wills 3 - Sheet1 Flashcards
wills
What happens if there is an interested witness?
NOTHING IF there are 2 other disinterested witnesses
IF NOT:
(1) There is a presumption of wrongdoing
(2) If not rebutted
(3) Interested witness takes ONLY up to the amount of intestate share
(4) If no intestate share, then nothing
wills
3 Concepts of Holographic Wills
(1) Elements for a valid holographic will
(2) Testamentary intent
(3) Dates
wills
Holographic Will: Elements
(1) Signed by T
(2) Material Provisions in T’s handwriting
- gifts made
- beneficiaries
wills
Holographic Will: Intent
Extrinsic evidence may be admitted to establish the intent of T
- Watch for T simply naming B and gifts
- Watch for a series of documents
wills
Holographic Will: Dates
Dates are NOT required for holographic wills
- Watch for inconsistent wills
- Watch for capacity issues
wills
3 Concepts of Codicils
(1) Definition
(2) Republication
(3) Revocation
wills
Codicil: Defined
Testamentary instrument that complies with probate code formalities and:
(1) modifies;
(2) amends; or
(3) revokes
an existing will
wills
Republication by Codicil
A will’s date becomes that of the most recent codicil.
Important for:
(1) Incorporation by reference (pour-over wills)
(2) Omitted spouse or child
wills
Codicil and Pretermission (omitted child)
- If Child is born AFTER the creation of a will.
- Then Child is Pretermitted
- If codicil is created AFTER birth of Child
- Then there is no pretermission problem for 2 reasons:
(1) Will is ‘republished’ to the date of the codicil
(2) Codicil is a testamentary instrument that came after Child
Discuss BOTH
wills
Revocation by Codicil
(1) Revocation of codicil
- Presumption that ONLY codicil is revoked
(2) Revocation of will
- Presumption that will AND codicils are revoked
wills
4 Concepts of Revocation by Physical Act
(1) Elements
(2) Cancellation and Interlineations
(3) Duplicate Wills
(4) Mutilated Wills
wills
Revocation by Physical Act: Elements
(1) Burned, torn, cancelled, destroyed, or obliterated
(2) Simultaneous INTENT to revoke
(3) Act by T or someone in T’s presence at T’s direction
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Revocation by Cancellation and Interlineation
Handwritten Alterations to a:
(1) Typed Will (attested)
(2) Handwritten Will (holographic)
(1) Typed Will (attested)
- Any cancelation (striking out) to the original will is a VALID revocation
- HOWEVER, any handwritten addition is NOT valid b/c not a valid holographic or attested codicil (lack of all material terms)
- BUT if the interlineation gives MORE to B, use DRR to give B the lesser, original, amount
- IF the interlineation gives LESS to B, B gets nothing b/c testator intent
(2) Handwritten Will (holographic)
- Any cancelation (striking out) to the original will is a VALID revocation
- AND, any handwritten addition is also VALID b/c valid holographic codicil
wills
T: ‘I give my farm to A and B.’
If T cancels his distribution to A, does B get the whole farm?
NO
B still gets 1/2
A gets nothing
Residue gets 1/2
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Revocation of a duplicate
Revocation of a duplicate will is treated the same as revocation of the original will.
NOTE:
A duplicate ≠ a copy
