
- UPC and minority – The effect of marriage after will causes pretermitted spouse and allows an intestate share, unless:
a. Intent to eliminate is clear in will.
b. Other arrangements were made for will.
35
Wills
| - Elective share
umm
36
Wills
- Undue Influence
- Elements
- Definition - Findin undue influence if prima facie elements are met.
1. The testator was susceptible to undue influence
2. The alleged wrongdoer had the opportunity to exert undue influence upon the testator.
3. The alleged wrongdoer had a disposition to exert under influence, and
4. The will appears to be the product of undue influence.
- If elements establish prima facie case, undue influence will be found if the facts show that the wrongdoer exerted such influence over the testator that it overcame the testator's free will and caused the testator to make a donative transfer that the testator would not otherwise have made.
37
Wills
| - Residue of residue - Common law
- At common law - when a residuary bequest fails, the invalid share passes to the testator's heirs.
- Modern - When a residuary bequest fails, the share will pass to the other residuary beneficiaries.
- Residuary types - Specific residuary bequest. Percentage of estate.
