Wills

Question 1

A decedent dies without a will, survived by his spouse, his brother, his niece (the sole issue of the decedent’s deceased sister), and his mother. In most states, to whom will the decedent’s estate be distributed? Under UPC? In RI?

Answer 1

If a decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate.

Under the UPC, however, the decedent’s parents would also share the estate.

In RI, the spouse takes a life estate in decedent’s realty plus an additional $75,000 worth of realty in fee simple. Mother has a remainder interest. The spouse takes $50,000 of personalty plus one-half. The mother takes the other half as nearest kin.

Question 2

How are the intestate shares of descendants distributed:

1. Strict per stirpes,
2. Per capita with representation,
3. Per capita at each generation

Answer 2

Majority rule: per capita with representation:

Property is divided into equal shares at the first generational level at which there are living takers, and the shares of deceased persons at that level pass to their issue by representation.

Common law, minority of states (RI included): strict per stirpes

Property is divided into equal shares at the child level regardless of whether they are living, and the shares of deceased persons at that level pass to their issue by representation.

Modern trend & UPC: per capital at each generation:

Property is divided into equal shares at the first generational level at which there are living takers, and shares of deceased persons are combined and divided equally at the next generational level.

Question 3

If a decedent dies without a will and is not survived by a spouse or by descendants, in which order does the estate pass?

Answer 3

parents, descendants of parents, grandparents, descendants of grandparents, nearest kin

Question 4

When are assets disposed of by intestate succession?

Answer 4

1. Decendent dies without a will
2. Will isn’t admitted to probate
3. Will doesn’t dispose of all of decedent’s assets (partial intestacy).

Question 5

When do nonmarital children inherit their parents?

Answer 5

Always inherits mother.

Inherits father only if:

• marries mother after child born;
• adjudicated to be father in paternity suit; or
• proved during probate to be father by clear and convincing evidence.

Question 6

What rights do stepchildren and foster children have?

What about adopted children?

What about half bloods?

Answer 6

Stepchildren and foster children have no inheritance rights, no matter how close the relationship.

Adopted children are treated as natural children. However, except in RI, the adopted child doesn’t inherit the child’s natural parent or vice versa.

Siblings with only one common parent inherit equally.

Question 7

The entirety of a testator’s will provides, “I do not want my daughter to take any of my estate.” If the testator is survived by only the daughter and a son, how will the testator’s estate be distributed?

Answer 7

one-half to the son and one-half to the daughter. A will provision that expressly disinherits an heir is ineffective if the testator dies partially intestate. Here, the testator’s will provides that the daughter is not to share in the estate but does not make any disposition of his property. Thus, the testator’s estate will pass pursuant to the intestacy statutes; his intent as to any property that passes under the statutes is irrelevant

Question 8

The decedent and her only child were involved in a plane crash. Neither was alive when the emergency team reached them. The child, who died without a will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy naming the child the sole beneficiary. Who will share in the decedent’s estate, and who will take the insurance proceeds?

Answer 8

Under USDA, enacted by about one-half of the states, when the title to property or its devolution depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person is disposed of as if he had survived. Here, both parties were dead when help arrived; thus, there is no sufficient evidence that one survived the other. Therefore, the decedent’s estate will be distributed as though she survived the child (i.e., as though the child predeceased the decedent). If the child predeceased the decedent, the decedent’s brother is her only intestate heir and will take the estate. The USDA also applies to life insurance, so the insurance proceeds will be paid to the decedent’s estate and also pass to the brother. Because the child is deemed to have predeceased the decedent, the child, and thus the child’s spouse, takes nothing.

Question 9

Is extrinsic evidence admissible to show that a pretermitted child was intentionally left out of the will?

Answer 9

Extrinsic evidence can be used to interpret an ambiguous will provision where the intent of the testator isn’t apparent from the will.

A pretermitted child will not take a share only if it appears from the will itself that the omission was intentional.

No extrinsic evidence will be allowed to show that the omission of a child was intentional.

In RI, the court presumes a child’s omission wasn’t intentional and the burden is on those who would benefit from the omission to prove it was intentional.

Question 10

If one of two joint tenants kills the other, how is title to the property held?

Answer 10

killer and the victim’s estate each own one-half of the property as tenants in common. While one who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate, if the killer is instead a joint tenant with the victim, the killing only severs the right of survivorship; tenancy in common remains.

Question 11

What is a lifetime gift made to an heir with the intent that the gift be applied against the heir’s intestate share and how is that gift treated when the decedent dies?

Answer 11

An advancement. the advanced share is added back into the estate for the purpose of calculating the intestate shares of all of the heirs. The advancee has his share reduced by the amount of the advancement but need not return any excess.

Question 12

Is a lifetime gift to an heir presumed to be an advancement under common law, in most states today, and in RI?

Answer 12

Common law: presumed to be an advancement only if made to child.

Today: not presumed to be an advancement to any heir unless intended as such; under UPC intent shown (i) in contemporaneous writing by donor or (ii) acknowledged by heir as such (needn’t be contemporaneous).

RI: not presumed to be an advancement unless (i) parent to child or grandparent to grandchild; and (ii) noted in memorandum or delivered expressly for that purpose in the presence of two witnesses who took note of same.

Question 13

If the advancee predeceases the intestate, is an advancement binding upon those who succeed to the advancee’s estate?

Answer 13

Yes, but under the UPC not unless the required writing says it is.

Question 14

If a will isn’t executed properly, may it still be admitted?

Answer 14

Under the UPC, the court may ignore harmless errors if the will proponent establishes by clear and convincing evidence that T intended the document to be his will. Not in RI.

Question 15

To execute a valid attested will what counts as the attesting witnesses signing “in the presence” of each other? Majority and RI rules.

Answer 15

Most states require that each partry is

• conscious of where the other parites were
• what they were doing, and
• signed with general awareness and cognizence of each other.

Minority view (RI): witnesses and testator signs in such close proximity that they could have seen the signing had they looked.

Question 16

To execute a valid attested will in RI, must the testator sign the will in the presence of two attesting witnesses who must sign in the presence of each other?

Answer 16

No. Some states do require the witnesses to sign in the presence of each other.

Question 17

When a bequeathed or devised item is not in a testator’s estate at his death, what does the court consider in determining whether the bequest is adeemed? In RI? Under UPC?

Answer 17

If the item is a specific devise or bequest, it’s adeemed. General legacies (specific dollar amount) and demonstrative legacies (specifies asset as source for specific dollar amount) aren’t adeemed. The testator’s intent is irrelevant in most states. Courts try to avoid ademption unless clear intent otherwise (e.g., “my GM stock”).

If specifically devised property is sold by a guardian or a conservator, however, devisee is entitled to a general pecuniary legacy equal to the amount of the proceeds.

In RI and states that consider the testator’s intent, the court would consider whether property was acquired as a replacement and whether proceeds were placed in a separate account.

UPC: a specific devisee has the right to any real property owned by T at death that was acquired as a replacement for the specifically devised property.

Question 18

What is the doctrine of ademption by extinction?

Answer 18

If there’s been a substantial change in the nature and character of its subject matter, a bequest is adeemed. Nominal and formal changes aren’t substantial.

Question 19

A testator signs his will in front of two witnesses. Immediately after the witnesses sign, the testator remembers that he wanted to include a legacy of $5,000 to his friend Fred. After explaining this to the witnesses and while still in their presence, the testator handwrites the legacy directly under his signature. The witnesses both give the testator the thumbs up. In most states, is the additional legacy valid?

Answer 19

Clauses added after the will is signed and witnessed are unattested words regardless of whether they appear before or after the testator’s signature; only the words present on the will at the time it was signed are part of the duly executed will.

Question 20

What is an equivocation and what is its effect? In RI?

Answer 20

A will’s description of a beneficiary or property that describes more than one person or item of property.

Other than in RI, extrinsic evidence, including testimony of the testator’s declarations, is admissible to determine which beneficiary or item of property was intended.

Question 21

What will a court do when the language of a will is ambiguous?

Answer 21

Interpret the will looking at the four corners. And, other than in RI, consider any admissible extrinsic evidence (other than testator’s own declarations) to determine the testator’s intent.

Question 22

What happens to a will where an attesting witness is also a beneficiary and that witness’s beneficial interest?

Answer 22

Will is valid but the gift to the witness-beneficiary is void unless she (i) was a supernumerary witness (i.e., the will can be proved by two other disinterested witnesses); or (ii) would have taken if the will were not admitted to probate (i.e., she would have been an heir if there were no will or was given a bequest in an earlier will that she did not witness). In the latter case, the beneficiary takes the lesser of (i) the legacy, or (ii) her intestate share (or gift under the earlier will).

Question 23

If one of the necessary attesting witnesses cannot be located, may an attestation clause or a self-proving affidavit be substituted for the courtroom testimony of that witness?

Answer 23

A self-proving affidavit may be substituted for the courtroom testimony of that witness. However, an attestation clause, which appears immediately below the signature line for the testator and above the witnesses’ signatures and recites the elements of due execution, does not constitute sworn testimony and thus cannot serve as a substitute for the courtroom testimony of the attesting witnesses. But, it is prima facie evidence of the facts recited therein

Question 24

A testator executes a valid holographic will, which leaves $10,000 to Ben and the residue to Rhonda. Two years later, the testator crosses out the bequest to Ben and writes above it “$20,000 to Beth.” If the will remains the same at the testator’s death, what is the effect of the testator’s action?

Answer 24

states that recognize holographic wills give effect to handwritten changes made by the testator after the holographic will is completed. Thus, the testator’s changes here will be given effect

Question 25

A valid holographic (not in RI) will requires what?

Answer 25

A valid holographic will requires a signed writing in which all of the material provisions are in the testator’s handwriting. A holographic will has no attesting witnesses, and most states do not require that a holographic will be dated.

Question 26

What question is the doctrine of integration addressing and what are its requirements?

Answer 26

What sheets were present at the time of will execution and comprise decedent’s will?

Will proponent must show that pages offered for probate were present at the will’s execution and intended by the testator to be a part of the will.

Intent shown by physical connection of pages, internal coherence of provisions from page to page, or pages read together set out an orderly dispositional plan. Can be established by extrinsic evidence.

Question 27

What is the doctrine of incorporation by reference?

Answer 27

Extrinsic document not present at the time the will was executed may be probated as part of the will if: (i) the document was in existence at the time the will was executed, (ii) the will sufficiently describes the document to permit its identification, and (iii) the will manifests an intent to incorporate the document.

Question 28

What is the doctrine of acts of independent significance?

Answer 28

A will may dispose of property by reference to future or unattested acts and events (whether of testator or of third person) that have significance apart from their effect on the dispositions made by the will.

e. g., bequest “to each person in my employ at the time of my death” because it’s presumed that testator won’t make employment decisions solely to dispose of property.
e. g., will may provide that the testator’s property is to be distributed in accordance with the subsequently executed will of another person

Question 29

What is the difference between a general and special power of appointment

Answer 29

General: power exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate.

Special: power exercisable in favor of a limited class of appointees that does not include the donee, her estate, her creditors, or the creditors of her estate.

Question 30

What happens to a will made prior to marriage? In RI?

Answer 30

Other than in RI, marriage subsequent to a will’s execution does not revoke the will by operation of law.

In RI, it revokes the will unless made in contemplation of marriage.

Question 31

What happens to a will made prior to divorce?

Answer 31

Divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse.

The remainder of the will is valid and read as if the former spouse predeceased the testator.

The divorce doesn’t remove a spousal beneficiary of any insurance policies.

Question 32

What happens to a will made prior to the birth of children?

Answer 32

Under the pretermitted child statute, a child born or adopted after the will’s execution is entitled to his intestate share, revoking the will to that extent, unless:

1. omission appears intentional;
2. there were other children at the time of the will, yet testator devised all estate to spouse; or
3. testator provided for the omitted child by transfer outside of the will

Question 33

If the testator executes a will and subsequently executes a second will that does not expressly revoke the first will, which will controls?

Answer 33

The wills are read together with the second will revoking the first will to the extent of any inconsistent provisions.

Question 34

If a second will revoking the first will cannot be admitted to probate, will the first will be revived?

Answer 34

Yes, in RI under the doctrine of dependent relative revocation.

Where T revokes will under mistaken belief that another disposition of his property would be effective, and but for this belief, he would not have revoked the will, if the other disposition fails, the will revocation also fails; the will remains in force if it comes closer to what the tesator tried (bit failed) to do than would an intestate succession.

Question 35

If a will is found with the testator’s signature crossed out, is it revoked?

Answer 35

Other than in RI where there’s no partial revocation by physical act, assuming the requisite intent, a will found with the testator’s signature crossed out has been revoked by physical act.

Question 36

When does a gift lapse?

Answer 36

Beneficiary predeceases the testator, unless an anti-lapse statute is in place. Anti-lapse statutes generally don’t apply to trusts.

Question 37

A testator’s will bequeaths property “to my son if he survives me.” The son predeceases the testator and is survived by a wife and a daughter. The son’s will bequeaths all of his property to a charity. Who takes the testator’s property in most states? Under UPC? In RI?

Answer 37

The testator’s residuary beneficiaries. The anti-lapse statute does not apply when words of survivorship are associated with the gift.

Under UPC, mere words of survivorship aren’t sufficient to negate application of the anti-lapse statute.

RI: other than with a class gift, if a legatee or devisee predeceases the testator and leaves issue who survive the testator, legacy or devise doesn’t lapse but passes to the issue unless a contrary intention appears in the will. Contrary intent is shown here. Property goes to testator’s residuary beneficiaries.

Question 38

A will bequeaths the residuary to “my children.” At the time of will execution, testator had 5 children. At his death, there were only 3 alive. Will the 2 children’s heirs or legatees take?

Answer 38

If a will makes a class gift, such as here, only the class members who survive the testator take a share, unless the will provides otherwise or the anti-lapse statute applies. Here, the anti-lapse statute should provide that the 2 children’s heirs or legatees take.

Question 39

If a testator bequeaths a bracelet to her daughter and subsequently sells the bracelet and uses the proceeds to buy a necklace, what does the daughter take at the testator’s death?

Answer 39

Nothing. Under the doctrine of ademption, the specifically bequeathed property not in the testator’s estate at death is adeemed; i.e., it fails. A specific bequest is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described. In contrast, ademption does not apply to general or demonstrative legacies. A general legacy is a bequest of a dollar amount payable out of the general assets of the estate; a demonstrative legacy is a gift of a general amount that identifies a particular asset as the primary source of payment.

Question 40

What is the spousal elective share generally and in RI?

Answer 40

The spouse may elect to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will.

In RI:

1) surviving spouse and descendents: spouse gets life estate in real estate, descendents get remainder; everything else spouse gets 50% and descendents get remainder.

2) surviving spouse and no descendents: spouse gets life estate in real estate plus 75k, if asks; everything else, spouse gets 50k and then 50% to heirs.

Question 41

At the time the testator executes his will, the testator and his spouse have one child, a son. The will leaves all of the testator’s property to his spouse. Subsequently, the testator and his spouse adopt a daughter. If the testator dies without having revised his will and survived by his spouse, son, and daughter, how should the estate be distributed?

Answer 41

In RI, court presumes that a child’s omission wasn’t intentional and burden of proof is on party benefiting from omission to prove otherwise.

And under the pretermitted child statute, a child born or adopted after the will’s execution is generally entitled to his intestate share, revoking the will to that extent.

However, where there were other children at the time of the will, yet testator devised all estate to spouse, the child will be disinheritied.

Question 42

To have mental capacity to make a will, the testator must have what?

Answer 42

sufficient capacity to be able to understand, the nature of her act (that she is executing a will); the nature and extent of her property; the persons who are the natural objects of her bounty;

Question 43

When does a presumption of undue influence arise?

Answer 43

1. a confidential relationship existed between the testator and beneficiary; and
2. the beneficiary participated in a significant activity related to the execution of the will, such as procuring or drafting the will.

Doctor-patient, attorney-client, and priest-penitent are recognized confidential relationships,

Parent-child relationship is not considered a confidential one unless there is evidence of an unusual amount of trust and reliance placed on the parent or child

While spouses are in a confidential relationship, but for a spouse’s influence to be undue, the spouse must overpower the free will of the testator.

Question 44

When does a beneficiary who contests a will with a no-contest clause forfeit her bequest?

Answer 44

Except for RI, no reasonable grounds existed for contesting the will.

Question 45

Is extrinsic evidence admissible to show that a provision was unintentionally omitted from the will?

Answer 45

No, absent fraud, duress, or suspicious circumstances, it is conclusively presumed that the testator understood and approved the terms of the will when he signed it.

Question 46

In a near simultaneous death, where there is evidence that one spouse survived the other by a few hours, will one spouse inherit the other?

What’s the result in RI?

Answer 46

The Uniform Probate Code and Revised Uniform Simultaneous Death Act, if enacted (not in RI), provides that a person must survive the decedent by 120 hours to take any distribution of the decedent’s property. Therefore, the surviving spouse would not inherit. If UPC or RUSDA not enacted but the Uniform Simultaneous Death Act is enacted (like in RI), the surviving spouse would inherit. However, neither UPC nor USDA would apply if a decedent’s will or other instrument makes a different provision for survival.

Question 47

Is a will expressly disinheriting an heir effective if the testator is partially intestate?

Answer 47

No, will must dispose of everything to effectively disinherit; under UPC and in some states, the will is effective to disinherit even intestate property.

Question 48

How is an interest in a will or trust disclaimed and what’s its effect?

Answer 48

How:

• in writing
• irrevocable
• within 9 months of decedent’s death or beneficiary’s 21st birthday

Effect: Interest passes as though the disclaiming party predeceased the decedent.

Question 49

How is an interest in a joint tenancy disclaimed?

How is an interest in a future interest disclaimed?

Answer 49

Within nine months of creation.

Question 50

Can an interest be disclaimed if heir or beneficiary has accepted property or any of its benefits?

Answer 50

No, heir, legatee, or beneficiary is estopped from disclaiming.

Question 51

What’s the difference between a devise and a bequest?

Answer 51

Devise is for real property only; bequest is for personal property.

Question 52

Can a disclaimer be used to defeat a creditor’s claim?

Answer 52

Yes, other than a federal tax lien.

Question 53

Will a slayer statute operate if there’s no conviction of murder?

Answer 53

Yes, if the court finds that the killing was unlawful or intentional by a preponderance of the evidence.

Question 54

When will a legacy be considered satisfied by a inter vivos gift?

In RI?

Under UPC?

Answer 54

If it’s a general bequest, satisfaction occurs where the transfer is subsequent to the will’s execution if the testator intends so.

If gift is same subject matter, presumption of satisfaction arises where parent to child or grandparent to grandchild. If different subject matter, presumption against satisfaction.

Under UPC, only if (i) in will, (ii) in a contemporaneous writing, or (iii) divisee acknowledges in writing as a satisfaction. If it’s a specific bequest, it’s both an ademption and satisfaction.

Question 55

Can a person reference a list of tangible personal property in the will and amend that list following execution? Under UPC? in RI?

Answer 55

No. Most states, under the general doctrine of incorporation by reference, require that the extrinsic document be in existence at the time of the will’s execution.

Unlike the UPC and some states, RI doesn’t have a statute that dispenses with the “in existence” requirement and allowing for disposition of tangible personal property by list in a separate document that may be amended following the will’s execution.

Question 56

If a testator revokes a will that he has agreed not to revoke, what is the result?

Answer 56

The will is revoked by the beneficiaries may has a breach of contract action against the estate.

Question 57

How can a will or codicil be revoked by physical act?

Answer 57

Testator or another person that testator directs

(1) performs physical act of burning, tearing, striking out provision(s)
(2) concurrent with intent to revoke

Question 58

1. Will revocation of a codicil revoke the will?
2. Will revocation of one copy of the will where other wills are extant revoke the will?
3. Will destruction of an unexecuted copy of will revoke the will?
4. Can a lost or destroyed will be admitted to probate?

Answer 58

1. No, but revoking a will revokes codicils to it.
2. Yes.
3. No.
4. Yes, if the presumption that testator revoked it can be overcome by proving:

• vaid execution
• proof that not revoked
• contents of will

Question 59

Does a will beneficiary have a property interest in a will?

Answer 59

No, only an expectancy because a will isn’t operative until T’s death.

Question 60

When it’s unclear whether an instrument was intended to be testamentary, what testatmentary intent is required to show that T intended to create a will?

Answer 60

Present intent that T, at the time, intended

1. to dispose of property
2. for the disposition to occur only upon death
3. that the instrument in question accomplish that disposition.

Question 61

T’s will bequeaths “my automobile to Bob.” At the time of will execution, T owned a white car. On T’s death, T’s estate holds a blue car, traded in for the white car. Is Bob the beneficiary of the car or does it fall to the residuary estate?

Answer 61

Bob is entitled to the car.

A will takes effect only upon the death of T, operating on property that exists at that time. When T’s will became operative T owned a blue car. This is not an ademption issue because the gift was generically rather than specifically described.

Question 62

Who takes under an anti-laspse statute?

Answer 62

Most states: predeceasing beneficiary is a descendant of T

Minority: any relative of T or any beneficiary at all.