Wills Flashcards
Will Execution
- Must be in writing;
- Signed by the testator;
-Another person may sign for the testator only if
at T’s request and in T’s presence;
-T must sign in the sighted presence of the
witnesses or T must acknowledge his/her
signature to other signature to witnesses; - ATTESTED by There must be attested by 2 or more competent witnesses
-Witnesses must sign in the presence of T (but,
don’t have to sign in the presence of each
other)
-If witness is a devisee under will it is still valid
but there must be at least 2 other non
interested witnesses for witness to receive
his/her legacy
Publication of WIll
No need for the individual to know that what they’re witnessing is a will signing.
Self Proved Wills
- At time of execution, T and Ws sign self-proving affidavit under oath before notary public reciting all elements of due execution. If done formalities of execution conclusively presumed - rebuttable presumption under GA law
- Not required, but the will may be admitted to probate without testimony from the witnesses if the will is self-proved.
Express vs. Implied Revocation
- Express revocations become effective IMMEDIATELY
- Implied revocation become effective only at TESTATOR’S DEATH
Partial Physical Act Revocation
- NO PARTIAL REVOCATION BY PHYSICAL ACT IN GA.
- If testator attempts to partially revoke by physical act courts will either:
(1) disregard the cancellation if done to non-material portion, or
(2) find that will has been entirely revoked if cancellation was done to material portion of the will.
Revocation by Operation of Law
- Birth or adoption of a child - child can receive an intestate portion of the estate
- Subsequent Marriage - the new surviving spouse is entitled to intestate portion unless (by showing of clear and convincing evidence) T contemplated future marriage
- Divorce or Annulment - All provisions in favor of the former spouse are revoked and he/she is treated as if predeceased.
Presumption of Lost Wills
If the will is traced to the possession of T and cannot be found at T’s death, the presumption arises that the will was revoked through physical act. The burden is on the proponent to show that, by a preponderance of the evidence, no physical act of revocation was intended by T.
Implied Revocation
This occurs whenever a codicil or a valid subsequent will does not expressly revoke an earlier will, but nonetheless contains inconsistent provisions.
When this occurs:
- To the extent possible, the provisions of the earlier will and the subsequent will are read together and both provisions are given effect.
- If completely inconsistent, then the later will be given effect.
Pretermitted Spouse
Operation of Law revocation -
GA - Where T marries after executing a valid will, the omitted spouse will take an intestate portion of the estate.
Pretermitted Child
Operation of Law revocation -
GA - Where T has a child after executing a valid will, the omitted child will take an intestate portion of the estate.
Effect of Divorce or Annulment on Will
GA - if T executes a valid will and then divorces, the gifts to the spouse will be revoked unless there is proof that they executed the will in contemplation of divorce.
Revival of Will by Destruction of Revoking Instrument
There is no automatic revival of a revoked will by the destruction of the revoking instrument. The first will is ONLY REVIVED if all of the SURROUNDING CIRCUMSTANCES indicate that T intended, by the revoking instrument, to revive the first will.
Dependent Relative Revocation
-Has nothing to do with dependent relatives!!!
-An equitable remedy.
Allows the court to disregard a physical act revocation if
1) that revocation was based on a mistake of law or of fact and
2) mistake would not have occurred BUT FOR the testator’s mistaken belief that another disposition of property was valid
*** For DRR to be applied the disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed, to do than would intestate distribution.
Explaining Ambiguities and Mistakes in Will Through Extrinsic Evidence
Patent and Latent Ambiguities may be explained through extrinsic evidence.
Mistakes: Plain language cannot be corrected with extrinsic evidence. Only exception is when a parent omits a child because they think they’re dead. (Child would then share equally with other children or take an intestate share if only child)
Example: I give nothing to my daughter because I already conveyed to her my house.” The deed is then found in parent’s house and wasn’t delivered to daughter. The daughter still does NOT take!
Incorporation by Reference
If a document is in existence AT THE TIME the will is executed, then that document may be incorporated by reference into the will even though it is not part of the will itself.
Requirements:
1. the writing must have EXISTED at the time of will execution;
2. The will must manifest INTENT to incorporate the document; and
3. The will must REFERENCE the document SUFFICIENTLY to permit its identification.
Act of Independent Significance in Will
If there is an event that has lifetime significance other than that recited in the will, it may allow for a valid transfer under the will even though not specified.
Example: The car of which I am possessed at the date of my death to Tom McCraw.” - The car may continue to change since it has independent significance.
Anti-Lapse Statute
- Provides a substitute beneficiary for the predeceased beneficiary. Applicable IF:
1. The predeceased beneficiary is survived by issue and the issue also survive T; and
2. There is no contingency language in the will preventing application of the statute. (i.e., “if beneficiary survives me”)
ONLY APPLIES TO WILLS. The predeceasing beneficiary does NOT have to be a relative of the decedent testator.
Anti-Lapse Statute with Class Gifts
GA - DOES APPLY TO CLASS GIFTS! - allows issue of predeceasing beneficiaries to take as substitute takers
Anti-Lapse Statute When Beneficiary Has No Surviving Issue
If beneficiary doesn’t having surviving issue, the residuary passes to the other residuary beneficiaries.
Order of Abatement
When the estate contains insufficent assets to pay all claims, taxes, expenses, and to satisfy all testamentary gifts, some of the gifts must be reduced or “abated.” Absent express intent by testator gift abate in the following order:
- The property charged with debts by the terms of the will;
- The residuary estate;
- General testamentary gifts (which abate pro rata);
- Demonstrative gifts (which abate pro rata); and
- Specific legacies
***For payment of testator’s debts, GA treats realty and personal property equally liable.
Ademption by Extinction
Applies ONLY to SPECIFIC gifts. Where the testator no longer owns the property to be devised, the property is adeemed by extinction.
**If a SPECIFIC devise is lost, stolen, or destroyed in the six months prior to T’s death, the beneficiary is entitled to the insurance proceeds (Same rule for condemnation awards)
Ademption by Satisfaction
If T makes a specific, demonstrative, residuary, or a general bequest in a will to a named person, and DURING LIFETIME, makes a transfer to this same person and in the will or in a CONTEMPORANEOUS WRITING, declares that the transfer is in satisfaction of the bequest in the will, then the will bequest will be treated as satisfied.
**The writing stating that the gift is in satisfaction must be executed within 30 days of the transfer, or by the recipient at any time.
Ademption by Extinction
If specific gift made by testator is no longer owned by testor when will executed the specific bequest is ADEEMED BY EXTINCTION
Accessions
Where T gives away gifts in the will, but owns something slightly different at probate:
Stock Splits - go to the legatee under the form/substance rule.
**IF THE SAME SUBSTANCE, THEN THE SAME PERSON WILL GET THE GIFT.
*Cash dividends, stock dividends, and income all go to the general estate, not the legatee.
If it is a general gift (ex: “100 shares of common stock”), the beneficiary will take 100 shares of any stock T has at death.
