Wills Flashcards
(238 cards)
1
Q
When may property pass through intestate succession?
A
- The decedent dies without having made a will,
- A decedent’s will is denied probate, or
- A decedent’s will does not dispose of all of his property, either because a gift failed or because the will contains no residuary clause.
2
Q
In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes how much?
A
Either one-third or one-half
3
Q
In states adopting the Uniform Probate Code, if the decedent leaves descendants, all of whom are the surviving spouses’ descendants, as well as a surviving spouse, the spouse takes how much?
A
The entire estate
4
Q
In most states, if no descendants survive, but the decedent is survived by a spouse, the surviving spouse will take how much of the estate?
A
The entire estate.
5
Q
In a UPC state, if the decedent leaves behind no descendants, when will a surviving spouse take the entire estate?
A
Only if the decedent is not survived by descendants or parents.
6
Q
What is the majority rule for division of property in intestate succession?
A
Per capita with representation.
7
Q
What is the classic/minority rule for division of property in intestate succession?
A
Per stirpes
8
Q
What is the modern trend/UPC for division of property in intestate succession?
A
Per capita at each generational level.
9
Q
How is property divided per capita with representation?
A
Property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation.
10
Q
How is property divided per stirpes?
A
One share passes to each child of the decedent, regardless of whether there are living takers at that level. A deceased child’s descendants take the child’s share by representation.
11
Q
How is property divided per capita at each generational level?
A
Shares are initially distributed amongst the first generational level at which there are living takers, then the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level (persons in the same degree of kinship always take equal shares.)
12
Q
What is the priority of intestate succession?
A
- Passes to spouse and/or descendants,
- If none, then to parents;
- If none, then to descendants of parents (siblings of the decedent);
- If none, then to maternal and/or paternal grandparents or descendants;
- If none, then to nearest kin;
6 If none, then to the state
13
Q
For purposes of intestate succession, are adopted children treated the same as natural children of the adopting parents?
A
Yes.
14
Q
Is there inheritance in either direction between an adopted child and their biological parent?
A
No, except where one biological parent marries an adopting parent or the child is adopted by a close relative.
15
Q
Generally, do stepchildren have inheritance rights?
A
No, unless they are adopted by the stepparent.
16
Q
May a child in gestation at the time of the decedent’s death inherit?
A
Yes
17
Q
When will nonmarital children inherit from their mother?
A
Always.
18
Q
When will nonmarital children inherit from their father?
A
- If the father married the mother after the child’s birth,
- The man was adjudicated to be the father in a paternity suit, or
- after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
19
Q
Does the UPC make a distinction between half bloods and whole bloods?
A
No - they inherit equally.
20
Q
At common law, is a provision in a will expressly disinheriting an heir effective as to any property passing by intestacy?
A
No - must dispose of everything effectively to disinherit an heir.
21
Q
Under the UPC, may a testator exclude the right of an individual to succeed to property passing by intestate succession?
A
Yes - if the person survives the decedent, his intestate shares pass as though he had disclaimed it.
22
Q
Under the Uniform Simultaneous Death Act, when the order of death cannot be established, how is the property of each decedent disposed of?
A
As if he had survived the other.
23
Q
When does the Uniform Simultaneous Death Act apply?
A
Only if there is NO sufficient evidence of surivial - if there is evidence that an heir or beneficiary survived the decedent even by minutes, the USDA does not apply.
24
Q
How do many states and the UPC approach simultaneous deaths?
A
They each require a person survive the decedent by 120 hours in order to take any distribution of the decedent’s property.
25
Will the USDA or 120-hour rule apply if a will or other instrument makes a different provision regarding simultaneous death?
No - will or other instrument will prevail.
26
For a disclaimer to be effective, what must be true?
It must be in writing, irrevocable, and filed within nine months of the decedent's death or he beneficiary's 21st birthday.
27
For disclaimer of a joint tenant's interest, when may a surviving joint tenant disclaim her interest?
Only within nine months from the other joint tenant's death.
28
When may a holder of a future interest disclaim her interest?
Only within nine months after the interest within nine months after the interest was created.
29
When may a disclaimer be made by a guardian on behalf of an infant or incompetent person?
If the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
30
When may a disclaimer be made on behalf of a decedent by a personal representative?
If the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
31
May an interest be disclaimed if the heri or beneficiary has accepted property or any of its benefits?
No.
32
Can a disclaimer be used to defeat creditor's claims?
Yes - the disclaimant has no interest that can be reached by creditors.
33
Can a disclaimer be used to defeat a federal tax lien?
No.
34
What is the effect of a disclaimer of a life estate?
It accelerates the remainder.
35
May a person who feloniously and intentionaly brings about the death of a decedent claim any interest in the decedent's estate?
No - they forfeit their interest.
36
If a person feloniously or intentionally brings about the death of a decedent, how is property passed?
As though the killer predeceased the victim, usually through the operation of a "slayer statute" or by imposition of a constructive trust.
37
How is the felonious or intentional killing of a decedent proved?
By a conviction of murder in any degree, or by a preponderance of the evidence if no conviction before applying this forfeiture rule.
38
What is an advancement?
A lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor's estate.
39
At common law, what is a substantial lifetime gift to one of the decedent's children presumed to be?
An advancement.
40
When does the UPC find an advancement exists?
Only if it is:
1. declared as such in a contemporaneous writing by the donor, or
2. Acknowledged as such in a writing by the heir (which need not be contemporaneous)
41
What is the procedure if a gift is found to be an advancement?
The gift's value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient's share.
42
Must an heir return the amount of an advancement in excess of the value in her intestate share?
No
43
How may a testamentary gift be satisfied?
By an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will if the testator intends to transfer to have that effect.
44
In UPC states, how may a testamentary gift be satisfied?
By an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will if the testator intends to transfer to have that effect
AND
the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in the satisfaction.
45
If a testator gives specifically described property to the beneficiary, there is both a ___________ and __________.
satisfaction; ademption.
46
What is a will?
An instrument executed with certain formalities that usually directs the disposition of a person's property at death.
47
Is a will revocable during the testator's lifetime?
Yes.
48
When does a will become operative?
At the testator's death.
49
What is a codicil?
A supplement to a will that modifies it.
50
Must a testator have present intent that an instrument operate his will?
Yes.
51
Are promises to make a will in the future effective?
No.
52
Parol evidence is admissible to show that an instrument [was/was not] meant to have effect.
Was not (e.g., a sham will)
53
Testamentary intent will only be found if it is shown that the testator:
1. Intended to dispose of the property,
2. intended disposition to occur only upon his death, and
3. Intended that the instrument in question accomplish the disposition.
54
What is a conditional will?
A will that provides it is to be operative only if a stated condition is satisfied.
55
Is parol evidence is not admissible to show that a will absolute on its face was intended to be conditional?
No.
56
What must be true for a testator to have testamentary capacity?
(1) 18 years of age and (2) of sound mind at the time he makes the will (must understand (a) the nature of her act, (b) the nature and extent of her property, (c) who are natural objects of her bounty, and (d) be able to formulate an orderly scheme of disposition.)
57
What are the formal requirements of due execution of a will?
1. The will or codicil is signed by the testator (or another at the testator's direction in her presence)
2. Two attesting witnesses,
3. Testator signs the will (or acknowledges a previous signature or acknowledge the will) in each of the witness's presence,
4. The witnesses sign in the testator's presence.
SOME STATES ALSO REQUIRE:
5. The testator sign at the END of the will,
6. The testator must publish the will, and
7. The witnesses must sign in the presence of each other.
58
What qualifies as a testator's signature?
any mark affixed by the testator with the intent that it operate as her signature.
59
If a proxy signer signs his own name as well, may he be counted as an attesting witness?
Yes.
60
What is the majority test used to determine if a person is in another's presence?
The "conscious presence" test.
61
What is the conscious presence test?
The presence requirement for executing a will is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.
62
What is the minority test used to determine if a person is in another's presence?
"scope of vision test" which requires the person was in such close proximity that he could have seen the signing had he looked.
63
Most states require that the will be attested by two __________ witnesses.
competent
64
Who is a competent witness?
A person that, at the time the will is executed, is mature enough and of sufficient mental capacity that she could testify in court on these matters.
65
Is a will still valid if a witness who is still a beneficiary is one of the two witnesses?
Yes, but the bequest to the interested witness may be void unless she is supernumerary (there are at least two other witnesses) or would have taken a share if the will had not been probated.
66
What is an attestation clause?
It recites that all the elements of the due execution were performed and is sworn to by the testator and witness before a notary.
67
What is a self-proving affidavit?
An affidavit that recites that all the elements of due execution were performed and is sworn by the testator and witnesses before a notary.
68
May signatures on a self-proving affidavit serve as the signature on the will itself?
Yes.
69
If a will is not executed in accordance with all of the required statutory formalities, what kind of error does the UPC give the court the authority to ignore?
harmless error.
70
What is a holographic will?
A will that is entirely in the testator's handwriting and has no attesting witnesses.
71
Must a holographic will contain the testator's signature?
Yes.
72
Do most states that recognize holographic wills give effect to handwritten changes made by the testator after the will is completed?
Yes.
73
Does the UPC recognize oral wills?
No
74
Do most states recognize oral wills?
No
75
In states that allow oral wills, what kind of property may they be used to dispose of?
ONLY personal property made by soldiers or sailors (some states requiring an armed conflict in progress) OR any person during his last sickness or in contemplation of immediate death AND there must be two witnesses
76
The validity and effect of a will with respect to real property are determined by the law of which state?
Where the property is located.
77
The validity and effect of a will concerning personal property is determined by the law of which state?
The testator's domicile at the time of death.
78
Under the law of many states and the UPC, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with which law?
1. That jurisdiction,
2. The state where the will was executed,
3. The testator's domicile at the time of the will's execution, or
4. The testator's domicile at the time of death.
79
In most states, to whom does an attorney owe a duty?
To the client AND the intended beneficiaries of the attorney's services.
80
Who can sue an attorney for negligence?
The client and the intended beneificiaries of the attorney's services.
81
May an intended beneficiary of a will sue an attorney for negligent preparation or execution for a will?
Yes.
82
What raises a presumption that pages were present and intended to be part of the will when it was executed?
Physical attachment, internal coherence of pages, or an orderly dispositional plan.
83
May proof of integration be proved by extrinsic evidence?
Yes.
84
Under the doctrine of republication by codicil, a will is treated as having been executed on what date?
On the date of the last codicil.
85
What may be generally viewed as impliedly incorporating a defective will by reference, thus validating the will?
A validly executed codicil.
86
How may a document be incorporated by reference into a will?
If the document is
1. In existence at the time of the execution*,
2. it is sufficiently described in the will, and
3. The will manifests an intent to incorporate the document.
*Many states and the UPC carve out an exception and allow a testator to refer in her will a list specifying the distribution of items of tangible property and to write or alter that list after executing the will.
87
May a will dispose of property by reference to acts and events, even though they are in the future and unattested?
Yes, if they have significance apart from their effect on dispositions made by the will.
EXAMPLE: A bequest to "each person in my employ at the time of my death" is a valid because it is assumed that a testator would not make employment decisions solely for the purpose of disposing of her property.
88
May a testator make a bequest or devise to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of the will?
Yes, in states that have adopted the Uniform Testamentary Additions to Trusts Act. (most states have adopted)
89
What is a power of appointment?
An authority granted to a person which enables that person (done) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
90
What is a general power of appointment?
An appointment exercisable in favor of the donee himself, his estate, his creditors, or the creditors of his estate.
91
What is a special power of appointment?
An appointment exercisable in favor of a limited class of appointees, which does not include the donee, his estate, his creditors, or the creditors of his estate.
92
What is a presently exercisable power of appointment?
An appointment exercisable by the donee during her lifetime.
93
What is a testamentary power of appointment?
A power exercisable only by the donee's will.
94
Does a surviving spouse's elective share apply to property over which the deceased spouse held a power of appointment?
No.
95
May creditors reach appointative assets?
Generally no.
96
Does a residuary clause exercise testamentary power?
By itself, no
97
In states that have enacted the Revised Uniform Probate code, a will's residuary clause exercises a ________ power of appointment
general (unless the donor's will called for its exercise by a specific reference to the power or provides for a gift in default tof appointment.)
98
Is a "blanket" execise of power of appointment permissible?
Yes, unless the creator of the power called for the power's exercise by an instrupment that specifically referred to the power.
99
Courts will find that a power of appointment was exercised by implication when the donee purports to disose of property subject to the power as though what?
it were her own, meaning the disposition can be given effect only if it is treated as an exercise of power.
100
Absent a contrary provision in the instrument creating a power, what may the donee do?
1. Appoint the property outright or in trust (and can include spendthrift provisions in the trust);
2. create life estates and future interests,
3. Impose conditions and limitations on the interests created, and
4. create additional powers of appointment.
101
May a donee of a testamentary power of appointment contract to make an appointment?
No - such a contract is invalid.
102
May a will make a gift of nonprobate assets (including life insurance and similar death benefits)?
No - these pass according to terms of the particular arrangement.
103
May a person with testamentary capacity revoke a will?
Yes, at any time prior to death.
104
If a testator has contractually agreed not to revoke a will, may he do so?
Yes, but the beneficiaries may bring a breach of contract action against the estate.
105
Does marriage following the execution of a will have any effect on an earlier will in most states
No.
106
Under the UPC, a new spouse (married after a prior will has been executed) will take an intestate share as an "omitted spouse," unless what?
1. the will makes provision for the new spouse,
2. The omission was intentional, or
3. The will was made in the contemplation of marriage
107
What is the effect of a divorce or annulment following the execution of a will?
In most states, it revokes all gifts and fiduciary appointments in favor of the spouse (read as if the spouse predeceased the testator).
The UPC extends the application of the rule to provisions in favor of the former spouse's relatives who are not relatives of the testator.
108
What is a pretermitted child statute?
If a testator fails to provide in his will for any child born or adopted after the execution of the will, the child takes an intestate share (this usually comes out of the residue)
109
If a subsequent testamentary instrument does not expressly revoke an earlier will, what is the result?
The two are read together with the later instrument revoking the earlier only to the extent of inconsistent provisions.
110
A will or codicil can be revoked by ________________ with the ________ to revoke.
physical act; intent to revoke.
| physical act such as burning, tearing, canceling, or obliterating a material portion of the will
111
Will an accidental destruction of a will revoke it?
No - intent to revoke must be present at the time of the physical act.
112
Is partial revocation by a physical act authorized?
In most states, yes.
113
Is extrinsic evidence admissible to determine whether a partial or total revocation was intended?
Yes.
114
If a will last seen in the testator's possession or under his control cannot be found after his death or is found in a mutilated condition, what is the result?
A rebuttable presumption arises that the testator revoked it.
115
Does the revocation of a will revoke a codicil?
Yes.
116
Does the revocation of a codicil revoke the entire will?
No.
117
When a will has been executed in duplicate, an act of revocation done to which copy will revoke the will?
Either copy.
118
Does destruction of an unexecuted copy of a will revoke the will?
No.
119
If a will is lost or destroyed, it may be admitted to probate if what can be proven?
1. valid execution,
2. The cause of nonproduction, and
3. The contents of the will
120
Under the UPC, if a will that wholly revoked a previous will is thereafter revoked, what is the result?
The previous will remains revoked unless it is evident from the circumstances or the testator's statements that the testator intended to revive the preivous will.
121
When does the doctrine of dependent relative revocation apply?
When a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will.
122
When is the doctrine of dependent relative revocation applied?
Only if it comes closer to what the testator tried (but failed) to do than would an intestate distribution.
123
To invoke the UPC's harmless error statute, what must the proponent prove?
Must prove by clear and convincing evidence that the decedent intended the document to be a partial or complete revocation of a will or an alteration of the will.
124
Is a contract to make, not to make, or not to revoke a will valid?
Yes.
125
What law governs contracts to make, not make, or not revoke a will?
Contract, not wills, law
126
Is there a remedy for breach of contract to make, not make, or not revoke a will during a testator's lifetime?
Generally no, unless the testator repudiates the contract after substantial performance by the promisee, and the promisee may seek damages, quantum meruit, or equitable relief.
127
What is the usual remedy if a testator dies in breach?
constructive trust for the benefit of the promisee.
128
What are mutual wills?
Separate wills executed by two or more testators that contain substantially similar provisions.
129
What is a joint will?
A single instrument executed by two or more testators and intended to be the will of each.
130
Are joint and mutual wills revocable at any time prior to death?
Yes
131
Does the mere execution of joint or mutual wills raise a presumption that the wills were executed pursuant to a promise by each party not to revoke?
No
132
When does a gift lapse?
When a beneficiary predeceases the testator.
133
What is an anti-lapse statute?
statutes that operate to save a gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator.
The descendants will take by substitution.
134
If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator, what do most states allow the surviving residuary beneficiaries to do?
divide the share in proportion to their interest in the residue.
(Allow residue of a residue, contrary to common law)
135
If a will makes a gift to a class, which class members may take at the testator's death?
Only the class members who survive the testator, unless the will provides otherwise or the anti-lapse requirements are met.
136
If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is ________.
void.
137
What is a specific devise or legacy?
A gift of a particular item of property distinct from all other objects in the testator's estate.
138
What is a general legacy?
A gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment.
*May be general legacies if the testator never owned those items and intended the executor to purchase them for the beneficiary (e.g., "100 acres in Smith County")
139
What is a demonstrative legacy?
A gift of a general amount that is to be paid from a particular source or fund.
140
What is the residuary estate?
Gift of the balance of the testator's property after paying debts, expenses, taxes, and specific, general, and demonstrative gifts.
141
What is an ademption?
Refers to the failure of a gift because the property is no longer in the testator's estate at the time of her death.
142
Ademption only applies to ________ devises and bequests.
specific
143
If specifically bequeathed property is not in the testator's estate at death, the bequest is ____________ and the beneficiary takes ___________.
adeemed; nothing.
144
If a gift is partially adeemed, what may the beneficiary take?
The remaining portion of the gift.
145
Does ademption apply to general or demonstrative legacies?
No.
146
Income on property goes to __________________, but improvements to real property go to ____________________.
the general estate; the specific devisee.
147
Any increase to a specific gift occurring after the testator's death passes to whom?
The specific beneficiary.
148
True or falafel: At common law, a specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend.
True
| but the UPC and nearly all states now also include stock dividends.
149
May a spouse elect to take a statutory share of the decedent's estate in lieu of taking under the decedent's will?
Yes, in nearly all states.
150
How is the spouse's statutory share calculated?
Usually based on the debtor's net estate (probate minus expenses and creditors' claims)
151
If a surviving spouse elects to take a statutory share of the decedent's estate, what must he or she do?
File a notice of election within a specified time period (usually six months from admission of the will to probate)
152
Are lifetime transfers by the decedent subject to the elective share of a surviving spouse?
Yes, if the decedent retained the power to revoke or to invade, consume, or dispose of the principal.
153
May a testator disinherit children?
Yes
154
Who does a pretermitted child statute protect?
Accidentally omitted children.
155
Under a pretermitted child statute, a child born or adopted after a will is executed takes an intestate share of the decendant's estate unless what?
1. it appears from the will that the omission was intentional,
2. Testator had other children at the time the will was executed and devised substantially all of her estate to the other parent of the omitted child, or
3. The testator provided for the omitted child by a transfer outside of the will in lieu of a testamentary gift.
156
Under the UPC, if a testator had other children at the time the will was executed and the will makes a provision for one or more of the children, the portion of the estate to which the pretermitted child is entitled is limited to what?
The provisions made to the other children.
157
Will republication of a will by codicil result in a change in a child's status with respect to pretermission?
Yes - a child born before the republication is not considered a pretermitted child and is not entitled to protection of the statute.
158
If a testator fails to provide in her will for a living child solely because she mistakenly believed the child to be dead, will the child share in the estate?
Yes, as though he were an omitted afterborn or after-adopted child.
159
Statutes that protect family residence or farm from creditors provide that decedent's spouse or dependent children may do what?
occupy the homestead for as long as they choose despite the disposition fo the residence in the decedent's will.
160
What is family allowance?
provides support during probate administration and takes precedence over all claims other than funeral and administration expenses.
161
Is family allowance taken from an amount passing by will, intestacy, or elective share?
No - it is in addition to this amount.
162
A surviving spouse is usually entitled to petition to set aside certain items of __________ __________ property as exempt from claims against the estate, except for perfected security interests on the items themselves.
tangible personal
163
Are exempt personal property in addition to the amounts passing by will, intestacy, or elective share?
Yes.
164
What does a will contest challenge?
The validity of a document offered for probate.
165
What are grounds for challenge of a will?
1. defective execution,
2. revocation,
3. lack of testamentary capacity,
4. lack of testamentary intent,
5. Undue influence,
6. Fraud,
7. Mistake
166
In most states, when must a will contest be filed?
Within 6 months after the will is admitted to probate.
167
Who may contest a will?
Only interested parties have standing - those whose interests would be adversely affected by the admission of the will.
168
Are creditors, executors, or testamentary trustees interested parties who have standing to contest a will?
No.
169
Who is entited to notice of a will contest?
All legatees under the will and all intestate heirs (they are all necessary parties)
170
Who holds the burden of proof in a will contest?
The contestant
171
When is testamentary capacity determined?
At the execution of the will.
172
Does the fact that a testator had physical ailments (e.g., old, ill, possessed a failing memory) or suffered from drug or alcohol additiction mean she lacked testamentary capacity?
No
173
Is an adjudication of insanity or an appointment of a guardian or conservator conclusive of a testator's lack of capacity?
No, but it is evidence.
174
What is the result of a testator suffering in an insane delusion?
It may invalidate an entire will or only a particular gift - It will set aside only to the extent that the delusion caused the testamentary disposition.
175
What must a contestant to a will prove to establish undue influence?
1. influence was exerted,
2. the effect of the influence was to overpower the mind and free will of the testator,
3. the resulting testamentary disposition would not have been executed but for the influence.
176
Is circumstantial evidence sufficient to prove undue influence
No
177
When will a presumption of undue influence arise?
1. There was a confidential relationship between the testator and a beneficiary (i.e., the testator placed an unusual amount of confidence in the beneficiary and relied on the beneficiary), AND
2. that beneficiary was active in procuring, drafting, or executing the will
Some states require the provisions of the will appear to be unnatural and favor the person who exercised the undue influence.
178
If a presumption of the undue influence exists, the burden of proof shifts to the _____________.
proponent.
179
No automatic presumption between spouses will arise even though they share a confidential relationship, unless...
The spouse exerted influence over the testator in such a manner that it (1) overpowered the free will of the testator and (2) resulted in a disposition reflecting the desires of the spouse exerting the influence.
180
What must be shown to contest a will on the grounds of fraud?
The testator was willfully deceived as to
1. the character or content of the instrument,
2. extrinsic facts that would induce the will or a particular disposition, or
3. Facts material to a disposition.
181
What is the result if a testator is fraudulently prevented from making a will?
Some courts will impose a constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made.
182
Is extrinsic evidence is admissible to show that a testator did not know that the instrument he was signing was a will?
Yes.
183
If a mistakenly signs a will, what is the result?
Some courts will deny relief, but the "better view" is that the court will grant relief where the nature of the mistake is obvious.
184
If a mistake involves the reasons a testator made his will a particular way, and the mistake was not fraudulently induced, will the court normally grant relief?
No
185
Is extrinsic evidence admissible to show that a provision was omitted or is incorrect?
No.
186
Is evidence of mistake admissible to contradict the plain, unambiguous language of a will?
No - Plain Meaning Rule
187
What is latent ambiguity?
A will's language is clear on its face but results in a misdescription when applied.
188
What is patent ambiguity?
When the uncertainty appears on the face of the will
189
Is extrinsic evidence admissible to cure latent ambiguities in a will?
Yes, because it does not have the effect of rewriting a will.
190
Under the majority view, is extrinsic evidence admissible to cure patent ambiguities?
No (this is also the traditional view)
191
Under the modern view, is extrinsic evidence admissible to cure patent ambiguities?
Yes (better view)
192
Under the UPC, may a court reform a will to conform to the testator's intent, even if the will is unambiguous?
Yes, if proven by clear and convincing evidence that the testator's intent and the terms of the will were affected by mistake of fact or law.
193
Under the UPC, is a clause in a will providing that a beneficiary forfeits her interest in the estate if she contests the will valid?
Yes.
194
Under the UPC, when will a clause in a will providing that a beneficiary forfeits her interest in the estate if she contests the will be enforced?
Always, unless the beneficiary had probable cause for bringing the contest.
In some states, a no-contest clause will be given full effect, regardless of whether there was probable cause for challenging the will.
195
Are suits objecting to the court's jurisdiction, challenging the appointment of an executor, or asking the court to construe the will contests for the purpose of a no-contest clause?
No.
196
Who is a personal representative in the context of a will?
A person appointed to carry out the estate administration.
197
If a personal representative is named in the will, what are they?
An executor.
198
If a personal representative is not named in the will, what are they?
An administrator.
199
Must a personal representative file a bond?
Yes, unless the testator has provided in his will that no bond is required.
200
What are the primary functions of a personal representative?
1. give notice to devisees, heirs, and claimants against the estate,
2. Discover and collect the decedent's assets and file an inventory,
3. Manage the assets of the estate during administration,
4. Pay expenses of administration, claims against the estate, and taxes, and
5. Distribute property.
201
Does a personal representative serve in a fiduciary capacity?
Yes.
202
Is a personal representative entitled to compensation for his services?
Yes - governed by statute, or if no statute, court has discretion to award reasonable compensation
203
May a testator provide compensation for the personal representative by means of a gift in a will?
Yes.
204
May the court deny compensation to a personal representative?
Yes, if the personal representative engages in dishonest or fraudulent conduct or has neglected his duties.
205
What order are claims generally paid?
1. administration expenses,
2. funeral expenses and expenses of the last illness,
3. family allowance,
4. debts given preference under federal law,
5. secured claims,
6. judgments entered against the decedent during his lifetime, and
7. all other claims.
206
What is abatement?
The process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequest and devises.
207
If a testator does not set out an order of abatement, what order will estates generally abate?
1. property passing by intestacy,
2. the residuary estate,
3. general legacies, and
4. specific bequest and devises.
208
Under the UPC, are liens on specifically devised property exonerated?
No, unless the will so directs
209
When will extrinsic evidence be admissible to explain an ambiguous will provision?
If the court is unable to find the testator's intent within the four corners of the will.
210
When the testator's own declarations admissible to explain ambiguous provisions?
When a description of a beneficiary or property describes more than one person or more than one item of property.
211
When there is no evidence of a testator's intent, what rules will the court resort to for construction?
1. Favor those who would take intestate,
2. Favor the construction that avoids intestacy,
3. Favor the construction that is consistent with the perceived "plan" of disposition,
4. Every portion of the will should be given effect, if possible
5. Between totally inconsistent clauses, the latter is most likely the final intent.
212
Will substitutes include what?
Life insurance, joint tenancies, tenancies by the entirety, inter vivos trusts, bank account trusts, deeds contracts, and inter vivos gifts, including gifts causa mortis.
213
Will substitutes may enable individuals to avoid _________ and __________ the cost and inconvenience of probate.
taxes; eliminate
214
What is the widely used will substitute?
Life insurance.
215
What is a Totten trust?
A deposit of money in a bank account in trust for another person.
216
Who retains complete control over a Totten trust during her lifetime?
The depositor - transfer is complete only after death
217
Is a joint bank account effective to give the survivor the absolute right to all the money in the account?
Generally yes,
218
When is a joint bank account ineffective to give the survivor an absolute right to all of the money in the account?
Under the UPC, creditors can reach the money to the extent that the decedent deposited the money into the account if the other estate assets are insufficient to satisfy their claims.
Under the common law, creditors can reach the joint account if it was opened for the decedents convenience and no survivorship feature was intended.
219
Are payable on death designations on bank accounts effective?
Generally no, but some states uphold them by statute.
220
Can a deed deposited in escrow with delivery conditions upon the grantor's death a valid nontestamentary transfer?
Yes.
221
If a deed, which by its terms is effective only upon the grantor's death, has actually been delivered to the grantee, may the court sustain the transfer as nontestamentary?
Yes, by construing the deed as a present transfer of a future interest, subject to a life estate in the grantor.
222
How may a contract that purports to dispose of property upon death be enforceable?
If it complies with the formalities required for a will (testamentary in nature)
223
What does a living will state?
An individual's desires regarding
1. whether to administer, withhold, or withdraw life-sustaining procedures,
2. whether to provide, withhold, or withdraw artificial nutrition or hydration, and
3. whether to provide treatment to alleviate pain.
224
What does a durable healthcare power do?
Appoints an agent to make healthcare ecisions on behalf of the principal.
225
When does a durable healthcare power become effective?
When the principal becomes incapacitated.
226
What do most states require of living wills?
1. In writing,
2. Signed by the testator (or principal or another at his discretion),
3. Witnessed by two adult witnesses.
227
What do most states require of durable healthcare powers?
Same as required for living wills:
1. In writing,
2. Signed by the testator (or principal or another at his discretion),
3. Witnessed by two adult witnesses.
228
May a person designated as an agent serve as a necessary witness to a living will?
No
229
Does the Uniform Health Care Decisions Act require witnesses for a durable healthcare power?
No.
230
Who bears the burden of proof regarding the capacity of the testator or principal of a living will or durable healthcare power?
The challenger (capacity is presumed)
231
If a healthcare power is not properly witnessed, who may nonetheless have authority to act as a surrogate decisionmaker?
A close family member under a state's "family consent" statute.
232
When may a living will be revoked?
At any time by (1) obliterating, burning, tearing, or destroying the will, (2) a written revocation of the will, or (3) an oral expression of intent to revoke the will.
233
How may a durable healthcare be revoked?
By notifying either the agent or the principal's healthcare provider, and it may be either oral or written.
234
A principal may appoint as agent under the Durable healthcare power anyone except who?
An owner, operator, or employee of a healthcare facility in which the principal is receiving care, unless that individual is related to the person.
235
What authority does an agent have under the durable healthcare power?
Authority to make any healthcare decisions on the principal's behalf that the principal could have made for himself while having capacity.
236
Who has discretion over the authority of an agent under the durable healthcare power?
The principal - must be stated in the instrument creating the durable healthcare power.
237
If specific powers are not expressed or stated in the instrument creating a durable healthcare power, how must the agent act?
In the best interest of the principal.
238
If an agent acted in ______________, she is not subject to civil or criminal liability or to discipline for unprofessional conduct relating to healthcare decisions provided.
good faith.
