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Flashcards in Wills Deck (142):
1

What is intestate succession?

A fixed set of rules that govern where property goes upon death based on the degree of relationship.

2

What are examples of non-probate property (filter them out from the question)?

There are three principal categories of nonprobate assets: (i) property passing by contract, (ii) property passing by right of survivorship, and (iii) property held in trust.

1. Inter vivos outright gifts (already gave away property)
2. Inter vivos trusts (property has already transfered)
3. Future interests (already transfered at date of deed)
4. Co-ownership of property (tenancy in common passes through to probate, but joint tenancy does not)
5. "Pay on death" property
6. Contracts (provides benefits payable on death to named beneficiary, e.g. pension, retirement, life insurance)

3

What is total intestacy?

Decedent dies without valid will

4

What is partial intestacy?

Decedent dies with valid will but it does not dispose of all of decedent's property

5

How can you tell which state's marital rights law (domestic relations law, e.g.) applies?

It's the law of domicile at the time of marriage; rights don't change as the couple moves

6

How can you tell which state's intestacy law applies to succession rights (personal and real property)

Personal property: intestate's domicile at time of death.
Real property: law of situs (where land is physically located)

7

What are the common law way of providing intestate shares to surviving spouses?

Spouse wasn't an heir at common law, so widows received dowers and men received curtesy.

Dower: life estate was 1/3 of property husband owned during marriage, regardless of whether property was still owned at time of death.

Curtesy: life estate in all of wife's real property, provided she proved her worth and brought a child into the world!

8

What is the modern law way of providing intestate shares to a surviving spouse?

Note: have to be married.

Spouse is made an heir. Share of surviving spouse depends on number of children, whether surviving spouse is parent of all the spouse's children.

If decedent is survived by spouse but no descendants, surviving spouse takes estate. Note that under UPC, decedent's parents take 1/2.

Could be in dollars, percentages, based on lenght of marriage.

9

How does intestacy split up descendant shares when all children survive the intestate (or all of the intestate's predeceased have no descendants who survive the intestate)

Each child receives an equal or per capita share.
The younger generation descendant (grandchild) cannot take if older generation (child) is still alive.

10

What are the three ways for computing descendant shares when at least one descendant has predeceased the intestate and is survived by a descendant who survives intestate?

Ex. all descendants belong to second generation (grandchildren) or descendants are from multiple generations (some children, some grandhilcren)

1. Per stirpes (common law minority)
2. Per capita with representation (majority)
3. Per capita at each generation (UPC, large minority)

11

What is the per stirpes (common law minority) method of computing descendant shares?

1. Divide into shares at first generation below decedent (i.e. children) even if no survivors.
2. One share for each surviving child, one for each deceased child who left descendants.
3. Each surviving child receives one share, and a share of each deceased child passes to the grandchildren.

Under this model, heirs from similar generation could receive unequal shares.

12

What is the per capita with representation model of splitting descendant shares?

1. Divide into shares at first generation with survivors.
2. If all children are deceased, each grandchild receives equal share, rather than dividing at generation above.

Can create same outcome as per stirpes if one child is dead and one alive (split it at that generation; grandchildren still get unequal shares).

13

What is the per capita at each generation model of splitting descendant shares?

Modern majority. Approach was adopted by Uniform Probate Code.

1. Divide intestate property into shares at first generation with survivors.
2. Shares created on behalf of predeceased children are pooled, and then divided pro rata among grandchildren.
3. Give all equally related persons the same share. Each child gets the same as other child. Every grandchild gets the same as other grandchild.

14

Who are "ancestors" and "collaterals" for purposes of intestacy?

Ancestors - related in ascending lineal line (parents, grandparents)
Collaterals - persons related but not in lineal line (brother, sister, niece, nephew).

15

What is the general rule for passing intestacy property when a decedent has no descendants?

All property not passing to the surviving spouse passes to the ancestors and collaterals.

16

If both parents of a decedent survive, and the decedent has no spouse/descendants, how does intestacy split those shares?

If both parents are alive, each parent gets half.

If no parents, then to descendants of parents (siblings, niece/nephew).

If none, to maternal grandparents or descendants (grandparent, aunt/uncle, cousins)

If none to nearest kin

If none, escheats to the state.

17

If one parent and a sibling (or descendant of sibling) survive, and the decedent has no spouse/descendants, how does intestacy split the share?

Some states at Uniform Probate Code give entire estate to surviving parent.

Some states give half to the parent, half to first-line collaterals.

18

If a decedent has no, spouse, or descendant, but at least one sibling (or descendant of sibling), how does intestacy split the share?

All property would then be divided among first-line collaterals (siblings)

19

How does intestacy deal with second-line collaterals, grandparents, and more distant relatives?

Property passes according to state law. Some cut it off at a predetermined level (descendants of grandparents, i.e.) and others look to more distant relatives.

20

What is escheat to state government?

If decedent has no heirs, estate passes to state government.

21

What are the inheritance rights of an adopted child?

Viewed as child for purposes of inheriting their parent's estate.

Re: bio parents - jurisdictions as to whether they can inherit through bio parent.

22

What are the inheritance rights of an adoptive parent?

Parents can take from and through adopted child.

23

What are the inheritance rights of biological parents to an adopted child?

Bio parents do not take from and through adopted child.

Minor exceptions: one of the natural parents marries an adopting parent, or the child is adopted by a close relative (then might be able to)

24

What is adoption by estoppel, aka equitable adoption?

Conduct of parent makes it appear as if that person had adopted a child even though a formal adoption did not occur. If parent dies without completing formal adoption, some states allow child to inherit as a child. However, if child dies, many states prohibit parent from inheriting.

25

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

Most states don't distinguish.

26

How are non-marital children vis-a-vis mother treated?

Treated the same as marital children.

27

How are non-marital children vis-a-vis father treated?

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.

28

How does intestacy treat stepchildren?

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.

29

How does intestacy treat a collateral heir who shares only one common ancestor with the decedent?

"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)

30

How does intestacy treat a posthumously born child (child born after death of parent)?

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.

31

If an heir murders the intestate, what will be intestacy's remedy?

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.

32

How will a parent's failure to support their child affect their later ability to collect shares from intestate child?

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

33

What effect will a parent's child abuse have on their ability to collect from child's estate in intestacy?

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

34

What effect will a parent's adultery have on their ability to collect from child's estate in intestacy?

Some states place limits on inheritance rights

35

What is an advancement, in intestacy?

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)

36

How can someone show proof of advancement of an inheritance?

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

37

What is the effect of an advancement, for purposes of intestate distribution?

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)

38

What happens if the heir dies really soon after the intestate?

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

39

Can an heir/beneficiary reject an advancement, in intestacy?

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.

40

Can someone disinherit an heir without leaving a will giving the property to someone else?

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.

41

Must executors comply exactly with the terms of a valid will?

Most states require exact compliance with all requirements.

The UPC permits courts to excuse minor errors (substantial compliance test)

42

What state's law attaches to real property in a will, for purposes of determining whether will is valid?

The law of the situs (Where the property is)

43

What state's law attaches to personal property in a will, for purposes of determining whether will is valid?

Law at place of death.

44

What are the major requirements of a valid will or codicil?

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

45

What is a codicil?

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

46

What is the "testamentary capacity" requirement of a valid will?

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.

47

Can mentally challenged individuals make a valid will?

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

48

If someone has been adjudicated to be "incompetent" may they make a valid will?

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

49

Can a sane person ever fail to meet the testamentary capacity element?

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

50

What is the "testamentary intent" requirement for a valid will?

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

51

What are the elements required to meet the "formalities" required for a valid will, when the will is an attested/formal will?

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.

52

What are the required elements to meet the "attestation" requirement within the "formalities" requirement of an attested/formal will

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

53

What is a self-proving affidavit?

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.

54

What is a holographic will?

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.

55

What is a noncupative will?

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.

56

What if you determine a will is invalid?

Cycle back and analyze under the intestacy rules.

57

What is a devise?

A gift of real property.

Recipient of a devise is a devisee.

58

What is a bequest?

A gift of personal property.

59

What is a specific bequest?

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

60

What is a specific bequest of general nature?

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)

61

What is a legacy gift?

Recipient is a legatee.

Gift of personal property not sufficiently described to be specific.

Ex. money, security

ademption does not apply here

62

What is a demonstrative legacy?

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.

63

What is a residuary gift?

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

64

What is a private gift?

A non-charitable beneficiary.

65

What happens if a specifically gifted item is lost, stolen, sold, or otherwise not in the probate estate? (ademption)

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.

66

What are the exceptions that permit beneficiary to take something in place of adeemed gift?

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.

67

What is a testamentary gift that can create ademption by satisfaction?

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

68

What is the proof of satisfaction required in ademption by satisfaction?

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.

69

How does appreciation or depreciation of specifically gifted property between will execution and death affect the specific gift?

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.

70

How does change in value of securities acquired after will execution impact beneficiary?

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).

71

If a beneficiary receives a specific gift that has a debt attached to it, will the beneficiary be responsible for those debts?

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

72

What is abatement?

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

73

What is the typical order for abatement, when the will is silent? (The order in which things are taken in order to pay debts)

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.

74

May heirs/beneficiaries disclaim a gift that is given to them in a valid will?

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

75

How long must an heir to a valid will survive in order to be deemed alive?

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.

76

What is a lapse?

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.

77

What is the general distribution hierarchy for a gift that has lapsed?

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

78

What is an anti-lapse statute?

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

79

What is a partial lapse in residual clause?

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.

80

What is the cy pres doctrine?

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.

81

Among two or more contradictory provisions in a will, which one prevails?

The last one.

82

Basic construction maxims re: wills

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.

83

What is patent ambiguity in a will, and how will courts resolve this?

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)

84

What is latent (hidden) ambiguity in a will, and how will courts resolve it?

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

85

What happens when there is no apparent ambiguity within a will's provision, but someone wants to create ambiguity using extrinsic evidence?

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.

86

What is the doctrine of incorporation by reference, and how can someone do this?

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.

87

What are acts or facts of independent significance?

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)

88

What is a separate writing disposing of tangible personal property?

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)

89

What is a conditional will?

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.

90

What is publication by codicil?

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)

91

What is a pour over provision?

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

92

What is the internal integration requirement for wills?



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.

93

What are the three types of valid combination wills?

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:

94

What are the requirements for a proving valid contractual will?

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

95

When can a contractual joint will be revoked?

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)

96

What are the remedies for a person seeking performance on a contractual joint contract?

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.

97

What is the common law marital property approach to apportioning shares to surviving spouses, when will exists?

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)

98

What is the community property marital property state approach to dividing marital spouse share after death (when will)?

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

99

How will divorce after will execution affect provisions regarding that spouse?

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.

100

What is the effect of a statute providing for pretermitted/omitted children in a will?

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)

101

What circumstances usually provide NO protection for a pretermitted child to a will?

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.

102

What happens if a beneficiary of a valid will murders the testator?

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)

103

How can a testator revoke by physical act?

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

104

What is partial will revocation through physical act?

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

105

How can someone expressly revoke their will by subsequent will/codicil?

New will contains express provision "I hereby revoke all wills and codicils."

All prior instruments revoked

106

How can testator revoke their will through inconsistency?

"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.

107

What is the presumption of non-revocation?

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.

108

What is the presumption courts apply if there is no original will, the will can't be found, or the will is damaged?

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)

109

What is the revival approach to will revocation?

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?

110

When will there be express conditional revocation?

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

111

What is the doctrine of dependent relative revocation/implied conditional revocation?

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.

112

What is the burden of proof a contestant must bring in contesting a will?

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.

113

What are valid will contest grounds?

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.

114

How can a contestant invalidate a will on the basis that it was signed under undue influence?

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

115

What happens when an attorney is both the drafter and beneficiary of a will?

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.

116

How can a contestant invalidate a will on the basis that it was signed under fraud?

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.

117

How can a contestant invalidate a will on the basis that it was signed under mistake?

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.

118

What is an in terrorem/no contest/forfeiture provision?

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.

119

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

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

120

What is the Uniform Simultaneous Death Act (USDA)?

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).

121

If one of two joint tenants kills one another, what happens to the title to the property?

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

122

What is the doctrine of republication by codicil?

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.

123

What is the power of appointment?

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.

124

What is a presently exercisable power of appointment?

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.

125

What is a general power of appointment?

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.

126

What is a special power of appointment?

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.

127

What is a testamentary power of appointment?

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.

128

What if a testator leaves $ to his son's family, but in his son's wife name, and then they DIVORCE?

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.

129

What are the requirements in a contract to make a will?

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.

130

How is simultaneous death treated?

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)

131

What is the Revised Uniform Simultaneous Death Act?

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

132

What interest does a beneficiary have in a will before the testator dies?

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.

133

What is an attestation clause?

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

134

What happens if a will doesn't meet all of the requirements of formalities?

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.

135

Do will beneficiaries have a cause of action against a negligent attorney who prepared the will?

Yes - negligence.

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

136

How may a power of appointment be exercised?

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.

137

How can a will be revoked?

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

138

What is the effect of a will revocation on other testamentary instruments?

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

139

What is the effect of the destruction of a duplicate will?

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.

140

What is the effect of a revocation of a codicil?

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.

141

What is an election?

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.

142

Who has standing to contest a will?

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.