Wills / Decedents' Estates MEE Flashcards
(11 cards)
What is intestate succession?
It explains how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition).
What are the two available schemes to divide property among the decedent’s children if the decedent’s spouse and parents do not survive the testator?
Per capita at each generation (where all cousins will be treated alike).
Per capita with representation (modern per stirpes) (where a child will simply take his parent’s share; cousins are not treated alike.)
If there is no spouse and no children, what are the two methods of determining heirship?
The civil law consanguinity method: heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would be heirs entitled to equal shares).
The parentelic method (adopted by UPC): descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an uncle would not).
What are the requirements to execute a valid will under majority law?
General rule: Many state laws require:
- that the will is in writing,
- signed by the testator,
- and witnessed by two witnesses.
They also require that the testator is 18 or older and intend that the document is his will.
What are Holographic wills?
Unwitnessed wills.
Holographic wills are valid if:
- signed
- and if the material portions are in the testator’s handwriting.
What is required to revoke a will?
- Revocation by physical act (e.g., by execution of a new will or by some other physical act, such as cancellation or other writings on the will): This must be done with the intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.
- Dependent relative revocation: under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information
What happens if the beneficiary predeceases the testator?
The general rule is that if a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary.
However, all states have anti-lapse statutes (which keep gifts in the family).
Under a typical anti-lapse statute, if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary
What happens if beneficiary kills the testator?
Slayer statute: An individual who feloniously and intentionally kills the decedent, or who is convicted of
committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s share, etc.).
Voluntary manslaughter is a form of a felonious and intentional killing.
Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift.
Nor does it apply if the slayer murdered someone other than the decedent. Note: when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the killing is not felonious and intentional!)
What happens if the property is no longer in the estate?
If specifically devised property (i.e., property that is specifically described in the will) is not in the testator’s estate when the testator dies, the bequest adeems—i.e., the gift fails.
Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property.
Determining if testator did not have mental capacity to validate the gift:
The burden of proving that the testator lacks mental capacity rests on the contestant.
A testator meets this requirement if the testator knows:
(1) the nature and extent of his property,
(2) the persons who are the natural objects of the testator’s bounty (i.e., family members),
(3) the nature of the instrument that the testator is signing,
and (4) the disposition that is being made in the will.
Determining if undue influence invalidates testator’s gift:
This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made.
The burden of establishing undue influence generally is on the will contestant who must show the
following (mnemonic = SODA):
(1) the testator was susceptible to undue influence,
(2) the alleged influencer had the opportunity to exert undue influence,
(3) the alleged influencer had a disposition to exert undue influence, and
(4) the will appears to be a product of undue influence.
Most courts only invalidate portions that are infected by undue influence.
