Wills Flashcards
(111 cards)
1
Q
What are the statutory formalities for executing a will?
A
1) must be over 18; 2) must be written; 3) have testamentary intent; 4) must be signed; and 5) must have two attesting witnesses who witness T’s signing.
2
Q
What happens if part of the will follows T’s signature at the time of execution under the common law?
A
everything above the signature is good; below is void.
3
Q
What happens if part of the will follows T’s signature at the time of execution under the UPC?
A
everything is valid.
4
Q
What happens if part of the will follows T’s signature after time of execution under the common law or UPC?
A
it is void.
5
Q
What is the rule regarding holographic wills under the UPC?
A
So long as the material portions of the will are handwritten, the will is valid.
6
Q
What are the two tests for determining whether witnesses actually witnessed a testator sign their will?
A
Scope of Vision test; conscious presence.
7
Q
Under the majority rule, an interested witness will not receive from a will they witness unless what?
A
1) there are two other disinterested witnesses; or 2) the WB would be an heir if there was no will, in which case she would take the lesser of a) the amount given in the will; or b) the intestate share.
8
Q
Under the UPC, can an interested witness take?
A
Yes
9
Q
What is a self-proved will?
A
Where the witnesses sign an affidavit attesting to the propriety of the will’s execution. It creates a presumption of propriety that must be rebutted.
10
Q
What are the requirements for revocation by physical act?
A
1) intent to revoke; 2) physical act.
11
Q
How do you revoke by physical act under the common law? UPC?
A
Must cross some of the language; may be voided anywhere on the document.
12
Q
Voiding a copy of a will voids _______________.
A
all copies of the will.
13
Q
Must a revocation of a will by physical act be done in the testator’s presence?
A
Yes
14
Q
What happens if a testator directs someone to revoke their will by physical act, but does not actually see them do it?
A
The court will hold a hearing regarding the destruction of the will.
15
Q
Where a subsequent will is inconsistent in part from the first will, what effect?
A
The subsequent will controls the inconsistencies, all parts of the first will which are not mentioned in the second will remain as they did in the first unless there is a clause in the second will which states they are revoked.
16
Q
Revocation of a will revokes all ____________ thereto.
A
codicils
17
Q
Revocation of a codicil to a will does not revoke ______________.
A
the will.
18
Q
What is the effect of divorce on a will?
A
All provisions affecting the ex-spouse are void.
19
Q
What happens if the ex-spouses remarry?
A
The will is made whole again.
20
Q
Mere ___________ does not affect the rights of a spouse to a will unless . . .
A
separation; there has been a complete property settlement.
21
Q
To properly amend a will, what must you do?
A
You must fulfill the requirements for executing the will (having witnesses; signing it; being over 18; etc.)
22
Q
Dependent Relative Revocation —
A
allows a court to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that but for the mistake, the testator never would have made the revocation.
23
Q
Explain the doctrine of revival —
A
a subsequent will which is revoked and is not revoked by a new will revives the original will; i.e. Will 2 revokes Will 1. When Will 2 is revoked, Will 1 is revived unless Will 2 is revoked by a Will 3.
24
Q
What are the requirements for reviving a will under the UPC?
A
1) the original will must still exist; 2) the T must intend it to be revived; and 3) will 2 must be revoked by physical act.
25
To incorporate an extrinsic document by reference in a will:
1) the writing must be in existence at the time the will was executed; 2) the will must manifest an intent to incorporate the document; and 3) the will must describe the writing sufficiently to permit its identification.
26
Under a UPC, a list of tangible personal property which is not specifically devised via the will may be created _________________.
at any time, so long as it is generally referenced in the will; e.g. "a list I plan to make . . ."
27
Explain the doctrine of independent signficance —
The T modifies his will by his actions. Where there is a independent lifetime motive, the act taken for such motive impact the will as well.
28
Lapse —
where a gift is folded into the residuary estate because the person to whom it was devised either 1) under common law, died simultaneously or before the T, or 2) under the UPC, died before or within 120 hours of the T.
29
What can prevent a gift from being folded into the residuary estate?
The state's antilapse statute.
30
Where a gift is set to lapse due to the death of the devisee, the UPC statute applies, i.e. pushes the gift to another devisee, if the new devisee is what?
the testator's grandparent or a lineal descendant of a grandparent who leaves issue of the same testator.
31
Class Gift Rule —
when there is a gift by will to a group of persons generically described as a class, and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
32
Under the common law, where T leaves a certain amount of stock to the devisee, and there is a stock split, what is the result?
The devisee takes all of the stock resulting from the split, even if it is much more than was originally devised to him.
33
Under the common law, where T leaves a certain amount of stock to the devisee, and there is a stock dividend issued, what is the result?
The devisee only gets the stock he was devised.
34
How does the UPC treat stock splits and stock dividends?
It treats all stock as stock splits, i.e. if it is divided, you still get it.
35
Where T devises stock in one company to a devisee, an the stock is later traded in for another company's stock before T's death, what is the result under the common law?
Devisee will not be able to take because he was not devised that company's stock.
36
Where T devises stock in one company to a devisee, an the stock is later traded in for another company's stock before T's death, what is the result under the UPC?
The UPC doesn't care. Different stock or not, the devisee was still devised something. It is simply in a different form now.
37
Extrinsic evidence is admissible to clear up ______________.
latent ambiguities.
38
Where extrinsic evidence does not exist to clear up a latent ambiguity, what result?
The gift fails.
39
Where the will is unambiguous, but it was by mistake, what effect under the common law?
The court will not fix it. Under the Plain Meaning Rule, you cannot disturb the plain meaning of an unambiguous will.
40
Where the will is unambiguous, but it was by mistake, what effect under the UPC?
The court will fix the terms of the will if it can be proven by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were effected by a mistake of law or fact.
41
If a T is survived by their spouse and there is no issue or parents of the T alive . . .
the spouse gets the entire estate.
42
Where the T is survived by their spouse and their issue, and all issue are biological issue of the T . . .
the spouse gets the entire estate.
43
If T is survived by their spouse and issue, and at least one of the issue is not biological issue of the T and her spouse . . .
the spouse is given a fixed amount off the top of the estate and a fraction of the excess.
44
If the T is not survived by their spouse, but has issue . . .
the issue take all of the estate.
45
If the T is not survived by their spouse, and has no issue . . .
the estate goes to their parents or their survivor.
46
If the T is not survived by their spouse, issue or parents . . .
the estate goes to the parents' issue
47
Does a stepparents' adoption cut off a devisee's ability to inherit from their deceased parent?
No
48
Where an orphan is adopted by an adoptive family, is their ability to inherit from their blood family cut off?
No
49
Are adopted kids included in a class gift?
Yes
50
Can the Revised Simultaneous Death Act (120-hour rule) be overcome?
Yes, by an express provision in a will; e.g. "if she survives me by two days."
51
Under the common law, when is an advancement presumed?
where there is a lifetime gift to a child of the T.
52
Under the UPC (majority rule), when is an advancement presumed?
only where 1) it is declared as such in a contemporaneous writing by the T; or 2) it is acknowledge as such in writing by the heir.
53
The doctrine of advancement only applies to _____________ estates. A similar doctrine of _____________ applies to ________ estates.
intestate; satisfaction; testate
54
Generally, what does the doctrine of satisfaction state?
That under the UPC, a gift prior to the death of the T to the devisee is NOT part of the devisee's portion of the T's decedent estate unless expressly stated as such.
55
What is a spouse entitled to if there is a will entered into prior to a marriage under the UPC? Most states?
Under the UPC, the surviving spouse is entitled to an intestate share of the deceased spouse's estate. In most states, a marriage after a will has no effect on the will.
56
What can cause a surviving spouse to not be entitled to an intestate share under the UPC?
1) it appears from the will that the surviving spouse's omission from the will was intentional; or 2) the T made a different provision for the surviving spouse in lieu of the provision in the will.
57
Elective Estate —
the probate estate minus exempt property, family allowances, funeral expenses, expenses of administration, and allowable creditor's claims.
58
Elective Share —
a portion of the elective estate which the surviving spouse has a right to take in lieu of the intestate share. The surviving spouse cannot take both; she must choose one or the other.
59
Pretermitted Child —
a child born or adopted after the will is executed.
60
Under the UPC, a pretermitted child is entitled to . . .
an intestate share of the decedent's estate.
61
What can prevent a pretermitted child from receiving an intestate share of the decedent's estate?
1) it appears the child was intentionally left out of the will; 2) the decedent left a substantial portion of his estate to the surviving parent of the pretermitted child; or 3) the decedent provided for the child outside the will and intended that to replace a disposition for the child in the will.
62
A will is revoked. It is subsequently amended via codicil. What result?
It is republished by codicil.
63
A person is acquitted of killing someone who they stand to inherit from. Is this enough to overcome the slayer rule?
No. Acquittal at criminal law is not enough to overcome the slayer rule. It must be shown by a preponderance of the evidence that the alleged killer did not in fact kill the person who they stood to inherit from.
64
Renunciation —
before acceptance, an heir, devisee or appointee of a power of appointment may renounce their interest in writing in whole or in part within nine months after the death of the decedent. Renunciation results in property passing as if renouncing party predeceased decedent, unless the will provides otherwise.
65
Living Will —
a statement of an adult individual's desires with regard to life-sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment when the individual becomes terminally ill or is in a persistent vegetative state.
66
How is a living will executed?
The same as a regular will.
67
How can a living will be revoked?
by any manifestation of intent to revoke at any time prior to death without regard to the T's mental or physical condition.
68
Durable Healthcare Power —
a statement by the principal appointing an agent to make healthcare decisions for the principal such as giving consent to medical treatment, accessing principal's medical records, and admitting or discharging principal from a healthcare facility.
69
How is a durable healthcare power executed?
The same as a living will.
70
A will is not effective unless it is admitted to _______________.
probate
71
The person who administers the estate is called the ____________________.
personal representative
72
If the person who is nominated to serve as the personal representative of the deceased is unable to serve, to whom does the responsibility fall?
The surviving spouse, and then to other beneficiaries.
73
Unless waived in the decedent's will, a personal representative must post a _____________.
bond
74
Absent an explicit authorization in the decedent's will, what must a personal representative do in order to sell property held by the decedent's estate?
get a court order
75
The personal representative must file an ________________ of all assets of the estate.
inventory
76
The personal representative of a decedent's estate must also give ___________ to all creditors of the decedent's death.
notice
77
A person who wishes a contest a will must have standing. A person has standing if . . .
they are a person who would have taken more as an heir if there were no will or beneficiary under a prior will.
78
What are the three grounds for contesting a will?
1) lack of testamentary capacity; 2) insane delusion; and 3) undue influence.
79
The test for establishing that a decedent lacked testamentary capacity is:
1) did the T understand the nature of the act he was doing?; 2) did the T know the nature and character of his property?; 3) did T know the natural objects of his bounty?; and 4) did T understand the disposition he wished to make?
80
Insane Delusion —
where the T is otherwise sane, but the will or a gift therein is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, and where the will is the product of the insane delusion.
81
The test for a showing of undue burden is:
1) the existence and exertion of the influence; 2) the effect of the burden is to overpower the mind and will of the T; and 3) the result is a will that would not have been executed but for the influence.
82
Influence is not undue unless the _________________ of the testator was destroyed and a will produced that expresses the will, not of the testator, but of the influence.
free agency
83
A presumption of undue influence arises upon a showing that a principal beneficiary under the will who stands in _________________________ to the testator draw or procures the execution of the will.
confidential relationship
84
In most states, if a decedent is survived by a spouse but no descendants, the surviving spouse takes what?
The entire estate.
85
Under the UPC, where a decedent who is survived by a spouse but no descendants, who takes the estate?
The spouse, but the parents of the decedent would take some of it, too.
86
How are the intestate shares of descendants usually distributed?
Per capita with representation
87
If a decedent dies without a will and is not survived by a spouse or by descendants, the estate passes in which order?
Parents, descendants of parents, grandparents, descendants of grandparents, nearest kin.
88
May half-bloods inherit from their parent and their step-parent?
Yes. Half relations inherit the same as those related by the whole blood.
89
May a stepchild who has not been adopted by the step-parent inherit from that step-parent?
No, because she has not been adopted. Stepchildren and foster children have no inheritance rights, no matter how close the relationship. The only exception is when the stepparent or foster parent gains custody of the child under an agreement with the natural parent that he will adopt the child.
90
A will provision that expressly disinherits an heir is ineffective if the testator dies ________________.
partially intestate.
91
If one of two joint tenants kills the other, how is title to the property held?
The killer and the victim’s estate each own one-half of the property as tenants in common. One who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim.
92
Must attesting witnesses sign the testator's will in the presence of each other?
Not in most states. They only need to sign in the presence of the testator.
93
Must attesting witnesses sign a testator's will in the presence of a notary?
Never. This is simply an option in lieu of witnesses.
94
Ademption —
where property that was conveyed to someone is later disposed of by the testator prior to the testator's death.
95
What is the test for determining whether property conveyed to another and subsequently disposed of is adeemed?
In determining whether property conveyed to someone and later disposed of prior to the death of the testator is adeemed is *whether the property was in the decedent's estate at the time of their death.* If the item is not in the estate, the bequest is adeemed.
96
Is there an exception to the ademption rule?
Yes: There is an exception to the ademption rule if the specifically devised property is sold by a guardian or a conservator. In that case, the devisee is entitled to a general pecuniary legacy equal to the amount of the proceeds.
97
What are the requirements for validly adding a legacy or codicil to a will?
The requirements are the same for the addition of a legacy or codicil as for a will.
98
If one of the attesting witnesses to a will cannot be located, what can be introduced in its place to attest to the validity of a will?
A self-proving affidavit.
99
Doctrine of Integration —
similar to the doctrine of incorporation by reference, the doctrine of integration requires 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.
100
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. The doctrine has been used with regard to acts of the testator as well as to acts of third persons.
101
General Power of Appointment —
a power exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate.
102
Special Power of Appointment —
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.
103
Presently Exercisable Power of Appointment —
a power that is exercisable by the donee during her lifetime. A presently exercisable power is also exercisable by the donee’s will unless the donor expressly limited its exercise to the donee’s lifetime.
104
Testamentary Power of Appointment —
a power 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.
105
Why can't property held by one joint tenant be disposed of by will?
Because joint tenants have rights of survivorship, which makes the other joint tenant the automatic holder of the property. This is an example of a non-probate asset, i.e. something that passes outside of a will.
106
Why can't property held by a decedent and his spouse as property in the entirety be disposed of in a will?
This is also a non-probate asset. Property held as tenants in the entirety automatically passes to the other spouse, i.e. outside probate.
107
What kinds of provisions are revoked as a result of divorce? What kinds of provisions are not?
Will bequests, revocable trusts, and fiduciary appointments; non-probate assets like insurance policies.
108
If the testator executes a will and subsequently executes a second will that does not expressly revoke the first will, which will controls?
The second will controls and impliedly revokes the first will to the extent of any inconsistent provisions.
109
When does the doctrine of ademption apply?
Where the decedent makes a specific bequest of property to someone and the piece of property is not in the estate at the time of death. Ademption does not apply to general or demonstrative conveyances.
110
Is someone precluded from inheriting a decedent's property if they killed the person from whom the decedent inherited their property?
No. The slayer rule only applies where the slayer killed the decedent whose estate is in issue. A person could killed the husband of the decedent, causing all the husbands property to go to the decedent, and the killer could still inherit all of it.
111
Can you republish a will which was never properly executed?
No. A will cannot be initially published by a codicil wishing to amend it. To amend a will, the will must have first been properly executed. Only after it is properly executed can it be revoked, republished, amended, etc.
