Wills 2

Question 1

What are the three types of documents that can revoke a prior will/codicil?

Answer 1

(1) subsequent will
(2) subsequent codicil
(3) document of revocation

Question 2

What are the two types of revocation by subsequent will/codicil? (include their key points)

Answer 2

(1) express
- effective upon execution
- must comply with the wills act
- typically, revocation of codicil causes the entire prior will to come back to life - BUT if you revoke a prior will, the codicil will be voided too

(2) by inconsistency
- if a codicil contains no express revocation clause, the codicil’s terms must be so inconsistent with those of the will to exclude any inference other than the testator changed his intention in order for the codicil to revoke any portion of a will
- T is presumed to have intended a subsequent will to supplement rather than replace if the subsequent will does not make a complete disposition of T’s estate
- if the revocation IS complete, expression words of revocation of the former will are not necessary

Question 3

destruction by physical act

Answer 3

 rule: a will (or any part thereof) is revoked by being burned, torn, cancelled, obliterated, or destroyed with the intent and for the purpose of revoking it by T or by another person in T’s presence and by T’s direction
• so you are looking for intent, and an act, and they generally must occur contemporaneously
 the destruction must touch the words
 **the same competency must exist at the time of revocation as at the time of execution

Question 4

what is the presumption we pull from a lost will? When does this not apply? How may the presumption be rebutted?

Answer 4

 if a will was last known to be in the testator’s possession and cannot be found (or is found in a mutilated condition) the law presumes intent to revoke
• rebuttal: to establish that a will was not intentionally destroyed, the proponent must show “by the clearest and most stringent evidence”:
o (1) the fact that the will was executed in accordance with the forms of law,
o (2) the substance or contents of the will, AND
o (3) that the will has not been revoked
• if a will was last known to have been in the possession of someone other than T and cannot be found (or is found in a mutilated condition), there is no presumption of revocation

Question 5

what are the two ways a will can be revoked through operation of law?

Answer 5

 divorce
• if after executing a will, T gets divorced/marriage is annulled, the divorce/annulment presumptively revokes:
o any disposition or appointment of ppty made by the will to the former spouse
o any provision conferring a POA of the former spouse, and
o any nomination of the former spouse as executor, trustee, conservator, or guardian
o (unless the will expressly provides otherwise)
• the ppty passes as if the former spouse predeceased T
 marriage and children
• a will (or part) is revoked by if you have both (1) a post-will marriage AND (2) post-will birth of a child of the testator – but divorce/annulment of the subsequent marriage does not revive a prior will
• we will and follow intestacy so the new spouse (and possibly new kids) can collect

Question 6

TN rule for revival

Answer 6

the TN twist: the mere act of revocation of a subsequent inconsistent or revocatory will does not of itself revive a former will and creates no presumption for or against revival – the question to be determined from all the facts and circumstances is the intention of the testator

Question 7

doctrine of dependent relative revocation

Answer 7

 doctrine of dependent relative revocation: if T purports to revoke his will (or a part thereof) upon a mistaken assumption of law/fact, the revocation is ineffective if T presumably would not have revoked his will (or part thereof) had he known the truth
• Elements
o (1) T revokes his will (or a part thereof),
o (2) T had an alternative plan of disposition that failed because of a mistake of law/fact, AND
o (3) the revoked will reflects T’s true intent (alternative plan) better than intestacy or other disposition
• ex) T writes a new will (and revokes her old one), but does not know that the new will is ineffective (due to say incorrect handwritten edits) – the court will disregard the revocation and probate the destroyed will

Question 8

doctrine of integration

Answer 8

 Integration: all writings that are present at the time of execution AND are intended to be part of the will are treated as part of the will
intent is typically evidenced by fastening or congruent language

Question 9

republication by codicil and TN view

Answer 9

 Republication by Codicil: a will is treated as if it were executed (“republished”) when its most recent codicil was executed (unless the effect of republishing would be inconsistent with T’s intent)
• TN minority: the original will need not be “valid” to be republished
o ex) a properly attested codicil is a republication of a will that had only one subscribing witness (which was valid for personal ppty but not real ppty) and thus cures the defect in the will

Question 10

squeezing out

Answer 10

ï squeezing out: if T revokes his first will by a second will and then executes a codicil to the first will, the second will is going to be “squeezed out”

Question 11

incorporation by reference (constructive integration)

Answer 11

 Incorporation by Reference (constructive integration): allows for a writing that was in existence (but not present) at the time of execution AND that was not itself executed with testamentary formalities to be absorbed into T’s will
• does not require a signature
• the language of the will must manifest this unequivocal intent and describe the writing sufficiently to permit its identification
• notwithstanding the requirements of a holographic will, a will may refer to a written statement or list to dispose of items of tangible personal ppty (other than money, evidence of indebtedness, documents of title, securities, and ppty used in a trade/business) which is not otherwise specifically disposed of by the will
o to be admissible as evidence of the intended disposition, the writing:
 must:
• be in T’s handwriting (or signed by T),
• be dated, AND
• describe the items and devisees with reasonable certainty
 may be prepared before or after the execution of the will
 may be altered by T after its preparation (provided that T signs and dates the alteration), and
 may be a writing that has no significance apart from its effect upon the dispositions made by the will
o if there are multiple effective writings, the provisions of the most recent writing revoke any inconsistent provisions of all prior writings

Question 12

Acts of independent significance

Answer 12

 Acts of Independent Significance (non-testamentary acts): if beneficiary/ppty designations are identified by reference to acts/events that have a lifetime motive and significance apart from their effect on the will, the gift will be upheld
• these acts can occur before or after execution and before or after T’s death
o ex) execution/revocation of another’s will
• if you reference another person’s will, the court will assume that that person executed their will as an act if independent significance (to distribute his own ppty, not simply to affect the outcome of your will)
• if your will leaves your car to your butler, but you end up buying a new car and firing your butler, those are likely acts of independent significance that you didn’t do solely to affect the outcome of your will

Question 13

rules and exceptions for wills as contracts

Answer 13

 general rule: a will is NOT a contract
 exceptions (TN SOF): a contract to make a will/devise, or not to revoke a will/devise, or to die intestate can be established only by clear and convincing evidence of:
• (1) provisions of a will stating material provisions of the contract,
• (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, OR
• (3) a writing signed by T evidencing the contract
 rule: the execution of a joint or mutual will does not create a presumption of a contract to make a will or to refrain from revoking a will
• **and without it being a contract, there are no special consequences

Question 14

general rule of will construction

Answer 14

ï governing rule: compliance with the Wills Act establishes a conclusive validation of the written words of the will that may not be challenged on the basis of extrinsic evidence of a different intent

Question 15

plain meaning rule - patent ambiguities

Answer 15

ï plain meaning rule: no extrinsic evidence is allowed
o exception: ambiguities
 patent ambiguities: when uncertainty appears on the face of the will
ï extrinsic evidence is NOT admissible to clarify (although courts are moving away from this approach)
ï any ambiguity results in the ppty passing to residue/intestacy
ï ex) “I leave $10k to my dog Roxie Russell” – because you cannot devise ppty to a dog

Question 16

Plain meaning rule - latent ambiguities

Answer 16

 latent ambiguities: when the language of the will, although clear on its face in describing the beneficiary and property, results in a misdescription when applied to the facts
• extrinsic evidence IS admissible to clarify (but if it fails to resolve the ambiguity, the gift fails)
• ex) “I leave $10k to Roxie Russell” (who turns out to be a dog) – on its face it looks like this is a valid devise to a person
• like when a description for which 2+ persons/things fit exactly
• or like when a description for which no persons/things fit exactly but 2+ fit partially

Question 17

no reformation rule for will construction

Answer 17

ï no reformation rule: reformation may not be used to fix mistakes in wills
o however, courts may disregard erroneous descriptive info
o purpose is to guard against false positives
o extrinsic evidence will generally be allowed to fix instances of fraud, insanity, delusion, but NOT honest mistake (double check)

Question 18

Four types of devises in a will

Answer 18

ï Types of Devises
o specific: gifts of specifically identified assets like a house or a car or a ring (can be real, personal, or intellectual)
 ** “my 100 shares of Google stock” is specific; “100 shares of Google stock” is demonstrative
o general: when T intends to confer a benefit out of the general property of the estate rather than devise a particular asset (like money)
o demonstrative: a hybrid – a general devise, yet payable from a specific source (like proceeds from stock ownership)
o residuary: conveys that portion of T’s estate not otherwise effectively devised by other parts of the will

Question 19

general rules for lapsed and void devises (without TN antilapse statute)

Answer 19

o general rule: unless otherwise specified in the will, when a named beneficiary does not outlive the testator, the devise fails (the will is “stale”) and is said to have lapsed
 applies to specific, general, and residuary dispositions (specific and general would go to the residuary, residuary would go to intestacy)
 note: common law recognizes “no residue of a residue” (will instead go through intestacy)
o void gifts: when devisee dies before execution, the gift fails

Question 20

Three rules of the TN Antilapse statute

Answer 20

 TN Antilapse Statutes
• **these apply to lapsed AND voided gifts
• rule 1: if the devisee leaves an issue that survives T, the issue will take the devisee’s interest as if the devisee had survived T unless a different disposition is made by the will
o also applies to revocable (living) trusts that became irrevocable upon the death of the grantor
o **applies to residue devisees as well (but see Rule 3 if more than one residuary devisee)

•	rule 2: if distribution is based on the occurrence of a future event and a member of that class dies before the event, but has issue surviving at the time of the event, the issue will take unless a different disposition is made in the will
o	a class gift is one that can expand in size

• rule 3: if the residue of T’s estate is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other(s) in proportion to the interest of each in the remaining part of the residue unless the will ***or Rule 1 provides for a different disposition
o **i.e. “residue of a residue” is allowed

Question 21

rule and presumptions for class gifts

Answer 21

ï	rule: a class gift is a gift to more than one individual that intrinsically includes a right of survivorship – subject to the antilapse statutes, the right of survivorship means that if the gift fails as to one member of the class, his share does not fall out of the class, but rather is re-divided among the other class members
ï	defining class gifts:
o	if a gift describes the beneficiaries only by a group label (“to my children”), a rebuttable presumption arises that the gift is a class gift
o	if a gift describes the beneficiaries only by name (“to A and B”), the gift is not a class gift
o	if a gift describes the beneficiaries both by a group label and individual names (“to my children, A and B”), a rebuttable presumption arises that the gift is not a class gift

Question 22

Rules regarding multigenerational class gifts and class gifts regarding survivorship clauses

Answer 22

ï	multigenerational class gifts: a gift to a person’s issue, descendants, heirs, next-of-kin, relatives, or family are generally treated as multigenerational class gifts and the antilapse statutes will not apply (b/c the intestate laws will generally have the same effect)
ï	survivorship clause: if you devise a gift to “my living children/children who survive me,” if those devises become void or lapsed (because the beneficiaries have died), the antilapse statues will not apply and the gift will go to residue/intestacy

Question 23

Rule and test for ademption (ademption by extinction)? how do demonstrative bequests factor in?

Answer 23

o Ademption by Extinction (ademption): if the will includes a specific bequest of an item of ppty, but T sells or gives the item away before death, the bequest fails because the ppty ownership no longer exists
 ex) T devises Blackacre to John and the residuary estate to Mary – some years later T sells Blackacre and uses the proceeds to purchase Whiteacre and then dies without having changed her will – the devise to John would fail and he has no claim to Whiteacre as the will does not devise Whiteacre to him

 TN Test (identity theory):
• (1) is this a specific bequest?
• (2) if so, is the specifically devised ppty part of T’s probate estate?
• (3) if not, ademption applies and the beneficiary receives nothing
• (pretty harsh, so courts will try hard to avoid deeming something to be a specific bequest and hold it as demonstrative)

• for demonstrative: if the specific source is insufficient, the devise is not adeemed, but rather is satisfied out of other ppty of T – look for the word “my” as in “my stock” instead of “stock” – the word “my” makes it a specific bequest and subject to ademption

Question 24

How do general and demonstrative bequests fit into ademption? What is the modified theory/exception to ademption?

Answer 24

 **only applies to specific bequests
• for general: if there is not that amount of cash in T’s estate at death, the legacy is not adeemed; other ppty must be sold to satisfy the beneficiary’s legacy
o **demonstrative devises are treated as general devises here
• for demonstrative: if the specific source is insufficient, the devise is not adeemed, but rather is satisfied out of other ppty of T
 modified theory (the exception): if a specific devise has been disposed of and a contrary intention is not manifest during T’s lifetime (i.e. it was not a voluntary disposal), a devisee has a right to:
• any balance of the purchase price, together with any security interest, owing form a purchaser to the testator at death by reason of sale of the ppty,
• any amount of a condemnation award for the taking of the ppty unpaid at death,
• any proceeds unpaid at death on fire/casualty insurance on the ppty, AND
ppty owned by T at death and acquired as a result of foreclosure (or obtained in lieu of foreclosure) of the security interest for a specifically devised obligation

Question 25

ademption by satisfaction

Answer 25

o Ademption by Satisfaction (satisfaction): an inter vivos transfer to the beneficiary ppty of a similar nature to that devised by the will, the gift is in satisfaction of the devise made by the will only if there is direct evidence that this was T’s intent
 the party asserting satisfaction has the BOP T’s intent
 this is the testate version of advancement
 **only applies to general and residuary bequests

Question 26

TN rule and procedure for abatement

Answer 26

ï Abatement: if an estate lacks sufficient assets to pay the decedent’s debts as well as all devises, some devises must be abated or reduced (by dividing up a limited pie among claimants of different priorities, abatement functions like bankruptcy)
o TN procedure:
 residuary beneficiary abates before the general
ï personal ppty passing by intestacy and personal ppty in the residuary estate abate before real ppty in the residuary estate
 general beneficiary abates before the specific and demonstrative
 specific and demonstrative beneficiaries abate last

Question 27

Rule for exoneration of debts

Answer 27

ï Exoneration: a devisee is generally entitled to have encumbrances upon real estate paid by the estate’s personalty unless the will directs otherwise
o applies to ppty passing by will but not to ppty passing by right of survivorship
o the exoneration of liens doctrine applies only if T was personally liable on the debt involved (super rare)
o **only applies to specific bequests

Question 28

Rule for accretion of assets

Answer 28

ï Accretions: in the absence of anything manifesting a contrary intent, a beneficiary of a bequest of stock is entitled to the additional shares received by T as a result of a stock split occurring in the interval between execution and death
o ex) if 10k shares of Apple stock were worth $10k and then the stocks were split so that 50k shares are worth $10k – legatee will still get all the shares
o **only applies to specific bequests

Question 29

what is TN’s rule for spousal ownership of ppty? What options does the surviving spouse have?

Answer 29

o Spousal Protection (statutory schemes)
o TN is primarily a separate ppty state: each spouse owns all of his/her earnings during the marriage; upon the death of one spouse, the surviving spouse has two options:
 (a) take under the decedent spouse’s will (or intestate laws), OR
 (b) take an “elective share” (an equitable carveout to the “freedom of disposition” doctrine)

Question 30

Three components of TN homestead statute

Answer 30

o TN homestead statute
 regardless of any contrary language in the will, upon D’s death, D’s homestead (and the “products of the homestead”) will go to the surviving spouse during the spouse’s natural life
 regardless of any contrary language in the will, upon the spouse’s death, the homestead and its products shall go to D’s minor children, free from the debts of the father, mother, or children
 upon the death of the minor children or their arrival of age of majority, the land may be sold, and the proceeds distributed among D’s heirs as if he had died intestate

Question 31

two components of TN specific ppty statute

Answer 31

o TN specific property statute
 the surviving spouse of an intestate decedent, or a spouse who elects against a decedent’s will, is entitled to receive from D’s estate the following exempt ppty having a fair-market value (in excess of any indebtedness and other amounts secured by any security interests in the property) that does not exceed $50k:
• tangible personalty and motor vehicles normally located in, or used in the principal residence of D and not used primarily in a trade or business or for investment purposes
 if there is no surviving spouse, D’s unmarried minor children are entitled as tenants in common only to the personalty noted above, in addition to any benefit or share passing to the surviving spouse or unmarried minor children by intestate succession, elective share, homestead, or year’s support allowance

Question 32

Three components of TN support allowance statute

Answer 32

o TN support allowance statute
 the surviving spouse of an intestate decedent, or a spouse who elects against a decedent’s will, is entitled to receive from D’s estate a reasonable allowance in money out of the estate for 1 year after D’s death
 the court may consider the totality of circumstances in fixing the allowance, including the surviving spouse’s previous standard of living, the condition of the estate of the deceased spouse, and assets that may have passed to the spouse outside probate
 the allowance shall be made payable to the surviving spouse, unless the court finds that it would be just and equitable to make a division of it between the unmarried minor children
• **if there is no surviving spouse, the allowance shall be made to the unmarried minor children

Question 33

TN wage/salary statue

Answer 33

o TN wage/salary statute
 wages owed an employee at the time of death shall pass to a designated beneficiary, and if not so designated, to the surviving spouse, and if none, to the surviving children

Question 34

TN right of election statute and limitation

Answer 34

 general rule: the surviving spouse who elects against an intestate share or the decedent’s (usually post-marital) will, has a right of election to take an elective-share amount equal to the value of D’s net estate determined by the length of time the surviving spouse and D were married, in accordance with the following schedule:
• less than 3yrs: 10% of net estate
• more than 3yrs but less than 6yrs: 20% of net estate
• more than 6yrs but less than 9yrs: 30% of net estate
• 9yrs or more: 40% of net estate
• note: these years do not have to be consecutive, but may be separated by a period of divorce
• **limitation: after the elective-share amount has been determined, the amount payable to the surviving spouse shall be reduced by the value of all assets includable in D’s gross estate that were transferred (or deemed transferred) to the surviving spouse or that were for the benefit of the surviving spouse
o excluding: homestead allowance, exempt ppty, and year’s support allowance

Question 35

Determining the value of the net estate? equation?

Answer 35

 net estate: value includes all of D’s real and personal ppty subject to disposition under D’s will (or intestacy), reduced by the following: secured debts (to the extent that secured creditors are entitled to realize on the applicable collateral), funeral and administration expenses, and award of exempt ppty/homestead allowance/year’s support allowance
• does not include any assets over which D held a power of appointment unless D exercises the power of appointment to direct the assets to be paid to D’s personal rep for administration as part of D’ probate estate
• **look to possibility of fraudulent conveyances before determining value of net estate

EQUATION: %elective share X net estate (then subtract any ppty passing to the surviving spouse **including devises in the will)

Question 36

fraudulent conveyance statute

Answer 36

 rule: any conveyance made fraudulently to children or others, with an intent to defeat the surviving spouse of his distributive or elective share, is, at the election of the surviving spouse, includable in D’s net estate and voidable to the extent that the other assets in D’s net estate are insufficient to fund and pay the elective share amount payable to the surviving spouse

Question 37

TN antenuptual/prenuptual statute

Answer 37

 rule: an antenuptial (after marriage has commenced) or prenuptial agreement (prior to marriage) concerning ppty owned by either spouse before the marriage shall be binding if the court, in its discretion, determines that: the agreement was entered into freely, knowledgeably, in good faith, and without duress/UE upon either spouse
 the terms of such agreement shall be enforceable by all remedies available for enforcement of contract terms

Question 38

Protections for omitted child

Answer 38

 omitted child: a child or other descendant has no statutory protection against intentional disinheritance by a parent – no requirement that T leave anything to his/her child
• **really applies to omitting any heirs aside from the spouse
• **however, unless the child is disinherited for the benefit of the surviving spouse, this practice invites will contest
• **consider how the doctrine of a republication of codicil fits in

Question 39

protection of after born children

Answer 39

 protection for afterborn children
• a child born/adopted after the making of a will, either before or after the death of the testator, not provided for nor disinherited, and not provided for by settlement made by the testator in the testator’s lifetime (so presumably an accidental omission), shall receive an intestate share of the testator’s estate
• **if testator leaves the money to the surviving spouse, the child is still entitled to his/her intestate share
• **THIS ONLY APPLIES TO CHILDREN, not other heirs

• toward raising the bequest of such child, the devisees and other heirs shall contribute out of the parts devised in the proportion borne by their respective devises to the whole estate of the testator
o if you have children before the will and then a child after the will, the devise to the first two children will stay and then the third child will still get his intestate share
 however if the language is “to my surviving children,” the third child becomes part of that class, is thus not omitted, and thus receives what the first two children receive