Wills

Question 1

a will is

Answer 1

an instrument that directs the disposition of a person’s property when they die

Question 2

when is a will operative

Answer 2

upon death

Question 3

when may a will be amended or revoked

Answer 3

until testator’s death

Question 4

what rights do named beneficiaries in a will have

Answer 4

none - just an expectancy interest

Question 5

requirements of a will (“formalities”)

Answer 5

in writing
signed by testator
signed by two witnesses

Question 6

requirements regarding “signed by two witnesses” for a will

Answer 6

• witnesses must see testator sign the will

- must sign in testator’s presence within a reasonable time

Question 7

attestation clause

Answer 7

clause included immediately between testator and witness signatures that sets forth that the signing requirements were met

Question 8

What must Testator have to create a valid will

Answer 8

capacity

testamentary intent

Question 9

capacity to will

Answer 9

person must be 18+ and have mental capacity

Question 10

what is mental capacity

Answer 10

T must understand, at the time of execution:

• nature of his act
• nature and extent of his property
• persons who are natural objects of his bounty

Question 11

what is testamentary intent

Answer 11

T must have present intent that the instrument operates as his will

Question 12

witness requirements

Answer 12

witnesses must be competent and not be subject to a limitation as to who can sign the will

Question 13

when are witnesses competent to sign

Answer 13

when they are of sufficient maturity and mental capacity to understand and appreciate the nature of what they witness and attest to

Question 14

interested witnesses

Answer 14

CL: if a W stands to benefit under a will, entire will probated
UPC: interested W is of no consequence
Maj.: if a W stands to benefit under a will, will is valid, but gift to W is void

Question 15

exceptions to interested witness rule under the majority approach

Answer 15

interested W may still take there was either 2 other disinterested witnesses, or W would take if there was no will

Question 16

codicil

Answer 16

an amendment, modification, or alteration of a previously executed will

Question 17

required formalities for a codicil

Answer 17

same as will - in writing, signed by T, presence of 2 Ws

Question 18

Effect of Codicil

Answer 18

will is deemed republished and effective date becomes date of codicil

Question 19

Holographic Will

Answer 19

handwritten, unwitnessed will

Question 20

holographic will requirements

Answer 20

in T’s writing (at least material parts)
signed by T
reflect T’s intent to make a will

Question 21

effect of holographic will

Answer 21

replaces and revokes any prior will

Question 22

oral wills

Answer 22

not permitted generally

Question 23

Methods of revocation of a will (5)

Answer 23

• by written instrument
• by physical act
• by proxy
• by partial revocation
• by operation of law

Question 24

revocation by written instrument

Answer 24

must show present intent to revoke and adhere to the same formalities as will execution (writing, singed by T, sufficient witnesses)

Question 25

revocation by physical act

Answer 25

burning, tearing, or otherwise destroying the will so long as T has the present intent to revoke at the time of the act

Question 26

revocation by proxy

Answer 26

T may direct another to revoke his will by physical act and this will validly revoke as long as it is done in T's presence by his direction

Question 27

partial revocation

Answer 27

revocation may be accomplished by making marks of cancellation on the will (crossing out provisions)

Question 28

revocation by operation of law arises when...

Answer 28

- omitted spouse - divorce following execution of will - omitted children

Question 29

marriage following execution of a will (omitted spouse)

Answer 29

- no effect on the existing will in most states | - UPC: spouse takes intestate share

Question 30

divorce following execution of a will

Answer 30

revokes all bequests made in favor of the former spouse unless the will expressly provides otherwise

Question 31

Pretermitted Children

Answer 31

most states give child a share of T's estate equal to what they would've got through intestate succession

Question 32

Revival

Answer 32

where a will is revoked and the revoking instrument is subsequently revoked, the original will is presumed revived

Question 33

re-execution of a will

Answer 33

a revoked will may be re-executed by a subsequent will or codicil if testamentary formalities are satisfied

Question 34

Dependent Relative Revocation (DDR)

Answer 34

doctrine under which a court disregards a revocation that was done to create an alternative disposition in another will, but was based on a mistake of law or fact

Question 35

When will a court apply DDR

Answer 35

when this would come closer to satisfying T's intent than intestate succession

Question 36

Requirements of DDR

Answer 36

- revocation based on mistake - revocation wouldn't have happened absent mistake - originally revoked will closer to T's intent that intestate succession

Question 37

Lapsed Gifts

Answer 37

a gift provided in a will lapses where the beneficiary predeceases testator

Question 38

effect of lapse

Answer 38

gift ill go back into the residue of T's estate

Question 39

anti-lapse statute

Answer 39

a gift that would otherwise lapse vests in the predeceased beneficiary's descendants

Question 40

Class Gifts where one or more predecease T

Answer 40

surviving class members take predeceased's gift unless an anti-lapse statute exists to vest the gift in the predeceased's descendants

Question 41

Ademption

Answer 41

a gift of specific property in a will fails if it is no longer in T's estate at time of death

Question 42

Abatement

Answer 42

where an estate's value is insufficient to pay its obligations and provide for disposition of property under a will, it must reduce (abate) gifts in order to pay those obligations

Question 43

Order of Abatement

Answer 43

1. property not disposed of by will 2. residuary estate 3. general devises (abate pro rata) 4. specific devises

Question 44

In what ways may a will's validity be challenged (5)

Answer 44

- lack of capacity - lack of testamentary intent - defective execution - undue influence, fraud, or mistake - will has been revoked

Question 45

who has standing to contest a will

Answer 45

beneficiaries, someone who should be a beneficiary, and someone who would've taken if T died intestate

Question 46

No Contest Clause

Answer 46

provides a B will lose their gift in the will if they challenge it

Question 47

validity of no contest clauses

Answer 47

maj - no forfeiture of interest if contest is made in good faith on the basis of probable cause min - clause given full effect

Question 48

undue influence

Answer 48

a will is invalid if executed while T was subject to undue influence that effectively overrode his free will

Question 49

requirements for undue influence

Answer 49

- influence was exerted over T - Ts mind and free will were overpowered - T's will would not have been executed absent the undue influence

Question 50

when does a presumption of undue influence arise

Answer 50

- confidential relationship | - B participated to a significant degree in executing, drafting, or procuring T's will

Question 51

requirements for fraud

Answer 51

- T has been intentionally deceived (contents of will or attendant facts) - T acted in reliance on the misrepresentation

Question 52

fraud

Answer 52

where one or more of the provisions of the will are the result of fraud, that part or provision will be invalid

Question 53

Life Insurance Rule

Answer 53

T cannot change the beneficiary of a LI payout via will

Question 54

Responsibilities of executor/representative

Answer 54

all matters generally related to winding up the estate

Question 55

living will

Answer 55

doc specifying life-sustaining and pain-alleviating measures one does or does not want if he is indefinitely incapacitated

Question 56

Durable Healthcare Power of Attorney

Answer 56

doc that appoints an individual as agent to make healthcare decisions on behalf of principal