Wills

Question 1

Attested Will

Answer 1

Shall be in writing, signed, and

Be witnessed by at least two persons

Question 2

Be witnessed by at least two persons Will

Answer 2

The traditional rule said the witness and testator must observe or have the opportunity to observe the signing of the will (i.e. in the same room).

Question 3

CL Interested Witnesses

Answer 3

At CL, an interested witness was not competent to witness a will.

Question 4

Substantial Compliance Minority Wills

Answer 4

Establish by clear & convincing evid

Testator intended to constitute testator’s will

Question 5

Holographic Will

Answer 5

Signature & material provisions in
Handwriting of testator if shows
Testator’s testamentary intent

Question 6

Pour Over Will

Answer 6

Regular will leaves residuary to trust
Must be in existence at time will is made
Must be identified in will and
Trust may be modified in future

Question 7

Capacity Challenge Will

Answer 7

Must be 18 years and not have mental deficiency

Mental Capacity or Insane Delusion

Question 8

Mental Capacity Will

Answer 8

Must know will was testamentary act
Extent of her property, and
Extent of beneficiaries

Question 9

Insane Delusion Will

Answer 9

Belief in things possible, but improbable 
Under surrounding circumstances
Such that no man of sound mind could 
Give them credence or a 
Belief in impossible things

Must be in reference to testator’s property or
Testator’s relatives such that
Causes particular disposition or
Prevents disposition in will

Question 10

Undue Influence Will

Answer 10

Mental, moral, or physical exertion which
Destroyed free agency of testator by
Preventing testator from following dictates and
Accepting instead domination and influence

Question 11

Trad Test Undue Influence Will

Answer 11

Susceptibility, motive, opportunity, and causation

Question 12

Fraud in Execution Will

Answer 12

Testator does not know he is signing will
Must be shown party knowingly made
False statement of material fact, with
Intent to deceive where testator relied

Question 13

Fraud In Inducement

Answer 13

Party tells testator facts that influence 
Testator in executing his will
Must be shown party knowingly made
False statement of material fact, with 
Intent to deceive where testator relied

Question 14

Fraud Presumption Will

Answer 14

Presumed when donative transfer is made to
Person who drafted it
Someone in fiduciary relationship transcribed or
Caused to be transcribed
Care custodian during services or within 90 days
Overcome by clear & convincing evid

Question 15

Exception of Fraud Presumption Will

Answer 15

Blood relative
Transfer less than $5,000
Independent attorney reviews instrument

Question 16

Integration Will

Answer 16

If present at time of execution and
Testator intended them to be part of will
Extrinsic evidence allowed to show intent

Question 17

Codicil

Answer 17

Amendment to existing will

Must meet same formalities as will

Question 18

Incorporation by Reference

Answer 18

Writing in existence when will is executed
May be incorporated by reference if
Language of will manifests intent and
Describes writing sufficiently to identify

Question 19

Facts of Independent Significance

Answer 19

May be disposed of based upon event,
Fact or act outside of will that cannot
Change disposition of will

Question 20

Types of Revocation

Answer 20

Instrument
Physical Act
Operation of Law

Question 21

Revocation By Instrument

Answer 21

Subsequent will revokes prior will

Question 22

Revocation By Physical Act

Answer 22

Testator must perform physical act
To will w/ intent to revoke and
For purpose to revoke

Question 23

Revocation Of Codicil

Answer 23

Leaves remaining will valid, but 
Revocation of will revokes will and codicils
Republication
Operates as republication of will 
As of date on codicil

Question 24

Revocation Of Duplicates

Answer 24

Revoked if one duplicate is destroyed, torn,
Burned, cancelled, or obliterated
W/ intent to revoke it

Question 25

Revocation By Operation of Law

Answer 25

To accommodate unintentionally omitted Spouse or child or domestic partner, or To remove all devices to previous Spouse/domestic partner after dissolution

Question 26

Will Can’t Be Found

Answer 26

Presumed to be revoked

Question 27

Dependent Relevant Revocation DRR

Answer 27

``` Equitable doctrine that disregards Testator’s last revocation if court Finds act of revocation based on Mistake of law or fact, and Revocation would not have occurred But for testator’s mistaken belief that Another disposition of property was valid ```

Question 28

Exception to DRR

Answer 28

If amount of second, failed gift Less than first, beneficiary takes Nothing and it goes to residuary

Question 29

Revival of Will/Trust

Answer 29

``` If second will that would have Revoked first will is thereby revoked First will stays revoked unless Evident from circumstances of revocation Testator intended first will to take effect ``` ``` If second will that would have Revoked first will is thereby revoked By third will First will stays revoked unless Terms of third will show intention For first will to take effect ```

Question 30

Extrinsic Evidence Revival

Answer 30

Permitted when revocation | Performed by physical act

Question 31

Specific Gift

Answer 31

Gift of identifiable property

Question 32

Stock Gift

Answer 32

``` If testator devises stock Owned stock at time of will, and Testator got more stock because of Stock dividend, merger, acquisition, or Drip, then devisee gets stock too ```

Question 33

General Gift

Answer 33

Gift from general assets and | Does not include specific property

Question 34

Demonstrative Gift

Answer 34

General gift that specifies property or | Particular fund gift should be made

Question 35

Residuary

Answer 35

Remainder of estate

Question 36

Ademption

Answer 36

Gives specific gift they no longer own | Beneficiary takes nothing

Question 37

Statutory Exceptions Ademption

Answer 37

If item sold, beneficiary can receive Unpaid money and note If eminent domain, then unpaid money If destroyed, unpaid insurance money If a gift, note & testator forecloses Beneficiary receives prop testator receives

Question 38

Change in Form of Gift

Answer 38

Normally, substantial change in nature of Subject matter will operate as ademption But mere nominal or formal change will not

Question 39

Satisfaction of Gift

Answer 39

Will provides for deduction of lifetime gift Testator or benny declare in writing satisfied or Same property is given during lifetime Then gift will be satisfied

Question 40

Abatement of Gift

Answer 40

``` Will gives away more than estate has Property not covered by will shall be reduced: Residuary gifts General gifts not to relatives General gifts to relatives Specific gifts not to relatives, and Specific gifts to relatives ```

Question 41

Exoneration of Gift

Answer 41

Will gives gift w/ loan attached Loan goes w/ gift unless Appears from will or circumstances Intention otherwise

Question 42

Slayer Statute Will/Trust

Answer 42

Cannot take property from When responsible for death If intentional and felonious CA: killer treated as predeceased

Question 43

Elder Abuse Will/Trust

Answer 43

CA: someone convicted of financial Exploitation, abuse, or neglect of person Under care prohibited from taking

Question 44

Lapse of Gift

Answer 44

If benny dies before testator, | Benny and heirs do not take

Question 45

Anti-Lapse of Gift

Answer 45

If benny related to testator or Testator’s spouse and Dead prior to testator, then Benny heirs take gift

Question 46

Spouse/Partner Omitted

Answer 46

``` Receive intestate share if married After will made unless Intentionally omitted on face of will Provided for outside will w/ intent in lieu Waived right in valid agreement ```

Question 47

Children Omitted

Answer 47

Receive intestate share if born or adopted After will made unless Intentionally omitted on face of will Provided for outside will w/ intent in lieu Had one or more children and devised Substantially all estate to other Parent of omitted child

Question 48

No Contest Clause

Answer 48

``` Benny has 120 days from Date admitted to contest Invalid if Contesting on grounds of forgery Grounds of revocation or Grounds of fraud/undue influence Otherwise, benny contests and wins Ignored but if benny loses, then enforced ```

Question 49

Intestate Shared Kids

Answer 49

When the decedent is survived by descendants who are also descendants of the surviving spouse, AND the surviving spouse has no other descendants, the spouse takes the ENTIRE estate.

Question 50

Intestate Succession Order

Answer 50

The remaining amount of separate property is distributed in the following order: (1) issue, (2) parents, (3) issue of parents, (4) grandparents, (5) issue of grandparents, (6) next of kin, and (7) escheats.

Question 51

Per Capita Taking with Representation

Answer 51

If takers unequal degree | Start w/ first living generation

Question 52

Per Stirpes Taking

Answer 52

If takers unequal degree | Start w/ first generation

Question 53

Intestate Parent-Child

Answer 53

Exists for natural or adopted children

Question 54

Intestate Step Parents

Answer 54

Party may inherit from natural if Biological parent lived w/ child or Biological parent was married to Other biological parent and died before birth And spouse of biological parent adopts child

Question 55

Intestate Intent to Adopt

Answer 55

Relationship began during child’s minority Continued throughout lifetime and Legal barrier prevented adoption

Question 56

120 Hour Rule

Answer 56

Fails to survive by 120 hours Deemed to be predeceased for purposes of intestate succession Survival proved by clear and convincing evid

Question 57

Advancement of Gift

Answer 57

Gives benny prop during lifetime Treated as advancement against share if Decedent stated in writing advancement or Heir stated in writing advancement or Neither used “advancement” but their intent

Question 58

Calculation of Advancement of Gift

Answer 58

Total Estate = Net estate + Advancements (adv) Allocate under intestate succession Amt Heir Takes = Allocation of estate - Adv If negative: Total Estate = Net estate + (adv - excess adv) Allocation under estate (minus those who received excess) Amt Heir Takes without excess adv = alloc of estate- adv

Question 59

Disclaimer of Gift

Answer 59

``` Rejection of interest May disclaim if in writing, signed States who creator of interest is What property person is disclaiming, and Filed w/in reasonable time Cannot disclaim before interest exists ```

Question 60

Contracts Relating to Wills

Answer 60

Will states material provisions of k Express reference in will, Signed writing by decedent, or Clear and convincing evid of agreement

Question 61

UPC Signature

Answer 61

In other states and the UPC, the signature can be located anywhere so long as there was intent BUT anything after the signature will not be given effect.

Question 62

Minority Signature

Answer 62

In some states the signature must be at the bottom of the document.

Question 63

UPC Attested

Answer 63

Witnesses must sign within a reasonable time of the original signature by the testator.

Question 64

Modern Rule Witnesses Presence

Answer 64

Conscious presence requires the witness or testator must be aware the act is being performed, even if they cannot see it.

Question 65

UPC Witnesses Presence Regarding Modern Rule

Answer 65

Only adopts this where the will is signed by another on behalf of the testator.

Question 66

Purge Theory Interested Witnesses

Answer 66

If a witness was interested, the will is still valid. BUT the court will “purge” any gain in excess of what would have been taken under intestate.

Question 67

Exceptions Purge Theory Interested Witnesses

Answer 67

If there are two other disinterested witnesses OR the interested witness would take under intestate AND the amount in the will is less than they would take under intestate.

Question 68

UPC Interested Witnesses

Answer 68

Abolished the interested witness doctrine so look to challenges i.e. duress, fraud.

Question 69

UPC Physical Act Revocation

Answer 69

Only requires the destructive act affect some part of the will.

Question 70

UPC Revival

Answer 70

Requires intent and will not revive automatically.

Question 71

UPC Ademption

Answer 71

If the item is sold, the beneficiary can receive the unpaid money and the note. If eminent domain, then unpaid money. If destroyed, unpaid insurance money. If a gift, note and testator forecloses, then the beneficiary receives property the testator receives.

Question 72

UPC Slayer Statute

Answer 72

Allows the killer’s issue to take if anti-lapse or intestate succession distribution.

Question 73

Spouse Elective Share

Answer 73

A surviving spouse can elect to take a forced share which is equal to 50% of the augmented estate. This includes property acquired before marriage and during marriage.

Question 74

Waiver of Spouse Elective Share

Answer 74

Waiver of elective share is allowed if it is in writing after a fair disclosure of its contents and the spouse is represented by independent legal counsel.

Question 75

Intestate Parent/No Issue

Answer 75

Where the decedent leaves a parent but no descendants, the spouse takes $300,000 plus 75% of the remainder.

Question 76

Intestate Share Kids and Spouse Kids

Answer 76

Where the decedent leaves descendants who are also descendants of the surviving spouse, AND the surviving spouse has other descendants, the spouse takes $225,000 plus ½ of the remainder.

Question 77

Intestate Non-Spouse Issue

Answer 77

Where the decedent has issue not related to the surviving spouse, the surviving spouse takes $150,000 plus ½ of the remainder.

Question 78

Intestate No Parent/No Issue

Answer 78

When the decedent has no surviving issue or parent, the surviving spouse takes the ENTIRE estate.

Question 79

Per Capita UPC

Answer 79

If takers are of unequal degree, you start with the first living generation, split between the living, pool the remaining and then go to the next living generation.

Question 80

Post-Humously Born Children

Answer 80

If a child is conceived before, but born after, the death of the mother’s husband, there is a rebuttable presumption the child is the husband’s child if born within 280 days of the death. Otherwise parentage must be proven.

Question 81

Uniform Parentage Act Post-Humously Born Children

Answer 81

Increase to 300 days.

Question 82

UPC Ademption

Answer 82

Created a presumption against ademption of specific gifts