Wills & Estates (Essay Only) Flashcards

Question

# execution of wills what is required for attestation (witnesses)

Answer 1

_presence_ * signed in presence of at least two witnesses * witnesses must sign the doc (not necessarily at same time) * most juris: testator must sign or acknowledge the will in presence of witnesses + witnesses must sign in the presence of testator * UPC: witnesses must sign within a reasonable time of the original signature by testator * line of sight approach to presence (traditional): witness and testator must observe or have oppy to observe signing of the will (same room) * conscious presence approach (modern): witness or testator must be aware the act is being performed, even if they can't see it _interested witnesses_ (has a direct financial interest in the will) * common law: interested witnesses are not competent to witness the will * UPC: abolished this doctrine, just go after problematic witness via undue influence or fraud * purge theory (many states): direct financial interest does not affect validity of will * BUT probate court will purge any gain in excess of what the witness would take under intestate succession * do NOT purge gain IF there were 2 other disinterested witnesses OR interested witness would take share under intestate succession + interested witness takes the lesser to eh intestate share or bequest

Answer 2

* common law (majority): strict compliance with will formation formalities * modern view (UPC, minority): substantial compliance * clear and convincing evidence that descendent intended the doc to serve as their will

Answer 3

* informal, handwritten will * does not need witnesses * must be signed to be valid * some jurisdictions: any markings not in testator's handwriting invalidate the will * UPC: only requires that material provisions are in testator's handwriting * look for words or phrases that suggest intent * UPC expressly authorizes looking to extrinsic evidence to establish intent | words that express intent: "bequeath" "inherit"

Answer 4

holographic analysis focus on intent!

Answer 5

* supplements (does not replace) a will * must be executed with same formalities as a will

Answer 6

* joint tenancy - avoids probate b/c right of survivorship * revocable trust - b/c inter vivos transfer * pour-over will - b/c distributes property under a trust * payable on death contract - b/c distributes by inter vivos transfer * deeds - b/c inter vivos transfer

Answer 7

* beneficiary of a life insurance policy takes by virtue of the insurance contract * proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary * need to change beneficiary via form with insurance company * some courts have upheld a beneficiary change by will if the insurance company does not object

Answer 8

wills can be altered or revoked at any time up until testator's death (ambulatory will) can be revoked in full or part

Answer 9

1. subsequent instrument 2. physical act 3. operation of law

Answer 10

**express revocation** later writing expressly revokes a prior will **implied revocation (inconsistency)** later writing is inconsistent with prior will so long as it is validly executed, later will controls

Answer 11

look at residuary gift original will has residuary gift + later writing does not --> later writing is probs a codicil original will does NOT have a residuary gift + later writing does --> later writing is probs a will

Answer 12

testator may revoke a will be engaging in a physical act of destruction (tearing, burning, crossing stuff out) **must intend** for physical act to revoke the will _destroying specific language_ * majority: particular language in question must be destroyed * UPC: only requires that destructive act affect some part of the will _lost wills (lost at time of testator's death)_ * creates a rebuttable presumption that testator revoked will by physical act * burden is on proponent to show will's existence by clear and convincing evidence * duplicate originals can be admitted, but not copies

Answer 13

* most jurisdictions: divorce revokes all will provisions in favor of the former spouse * EXCEPT if there is evidence that testator wanted will to survive * UPC also invalidates gifts to ex's relatives * subsequent marriage does not revoke a will

Answer 14

3p can revoke on behalf of a tester IF 1. at testator's direction AND 2. in testator's conscious presence (phone call isn't enough)

Answer 15

by revoking a will, testator also revokes any codicil attached to the will BUT if revoke a codicil, the underlying will is revived in its original form

Answer 16

* UPC (majority) does not recognize automatic revival of a revoked will * Dependent Relative Revocation - safety valve for testators who revoke a will based on a mistake, mistake can be grounded in law or fact * DRR invalidates the mistaken revocation and revives the earlier revoked will

Answer 17

Dependent Relative Revocation (DRR) focus on the idea that but for the mistake, testator would not have revoked the first will

Answer 18

courts give words in will their plain meaning except: will states otherwise (defined terms)

Answer 19

other writing must meet three requirements: 1. it existed at the time the will was executed (UPC waives if doc disposes only of personal property) 2. the testator intended the writing to be incorporated into the will AND 3. the writing is described in the will with sufficient certainty so as to permit its identification

Answer 20

testator can dispose of property based on some act or event that is unrelated to the execution of the will applies to acts in the future (after execution of the will)

Answer 21

* common law: testamentary gift would lapse (fail) if an intended beneficiary didn't survive testator, failed gifts would be dumped into residuary gift * anti-lapse statutes provide an alternative disposition for lapsed gifts, prevents certain gifts from lapsing * (1) protected relationship (intended for relative) + (2) survived by issue --> issue gets the gift * if elements not met, common law rule applies (gift goes to residuary)

Answer 22

* common law: if a member's gift lapses, rest of class share that member's gift * if lapsed member is covered by anti-lapse statue, that rule controls * not covered by anti-lapse statute, rest of class members are that member's gift

Answer 23

if estate doesn't have sufficient funds to pay debts or make gifts, gifts will be abated in a specific order **ARGS** 1. asset property 2. residuary gift - left over 3. general gifts - gift of property satisfied from general assets of estate (like $ generally) 4. specific gifts (last to be reduced, most protection) - gift of a particular piece of property demonstrative gift - gift from a particular source (like money from BAC account) if demonstrative gift can be satisfied, treated as specific gifts; otherwise, treated as general gifts

Answer 24

* will makes specific devise of property, but the property is no longer in the estate * traditional rule (identity theory): device is extinct, devisee takes nothing * UPC (intent theory): look at testator's intent at time they disposed of property, look for facts that suggest the testator intended the ademption, trying to avoid ademption

Answer 25

* testator satisfies a specific or demonstrative gift (in whole or part) via inter vivos transfer * (1) testator must have intended for the gift to deem + (2) intent must be supported by a writing

Answer 26

* latent ambiguity - can't see the problem on the face of the will, need context * patent ambiguity - problem appears on the face of the document rules: * traditional rule: patent ambiguities have to be resolved w/o looking at extrinsic evidence, can use extrinsic evidence for latent ambiguities * modern rule (majority): both ambiguities can be resolved with extrinsic evidence

Answer 27

courts aren't very forgiving

Answer 28

**elective share** * surviving spouse can elect to take a forced share (they get their share first so it reduced the gifts to other beneficiaries) * UPC: forced share is 50% of decedent's augmented estate * augmented estate (UPC) = property acquired before + during marriage (vs. community property share - during only) **waiver** * can waive right to elective share IF * (1) waiver in writing after a fair discourse of its contents AND (2) spouse is represented by independent legal counsel surviving spouse has lots of means of support * social security + pensions * homestead exemption (keep the house) * personal property set asides * family allowance for reasonable living expenses during probate * elective share

Answer 29

**common law** any lifetime gift is presumed to be an advancement child has burden to show it was an outright gift _hotchpot analysis_ add value of advancements back into intestate estate divide resulting estate by number of children taking deduct child's advancement from their interstate share **UPC** gift is advancement only if (1) decedent declared in a contemporaneous writing that gift was an advancement OR (2) writing indicates gift should be taken into account in computing the division of property of decedent's estate

Answer 30

* intentional disinheritance - allowed (ofc) * unintentional disinheritance (like forgetting to update your will when you have another kid) * if testator had no other children when will was executed, omitted child takes their intestate share * if tester had at least one child at execution + will devised property to at least one child, then omitted child takes equal share from portion of property already devised to the other child

Answer 31

* beneficiary who murders the decedent is barred from taking under decedent's will * murderer is treated as if they predeceased the testator * only murder-murder, not involuntary manslaughter or self defense * UPC allows killer's issue to take when relevant sidenote (not part of slayer statute): someone convinced of financial exploitation, abuse, or neglect of a person under their care (like elder abuse) is prohibited from inheriting from that person

Answer 32

person may disclaim a testamentary gift (probs b/c taxes) disclaimer must be (1a) in writing, signed, filed with court OR (1b) declared to the person in charge of distributing the estate AND (2) identify the decedent, describe the interest being disclaimed, and define the extent of the disclaimer must disclaim within 9 months of death

Answer 33

limits on testator's ability to transfer property * rights of testator's spouse * gifts to testator's children * bars to succession: slayer statutes + disclaimer

Answer 34

ademption by satisfaction is for testate advancements deal with intestate succession

Answer 35

* objections the validity of a will * **only an interested party** has standing to challenge * interested party: (1) receive a financial benefit under the will OR (2) take under intestate succession but not under the will * interested party must file a contest claim within 6 months after will is admitted to probate

Answer 36

* _when_: person challenging the will (contestant) bears burden of providing the testator lacked the requisite mental capacity at time of execution of the will whether testator had ability to know (NOT actual knowledge) * _why_: nature of the act * _what_: nature and character of their property * _who_: natural objects of their bounty (like their kids) * _how_: plan of the attempted disposition

Answer 37

* false belief to which testator adheres in spite of all reason and evidence to the contrary * testator has general capacity, but insane delusion as to some belief * objective test: (1) measure testator's insane delusion against actions of a rational person in testator's person and (2) belief is an insane delusion if rational person could not have reached the same conclusion * **causation - insane delusion was a but for cause of the testamentary disposition** | ex. testator is convinced spouse is cheating on them (even though no evidence) so will leaves nothing to spouse

Answer 38

* coercive relationship * contestant alleges that a 3p effectively controlled the testator's decision making process contestant bears initial burden of showing 1. beneficiary received a substantial benefit under the will 2. beneficiary had a confidential relationship with the testator (frequently lawyer, doctor, therapist) AND 3. testator had a weakened intellect at time of execution if contestant meets burden, there is presumption of undue influence burden shifts to proponent (3p) to show by a preponderance of evidence that there was no undue influence beneficiary is treated as if they predeceased testator to the extend that the gift is in excess of beneficiary's intestate share causation is v important | like a whisper in the ear

Answer 39

contestant bears burden of showing that the beneficiary engaged in an unlawful misrepresentation at time of conveyance beneficiary made misrepresentation with 1. intent to deceive the testator AND 2. for purpose of influencing the testamentary disposition * fraud in the inducement * fraud in the execution remedy - constructive trust

Answer 40

undue influence and fraud require act by 3p insane delusion is in mind of testator

Answer 41

* in terrorem - no-contest clause designed to dissuade a beneficiary from suing about their share * UPC: clause is unenforceable if beneficiary had probable cause to challenge * so if beneficiary did NOT have probable cause (claim is groundless, the forfeiture clause _is_ enforceable

Answer 42

1. ID each piece of property as probate or non-probate * if non-probate: figure out who takes it * everything else is probate --> testate or intestate succession 2. if there a will? is it valid? who are the intended beneficiaries? * any property not specifically devised will pass via intestate succession 3. if no will, all property goes through intestate succession

Answer 43

instrument other than a will examples: deed trust joint tenancy with right of survivorship payable on death contract

Answer 44

orderly administration of a decedent's estate protects and satisfies creditors quiets contested titles, transfers titles to rightful holder protects tester's interest efficient remember: only those who stand to benefit financially under a will have standing to contest a will

Answer 45

probate proceedings must be brought within 3 years of death, then there s a presumption of intestacy party requesting probate can have it occur through informal (ex party) or formal probate (notice)

Answer 46

* non-claim statute prevents a creditor form making a claim on the decedent's estate after a certain time period has elapsed (barred if not brought within that window) * personal representative must provide notice to creditors of the state classes of creditors 1. administrative expenses (most important) 2. medical and funeral expenses 3. family allowances (children and spouses) 4. taxes 5. secured claims 6. judgments against decedent 7. all other claims

Answer 47

* person who acts on behalf of estate during probate process * if appointed by court - administrator * if named in will - executor * fiduciary owing duties of loyalty and care * cannot engage in self-dealing * gets paid from the estate

Answer 48

in order of priority 1. surviving spouse who is devisee 2. other surviving devisee 3. surviving spouse (if not devisee) 4. other heirs of decedent 5. any creditor (after 45 days of decedent's death)

Answer 49

describes ability of decedent (donor) to select an individual (donee) to dispose of certain property under the will power is personal to the donee (only the donee can appoint) general and special

Answer 50

no conditions or restrictions on donee's power if donee fails to exercise the power, property reverts back to donor's estate

Answer 51

donor can specific certain individuals or groups as objects of the power donor lists the donee's power

Answer 52

authority to act on another's behalf in a legal or business matter principal / agent relationship 1. must be in writing 2. signed AND 3. dated

Answer 53

**general**: covers all affairs during a person's period of incapacitation **special**: limits authority to specific subject matters (like resolving a certain deal) **advance health care directives**: * living will - dictates care individual wants in teh event they cannot make those wishes known, agent needs to make sure directive is enforced * durable POA for health care - appoints agent in event principal becomes incapacitated and is unable to make medical decisions, allows agent to stand in principal's shoes and make decisions for them

Answer 54

don't apply unless exam question says to surviving spouse is entitled to 100% of community property

Answer 55

make sure to discuss both majority view and UPC view

Answer 56

explain how codicil is changing the terms of original will + whether codicil was executed property

Answer 57

* common law: state where the testator was domiciled at the time of his death * UPC: validity is determined under the law of the place where (i) the will was executed OR (ii) the testator is domiciled, has a place of abode, or is a national at the time of death.

Answer 58

yes, validity of a will can be conditional on a particular event or circumstance ct will try to construe express language as a mere explanation or instruction, rather than stopping admittance of the will ct will consider whether the event is an express condition or only a statement of motive for executing the will

Answer 59

goes to the named beneficiary if a testator specifically devised securities owned at the time the will was executed to a named beneficiary and subsequently the testator acquired additional shares of the securities as the result of either a stock split or a stock dividend, the additional shares also pass to the named beneficiary

Answer 60

subject to the mortgage, it's not paid off specific devise passes subject to any mortgage interest existing at the date of death without right of exoneration, regardless of a general directive in the will to pay debts

Answer 61

specific devisee is entitled to the specifically devised property if it is in the probate estate AND any proceeds unpaid at death on fire or casualty insurance on the property

Answer 62

A valid will must be in writing and signed with present testamentary intent by the testator in the joint presence of two witnesses. A codicil is a supplement to a will that alters, amends, or modifies it. A codicil must be executed with the same formalities as a will, but it need not be executed with the same formalities as the will that it alters, amends, or modifies. A valid partial will, or codicil, that refers to an earlier will is said to republish that will as of the date of the codicil. A validly executed codicil may validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will.

Answer 63

A will may incorporate by reference another writing provided the other writing existed at the time the will was executed, is intended to be incorporated, and is described in the will with sufficient certainty so as to permit its identification.

Answer 64

Intestacy is the default statutory distribution scheme that applies when an individual dies without effectively disposing of all of his property by other means. Intestacy statutes generally favor the decedent’s surviving spouse and issue, followed by the decedent’s other relations. A party cannot take property from a decedent when the party was responsible for the decedent’s death. Although murderers are often barred from inheriting under a “slayer statute,” this does not apply if an heir killed another person, even if the heir’s victim left property to the decedent that is included in the decedent’s estate.

Answer 65

A specific bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate. If the subject matter of a specific bequest is missing or destroyed (“extinct”), the beneficiary takes nothing. The property is adeemed regardless of the testator’s intent. However, under the UPC, the bequest is adeemed only if the facts and circumstances establish that ademption was intended. The UPC permits a beneficiary of a specific extinct gift to take the property acquired by the testator as replacement property. Under the common law doctrine, the testator’s intentions are irrelevant; all that matters is whether the testator owned the specifically devised asset at his death.

Answer 66

At common law, a stock dividend is a property interest distinct from stock given by a specific bequest. Under common law, a bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares is deemed to include any additional shares of that security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions. Today, virtually all jurisdictions treat stock splits and dividends the same way; in each case, additional shares obtained by the testator go to the specific devisee.

Answer 67

A holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed. Under the state’s law [provided in this question], holographic wills and codicils are not recognized. To be valid, a will must be acknowledged by the testator and signed in the presence of at least two attesting witnesses, who also sign the will within 30 days.

Answer 68

A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary. Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract. However, some courts have upheld a beneficiary change by will if the insurance company does not object.

Answer 69

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.

Answer 70

Under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition. Today, almost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts. Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.

Answer 71

Gifts by will are abated, i.e., reduced, when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.

Answer 72

Under common law, if a beneficiary died before the testator, then the gift failed and went to the residue unless the will provided for an alternate disposition. Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests. Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.

Answer 73

The individuals who are entitled to a decedent’s property if he dies intestate are the decedent’s “heirs.” Because the will did not condition Doris’s bequest upon her surviving the testator, the bequest does not fail just because Doris predeceased the testator. [applied the relevant clause of the will --> passes to Doris's heirs so it doesn't go to the charity (not an heir)]

Answer 74

If an heir of a decedent fails to meet the survival requirement, then the heir is considered to have predeceased the decedent and does not take under the laws of intestacy. The clause is similar to the state anti-lapse statute, and the fact that the testator uses the phrase “if [he/she] survives me” demonstrates that the testator intentionally distinguished gifts that were subject to survivorship. HOWEVER, the UPC takes a contrary approach with respect to the effect of the phrase “if he [or she] survives me.” It provides that an express survivorship contingency does not evidence intent for the anti-lapse statute to be inapplicable.

Answer 75

Under the UPC, if the residue is left to two or more persons and one dies, and if anti-lapse does not apply, then the remaining beneficiaries take in their proportionate shares. This is contrary to the common-law “no residue of a residue” rule, under which the testator’s heirs succeeded to any lapsed portion of a residual bequest.

Answer 76

If a gift does not lapse, then it passes to the predeceased person's heir.

Answer 77

defects in a prev validly executed will can be cured if the will is "republished" in a properly executed codicil treats portions of the original valid will that are not inconsistent with the terms of the codicil as recited in codicil

Wills & Estates (Essay Only) Flashcards

(101 cards)