Wills Flashcards

Question

Intestacy: Adoption by Estoppel/Equitable Adoption

Answer 1

Conduct of "parent" makes it appear as if adopted child, even though formal adoption never occurred If parent dies without completing formal adoption, some states allow child to inherit. If child dies, many states prohibit the parent from inheriting

Answer 2

Vis-a-vis mother: treated the same in all cases Vis-a-vis father: many states impose additional requirements on a non-marital child to inherit from a father, such as determination of paternity or father acknowledging child as own

Answer 3

Generally not included in intestate distributions

Answer 4

Definition: relationship where collateral relatives share only one ancestor in common Jurisdictions vary in effect: (a) no difference, (b) give them half shares, or (c) cut them out if whole-blooded collaterals of same degree exist

Answer 5

Jurisdictions vary as to whether they will take and the time by which the child needs to be conceived or born

Answer 6

If heir murders the intestate, cannot take because of slayer statute or through the application of a constructive trust to prevent unjust enrichment

Answer 7

Some jurisdictions prevent biological parent or his kin to inherit through and from child unless parent can prove deserves to by openly treating person as a chid and not refusing to support the child

Answer 8

A few states limit inheritance rights of heirs who physically or financially abuse the intestate

Answer 9

A few states limit the inheritance rights of a spouse who committed adultery

Answer 10

Irrevocable gift intended by the donor as prepayment of an inheritance. Many states require writing signed by donor or donee, some allow oral proof. Effect: If advancee wants to share in the estate, must account for the advancement; compute shares as if advancement were still in estate based either on date of gift or date of death value depending on state law

Answer 11

Most states require heir to outlive the intestate by a set period of time (120 hours at common law) If insufficient evidence that heir survived by the period of time, heir is treated as if predeceased the intestate

Answer 12

Cannot be forced to accept an inheritance or gift under a will Reasons to disclaim: (a) burdensome, (b) tax, (c) avoid creditors Typical requirements: (1) written, (2) signed, (3) acknowledged before a notary, and (4) filed with appropriate court within 9 months from date of death Cannot disclaim if already accepted. Effect: Disclaimed property passes as if disclaimant predeceased. Irrevocable.

Answer 13

A few states permit a person to disinherit an heir without leaving a will giving property to someone else

Answer 14

Only way to avoid intestacy is to leave a valid will disposing of all probate property. Most states require exact compliance with all requirements (but Uniform Probate Code does permit court to excuse minor errors using substantial compliance test)

Answer 15

Law of Situs - where the property is

Answer 16

Law of domicile at death

Answer 17

Most states will consider a will valid if it complies with: (a) local law, (b) law where executed, or (c) law of decedent's domicile at death or when will executed

Answer 18

(1) Legal Capacity (2) Testamentary Capacity (Sound Mind) (3) Testamentary Intent (4) Formalities: attested, holographic, nuncupative

Answer 19

Typically, 18 years old or older, but some states use other proxies (e.g. married)

Answer 20

(1) Understand the action (2) Comprehend the effect of the action (3) Know general nature and extent of property (4) Recognize natural objects of bounty (family members) (5) Simultaneously hold elements in mind

Answer 21

(a) Mentally challenges individuals can make a will as long as they meet the five elements (b) Testamentary capacity is a lower standard than contractual capacity (c) Adjudication of incapacity raises a rebuttable presumption of lack of testamentary capacity (d) Sane person may lack capacity at times

Answer 22

Must intend the very instrument executed to be the will

Answer 23

(1) In writing (2) Signed by testator or proxy (if in testator's presence or by testator's direction) (3) Attestation: (a) at least two witnesses (b) who are credible (able to testify), (c) know it is a will (publication), (d) are uninterested, and (e) in testator's conscious presence * Some states allow notarization instead of attestation Attestation clause not required, but prima facie evidence of satisfaction of formalities

Answer 24

Definition: testator and witnesses swear under oath that the requirements for a valid will were satisfied; may be a separate document or combined with will depending on jurisdiction Effect: Probate will without having to bring the witnesses to court

Answer 25

Will in testator's handwriting Effect of non-holographic material: states vary with regard to how much material may be non-holographic Witnesses not required in about half of the states

Answer 26

Recognized in a few states under very limited circumstances

Answer 27

Gift of real property Recipient is devisee

Answer 28

Gift of personal property (a) Specific bequest: distinguishable from rest of testator's estate at time of will execution (b) Specific bequest of a general nature: not distinguishable from rest of testator's estate until testator dies

Answer 29

Gift of personal property not sufficiently described to be specific (usually money) (a) General Legacy/Gift/Bequest ("I leave $10 to John") (b) Demonstrative legacy: gift of sum of money payable out of a designated fund; if fund is insufficient, balance will usually be [paid from other estate assets Recipient is legatee

Answer 30

Remainder of the estate

Answer 31

Non-charitable beneficiaries

Answer 32

Charitable beneficiary

Answer 33

If a gift fails (e.g. necklace is destoryed, house is destroyed), it adeems according to the identity rule. Beneficiary does not ake a substitute gift nor the value of the gift

Answer 34

(1) Replacement property: testator replaced gifted item with another similar item (2) Balance of purchase price: testator sold gifted item, and purchaser still owes the testator money--that money goes to beneficiary (3) Proceeds of condemnation or insurance: beneficiary gets any condemnation or insurance proceeds on gifted items (4) Proceeds from a sale by a guardian or conservator: beneficiary receives proceeds from specifically give property if proceeds are traceable

Answer 35

Beneficiary received gifted property before testator's death. Many states require writing or specific instructions in the will before gift is deemed a satisfaction *Satisfaction issues arise more often with money than specific gifts

Answer 36

Appreciation and depreciation of specifically gifted property between will execution and death is normally irrelevant

Answer 37

(a) Stock splits, stock dividends, mergers -- beneficiary takes the increased number of shares (b) Newly purchased securities: beneficiary does not take increased number of shares

Answer 38

Majority view: receive equity only; must assume debt if want the item

Answer 39

Typical order (when will is silent) 1. Intestate property 2. Residuary property ("The rest I leave to...") 3. General gifts 4. Demonstrative gifts 5. Specific gifts Within a class, abatement is pro rata

Answer 40

Beneficiaries can disclaim, just as an heir may do so Property then passes as if the beneficiary predeceased the testator under the terms of the will

Answer 41

Beneficiaries must outlive the intestate by a certain period of time to take (usually 120 hours or testator can dictate) If beneficiary doesn't survive testator, beneficiary is treated as if predeceased testator

Answer 42

Beneficiary fails to survive testator (or is treated as such) Distribution 1. Under express terms of the will 2. Gift saved by rule of law (anti-lapse statute or cy pres) 3. Via residuary clause) 4. Via intestacy

Answer 43

Prevents lapses under certain circumstances (substitutes descendants of the predeceased beneficiary for the predeceased beneficiary) Types (vary by jurisdiction) (a) Applicable only if beneficiary is a lineal descendant of testator (b) Applicable only if beneficiary is related to testator in a certain manner such as descendant of parent or of grandparent (c) Applicable in all cases where beneficiary predeceases testator

Answer 44

E.g., "I leave the residuary of my estate to my friends, A, B, and C. A predeceases testator. Distribute: (a) Via intestacy: some courts are unwilling to imply survivorship language and thus A's one-third passes by intestacy (b) To surviving residual beneficiaries (imply survivorship language), i.e. B and C split A"s lapsed gift

Answer 45

Ability of court to substitute equitably equivalent charity upon finding testator had general charitable intent -- court must find general charitable intent broader than charitable purpose which cannot now be carried out

Answer 46

(a) Personal representative who wants to do the right thing and thus avoid liability for improper administration (b) Beneficiaries (or heirs) who would take under various interpretations

Answer 47

(1) Fact of will, especially with residuary clause, indicates intent not to die intestate (2) Among two or more contradictory provisions, the last one prevails (3) Will is construed as a whole (4) Words are given ordinary meaning and grammatical meaning, unless clear from will testator intended otherwise (5) Technical words are given their technical meaning, unless clear from will testator intended otherwise (6) Attempt to give effect to all the words testator included in the will

Answer 48

(1) Patent (obvious) ambiguity: if ambiguous on face, court will consider extrinsic evidence to resolve; but will not use extrinsic to fill in blanks (2) Latent (hidden) ambiguity): provision conveys sensible meaning on face but can't be carried out without further clarification -- court will consider extrinsic evidence (3) No apparent ambiguity (differs by jurisdiction): (a) Plain meaning rule: no extrinsic evidence; (b) Modern rule: allows extrinsic evidence

Answer 49

Testator may incorporate extraneous document into will by reference, with the effect that it be treated as if it were in the will to begin with

Answer 50

(1) Intent to incorporate (2) Writing in existence when will executed (3) Writing clearly identified in will: must be sufficiently identifiable

Answer 51

Something outside of a will which has a legal purpose other than disposing of property at death -- law may require certain items represented by title documents be transferred in a particular manner

Answer 52

Half of the states permit the testator's will to refer to a written statement or list to dispose of tangible personal property not otherwise disposed of by the will even though the list was not in existence when the testator executed will

Answer 53

Will which operates only if a certain event occurs or does not occur Presumption against conditional wills (court will construe as general no conditional)

Answer 54

A codicil acts to republish the will except for the parts of the will that are inconsistent with the codicil Wills and codicils are treated as one instrument speaking form the date of the codicil Proof of codicil acts as proof of will

Answer 55

Provision in will making gift to inter vivos trust Modern Rule under Uniform Testamentary Additions to Trusts Acts: trust into which property pours over may be created before or after the testator executes the will (property will be governed by all trust amendments, even those made after the testator executed the will or dies). If trust is revoked, gift fails (lapses)

Answer 56

Must be able to show that the pages present at time of execution are those present at time of probate (e.g., staple together, sentences flow page to page, testator and witnesses' initials on each page, ex toto pagination, avoid blank spaces)

Answer 57

Single testamentary document containing wills of two or more persons

Answer 58

wills of two persons containing parallel dispositive provisions

Answer 59

Will executed or not revoked as the consideration for a contract Proof of contract: (a) Common law: all relevant extrinsic evidence; (b) Modern law: some type of writing needed Revocation of contract: contractual joint will can be revoked while both parties are alive; deceased spouse's estate cannot revoke a contractual will on behalf of the deceased spouse Breach of contract: Injured beneficiaries may sue to impose a constructive trust on the property they should have received under the contract

Answer 60

(1) Forced or Elective Share: Surviving spouse is entitled to a certain amount, regardless of what will provides (2) Computation method varies among states (e.g., straight percentage, percentage varies by number of children, percentage varies by length of marriage) (3) Augmented estate: many states compute surviving spouse's based on more assets than contained in the probate estate

Answer 61

Surviving spouse owns undivided interests in property acquired from earnings after married

Answer 62

Majority Rule: all provisions in favor of ex-spouse are void (and many states void gifts to other ex relatives) (a) Final divorce required (b) Remarriage automatically voids (c) passage of property: property left to ex-spouse passes as if ex-spouse predeceased the testator

Answer 63

Purpose of statute is to provide a share for these left out children on assumption testator would have made provision for the children had the testator thought about it

Answer 64

(1) Potential to receive a forced shared: (a) born or adopted after will executed, most provide forced share; (b) Born or adopted before will execution (only a few states give share) (2) Determination of forced share: very tremendously by jurisdiction (3) Circumstances usually providing no protection: (a) entire estate left to other parent; (b) intentional omission, (c) testator provided for pretermitted child in will or with a non-probate transfer

Answer 65

Beneficiary who murder the testator will not be able to take

Answer 66

(1) Intent to revoke (cannot be by mistake) (2) Mental capacity (ineffective if undue influence, duress, or fraud) (3) Physical act: (a) Act required (burning, tearing, cutting, canceling, obliterating etc); (b) Proxy revocation: may direct someone else to destroy/cancel but must be in his presence

Answer 67

Many states give effect to changes if there is sufficient evidence that testator made the changes

Answer 68

(1) Express revocation (2) Revocation by inconsistency: (a) if new will completely disposes of testator's property, old one revoked by inconsistency; (b) if new will partially disposes of testator's property, old will is revoked only as to inconsistent parts

Answer 69

(a) Presumption of non-revocation: will found in a normal place and no suspicious circumstances (b) Presumption of revocation: if unable to produce the original will or is found in a damaged condition; lost wills can over come this presumption, but hard to do

Answer 70

Fact pattern: T executes valid will 1; T executes valid will 2, which expressly revokes will 1; T validly revokes will 2. Does will 1 revive? Depends on the jurisdiction... Revival approach: Will 1 will revive (will 2 never took effect because it was revoked prior to death) No revival approach: Revocation clause is effective when executed Intent approach: depends, look at facts to determine what the testator intended

Answer 71

(1) Express conditional revocation: T may state in revoking instrument that a revocation is effective upon the happening/non-happening of a named event (2) Implied Conditional Revocation or Dependent Relative Revocation: T executes 1, T validly revokes 1, T executes 2 but it's invalid - does will 1 remain (was revocation of 1 impliedly conditioned on validity of 2?) - depends on testator's intent: (a) the more similar the two wills, more likely court would apply DRR; (b) more different the wills, more likely testator would have preferred intestacy to will 1

Answer 72

Heir: if will is invalid, estate passes by intestacy Beneficiary of a prior will: if testator's will is invalid,, property then passes under testator's prior will

Answer 73

Contestant has burden to prove will invalid

Answer 74

(1) Failure to meet elements of a valid will (2) Insane delusions (3) Undue influence (4) Duress (5) Fraud (6) Mistake

Answer 75

Definition: a persistent belief in supposed facts that are against all evidence, probability, and control Delusions must have nexus to property disposition to invalidate will

Answer 76

Will or portion of will that is product of undue influence is void Person(s) contesting the will have the burden to establish undue influence: Elements: (1) Influence must exist and be executed (2) Overpower testator's mind and will (3) T must execute a will which he would not have executed but for the influence Presumption of undue influence: (1) A confidential relationship existed between the testator and the beneficiary who was alleged to have exercised undue influence; (2) Beneficiary participated in procuring or drafting the will; and (3) The provisions of the will appear to be unnatural and favor the person who allegedly exercised the undue influence - ->Burden shifts to proponent of will to prove no undue influence Evidence to prove: (a) Direct (rare) (b) Circumstantial: unnatural disposition, opportunity, confidential or fiduciary relationship between parties, ability of testator to resist, beneficiary involved in drafting or execution * Mere opportunity to exert is not enough (c) Attorney as drafter and beneficiary: many states void the gift unless closely related; bar license may be in jeopardy

Answer 77

Like undue influence, but connotes violent conduct (e.g. under threat of physical harm)

Answer 78

Elements: (1) False representation made to testator (2) Knowledge of falsity by person making statement (3) Testator reasonably believed statement (4) Caused testator to execute will testator would not have made but for the misrepresentation Types: (a) Fraud in the factum: T deceived as to identity or contents of instrument (lack of testamentary intent) (b) Fraud in the inducement: T knew was executing a will and what it contained, but deceived as to some extrinsic fact and made will based on the erroneous fact

Answer 79

Definition: T's error when there was no evil conduct of someone causing the mistake to arise Types: (a) Mistake in the Factum/Execution: T is in error regarding identity or contents of instrument (lacked testamentary intent) (b) Mistake in the Inducement: T mistake as to extrinsic fact and makes will based on that Generally no remedy

Answer 80

Basic idea: If beneficiary contests will and loses, beneficiary forfeits the gift. Goal is to scare beneficiary who would get more by intestacy into not contesting. General rule: most states enforce in terrorem clauses unless the contestant was in good faith and had probably cause to file the contest

Answer 81

(1) Handle non-probate assets (2) Did decedent die testate or intestate? (3) If intestate, determine identity of heirs. (4) If testate, determine validity of will. (5) Use facts to determine proper distribution of property (6) If surviving spouse in common law marital property jurisdiction, determine whether spouse should file for an elective share

Answer 82

(1) Majority: Objective test - whether the specifically bequeathed property is part of the testators estate at her death (2) Minority: Intent test - beneficiary is entitled to substitute property owned by testator if the beneficiary can prove that testator intended beneficiary to have the substitute property

Answer 83

A will operates upon circumstances and properties as they exist at the time of the testator's death General gift is determined by what was in existence at the time of testator's death (e.g., "my automobile")

Wills Flashcards

(107 cards)