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Flashcards in Wills Deck (28):

What is the intestate share scheme for separate property?

If no surviving issue, spouse takes all of decedents property. If issue survive and spouse survive, spouse takes one fourth of the decedents separate property and issues take three fourths of decedent separate property.


What is the intestate share scheme for community property?

Spouse takes the decedents half of community property, and keeps her half. Therefore spouse takes all of community property.


What happens intestate if decedent is not survived by a spouse?

Issue take all property by representation [equally within each degree of relation].
If no issue parents take all.
If no issue no parents issue of parents take.
If no issue, no parents and no siblings half to maternal and half to paternal grandparents or their issue.
If no grandparents or issues then, deceased spouses by representation.
No interest interstate inheritance beyond these groups, property escheats- to the state – tax and revenue in New Mexico.


What is it meant to survive the decedent?

One must outlive the decedent by 120 hours. The only exception is when the results would cause an escheat to the state.
--note: the 120 hour rule may be changed by the express provision of a will.


What are posthumous heirs?

Children of decedent conceived before his death the born thereafter inherit as if they had been born in the lifetime of the decedent.


Assisted reproduction rule?

Children of assisted reproduction, conceived after decedents death are treated as in just station at time of decedents death it: (a) in utero not later than 36 months after decedents death or (b) born not later than 45 months after that.


Half blood rule?

Relatives of the half blood inherit the same sure they wouldn't hair and if they were of the whole blood. Apply only to collateral relatives [brothers and sisters].


Family allowance rule?

Decedent must have been domiciled in New Mexico death. Allowances for benefit of surviving spouse or minor dependent children. Allow it is in addition to any share passing by way of will or intestate succession. 30 K. Is exempt from and has priority over all claims against the state. Applies to both testacy and intestacy. If spouse survives, she takes entire family allowance. If spouse fails to survive, minor or dependent children divide allowance.


Personal property allowance rule?

Decedent must have been domiciled in New Mexico at death. In addition to family allowance [also in addition to share passing by will or intestate succession]. 15 K worth of furniture, furnishings, automobiles, appliances and personal effects, or cash if no other property. Priority over all other claims against the state except family allowance.


Homestead allowance rule?

This unit must have owned a house and leave a surviving spouse. Surviving spouse entitled to $60,000 equity in the house and land. Exempt from creditors [except mortgagee]. Homestead allowance is in lieu of family allowance and personal property allowance [cannot get all 3]. Lost if spouse ceases to live in the house.


What is the competence rule for a will?

(1) Age 18 or an emancipated minor. If testator [male] or testatrix [female] is neither 18 or emancipated T is not competent to make a will.
(2) "Of sound mind" – testamentary capacity – did T understand at the time of execution of the will the:
(A) nature of the act – that he was executing a will;
(B) nature and character of T's property;
(C) natural objects of T's bounty.
** watch for adjudication of incompetence. One maybe adjudicated incompetent and still be competent to make a will. However the appointment of a conservatory creates a rebuttable presumption of lack of testamentary capacity.


What are the formalities of executing a will?

--T must sign [or make mark for his/her signature]; OR
--direct another to sign for T
----in T's presents AND
----at T's direction
--2 or more witnesses who
----witness T sign the will; OR
----witness another sign T's will for T at T's request
--witnesses must sign as witnesses
----in T's presence AND
----in the presence of one another
** note: there is no requirement to date the will or to publish the will. If T signs the will before the witnesses, the witnesses do not necessarily need to know that they're witnessing a will. They simply need to see T sign the document. However, if T askS another to sign the will for him, the witnesses must know that they're witnessing another person signing T's will.


Does the witness need to see T sign will?

No there is no requirement for the witnesses to see T sign will. They just must be in the presence of T.


No attestation clause?

In the absence of an attestation clause, there is a rebuttable presumption of due execution if the will is signed by T and witnesses. Burden of proof of due execution is on the proponents of the will.


Attestation clause?

T and witnesses have executed the will stating that T executed the will in the presence of witnesses who signed in the presence of T and one another. Burden of proof of due executed shifts to the contestants of the will.


Self – proved affidavit?

T and witnesses sign an affidavit saying that T willingly signed the will as his last will, that each witness saw T sign and that the witness signed in the presence of T and one another. If self prove affidavit is executed, due execution of the will is conclusively established.


Incorporation by reference?

To incorporate a document by reference into a will:
--will must manifest intent to incorporate by reference;
--writing must be in existence at the time the will is executed;
--writing must be described sufficiently to permit it's identification.

Tangible personal property memorandum:
--New Mexico allows an exception to incorporation by reference for tangible personal property. Memo must be in writing signed by T and must describe the property with reasonable certainty. It may be executed after the will and maybe changed anytime.


New Mexico's interested witness rule?

In New Mexico, a will or any provision thereof is not invalid because the will was signed by an interested witness.


How do you prove undue influence?

Contestant must show:
(1) T was subject to do influence;
(2) there was an actual exercise of undue influence which overpowered the mind of T;
(3) the free agency of T has been destroyed and the wishes of another has been substituted for the wishes of T;
(4) the result is a will which would not have been executed but for the undue influence.
** note: in New Mexico, there is a presumption of undue influence when a testamentary devise is made to a person in a confidential relationship [attorney-client, priest Parisher, doctor-patient].


Revocation by physical act?

(1) Burn, tear, cancel, obliterate or destroy the original will.
(2) With intent and for purpose of revoking.
(3) Physical act maybe perform by T or by another. If physical act is performed by another, physical act must be T's presents and at T's direction.


Revocation by subsequent will?

Must distinctly refer to prior willing to clear that he revokes it.
--if not fully revoked then revocation becomes revocation by inconsistency.
*** revocation of a codicil does not revoke the will. Revocation of a will revoke all codicils of that will.


Is partial revocation by physical act authorizing New Mexico?

Hells motherfucking yes


What is dependent relative revocation?

Dependent relative revocation is a mistake – remedying court doctrine which allows one to disregard revocation if the court finds that the revocation was based on mistake of law or fact and that, but for that mistake, T would not have revoked the specific bequest. In order to revoke, T must have the unequivocal intent to revoke.


What is abatement?

Where there are not enough assets to pay all the creditors of the estate and make all the gifts under the will, some gifts must be sacrificed [abated].
--rule: abate the least specific devise and work backwards to the most specific device. Within each class, gifts abate proportionally.


What is the order of abatement?

Residuary estate.
General devise.
Demonstrative device.
Specific device.


What is ademption?

At common law, if the specific gift was not in existence at the time of death, the gift was a deemed in the beneficiary to nothing. Ademption applies only to specific gifts.
--however, under UPC first rule any proceeds that are identifiable go to beneficiary.
--under UPC second rule a beneficiary has the rights to general devise equal to the sale price if a conservator sells such specifically devised property.


Lifetime gift New Mexico rule?

The lifetime gift is treated as a satisfaction only if:
--the will specifically provided for the deduction of lifetime gift; or
--T declares in a contemporary writing that the lifetime gift is given in satisfaction of the testamentary devise; or
--devisee knowledge in writing the lifetime gift was given in satisfaction of the testamentary device.


NM encumbered property rule?

Encumbered property is transferred with the encumbrance unless that will specifies otherwise. The general will provision to pay all of my debts does not show the intent exonerative specific encumbrance.