Wills Flashcards

Question

Do states distinguish between the adoption of a child and of an adult, for intestacy purposes?

Answer 1

Most states don't distinguish.

Answer 2

Treated the same as marital children.

Answer 3

Many states impose additional requirements on non-marital children in order to inherit from father, such as determination of paternity or father acknowledging the child as his own The child will inherit from his father if: 1. The father married the mother after the child's birth, 2. The man was adjudicated to be a father in a paternity suit, or 3. After death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.

Answer 4

Stepchildren are not included in intestate distributions, unless the parent has adopted the child. Minority includes them. May still be included under the doctrine of estoppel.

Answer 5

"Half-blooded heirs" i.e. a half sibling Jurisdictions vary as to the effect. Options: 1. No distinction (UPC and majority) 2. Half shares (minority) 3. Cut them out if other whole-blooded collaterals exist (minority)

Answer 6

Posthumous descendant of decedent (child in gestation at decedent's death) - an exception to the general rule that one cannot claim as an heir of another unless alive at the person's death. Jdns vary as to whether that child can inherit, and the time by which child needs to be conceived or born.

Answer 7

Heir will not be able to inherit, either due to a "slayer statute" or the equitable remedy of a constructive trust (prevents unjust enrichment). Murder 1 - definitely can't gain. Courts divided on lesser degrees (negligence, i.e.) Doesn't matter if you kill testator's spouse, rule doesn't prohibit that.

Answer 8

A bio parent or parent kin cannot inherit through child, unless parent can prove that they deserve to inherit by openly treating person as a child, and not refusing to support the child

Answer 9

Some states limit the inheritance right of heirs who physically or financially abuse their children.

Answer 10

Some states place limits on inheritance rights

Answer 11

An irrevocable gift intended by the donor as prepayment of an inheritance, given as a lifetime gift to an heir. At old common law, a substantial lifetime gift to one of the decedent's children was presumed an advancement. Modern CL: a lifetime gift is presumptively NOT an advancement unless shown to be intended as such. UPC: advancement only if (1) declared as such in contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir (needs not be contemporaneous) Value determined at time of gift (inflation doesn't matter)

Answer 12

Many states require writing signed either by donor or donee. Some states allow oral proof.

Answer 13

The advance goes back into the pot of money. Compute shares as though the advancement were still in the estate, and then subtract the gift from the recipient's share. The heir need not return the amount of an advancement in excess of the value of her intestate share. Majority: binding upon those who succeed to estate of advancee if the advancee predeceases the intestate UPC minority: advancement is NOT binding on the advancee's successors unless the required writing states that it is Compare will "satisfaction" (the whole share is gone)

Answer 14

Most states require survival by 120 hours. If there is insufficient evidence to rebut, heir is treated as though they predeceased?

Answer 15

Yes, they can DISCLAIM because the gift could have burdensome consequences, could have tax implications if treated as a gift, and may want to avoid creditors (disclaimed property can't reach creditor, exception for federal tax lien) To disclaim, must be written, signed by disclaimant, sworn and signed by notary, filed with appropriate court within 9 months of date of death (or within 9 months of beneficiary's 21st birthday). For federal tax purposes, a surviving joint tenant may disclaim her interest only within 9 months from the other joint tenant's death. The holder of a future interest may disclaim only nine months after the interest was created. Can't disclaim if you have accepted or have received any benefits. If you disclaim, it's irrevocable. Disclaimed property passes as if disclaiming heir predeceased decedent. Can't direct the benefit. Disclaimer may be made by a guardian on behalf of an infant or incompetent, or a personal representative on behalf of a decedent, if the court finds that it is in the best interest of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.

Answer 16

AKA negative will. You can expressly disinherit someone only if you make disposition of remaining property. If the testator dies partially intestate, the express disinheritance will be ineffective. Under UPC: testator may exclude the right of an individual to succeed to property passing by intestate succession. If the person survives the decedent, his intestate share passes as though he had disclaimed it (large minority) Ex. Can't say "I don't want my daughter to get estate" without providing for someone who will.

Answer 17

Most states require exact compliance with all requirements. The UPC permits courts to excuse minor errors (substantial compliance test)

Answer 18

The law of the situs (Where the property is)

Answer 19

Law at place of death.

Answer 20

1. Testamentary intent (presently intends to make a will) 2. Testamentary capacity 3. Formalities

Answer 21

An amendment to an existing will. Needs to meet the same requirements of a will (capacity, intent, formalities)

Answer 22

Typically, 1. 18 years old AT TIME OF SIGNING unless married or military then can be under 18. 2. Of sound mind The standard is lower than the power to contract. Sound mind: 1. Understand the action (making a will) 2. Comprehend the effect of action (disposes of property upon death) 3. Know general nature and extent of property (exact knowledge not needed) 4. Recognize the natural objects of bounty (who their family members are) 5. Simultaneously hold elements in mind (do the above 4 things at the same time, see their relationship, form reasonable judgment as to them Standard is determined at time of will's execution. Fact that a testator was old, ill, possessed failing memory, or was drinker/drug addict does not mean that lacked testamentary capacity.

Answer 23

Yes, if they can meet the five elements of testamentary capacity?

Answer 24

Adjudication of incompetency creates rebuttable presumption of lack of testamentary capacity, but can overcome if during "lucid interval."

Answer 25

Sure, all the time, especially if they're under the influence of intoxicating substances, or are disoriented due to an accident or medical procedure.

Answer 26

Must presently intend that the very instrument executed will be the will. "I am going to write a will to leave my jewelry to you" will not meet test. Parol evidence is admissible to show that an instrument was not meant to have any effect (sham will). When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator: 1. Intended to dispose of the property 2. Intended the disposition to occur only upon her death 3. Intended that the instrument in question accomplish the disposition

Answer 27

1. In writing (can be written on anything) 2. Signed by testator or proxy (initials and illegible signature OK) (proxy signature only if in testator presence and by testator request) 3. Attestation (see next) Signature - any mark affixed by the testator with intent that it operate as signature satisfies the signature requirement. May be made by proxy. Proxy can also count as an attesting witness. Order of signing doesn't matter, so long as it is one contemporaneous transaction. Most states, valid if signed anywhere, not just at the end. minor point: where state requires sign at end, and testator doesn't sign at end, some states void and some states void only what is after the signature.

Answer 28

All states: 1. At least 2 witnesses (UPC: or a notary) 2. Witnesses have capacity (able to testify in court - old enough and sufficient capacity) 3. Testator's sign in conscious presence of the witnesses (majority: "conscious presence" test each parties were conscious of where other parties were and what doing, and act of signing took place within the general awareness and cognizance of other parties; large minority require "scope of vision" - could have seen sign) 4. Witness signs in presence of testator Minority of states also require: 1. Testator must sign at end of will 2. Testator must publish the will (inform W that it is a will) 3. Witnesses sign in each other's presence Ramifications of using interested witnesses (many states void gifts - purging statute; UPC - not purged). Either way, will still valid. Exception: if the witness was supernumerary (not necssary for meeting 2 requirement) Attestation clause isn't required but is prima facie proof that formalities are satisfied; doesn't excuse witnesses from coming to court though. If have self-proving affidavit, witnesses don't need to come to court

Answer 29

Testator and witness swear under oath that requirements for a will were satisfied. Witnesses don't then need to come to court if uncontested, it functions as a deposition. May be separate document or combined with will depending on jdn.

Answer 30

Recognized by the UPC and majority of states. A holographic will is an unattested will entirely in the testator's handwriting, with no attesting witnesses. The fact that the will is handwritten does not make it a holographic will. Requirements: 1. material provisions to be in testator's handwriting 2. testator signature, but that can appear anywhere in document (nickname, first name, initials - OK). 3. testamentary intent/testamentary capacity Usually, if amendments are made to a holographic will later, the change will be honored (note: if modification to an attested will by hand, will be excluded unless it can meet the requirements of a valid holographic codicil). Witnesses aren't required in about half the states. Often lose on TESTAMENTARY INTENT: Ex. letter to attorney asking him to incorporate new provisions into the will does not constitute a modification through holographic codicil.

Answer 31

Oral will. Recognized in only a few states under really limited circumstances, like for PERSONAL PROPERTY if testator was dying or in military. Required: 2 witnesses.

Answer 32

Cycle back and analyze under the intestacy rules.

Answer 33

A gift of real property. Recipient of a devise is a devisee.

Answer 34

A gift of personal property.

Answer 35

Distinguishable from the rest of testator's estate at time of will execution Ex. my computer, serial number XXXX Ex. My stock in ABC Corp

Answer 36

Not distinguishable from rest of testator estate until testator dies? Ex. I leave my computer to you (don't know which one he'll have at time of death)

Answer 37

Recipient is a legatee. Gift of personal property not sufficiently described to be specific. Ex. money, security ademption does not apply here

Answer 38

A gift of a sum of money payable out of a specific source. If insufficient funds are in that account, the balance will usually be paid from other assets. Ademption does not apply here.

Answer 39

The remainder of an estate. Some testators use it for forgotten items, and some as a main disposition ("I leave everything to my wife")

Answer 40

A non-charitable beneficiary.

Answer 41

The general rule is that the gift fails (adeems). The beneficiary does not get a substitute gift, value, or proceeds. Partial ademption can occur (takes remaining portion of property, if testator conveyed to third party after execution) Under the identity theory (majority), the ademption doctrine is an objective test that does not take into account the testator's probable intent.

Answer 42

1. Replaced property (minority) - if testator replaced gifted item with another similar one 2. Balance of purchase price - if testator sold, and purchaser still owes the testator money, that money goes to the beneficiary. 3. Proceeds of condemnation or insurance (if sold, condemned by eminent domain, etc.) 4. Proceeds from a sale by a guardian or conservator (involuntary) - beneficiary receives proceeds if they are traceable Some modern courts will look to testator's intent, and devisee can take if can prove that testator wanted him to. THe UPC gives specific devisee right to real property that T acquired as replacement.

Answer 43

Example of ademption by satisfaction/extinction. Testamentary gift: beneficiary received gifted property before testator's death (analogous to advancement in intestacy). Satisfaction of legacies: general legacies, not specific bequests. If a decedent makes a lifetime gift of a specific item of property devised in will, the doctrine of ademption by extinction applies. Usually money, not usually specific gifts. Value determined at time of gift (majority) Minority (UPC): gifts in satisfaction are valued at the time the devisee comes into possession or enjoyment or at the death of the testator, whichever occurs firstp

Answer 44

UPC (majority): Doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction. Writing is NOT required if the testator gives specifically described property to the beneficiary - in this case, there is both a satisfaction of the legacy and an ademption. Intent that the gift be satisfaction must be expressed at the time of gift.

Answer 45

It doesn't! Even if the car was worth 30k at time of will execution and is worth 10 bucks now, it doesn't matter - so long as it is a specific gift.

Answer 46

1. stock splits, stock dividends, mergers -- Beneficiary takes the increased number of shares, since they own the same percentage of shares. 2. Newly purchased securities - beneficiary does not take new purchased or newly acquired shares (ex. dividend reinvestment stock).

Answer 47

Ex. house with mortgage, car with lien. Majority: they only receive equity, so they must substitute themselves in as new debtors if they want to keep using the gift Minority: beneficiaries are exonerated, other money in the estate pays off the debt

Answer 48

A gift fails when the estate property is inadequate to satisfy all testamentary gifts, so you have to proceed in a decided order.

Answer 49

This is the order in which things are TAKEN AWAY (specific gifts - you're safe!) 1. Intestate (personal property, then land) 2. Residuary 3. General gifts 4. Demonstrative gifts 5. Specific gifts Within a class, pro rata.

Answer 50

Yes, they can. Property then passes as if the beneficiary predeceased the testator.

Answer 51

Many states set at 120 hours, but in a will the testator can either shorten or lengthen the time. If the beneficiary survives the testator but not by the required period of time, the beneficiary is treated as if the beneficiary died first, and then it goes by terms of will.

Answer 52

Lapse is where a gift fails (revoked by operation of law) because the beneficiary fails to survive the testator, or is treated as not surviving (by not making it 120 hours or disclaiming). Note: if a will makes a gift to a beneficiary who was dead at the time the will was EXECUTED, the gift is void.

Answer 53

When beneficiary dies. Hierarchy: 1. Under express terms of will (B dies, I give to C) 2. Gifts saved by rule of law (anti-lapse statute, cy pres) 3. Via residuary clause 4. Via intestate

Answer 54

If a will beneficiary dies during the testator's lifetime, the gift to him fails. All states have some form of anti-lapse statute that saves the gift if the predeceasing beneficiary was in a certain degree of relationship to the testator and left descendants who survived the testator. The statute provides for those descendants to take as substitute takers; the gift is not saved for the predeceasing beneficiary's estate. Most statutes require the predeceasing beneficiary to be related to the testator by blood. Some statutes apply only to a testator's descendants, some apply to the descendants of a testator's parent, and a few apply to all predeceasing beneficiary. The UPC version applies to a predeceasing beneficiary who is the testator's stepchild, grandparent, or a descendant of the testator's grandparent. The vast majority of the anti-lapse statutes do not save a gift to a predeceasing spouse. In one of the few states that include the spouse, Husband's gift would be saved for his daughter. This prevents lapse under circumstances for private gifts. It substitutes descendants of the predeceased beneficiary, but only when words of survival aren't associated with the gift. Ex. Testator's will gives to son, if son survives testator . Son predeceases, has will that says it all goes to charity. Son has wife and child. The testator's gift goes to the residuary. Different types: 1. Applicable only if beneficiary is lineal descendant 2. Only if beneficiary related to testator in certain manner 3. Applicable wherever beneficiary predeceases

Answer 55

Ex. I leave residuary to friends A, B, C. A predeceases. Old rule: A's 1/3 by intestacy; courts unwilling to imply survivorship ("no residue of a residue" they said) Modern: imply survivorship, then B and C split A's gift. Note: if a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless will provides otherwise or meets anti-lapse statute requirement.

Answer 56

Ability of court to transfer one charitable gift to another charity if the intended charity is no longer available. Court must find that the general charitable intent is broader than the no-longer-possible charity. However, if the intent was specific, not available.

Answer 57

The last one.

Answer 58

Construe as a whole, not from isolated parts (four corners) Words are given ordinary meaning and grammatical meaning unless it is clear from the will that the testator indicated otherwise Technical words are given their technical meaning unless clear evidence that testator intended otherwise Attempt to give effect to all words testator included in the will The fact that a testator left a will, especially if he has residuary clause, indicates an intent not to die intestate.

Answer 59

Ambiguous on its face, fails to convey sensible meaning. Ex. I leave y zyfiz to Harold. I leave 50% each to A, B, C. I leave $25,00 to Doris. Court will consider extrinsic evidence, but will NOT use evidence to fill in blank spaces ("I give ____ to Doris") Also, courts very seldom allow for the consideration of evidence as to what the testator said/wanted, due to the high risk of perjury (we seal the others' mouths)

Answer 60

Provision has a sensible meaning on its face, but cannot be carried out without further clarification. Court will consider extrinsic evidence to resolve ambiguity Ex. To my sister Pat (but sister is Chris and brother is Pat) "to my cousin" when there are 2 cousins "my car" with two cars

Answer 61

Traditional rule: plain meaning (can't use extrinsic evidence to disturb an existing clear meaning) Modern rule: allows use of extrinsic evidence (especially if proven by clear and convincing evidence that testator's intent was affected by mistake of fact/law), prioritizes intent over predictability. Ex. I leave 25k to niece and rest to daughter, testator has 500k. Niece says left out a 0.

Answer 62

Instead of writing out something in will, testator incorporates an extraneous document into will by reference. Treated as though it were actually written out in will. Elements: 1. Will manifests an intent to incorporate extraneous document 2. Writing is in existence when the will is executed 3. Writing is clearly identified/sufficiently described in the will (sufficiently identifiable so no other document could reasonably be referred to by that description) All external documents must be incorporated by reference, EXCEPT for a list disposing of items of tangible personal property. Ex. 1,000 to each people named in a letter that WILL BE FOUND in my safe deposit box - invalid, not incorporated, gifts fail.

Answer 63

A way in which incorporation by reference can work. Under the doctrine of acts of independent significance, a will may dispose of property by reference to future unattested acts and events that have significance apart from their effect on the dispositions made by the will. Could be re: identification of beneficiaries, property, acts of third persons. Third party wills (Ex. all my possessions to be distributed in accordance with my wife's will, to be subsequently executed) - that will must be executed and other requirements of incorporated are met. Ex. "my spouse," gifts of contents (house, safe deposit box), "auto I own at death to B" "all my children". NOT "I leave the gold watch to the person I will write down later" NOT "I leave my painting to the people whose names I put on the post-it on the back of the painting" (no independent significance)

Answer 64

INVALID unless a state has a specific statute addressing this. This is a Uniform Probate Court creation, half the states accept. Permits the testator's will, written statement or list, to dispose of items of tangible property not otherwise disposed of by will. May be prepared before or after will, and may be altered by testator. Requirements: 1. Signed by testator 2. Describe the items and devisees with reasonable certainty Can't include money, intangible property, or property used in a trade/business)

Answer 65

Will which is operative only if a certain event does or does not occur. Presumption against conditional wills, court will try to construe as a general will. Thus, parol evidence is NOT admissible to show that a will absolute on its face was intended to be conditional. And courts may interpret what appears to be a condition to merely express motive for making the will, and might give the will effect even if the condition doesn't occur.

Answer 66

Acts to republish the will except for the parts that are inconsistent with it. They are treated as one instrument, speaking from date of codicil. Proof of codicil acts as proof of will. Valid codicil CAN BOOTSTRAP an otherwise invalid will (is this true though? See Essay 1)

Answer 67

Modern rule under Uniform Testamentary Additions to Trust Act (UTATA): trust into which property pours over can be created before or after testator executes will. If trust is revoked, gift lapses. Provision in a will making a gift to an inter vivos trust (instead of to a person or charity) Trust does not have to be funded prior to testator death; the poured-over amount can constitute the initial trust

Answer 68

Must be able to show that the pages present at time of execution are those (1) PRESENT at time of probate (fasten pages, sentences flow page to page, avoid blank pages, testator and witness initial each page, toto pagination (page x of y) and (2) were INTENDED by the testator to be part of the will. Under the doctrine of integration, the will proponent must show that an extrinsic document offered for probate was present at the will’s execution and intended by the testator to be a part of the will. The requirements of presence and intent are presumed when there is a physical connection of the pages (e.g., staple), when there is an internal coherence by provisions running from one page to the next, or when the pages, read together, set out an orderly dispositional plan. These requirements also can be established by the testimony of witnesses or other extrinsic evidence.

Answer 69

1. Joint wills (single document for two) 2. Reciprocal wills (two wills with parallel dispositive provisions) 3. Contractual wills (will executed or not revoked as the consideration for a contract) Note:

Answer 70

Modern law: some type of writing needed, either will must have terms of agreement or another such agreement Common law: all relevant extrinsic evidence could be used to prove

Answer 71

Contractual joint will can be revoked by agreement between the parties while they are both alive, so long as notice is given. The deceased spouse's estate cannot revoke a contractual will on behalf of the deceased spouse. The mere execution of joint wills or mutual wills does not raise a presumption that the wills were executed pursuant to a promise by each party not to revoke. How many courts find that the execution of joint wills is evidence of a contract. Contracts not to revoke: no remedy for breach, unless first spouse has died and either (1) B attempts to dispose of the property in breach of agreement (in which case a constructive trust is imposed on the property) OR (2) B makes a new will and dies (remedy: new will probated, but constructive trust imposed in favor of beneficiary)

Answer 72

Injured beneficiary can sue to impose a constructive trust on the property they should have received under contract. Note: no remedy if the testator is still alive bc they can comply up until death. If they repudiate after substantial performance, promisee may seek damages/quantum meruit/equitable relief.

Answer 73

Forced/elective share (excluding powers of appointment). Treated like roommates; what each person earns they own. Surviving spouse entitled to certain amount regardless of will, right to a forced/elective share of deceased's property IN LIEU of what they were given under the will Computation methods can be: - straight percentage - percent by number of children - percent by length of marriage - augmented estate (more than what contained in probate estate, so non-probate assets included)

Answer 74

Spouse owns undivided interest in property acquired from earning after marriage. Provides protection - spouse owns 50% of community upon death, only deceased spouse's 50% passes unde their will

Answer 75

Majority rule: all provisions in favor of ex-spouse are void (and maybe other ex-relatives too) Divorce must be final. Remarriage prevents auto void. Passage of property - property left to ex-spouse passes as if ex-spouse predeceased testator UPC: also revokes as to ex-relatives. Divorce revokes all will bequests, revocable trusts, and fiduciary appointments in favor of the former spouse. The remainder of the will or revocable trust is valid and read as if the former spouse predeceased the testator. (The UPC extends the rule to also disqualify the former spouse’s relatives who are not relatives of the testator.) Divorce does not revoke life insurance policies in favor of the former spouse. Disposition of the proceeds is governed by the contract with the life insurance company. Thus, if the decedent fails to change the named beneficiary from his former spouse subsequent to their divorce but prior to his death, the former spouse takes the proceeds. Note: new marriage following execution has no effect (majority). UPC minority: omitted spouse (intestacy) UNLESS will makes provision for new spouse OR omission was intentional OR will made in contemplation of marriage.

Answer 76

Purpose is to provide shares for left out children on assumption that testator would have made a provision for the children had he thought about it - in most states limited to children born or adopted AFTER the will was adopted (or republished). Potential to receive a forced share, most likely if born or adopted after will execution. Note: will come out of the share allotted to the other children, won't reduce another's beneficiary. Note: in applying, the general rules of abatement apply, and the shares thus come out of the residue (revoking the will to that extent)

Answer 77

1. Entire estate left to pretermitted child's other parent 2. Intentional (explicit) omission 3. Testator provided for pretermitted child in will or with a non-probate transfer.

Answer 78

Can't take anything, due either to slayer statute or imposition of constructive trust. Murder in any degree is usually conclusive for purposes of this type of statute. In the absence of a conviction, a court must find that the killing was unlawful/intentional by a preponderance of the evidence before applying the forfeiture rule. The property passes as though the killer predeceased the victim. Effect: all types of transfers are affected (although the killer does not forfeit his own share of a property he owns, he just loses the right of survivorship)

Answer 79

1. Intent to revoke 2. Mental capacity (no undue influence, duress, fraud) 3. Physical act (act of mutilation, i.e. or through proxy revocation - testator must order the proxy and it must be in testator's presence) Sufficient physical acts: burning (singing corners, burning outside cover - insufficient); tearing (only if it is a material part i.e. signature or dispositive provision); obliteration [white out] (requires damage to a material part of the will); cancellation [lining out, writing X or void [(sufficient if the lines touch the words of the will); under UPC words of cancellation need not touch) Ex. crossing out signature on will will be sufficient

Answer 80

Ex. taking a black pen and changing elements or initialing Many states give effect to the changes if there is sufficient evidence that the testator herself made them. Extrinsic evidence is permitted to make that determination. Note: courts are somewhat reluctant to give effect to nontestamentary actions that operate to increase a general/specific bequest, but testator can always increase the size of a residuary gift by cancelling or obliterating a general/specific gift. Minority: keep as originally written

Answer 81

New will contains express provision "I hereby revoke all wills and codicils." All prior instruments revoked

Answer 82

"This is my last will" - revokes prior instruments. If new will completely disposes of testator property, old will is completely revoked by inconsistency. If new will only partially disposes of property, the old will is revoked only as to the inconsistent parts.

Answer 83

A will found in the possession of a person to whom testator delivered the will or among testator's own valuable papers (filing cabinet, safe box) will be presumed valid. Can't have any suspicious circumstances.

Answer 84

If the will last seen in the testator's possession or under her control cannot be found after her death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked it. Extrinsic evidence is allowed. However, if the will was last seen in the possession of a third person or if a person adversely affected by its contents had access, no presumption of recvcation arises. If this presumption is overcome, states permit probate of a lost or destroyed will providing: 1. Valid execution 2. Revocation is not the reason for nonproduction, and 3. Contents of the will (testimony of two witnesses or by producing a photocopy of the will)

Answer 85

MAJORITY: A revoked will is presumptively revived unless it is shown by testator's statements or other evidence that she did not intend to revive the earlier will Under the MINORITY rule: a will, once revoked, cannnot be revived when the revoking instrument is itself revoked, unless the earlier will is re-executed (i.e. resigned and rewitnessed), or republished by a validly executed codicil. Ex. executes will 1; executes will 2 which revokes will 1; revokes will 2. is will 1 revived?

Answer 86

If you state in revoking instrument that revocation is effective upon the happening or non-happening of a named event.

Answer 87

Under the doctrine of dependent relative revocation, a court may disregard a revocation premised on a mistake of law or fact that would not have occurred BUT FOR the testator’s mistaken belief that another disposition of her property was valid. Ex. T executes valid W1. T validly revokes W1. T executes W2 but it is invalid (not published). Does W1 remain (was W1 impliedly conditioned on the validity of will 2?) Depends upon testator INTENT, whether testator would have preferred the first over intestacy. Factors: 1. More similar the provisions, more likely court will use will 2. More different, more likely testator would have preferred intestacy ∆ The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried (but failed) to do than would an intestate distribution.

Answer 88

Contestant has burden of proof to show that will is invalid. The UUPC's harmless error statute that applies to the execution of wills also applies to attempted revocation/alteration. Thus, proponent must establish by CLEAR AND CONVINCING EVIDENCE that the decedent intended the document to be partial/complete revocation.

Answer 89

1. Failure to meet the elements of a valid will/defective execution (capacity 2, intent, formalities) 2. Insane delusions (persistent belief in supposed facts against all evidence, probability, control) 3. Undue influence 4. Duress (violent conduct) 5. Fraud 6. Mistake 7. Revocation In most states, contest must be filed within 6 months after the will is admitted to probate. Note: if a portion of the will is found to have been procured by undue influence/fraud/duress/mistake, only that part is void and the remainder is given effect.

Answer 90

1. Influence must exist and be exerted 2. Influence must overpower testator's mind so will reflects desire of person exerting influence (distinguish badgering or even threatening, which is fine - free will must be destroyed) 3. But-for causation A resumption of undue influence arises (shifts burden to proponent of will) when: 1. Confidential relationship 2. Active in executing will 3. provisions appear unnatural and favor the person who allegedly exercised (unless spouses) Evidence to prove undue influence: Direct (hard to find) OR Circumstantial (opportunity alone is insufficient): 1. Cutting out close family 2. Access to testator 3. Confidential/fiduciary relationship 4. Ability of testator to resist 5. Beneficiary involved with drafting or execution of will 6. Mere opportunity to exert undue influence not enough

Answer 91

Effect: may still be valid, but most states require gift to be purged. Also can have professional responsibility consequences, unless closely related or insubstantial gift. If you would be the intestate heir anyways, can help w/ will.

Answer 92

1. False representation to testator 2. Knowledge of falsity by person making statement 3. Testator reasonably believed statement 4. Caused testator to execute a will testator would not have made but for representation Fraud in the factum/execution: did not know this was a will. Fraud in the inducement: knew it was a will but was deceived. Both are valid. Note: if testator is fraudulently prevented from making a will, some courts impose a constructive trust against intestate beneficiaries in favor of those who would have taken had the will been made.

Answer 93

Generally no remedy, unless lacked full testamentary intent. Mistake in factum/execution: error re: identity or contents of instrument, lacked testamentary intent (will invalid) Mistake in inducement: mistaken as to an extrinsic fact, mistake based on erroneous fact (NO RELIEF) Mistake as to contents of will - extrinsic evidence NOT admissible.

Answer 94

If beneficiary contests will and loses, beneficiary forfeits gift given into the will. Most states enforce UNLESS contestant acted in GOOD FAITH and with PROBABLE CAUSE. Goal is to scare the beneficiary who would get more by intestacy into not contesting for fear of getting nothing if contest fails.

Answer 95

Parents, descendants of parents, grandparents, descendants of grandparents, nearest kin.

Answer 96

When disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death, and the order cannot be established, the property of each decedent is disposed of as if he had survived the other. Ex. in a case of a tenancy with right of survivorship, half the property passes through the estate of each party USDA applies only if there is NO SUFFICIENT EVIDENCE of survival. Thus, if there is evidence that an heir/beneficiary survived by even MINUTES, the USDA does not apply (and treat beneficiary as surviving the testator).

Answer 97

Severs the joint tenancy. They become tenants in common. 1/2 goes to the decedent, 1/2 remains with killer

Answer 98

Under the doctrine of republication by codicil, a will is treated as having been executed (“republished”) on the date of the last validly executed codicil. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will; it must be executed with the same formalities as a will. Since a codicil is a later instrument, its presence at the will's execution cannot be required.

Answer 99

A power of appointment is an authority granted to a person (the donee) to designate, within the limits prescribed by the creator of the power (the donor), the persons who shall take the property and the manner in which they shall take it. The power can be: - general (in favor of the donee herself) or special (in favor of a limited class, excluding donee) - presently exercisable (donee can choose during lifetime) or testamentary (exercisable only by donee's will) Note: a surviving spouse's elective share does not apply to property over which the deceased spouse held a power of appointment. Generally, creditors cannot reach appointive assets. if, however, the donee exercises the power (even if appoints to another person), creditors can reach the appointive property as if she were owner. If the donee of a general power is also the donor, creditors can reach.

Answer 100

A power of appointment that is exercisable by the donee during her lifetime in favor of the donee, her estate, her creditors, or the creditors of her estate is a presently exercisable general power of appointment. A presently exercisable power is also exercisable by the donee’s will unless the donor expressly limited its exercise to the donee’s lifetime.

Answer 101

A general power of appointment is a power exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate. Compare special power of appointment.

Answer 102

A special power of appointment is a 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.

Answer 103

A testamentary power of appointment is one that is exercisable only by the donee’s will. The fact that the power was created by a testator's will does not make it a testamentary power. The key is when the power is exercisable.

Answer 104

Nothing it still goes to son's wife! The only divorce or annulment relevant under the statute is the testator’s. Thus, the fact that a beneficiary subsequently divorces is irrelevant. Because the son's former wife is not treated as having predeceased the testator, the gift does not fail and thus does not pass to the residuary beneficiaries.

Answer 105

A contract to make, not to make, or not to revoke a will is enforceable if the promisee provided sufficient consideration for the testator’s promise to name him as a will beneficiary. Without consideration, the testator’s promise is merely a promise to make a gift in the future and is unenforceable. (promise to provide care to the testator in exchange for the testator’s naming the caretaker in her will is sufficient consideration, even if the testator dies before the caretaker has been able to provide much care). Under the UPC, a contract to make a will can be established only by: 1. Provisions in the will stating the material provisions of the contract 2. Express reference in a will to the contract and extrinsic evidence proving the terms of the contract, OR 3. A writing signed by the decedent evidencing the contract. The properly executed will must be probated, but the usual remedy is for a court of equity to impose a constructive trust upon the appropriate beneficiaries under the will. There generally is no remedy, however, during the testator’s lifetime because a will is not effective (and thus there can be no “breach”) until death.

Answer 106

A person cannot take as an heir or will beneficiary unless he survives the decedent. Because it is sometimes difficult to determine whether one person survived another, nearly all states have adopted a version of the Uniform Simultaneous Death Act (1/2). Half of the states have Revised USDA (aka the 120 hour rule)

Answer 107

AKA the 120 hour rule. Half the states follow. Requires that a person survive the decedent by 120 hours in order to take any distribution of the decedent's property. Note: doesn't apply if decedent will/other instrument makes a different provision re: survival

Answer 108

Beneficiary has merely an expectancy interest (not a property interest) until that time. A will is revocable during the testator's lifetime and operative at her death.

Answer 109

It is a clause that recites the elements of a valid will execution. It is prima facie evidence of valid will formation, but doesn't excuse witnesses from needing to come to court. Useful if: - witness has no memory - witness has faulty memory

Answer 110

Under UPC: Even though a will isn't executed in accordance with all of the required statutory formalities (e.g. only one witness), UPC gives the court the authority to ignore harmless errors. The defectively executed will can be given effect if the will proponent establishes by clear and convincing evidence that the testator intended the document to be his will.

Answer 111

Yes - negligence. The statute of limitations runs on the date of decedent's death, not on date of execution.

Answer 112

1. Residuary clause does not by itself exercise testamentary power (minority says otherwise) 2. Blanket exercise of power is permissible ("including any property over which i may have a power of appointment")" valid unless specifically disallowed in instrument creating the power 3. Exercise by implication - you don't need to invoke the fact that you are exercising the power, you can just distribute as though it were yours (unless disallowed in instrument) 4. Donee cannot contract to make an appointment (it is invalid) INterests that can be created by power's exercise: appoint property outright or in trust (including creating spendthrift provisions), create life estates and future interests, impose conditions and limitations on interests, create additional powers of appointment.

Answer 113

A person with testamentary capacity may revoke his will at any time prior to death. A will can be revoked by: 1. Operation of law - marriage following execution (majority: no effect; minority: intestate share) - divorce/annulment revokes provisions in favor of former spouses - pretermitted children 2. Subsequent written instrument - Needs same formalities of the will - If doesn't expressly revoke, two are read together with later instrument revoking only to the extent of inconsistencies 3. Physical act - Concurrent intent and act

Answer 114

The revocation of a will revokes all codicils to that will.

Answer 115

When a will was executed in duplicate (both are signed and witnessed), an act of revocation performed by the testator upon EITHER copy revokes the will, since both signed copies are of the same legal stature. However, the destruction of an unexecuted copy of the will, accompanied by an intent to revoke, does not revoke the will.

Answer 116

A physical act of revocation performed on a codicil revokes only the codicil, and not the prior will. In the absence of evidence to the contrary, it is presumed that in revoking the codicil the testator intended to reinstate the will provisions changed by the codicil as though the codicil had never been executed.

Answer 117

Nearly all states have elective share statutes that give the spouse an election to take a statutory share of the decedent's estate in lieu of taking under the decedent's will. Typical amount: 1/3 if decedent is survived by issue, 1/2 if not. Surviving spouse must file a notice of election within a specified period (6 months usually). The right to election is personal to the spouse. The elective share is paid first from the assets that, but for the election, would have passed to surviving spouse. Ademption applies here.

Answer 118

Only interested parties have standing to contest a will (those parties whose interests would be adversely affected by the will). NO standing: creditor, executo, testamentary trustee All legatees under will and all intestate heirs are necessary parties and are entitled to notice.

Wills Flashcards

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