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Flashcards in Wills MBE Deck (53)
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Lost wills

Jursidictions split on whether this constitutes rebuttable presumption that decedent destroyed the will.

Duplicate original permitted; photography not permitted
Burden on proponent- clear and convincing


Revocation of codicils

revives the original will


3 ways to revoke will

1. physical action
2. operation of law (divorce)
3. subsequent instrument

A testator can revoke a will or codicil by executing a later valid will or codicil that partly or completely revokes the prior will or codicil. Oral revocations are not valid


3rd party can revoke will for T

1. Done at T's direction
2. In T's conscious presence


Revival of 1st will after revocation of 2nd will?

Common Law: automatic revival of original will upon revocation of 2nd will

UPC: get it from outline


Dependent Relative Revocation

T's revocation of will is disregarded if it was based on a mistake of law or fact and would not have been done but for that mistake


Incorporation by reference

Another writing not executed with testamentary formalities may dictate the distribution of T's property


Incorporation by reference test:

If property:
1) existed at the time of execution of the will
2) Is intended to be incorporated and
3) Is described in the will with sufficient certainty to permit identification

UPC waives element 1 if document is disposing of tangible personal property


Construction (Interpretation of Will)

Courts tend to give the words in wills their plain meaning.

o We assume the testator meant the plain meaning of what he said, even if the testator
meant something else.

o Exception: The will states otherwise (e.g., by defining terms)
Courts reluctant to disturb plain meaning of will

Extrinsic evidence allowed to resolve ambiguities

Patent ambiguity (mistake/ambiguity on its face)

Latent ambiguity (mistake/ambiguity not apparent from reading the will)


Lapse - Common law

A testamentary gift would lapse (i.e., fail) if an
intended beneficiary did not survive the testator.
Failed gifts would be dumped into the residuary gift.



If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be
abated, or reduced, in a specific order

1. intestate property
2. residuary
3. general
4. specific



A will makes a specific devise of property, but the specific piece of property is no longer in the estate at the testator’s death.

Common Law: devise is extinct and the devisee
takes nothing.


Ademption UPC approach

UPC: Look to the testator’s intent at time she disposed of the property.
Look for facts that suggest the testator intended the ademption.

If Ademption inconsistent with testator's intent then beneficiary entitled to money or equivalent in value of the specific property promised


Ademption by satisfaction

gift may be satisfied by inter vivos transfer of property after the execution of the will if that's T's intent

UPC- must be expressly in writing


Omitted Spouse

Rebuttable presumption that omission was a mistake; the omitted spouse is entitled to the intestate share unless...

a. UPC- valid prenup can rebut the presumption
b. The spouse was given property outside of the will in lieu of a disposition in the will;
c. intentional omission

Traditional- presumption rebutted if T's intent to omit spouse is apparent from language of will


Advancement of inheritance

Common Law- lifetime gift presumed to be advancement of child's intestate share; child has burden to prove otherwise

Modern trend (UPC)- gift is an advancement if D declared in a contemporaneous writing that the gift was an advancement or 2) heir acknowledges that the gift was an advancement IN WRITING



A person may disclaim a testamentary gift

1. Procedure: be in writing, signed and filed w/ the court

2. Timing: within 9 months of decedent's death


Who has standing to contest a will

Only directly interested parties who stand to benefit financially from the will or intestate succession (e.g. A spouse of an heir/beneficiary can't contest nor can T's general creditors.)

Timing: must file contest claim within 6 months after will admitted to probate


Will Contests:

Lack of Testamentary Capacity

Generally T must be:
18 or over & of sound mind

Person challenging the will (“the contestant”) bears the burden of proving that the
testator lacked the ability to know:

1. The nature of the act (why?)
2. The Nature and Character of her property (what am I giving?)
3. The natural objects of his bounty (Who?)
4. The plan of attempted disposition (how do I want this divided?)

Note: lacked the ability to know not whether T actually knew


Will Contests:

Insane Delusion

Testator has general capacity, but has an insane delusion as to some belief (e.g. leaving wife out of will b/c husband irrationally believes she's cheating)


Will Contests:
Insane Delusion Test

Rational person test:
A belief is an insane delusion if the rational person could not have reached the same

But for:
The contestant must show that the person would have received the property but for the insane delusion


Will Contests:
Undue Influence

Mental or physical coercion exerted with intent to influence T such that he loses control of his judgment and executes an unnatural will


Will Contests:

Undue influence

Test 4 elements (SMOC)

Majority view: Contestant must show 4 elements:

1. Susceptibility: The testator was susceptible to being influenced.

2. Motive: The influencer has reason to benefit.

3. Opportunity: The influencer had opportunity to influence.

4. Causation: The influencer caused an unnatural result.


Will Contests:


1. intent to deceive testator and
2. the purpose of influencing the testamentary disposition
3. resulting in a will that would not have been executed but for fraud.

Remedy: constructive trust


Forfeiture Clause

If a beneficiary sues of his share and loses, he loses his share entirely

Most states and UPC- forfeiture clause unenforceable against beneficiary who has probable cause to contest


Probate Property is

Probate property passes by will or intestate succession.


Non-Probate Property is

Transferred by instrument other than will

a. Deed
b. Trust
c. Joint Tenancy
d. POD Contract


Slayer Statute

A party cannot take property from a decedent when the party was responsible for the
decedent’s death. The UPC and the majority of jurisdictions treat the killer as if he had
predeceased the decedent


Omitted Child -Unintentional Disinheritance

A child who is omitted from the will can force a share if certain requirements are met:

-The child is born or adopted after the will is created, or the testator mistakenly believed the child was dead; and

- The child is unintentionally omitted from the will


Omitted Child- What can they get?

1. If testator had no other children when the will was executed, then the child takes her intestate share.

2. If the testator had at least one other child living at the time of the execution of the will, and the will devised property to at least one of those children, then
the omitted child takes an equal share from the portion of the property already devised to the other child


Surviving Spouse Community Property

At death, the surviving spouse is entitled to 1/2 of the Community Property (CP).

The surviving spouse of an intestate decedent is also entitled to the decedent’s 1/2 CP and quasi-CP. Therefore, the surviving spouse will take 100% of the CP.


Putative Spouse

Even if a marriage is not valid, as long as one party believes in good faith in its validity, the spouses are termed putative and qualify as spouses for inheritance purposes.


Under UPC what is needed for spouse to recover

1. must be married @ time of death
2. clear and convincing evidence that he/she survived the decedent by 120 hours to take by intestacy.



Lineal descendants of the testator, including children, grandchildren, and great-grandchildren



A codicil is a supplement to a will that alters, amends, or modifies the will, rather than replacing it.

Execution: codicil must be executed with the same formalities as a will (can be attested or



A default estate plan developed by the legislature. The decedent’s actual intent is IRRELEVANT


Requirements for a Valid Will

1. Capacity
T must have capacity to make will (a. sound mind and 18+)

2. Testamentary Intent
T must understand and intend to execute a will and generally know and approve of its contents

3. in writing and signed by T and witnesses

UPC- oral will invalid

Signature: some states signature must be @ end of will. Other states and UPC, signature can be anywhere. But anything after the signature won't be given effect.


Requirements for a Valid Will: Witnesses

A. Majority: The will must be signed in the joint presence of and attested to by two witnesses.(witnesses must sign in T's presence)

B. UPC: reasonable time after.

Witnesses, all of whom don't have to be present at the same time, must sign the will w/in a reasonable time after witnessing the testator sign or acknowledge will


Interested Witness

Common Law: interested witness not competent to witness the will (will invalid)

Modern: purge theory: invalidate portion of the will that provides an excess portion to the interested witness (any amount in excess of what the witness would have
received in intestacy).

UPC: abolished interested witness doctrine


Will Execution Compliance with Required Formalities

Common Law: strict compliance

UPC: Substantial compliance
Courts will have the power to probate non-compliant will if there is clear and convincing evidence that the testator intended for the document to serve as his will and he has substantially complied with statutory formalities


Holographic Wills

An informal, handwritten will

a. Signed by T
b. handwritten in T's handwriting (common law), UPC requires only that the material provisions are handwritten.
c. NO NEED of witnesses or date
d. intent

Material provisions= beneficiaries, how much they'll receive

extr. evidence ok


Revocation of Will:
Physical Act

A will or codicil may be A will is partially or completely revoked by destroying a portion of the will or
codicil with the intent to revoke it.

The act of destruction must occur with the intent to revoke

Majority: requires defacement of the language (e.g. crossing out of some language including signature)

UPC: lower standard; the destructive act must merely affect some part of the will.


Revocation of Will:

In most states, divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive.

Separation does not revoke the will unless separation agreement exists


Example of a Codicil amending an attested will

A valid attested will is executed in 2000 leaving $1 million dollars to C. In 2002, Testator crosses out the $1 million dollar amount and hand-writes a statement on the will that he intends to leave $2 million
dollars to C. Testator signs and dates below his statement. Under the UPC, Testator has met the formalities of a holographic codicil (signed writing, dated, testator’s intent in his own handwriting, no witnesses required) and C is now entitled to $2 million dollars


Pour-Over will

A pour-over will includes a clause wherein some or all of the decedent’s probate property is given to the trustee of the decedent’s inter vivos trust


SS is only surviving relative or SS's only kids are with decedent

SS gets 100%


SS has no kids, nor does decedent, but decedent's parent alive

SS gets 300k and 75% of remainder of estate


SS has kids with decedent and kids of their own

225k and 50% of remainder in estate


Decedent has issue not related to SS

SS gets 150k and 50% remainder of the estate


intestate succession

when probate is denied (invalid will) or no will exists;

An intestate's children take to the exclusion of their own descendants



Under modern anti-lapse statutes, if the beneficiary was a specified blood-related to the testator, the beneficiary’s surviving issue (child, grandchild, etc.) will take in his/her place


Per Capita with Representation

Divide the property equally at first generation where a member survives the decedent


Per Capita at each Generation (UPC)


Instead of passing a deceased member’s share by representation, however, this method pools the remaining shares after each generation