Wills

Question 1

What is the doctrine of integration?

Answer 1

all papers that are present at the time of execution of a will and are intended to be part of the will are treated as part of the will

Question 2

What are the four components of a will?

Answer 2

integration, republication by codicil, incorporation by reference, and acts of independent significance

Question 3

What does republication of codicil mean?

Answer 3

A will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treated it would be inconsistent with the testator’s intent

Question 4

What is incorporation by reference?

Answer 4

allows for a writing that was in existence but not present at the time of execution and that was not executed with testamentary formalities to be absorbed into the testator’s will

Question 5

What are the 3 things needed for incorporation by reference?

Answer 5

1. Writing must be in existence
2. Will must manifest the intent to incorporate the writing
3. Will must describe the writing sufficiently in order to find and identify writing

Question 6

What are acts of independent significance?

Answer 6

If beneficiary or property designations are identified by reference to acts or events that have a lifetime motive and significance apart from their effect on the will, the gift will be upheld

Question 7

What is a joint will?

Answer 7

one instrument executed as will of both that is probated as the defendant’s will when one of them dies and when the other one dies, is again probated, this time as will of second decedent

Question 8

What happens when a contract to make a will or to revoke a will is breached?

Answer 8

The will is NOT invalidated or revoked. The will is still considered valid, but damages may be awarded out of the estate.

Question 9

What is a mutual will?

Answer 9

separate wills of two persons that contain reciprocal or mirror-image provisions

Question 10

A contract to make a will or not to revoke a will may be established only by:

Answer 10

1. Provisions of a will stating material provisions of the contract
2. An express reference to a contract in the will and extrinsic evidence proving the terms of the contract, OR
3. A writing signed by the dependent evidencing the contract

Question 11

What is a will contest?

Answer 11

Contestant alleges that will executed with proper formalities was nonetheless not volitional because of the incapacity of the testator or the undue influence, duress, or fraud of another

Question 12

In order to have mental capacity under the Restatement, the testator must be capable of knowing and understanding in a general way the following:

Answer 12

1. the nature and extent of their property
2. the natural objects of their bounty
3. the disposition that he or she is making of that property
4. capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property

Question 13

What is the majority rule on who has the burden of proof in a will contest based on mental capacity?

Answer 13

proponents must establish a presumption that the decedent possessed testamentary capacity. Proof of due execution ordinarily creates a presumption of testamentary capacity. Once the presumption has been established, the ultimate burden of persuasion is on the challenger

Question 14

What is insane delusion?

Answer 14

a false belief to which the testator adheres despite evidence to the contrary

Question 15

How do you prove insane delusion?

Answer 15

must prove causation (that the insane delusion materially affected a disposition in the will)

Question 16

What is the effect of insane delusion on a will?

Answer 16

it strikes down the portion of the will that was affected by the insane delusion (not the whole will)

Question 17

What is undue influence?

Answer 17

a donative transfer is procured by undue influence if the influence exerted over the donor overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not have made otherwise

Question 18

What is undue duress?

Answer 18

a wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made

Question 19

What are the factors for undue influence under the Restatement?

Answer 19

Susceptibility, opportunity, motive (disposition), and result

Question 20

What is the remedy for undue influence?

Answer 20

the part of the will that was affected by undue influence will be void

Question 21

What is fraud?

Answer 21

wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did leave the donor to make a donative transfer that they otherwise wouldn’t have made

Question 22

How is fraud established?

Answer 22

causation-A donative transfer is invalid for fraud only if the donor would not have made the transfer if the donor had known the true facts

Question 23

What is a tortious interference with an expectancy?

Answer 23

a tort claim that you can bring in addition to a will contest that seeks to recover damages from the defendant for wrongful interference with the plaintiff’s expectation of an inheritance by undue influence, duress or fraud

Question 24

What are the traditional approaches for mistakes and ambiguities in a will?

Answer 24

1. No extrinsic evidence

2. No reformation

Question 25

What is a patent ambiguity?

Answer 25

evident from the face of the will

Question 26

What is a latent ambiguity?

Answer 26

becomes apparent only when the terms of a will are applied to the facts

Question 27

What is equivocation?

Answer 27

a latent ambiguity where a description for which two or more persons or things fit exactly

Question 28

What are the two types of latent ambiguity?

Answer 28

1. equivocation

2. No exact fit

Question 29

What is “no exact fit” latent ambiguity?

Answer 29

where a description for which no person or thing fits exactly but two or more persons or things fit perfectly

Question 30

Can extrinsic evidence be used to resolve a patent ambiguity?

Answer 30

No

Question 31

Can extrinsic evidence be used to resolve a latent ambiguity?

Answer 31

Yes

Question 32

What is a stale will?

Answer 32

the gap in time between its execution and the testator’s death may cause difficulties. During this gap, which may span years or even decades, circumstances can change in ways that render the will stale or obsolete

Question 33

What is a specific bequest/devise?

Answer 33

giving of a particular, specifically named thing

Question 34

What is a demonstrable bequest/devise?

Answer 34

gift of money to come from a specific source

Question 35

What is a residuary?

Answer 35

everything else that wasn’t given away by name

Question 36

What is a class gift?

Answer 36

a gift to a group of people

Question 37

Under common law, if a specific or general devise lapses, what happens to the devise?

Answer 37

it falls into the residuary

Question 38

Under common law, what happens if the residuary devise lapses?

Answer 38

the heirs of the testator take by intestacy

Question 39

Under common law, if a devise is to a class of persons and one member of the class predeceases the testator what happens?

Answer 39

the surviving members of the class divide the gift

Question 40

What is an antilapse statute?

Answer 40

statutes that substitute another beneficiary for the intended beneficiary if the intended beneficiary predeceased the testator if certain requirements are met