Wills

Question 1

What is probate?

Answer 1

Court proceeding for determining whether a decedent died either:

• With validly executed will
• Without validly executed will, and thus
  
  • Who his intestate heirs are

Question 2

What’s the difference between an executor and an administrator?

Answer 2

Executor

• Testacy
  
  • Person who a will designates to administer estate

Administrator

• Intestacy
  
  • Person who is assigned to administer that estate when either:
    
    • No will
    • No designation in will

Question 3

What does it mean to be the decedent’s heirs?

Answer 3

Heirs take under intestate succession

Question 4

What does it mean to be the decedent’s descendants?

Answer 4

Descendants take from a decedent in a descending fashion

E.g., children, grandchildren, etc.

Question 5

What does it mean to be a devisee, legatee, or beneficiary?

Answer 5

They take under a valid will, under testate succession

Devisees

• Traditionally take real property

Legatees

• Traditionally take personal property

Beneficiaries

• Generic term encompassing both

Question 6

If an intestate decedent is survived by a spouse and descendants, who takes what?

Answer 6

Are all descendants of the surviving spouse?

• Surviving spouse takes entire estate

Are any descendants of another spouse?

• Surviving spouse takes 1/3
• Decedents take 2/3 equally

Question 7

If an intestate decedent is survived by a spouse but not any descendants, who takes what?

Answer 7

Spouse takes entire estate

Question 8

When is a spouse disqualified from inheritance?

Answer 8

If surviving spouse willfully deserted or abandoned intestate decedent, spouse treated as if pre-deceased

Limitations:

• Desertion must have continued up until death
• Desertion cannot have been for cause - e.g., domestic violence

Question 9

What should also be considered in any situation involving a surviving spouse, whether the decedent left a will or died intestate?

Answer 9

In addition, the surviving spouse (or if no spouse, minor children 17 or younger) is entitled to the following statutory rights, which

• Take precedence of any creditors’ claims
• Are above and beyond amounts passing to surviving spouse by will, intestacy, or elective share: (REFH)
  
  1. Residence
     
     • Only if either:
       
       • Spouse claims elective share
       • Decedent died intestate with descendants from a former marriage
  2. Exempt personal property up to $20,000
     
     • E.g., cars, furnishings, appliances, personal effects, or cash necessary to make up balance
  3. Family allowance up to $24,000
     
     • Only to provide support for one year
  4. Homestead allowance of $20,000
     
     • Only if both:
       
       • Spouse gets less than $25,000 from decedent’s estate (by will or intestacy)
       • Spouse does not claim elective share

Question 10

If an intestate decedent is survived descendants but not a spouse, who takes what?

Answer 10

Takers at the first generational level where someone is living take per capita

Shares of takers at the first generational level who are not living pass to their descendants, who take per stirpes

Question 11

If a decedent is not survived by a spouse or descendants, who takes what?

Answer 11

In the following order:

1. Parents
   
   • 1/2 to each or all to surviving parent
2. Brothers and sisters
   
   • Or their descandants per stirpes
3. Grandparents
   
   • 1/2 to maternal, and their descendants per stirpes
   • 1/2 to paternal, and their descandants per stirpes
4. Laughing heirs
   
   • Remote kin, including kin of last deceased spouse
5. Escheat
   
   • Estate goes to the Commonwealth

Question 12

What is the rule in Virginia regarding half-bloods?

Answer 12

Half-bloods inherit half as much as whole-bloods

• E.g., if decedent has one brother from same parents, and a sister with just one common parent, brother gets 2/3 and sister gets 1/3

But if only half-bloods, all half-bloods take equal shares

Question 13

What is the difference between stranger adoption and stepparent adoption?

Answer 13

Stranger adoption

• Adopted child has no relationship to either parent
• Once finalized:
  
  • Child gets full inheritance rights from adopted parents
  • Child loses all inheritance rights from biological parents

Stepparent adoption

• Adopted child already has relationship to one parent
• Once finalized:
  
  • Child gets full inheritance rights from adopted parent
  • Child retains full inheritance rights from both biological parents

Question 14

Which parents does a non-marital child have inheritance rights from?

Answer 14

Biological mother

• Always full inheritance rights

Biological father

• Only inheritance rights if paternity is proven, by establishing either: (MAC)
  
  • Marriage
    
    • Father married the mother before or after the child’s birth, but that marriage was void
  • Adjudication
    
    • Father was held liable for child’s support, maintenance, and education in filiation proceeding
  • Clear and convincing evidence
    
    • Evidence that father is a (BAD CAT)

Question 15

What satisfies the clear and convincing evidence requirement for paternity?

Answer 15

(BAD CAT)

1. Birth certificate​
   
   • He actually consented to be named the father on the birth certificate
2. Admission​
   
   • He admitted to being the father either before a court or under oath
3. DNA​
   
   • A DNA test established him as father
4. Cohabitation
   
   • He cohabited with the mother during the ten months before child’s birth
5. Allowed to use surname
   
   • He allowed the child to use his name
6. Tax return
   
   • He claimed the child as a dependent on his tax return

Question 16

Under the paternity test, which forms of evidence require a specific procedure?

What is that procedure?

Answer 16

Forms of evidence (D CAT)

• DNA
• Cohabitation
• Allowed to use surname
• Tax return

Procedure

• Must file within one year after man’s death, both:
  
  1. Affidavit asserting paternity
  2. Action to establish paternity

Question 17

What are the limits on survivorship in Virginia?

Answer 17

Under the Uniform Simultaneous Death Act, in order to be a survivor, beneficiary must survive by at least 120 hours/5 days

Note: decedent could provide differently in his will or in any non-probate transfer; this only applies in the absence of that

Question 18

What are advancements?

Explain the process that they trigger

Answer 18

Definition

• Lifetime gifts to descendants that are of significant value from the perspective of the donor’s estate

Presumption

• Lifetime gift is presumed to be advancement if of significant value unless descendant can rebut by proving it was just a gift

Hotchpot

• Any descendant that received an advancement and is taking an INTESTATE (only applies intestate) portion of the grantor’s estate must go into hotchpot - i.e., take the advancement into account

Valuation

• Value of the gift for purposes of hotchpot is the value at the time it was received - not at the donor’s death

Question 19

What is ademption by satisfaction?

What is the rule in Virginia?

Answer 19

Definition

• If a testator provides a request IN A WILL and then makes a lifetime gift to the same person getting the property under the will
• It is presumed that the gift was in satisfaction of what was to be given under the will
• Unless the presumption can be rebutted

Virginia Rule

• There is no ademption by satisfaction of legacies unless:
  
  1. Declared by donor in writing that it satisfies the bequest
  2. Acknowledged by donee in writing that it satisfies bequest
  3. Donor’s will acknowleded that lifetime gifts are in satisfaction of bequests

Question 20

What is disclaimer?

What constitutes a valid disclaimer?

Answer 20

Definition

• When an intestate heir or any will or non-probate beneficiary renounces the interest that they may receive either in whole or in part

Requirements

1. Must be in writing
2. Must be signed
3. Must be delivered to:
   
   • Estate representative (intestate)
   • Trustee (inter vivos trust)
   • Payor (life insurance or IRA)
4. Must meet time limits
   
   • 9 months after either death of decedent or establishment of trust

Question 21

What is Virginia’s slayer statute?

Answer 21

You cannot take any economic benefit by deed, will, intestacy, or non-probate transfer from someone if:

1. Convicted of either:
   
   • Murder of the decedent
   • Voluntary manslaughter of the decedent
2. Found to be a murderer by a preponderance of the evidence in a civil proceeding

But your descendants are treated as of claiming from the decedent, and not through the slayer

Question 22

What are the different types of will that Virginia recognizes?

Answer 22

1. Witnessed
2. Holographic
3. Nuncupative (for soldiers and sailors)

Question 23

When did Virginia adopt the UPC’s harmless error statute?

What does it do?

What does it not do?

Answer 23

Application

• Only applies if:
  
  1. Decedent died on or after July 1, 2007
  2. Proponent brings petition within one year of death
  3. All interested parties are made party to proceedings

What it does

• A document will be an effective will even if it does not comply with Virginia’s statutes if:
• The proponent of the will
• Can establish by clear and convincing evidence
• That the document was either:
  
  1. Testator’s will
  2. Partial or complete revocation of a will
  3. Codicil or modification of a will
  4. Partial or complete revival of a revoked will

What it does not do

• Does not excuse compliance with signature requirements unless:
  
  • Two people mistakenly signed eachother’s names
  • A person signs a self-proving affidavit and not the will itself

Question 24

What are the requirements for a witnessed will?

Answer 24

1. Age
   
   • Testator must be 18 years old unless emancipated
     
     • Can be excused by harmless error statute
2. Signature
   
   • Testator must sign the will or have a proxy sign
     
     • CANNOT be excused by harmless error statute
3. Presence
   
   • Witnesses must be present together when testator signs
     
     • Can be excused by harmless error statute
4. Number of witnesses
   
   • Must have at least two witnesses
     
     • Can be excused by harmless error statute

Question 25

In Virginia, what are the implications if a witness to a will is interested?

Answer 25

Virginia does not imposes any restrictions on interested witnesses

Question 26

What are codicils?

Answer 26

Additions to an earlier will, which must be executed with same formalities as underlying witnessed or holographic will

Question 27

What happens if the witness to a will does not know she is signing a will - e.g., she thinks she is notarizing power of attorney?

Answer 27

As long as the witness is giving legal effect to the document with her signature, it does not matter whether she knows it’s a will

Question 28

What are the requirements for a holographic will?

Answer 28

1. Handwritten
2. Wholly in testator’s handwriting
   
   • As proven by at least 2 disinterested persons
3. Signed by testator
4. Including death talk - i.e., indication that it is intended to be a will

Question 29

What is necessary to meet the signature requirement for a holographic will?

Answer 29

Must demonstrate the finality of the instrument, so probably needs to either:

• Have name at the end of the will
• Have a statement of finality, such as:
  
  • “This is my last will and testament.”

If not, maybe a chance that the harmless error statute could apply if clear and convincing evidence of intent, because there is at least some sort of a signature here - but unlikely

Question 30

If a testator sends a letter to his attorney including a list of things to add to the will, what is the effect?

Answer 30

Not a valid codicil because not a final act - attorney must actually make changes and have the testator execute

Question 31

What is interpartes probate?

Answer 31

Rare situation in which there is a full judicial proceeding with notice to all interested parties to decide whether there is a valid will

Question 32

How can a will be self-proved?

What is the result?

Answer 32

If at the time of execution or afterwards, the following formalities are met:

1. Testator acknowledges the will
2. Witness acknowledges the will
3. Before a notary public

This demonstrates that the will is not lacking in any formalities, assuming that the proper formalities were acknowledged in the affidavit, so it cannot be challenged as lacking in probate

Question 33

What is the statute of limitations for challenging a will decision?

Answer 33

6 months after will admitted to (or denied from) probate

• If order from a clerk or court deputy

1 year after will admitted to (or denied from) probate

• To file bill in equity

Question 34

What is the time limit for offering a will for probate?

Answer 34

No time limit

Question 35

What if property subject to a will is sold to a bona fide purchaser before probate?

Answer 35

If the property is real property, the bona fide purchaser is protected unless the property is probated within one year of the decedent’s death

Question 36

How many witnesses are required to probate:

Holographic will

Witnessed will

Answer 36

Holographic will

• 2 disinterested witnesses to testify about handwriting

Witnessed will

• 1 witness, whether interested or disinterested, to testify about presence during signature
  
  • Doesn’t matter if the other witness denies

Question 37

Where does probate take place?

What if real property subject to a will is located somewhere else?

Answer 37

Probate takes place wherever the decedent was domiciled

If real property is located out of that state, the personal representative must file ancillary probate where the real property was located (i.e., the situs) in order to pass title

Question 38

What is the Virginia anti-lapse statute?

What does it apply to?

What is the common law approach?

Answer 38

Virginia Rule

• Unless a will includes a contrary intention
• If a beneficiary, including one under a class gift, is both:
  
  • A relative of the testator (blood)
  • Dead at the time of either:
    
    • Execution of the will
    • Death of the testator
• The beneficiary’s descendants who survive the testator take the bequest in place of the beneficiary (per stirpes)

Application

• Only wills
• Not:
  
  • Intestate succession
  • Non-probate instruments

Common law

• Under common law, the beneficiary’s interest would lapse when he predeceased

Question 39

What is a class gift?

What is not a class gift?

What are the two primary rules regarding class gifts?

Answer 39

Class gift

• Gift to class of persons (e.g., brothers and sisters, etc.)

Not class gift

• Gift to group of individuals (e.g., Al, Bill, and Carl)

Rules

1. Predecease
   
   • When one class member predeceases (and the anti-lapse statute doesn’t apply), surviving members of the class take on that member’s interest
2. Administrative convenience
   
   • Under this rule, the class closes when some other member is entitled to a distribution (usually when testator dies)

Question 40

What is the distinction between a class gift and a gift to a group of individuals?

Answer 40

With a class gift, when one member predeceases and isn’t saved by the anti-lapse statute, his share goes to the other members

With a gift to a group of individuals, when one individual predecases and isn’t saved by the anti-lapse statute, his share goes back to the residuary estate

Question 41

In Virginia, when are children in gestation class members?

Answer 41

Only if both:

1. They are in gestation when the testator dies
2. They are bornw within ten months later

Question 42

What happens if the testator executes a will and then marries afterwards?

Answer 42

Virginia provides for an omitted spouse, thereby including the spouse at the time of death, unless:

1. Testator stipulates otherwise in the will
2. Testator executes new will after marrying omitted spouse
3. New spouse disclaims interest in testator’s estate
4. New spouse does not survive testator
5. New spouse deserts or kills decedent and is barred

Question 43

What happens if the testator executes a will and then divorces after?

Answer 43

Assuming that the divorce results from a final decree, Virginia treats the former spouse as having predeceased the testator

Notes

• Only those portions of the will that would have gone to the former spouse are revoked
• This rule also applies to ALL DEATH BENEFITS, including non-probate instruments
  
  • So property held in tenancy by entirety or join tenancy becomes held as joint tenants (half and half)

Question 44

What happens if the testator executes a will and then has a child afterwards?

Answer 44

If testator had no other living children when will was executed

• Child receives what he would have gotten under intestate succession
• Unless the will provides otherwise

If testator had other living children when will was executed

• Child receives lesser of:
  
  • What he would have gotten under intestate succession
  • The largest bequest to any child
• Unless the will provides otherwise

Question 45

How can a will be revoked in Virginia?

Answer 45

1. Physical destruction
2. Valid subsequent will that revoked the previous will and its codicils either:
   
   • Expressly
   • Impliedly
3. Divorce or annulment revoked portions of a will in favor of the former spouse

Question 46

Can a will be revoked by someone other than the testator?

Answer 46

Yes, but to be valid, the act by another must be both:

1. At the testator’s request
2. In the testator’s presence

E.g., cannot call lawyer who is out of state and tell the lawyer to destroy the will - must have physical presence of testator

Note: but Virginia’s harmless error statute might apply to the physical act if there is clear and convincing evidence of the testator’s intent to revoke

Question 47

What are the presumptions regarding revocation of a will?

Answer 47

Lost will

• If the will can be traced to the testator’s possession or control, but cannot be found, it is presumed to have been revoked by physical act
• If presumption rebutted by clear and convincing evidence, a copy of the will may be used

Mutilation

• If the will can be traced to the testator’s possession or control, and it is found mutilated, it is presumed to have been revoked by physical act

Question 48

Can Will #1 be revived simply by revoking Will #2, which revoked Will #1?

Answer 48

Not unless either:

1. Will #1 is re-executed
2. Republication by codicil applies (i.e., testator validly executes a codicil to Will #1 and revives it)

Question 49

What is the doctrine of dependent relative revocation (DRR)?

Answer 49

If physical revocation of a will is done based on an assumption (albeit invalid) that it will be succeeded by another will, the revocation is reversed, provided that the revoked will is still consistent with the testator’s intention

Question 50

Despite the doctrine of DRR, how do you revive a will that has been physically revoked?

Answer 50

By meeting the proof of lost wills test:

1. Establish due execution
2. Prove cause of non-production (i.e., DRR)
3. Prove contents of will by clear and convincing evidence

Question 51

What is implied revocation?

Answer 51

• Inconsistent provisions in otherwise valid wills,
• Or wholly inconsistent wills that are otherwise invalid,
• Result in revocation of the earlier provision or will
• By the later provision or will

Question 52

How is a testamentary estate distributed?

Answer 52

1. Pay expenses from the following sources, first personal property, then real property, in order:
   
   • Intestate assets
   • Testate assets
     
     • Residuary gifts
     • General legacies
     • Demonstrative legacies
     • Specific bequests
2. Distribute testate assets
3. Distribute intestate assets

NOTE: estate taxes exception

Question 53

What are the different types of testate assets?

Answer 53

1. Residuary gifts
   
   • Remainder of estate
2. General legacies
   
   • General amount of money
3. Demonstrative legacies
   
   • General amount of money from specific source
4. Specific bequests
   
   • Specific item

Question 54

What is the concept of abatement in Virginia?

Answer 54

Personal property is “abated” (i.e., reduced) in order to pay creditors before real property

Question 55

How are estate taxes paid out from an estate?

Answer 55

Estate taxes are equitably apportioned among all estate beneficiaries (i.e., everyone’s interest is reduced pro rata)

Exception:

• The following gifts are excluded because they do not generate tax:
  
  • Gifts under the marital deduction
  • Gifts under the charitable deduction

Question 56

What is the doctrine of ademption by extinction?

Explain the exceptions

Answer 56

Ademption by extinction

• If a specific item of land or personal property that is devised or bequeathed in a will is not included in the decedent’s estate at the time of death, the devisee or legatee gets nothing

Exceptions

1. Virginia has abolished equitable conversion for purposes of ademption by extinction
   
   • So if the property is sold before death, but the buyer still owes money on that sale, the devisee or legatee gets to collect the unpaid balance, provided the will does not state otherwise
2. Fire or casualty insurance proceeds paid after the decedent’s death
   
   • So if the property is stolen before death, and the estate receives insurance proceeds after death as a result, the devisee or legatee gets those
3. Condemnation awards paid after the decedent’s death
   
   • So if the property is condemned before death, and the estate receives an award after death as a result, the devisee or legatee gets that
4. Guardian or conservator sells property after decedent becomes disabled or incompetent
   
   • So if the guardian or conservator after the decedent becomes incompetent or disabled sells the property, the devisee or legatee gets a general legacy and can get the proceeds
5. Bequests of securities
   
   • If the form of securities changes (i.e., via stock split, takeover, etc.) the legatee still gets whatever substance remains

Question 57

How does Virginia treat the exoneration of liens?

Answer 57

In 2007, Virginia reversed the common law rule that allowed for exoneration of liens

• So, unless the will states otherwise, any specific devise of real or personal property passes subject to any mortgage or other security interest or lien
• Exceptions:
  
  • If lien was created by either:
    
    • Agent acting under durable power of attorney
    • Testator’s conservator, guardian or committee

Question 58

What is required for an extrinsic document to be incorporated by reference in a will?

Answer 58

1. Extrinsic writing must be in existence when will executed
2. Will must show an intent to incorporate the writing
3. Will must describe the writing with reasonably certainty

Question 59

What is the doctrine of legal list?

Answer 59

A separate list of can pass items to named recipients in a will even if created after execution of the will if the list:

1. Refers only to tangible personal property (i.e., not money)
2. Describes the items with reasonable certainty
3. Signed by testator
4. Is referenced in the will and the will is valid

Question 60

What is the act of independent significance doctrine?

Answer 60

The will can include property described in a way that allows it to change between the time of execution and death

E.g., my car, the paintings in my living room, etc.

Question 61

How are mistakes or ambiguities dealt with in a will?

Answer 61

Does the mistake create a plain meaning?

• Plain meaning in language of the will cannot be altered or changed through extrinsic evidence
  
  • E.g., 200 shares of ABC stock, rather than 300

Does the mistake create an ambiguity?

• L__atent ambiguity - i.e., defect doesn’t appear on face
  
  • Can be altered through extrinsic evidence
    
    • E.g., my favorite nephew
• P__atent ambiguity - i.e., defect appears on face
  
  • Can be altered through extrinsic evidence
    
    • E.g., $25,000 (Twenty-Five Dollars)

Question 62

What sorts of extrinsic evidence can be admitted to cure an ambiguity in a will?

Answer 62

1. Facts and circumstances
2. Testator statements of intent to third parties (e.g., lawyer)

Question 63

Do the intended beneficiaries of a will have a cause of action against the attorney who prepared what turned out to be an invalid will?

Answer 63

No. Virginia takes the minority approach here.

But an action could be brought against the attorney under the bar disciplinary code.

Question 64

What do the following general statements bequest:

1. “All of my personal property.”
2. “All of the furniture and personal property in my house.”

Answer 64

1. Both tangible and intangible personal property
2. Tangible personal property only
   
   • General words that follow specific items include only the types of property of the same type as the specific items

Question 65

What is a power of appointment?

What are the different parties involved?

When are the different types?

Answer 65

Definition

• When a testator gives someone a life estate and then asks that person to pick someone to receive the remainder at the end of the life estate

Parties

• Donor
  
  • Testator who gives the power of appointment
• Donee
  
  • Beneficiary who takes the power of appointment
• Takers in default of appointment
  
  • People who take the property if power of appointment is not exercised

Types

• General
  
  • Donee not limited in beneficiaries she can appoint
• Special
  
  • Donee limited in beneficiaries she can appoint
• Testamentary
  
  • Donee can only exercise power upon death by will
• Power presently exercisable
  
  • Donee can exercise power at any time

Question 66

What if the donee of a testamentary power appointment never references it in her will?

Answer 66

Under the majority rule followed in Virginia, there is no exercise of the power

Exception:

• Power of appointment exercised by implication if in donee’s will she attempted to dispose of property subject to the power as though it was her own
  
  • Only way to give effect to that provision in her will

Question 67

When is a “will” deemed to be a contract, and not a “will”?

Answer 67

When there is clear and convincing evidence of a contract either:

• In the will
• From extrinsic evidence
• By clear implication from surrounding circumstances

Question 68

What is the analysis when a will is held to be contractual?

Answer 68

1. Apply wills law
   
   • Try to admit the contractual will to probate using contest and revival arguments
2. Apply contract law
   
   • Try to impose a constructive trust in favor of the beneficiary of the contractual will by arguing breach of contract

Question 69

What are the major types of non-probate assets?

What is unique about these?

Answer 69

• Survivorship accounts
  
  • E.g., property passing by right of survivorship, including tenancy by entirety, joint tenancy, etc.
• Payable on death transfers
  
  • E.g., Property passing by contract, including life insurance benefits, employee retirement benefits
• Intervivos trusts
  
  • E.g., property held in trust and trust terms govern
• Powers of appointment
  
  • E.g., property over which decedent held power of appointment

NON-PROBATE INSTRUMENTS ALWAYS TRUMP WILLS

Question 70

What is the elective share statute?

Answer 70

Permits augmenting the probate estate with:

• Non-probate transfers
• Gifts to the decedent’s spouse within a few years

So as to allow the decedent’s surviving spouse to reach a portion of the non-probate assets

Question 71

What is the amount of the elective share?

Answer 71

If descendants

• 1/3 of augmented estate

If no descendants

• 1/2 of augmented estate

PLUS interest at 6% from date of death until share is satisfied

Question 72

Who can make an elective share?

Answer 72

• Spouse
• Court (if spouse incapacitated, so state can get medicaid)

NOT:

• Conservator or guardian of spouse
• Spouse’s estate after she dies

Question 73

How does a spouse make an elective share?

Answer 73

File notice of election within 6 months after:

• Will admitted to probate
• Administrator of intestate estate appointed

Note: court can extend to up to 90 days if a suit is brought to construe the will or augment the estate

Question 74

How are the different beneficiaries of an estate affected by the elective share?

Answer 74

All contribute ratably - i.e., equitable apportionment

Question 75

How do you compute the augmented estate?

Answer 75

1. Probate estate
   
   • Property passing by will or intestacy, net of debts and expenses
2. Transfers to spouse
   
   • Lifetime gifts to spouse if still owned or sold by spouse at time of death
   • Exception:
     
     • Exclude tangible personal property (e.g., jewelry, birthday gifts, etc.)
3. Transfers to third parties
   
   • STRINGY LEGS)
     
     • Strings-attached lifetime transfers
     • Life insurance
     • Employee death benefits
     • Gifts in excess of $14,000
     • Survivorship estates

Question 76

What is not included in the augmented estate?

Answer 76

(JOG)

• Joinder
  
  • Transfers that the spouse agreed to
• Old transfers
  
  • Irrevocable transfers to 3d parties before Jan. 1, 1991
• Gifts to decedent
  
  • Separate property acquired by gift, will, or inheritance from anyone other than surviving spouse

Question 77

How do you compute the elective share percentage?

Answer 77

(augmented estate - property already passing to spouse) / (elective share - property already passing to spouse)

Question 78

Who can bring a will contest?

Answer 78

Only an interested party - i.e., person with economic interest that would be adversely affected by will’s probate

Question 79

What happens if a testator lacks testatmentary capacity?

When does a testator lack testamentary capacity?

Answer 79

The entire will is denied probate

There is a presumption that a witnessed will resulted from testamentary capacity

But for a holographic will:

• The proponent of the will must prove that at the time of execution, the testator did not/was not:
  
  1. Understand the nature of the act he was doing
  2. Know the extent of his wealth
  3. Know the natural objects of his bounty
  4. Able to interrelate the above three issues

Question 80

If a testator was adjudicated incompetent, should a court rule that he lacked testamentary capacity?

Answer 80

No. This is not sufficient to establish lack of capacity. The proponent of the will must fail to establish the four elements

Question 81

What is the effect of a will resulting from undue influence?

What is the test for undue influence?

Answer 81

Only the provisions of the will resulting from undue influence are denied probate (cf. lack of testamentary capacity)

Test

• Someone with standing - i.e., economic interest that will be adversely affected, must show:
  
  • Suspicious circumstances
  • That demonstrate a desire to overcome the mind and will of the testator
  • And the provisions at issue were the result of this

Question 82

What is not enough to establish undue influence?

Answer 82

• Mere opportunity to exert undue influence
• Mere susceptibility to influence (e.g., age, illness)
• Mere fact of unnatural disposition (e.g., excessive gift)

Question 83

In establishing undue influence, who has the burden?

Answer 83

Initially, a party with standing - i.e., economic disadvantage

But it shifts if that party proves a confidential relationship between the alleged influencer and the testator, thus creating a presumption of undue influence

Question 84

What are the five confidential relationships for purposes of undue influence?

Answer 84

1. Relationship of trust
2. Priest-penitent
3. Doctor-patient
4. Guardian-ward
5. Attorney-client

Question 85

For purposes of undue influence, what does a confidential relationship do?

Answer 85

Creates a presumption of undue influence, that the person can only rebut by showing by a preponderance of the evidence that the testator was able to resist and make his own decisions

Question 86

Are no contest clauses effective in wills?

Answer 86

Under the majority common law rule, yes unless the contest was made in good faith and there is probable cause to contest

The law in Virginia is unsettled, but it probably does not recognize the probable cause exception, so no contest clauses are likely to always be effective in Virginia

Exceptions:

• The following are not contests:
  
  • Elective share
  • Petition for ommitted spouse
  • Petition for ommitted descendant

Question 87

Where is a decedent’s will probated?

Answer 87

Generally, where he was domiciled at death

Unless he was moved to a nursing home, then it is where he was domiciled before the move, because that’s where he intended to be

Question 88

How do you qualify as the executor of someone’s will?

Answer 88

1. Take an oath
   
   • That as far as you know, this is decedent’s last will
   • That you will faithfully perform your duties
2. Post bond
   
   • Equal to value of decedent’s personal estate and any real estate to which you have a power of sale
3. Provide surety on the bond
   
   • Unless the will waives this requirement

Question 89

Can a non-Virginia resident be an executor of a will in Virginia?

Answer 89

Yes, provided that they:

• Appoint a Virginia resident agent for service of process
• Are not a non-Virginia bank

Question 90

Who takes priority in becoming an executor of a decedent’s estate?

Answer 90

During first 30 days after death

1. Spouse if no descendants
2. Spouse with written consent of all descendants
3. Any distributee that is sole heir
4. Any distributee with written consent from other distributees

After those 30 days

• Any distributee as clerk of court sees fit

Question 91

In Virginia, is property held in joint tenancy considered non-probate assets?

Answer 91

Generally, yes.

However, Virginia has enacted a statute that requires any interest in a multi-party account to be included in probate, even if held in joint tenancy (in which case half is included)