Wills, Trusts, and Estates Flashcards
(103 cards)
1
Q
Define the following:
1. Decedent’s estate
2. Probate estate
3. Testamentary estate
3. Intestate estate
A
- Decedent’s estate: all property (real, personal, or intangible) belonging to a person at the time of death.
- Probate estate: all property: all estate property to be disposed of by will or intestacy.
- Testamentary estate: that portion of the probate estate disposed of by will.
- Intestate estate: that portion of the probate estate that isn’t disposed of by will.
2
Q
What is an heir?
A
Someone entitled to take under the laws of intestacy.
3
Q
In the context of intestacy, what are survivorship requirements?
A
- At common law: An heir survived the decedent if the heir outlived the decedent by any appreciable length of time, even if only by one heartbeat.
- Most jurisdictions: An heir must be shown to have outlived the decedent by a specified minimum period, or else be deemed to have predeceased the decedent.
- Uniform Simultaneous Death Act: The survivorship requirement is one hundred twenty hours, or five full days.
4
Q
In the context of intestacy, what is a surviving spouse?
A
A surviving spouse must be married to the decedent when the decedent dies and must meet the survivorship requirement.
The Uniform Probate Code defines marriage as any marital status besides divorce or annulment.
Some jurisdictions also include domestic partnerships, common-law marriages, and civil unions within the intestacy definition of marriage.
5
Q
In the context of intestacy, what is a slayer statute?
A
Laws that an heir will be deemed to have predeceased the decedent if he is either:
1 criminally convicted of feloniously and intentionally killing the decedent, or
2. found to have done so by a preponderance of the evidence.
Even in jurisdictions without slayer statutes, courts generally bar the heir from inheriting in these situations, relying on equitable principles.
6
Q
Under the Uniform Probate Code, what is a surviving spouse’s share of the decedent’s intestate estate if there are no surviving descendants?
A
- No surviving parents or descendents: Entirety of the intestate estate.
- At least 1 surviving parent, but no descendants: The first $300,000 plus three-fourths of the remainder.
7
Q
Under the Uniform Probate Code, what is a surviving spouse’s share of the decedent’s intestate estate if there are surviving descendants?
A
The surviving spouse will get the entire intestate estate, regardless whether the decedent has surviving parents, if three requirements are met:
1. the decedent and the surviving spouse have the same surviving descendants,
2. the decedent has surviving descendants by no one except the surviving spouse, and
3. the surviving spouse has surviving descendants by no one except the decedent.
8
Q
What is the surviving spouse’s share if the decedent has surviving descendants by no one but the surviving spouse, but the surviving spouse has surviving descendants by someone other than the decedent?
A
The surviving spouse takes the first $225,000, plus one-half the remaining balance.
9
Q
What is the surviving spouse’s share if the decedent has surviving descendants by anyone other than the surviving spouse?
A
The surviving spouse takes the first $150,000, plus one-half the remaining balance.
10
Q
Under the Uniform Probate Code, what is a surviving descendant’s share of the intestate estate?
A
- If there’s a surviving spouse: Whatever is left, if anything, after deducting the surviving spouse’s share.
- If there’s no surviving spouse: The entire estate.
11
Q
Under the Uniform Probate Code, how do surviving children generally take of the intestate estate?
A
In equal shares, to the exclusion of more remote descendants such as grandchildren.
12
Q
What happens if a deceased child of the decedent has descendants who survive the decedent?
A
The more remote descendants may take by representation.
13
Q
What are the two previaling systems of representation?
A
- Per stirpes.
- Per capita at each generation.
14
Q
Describe the per stirpes system.
A
The surviving descendants’ portion is divided into one equal share for:
1. each surviving child of the decedent, and
2. each deceased child of the decedent with at least one surviving descendant.
Example: Decedent died with 1 surviving child, A. Decedent was preceded in death by children B and C. B had 2 surviving children (Decendent’s grandchildren). C had 3 surviving children.
Descendants’ portion of the estate will be divided into 3 equal shares, 1 each for A, B, and C. A will take her share. B’s share will be divided equally among her two children (giving each a 1/6 share). The same goes for C’s share (giving each a 1/9 share).
15
Q
Describe the per capita system.
A
Beginning at the prime generation (i.e., the first generation of descendants with at least one surviving member), the descendants’ portion is divided into one equal share for:
1. each surviving descendant in the prime generation, and
2. each deceased member of the prime generation who has at least one surviving descendant.
Example: Decedent died with 1 surviving child, A. Decedent was preceded in death by children B and C. B had 2 surviving children (Decendent’s grandchildren). C had 3 surviving children.
The prime generation is that of A, B, and C. So, A will take her 1/3 share. But the shares allocated to B and C will be combined into a single 2/3 share to be divided equally among the surviving children of B and C (giving each a 2/15 share).
16
Q
What is the default representation system under the Uniform Probate Code?
A
Per capita at each generation.
But a jurisdiction that otherwise adopts the UPC may decide to implement a per stirpes system.
17
Q
In the context of probate, what is primary jurisdiction?
A
Primary jurisdiction is jurisdiction over the estate at large, which generally vests in the probate courts of the jurisdiction where the decedent was domiciled at death.
18
Q
In the context of probate, what is ancillary jurisdiction?
A
Ancillary jurisdiction is jurisdiction over the estate for a specific, limited purpose, usually to determine the will’s effect on property located in the jurisdiction if the testator was domiciled elsewhere at death.
19
Q
What are the choice-of-law rules when a will disposes of personal property?
A
Under traditional, majority doctrine, to the extent the will purports to dispose of personal property, the law of the decedent’s domicile at death governs the will’s validity, interpretation, and effect, regardless of where the personal property is located.
20
Q
What are the choice-of-law rules when a will disposes of real property?
A
The law of the jurisdiction where the real property is located governs the will’s validity, interpretation, and effect.
Illustration: If the will is valid in the foreign jurisdiction (i.e., any state or country other than the testator’s domicile), then the real property passes according to the will, even if the will is invalid in the domicile. Conversely, if the will is invalid in the foreign jurisdiction, then the real property passes by intestacy as the foreign jurisdiction’s law provides, even if the will is valid in the domicile.
21
Q
Can a will contain a choice-of-law clause?
A
Yes, and courts will generally honor such a clause.
22
Q
In general, what are the two types of valid/enforceable wills?
A
- Attested wills.
- Holographic or handwritten wills.
23
Q
What are the general requirements for an attested will?
A
In most jurisdictions, an attested will must be:
1. in writing;
2. signed; and
3. witnessed by the required number of people (usually two).
24
Q
What is the signature requirement for an attested will?
A
In every jurisdiction, for a will to be valid, either:
1. the testator must sign the will personally, or
2. someone else must sign it on the testator’s behalf and satisfy certain additional requirements.
25
How can a testator personally sign a will?
By placing **her name**; a **mark**; or some **epithet** by which she’s known, such as Mom, on the will **with intent to adopt it as her own**.
26
How can someone sign a will on a testator's behalf?
The person must **act in the testator’s presence** and **at the testator’s direction**.
27
What constitutes "presence" for the purposes of signing a will on someone else's behalf?
**In most jurisdictions**, the presence requirement is satisfied **if the person signs the document in the testator’s conscious presence, regardless of whether the person acts within the testator’s field of vision**.
But **in some jurisdictions**, the **individual must sign the document within the testator’s field of vision**, unless the testator is blind.
28
What is the competence requirement for a witness to an attested will?
**Lenient**; competence is met if only that **the witness can observe, recall, and communicate the pertinent facts surrounding the will’s execution**.
29
What is the witness requirement for an attested will?
The required number of **witnesses must first see the testator sign the will and then, within a reasonable time, sign it themselves**.
Alternatively, **the testator may acknowledge the signature as her own to the witnesses**, after which **the witnesses must sign the will within a reasonable time**.
30
What if an attested will is signed by an interested witness?
**At common law**: A will witnessed by an interested party was entirely invalid (unless there were enough signatures by disinterested witnesses to validate the will).
**In most jurisdictions today**: An **attested will is valid**, even if it relies on the signatures of interested witnesses. **However**, the majority rule in these jurisdictions is that, unless an exception applies, **an interested witness will forfeit all benefits under the will** (unless there were enough disinterested witnesses to validate the will).
Depending on the jurisdiction, the interested witness may be able to take the portion to which the witness would have been entitled in intestacy or under a prior will.
31
Under the **Uniform Probate Code**, what happens if an interested witness signs a will?
Under the UPC, an interested witness is treated the same as any other witness and, therefore, **loses no benefit under the will**.
32
What is a holographic will?
A will **handwritten** by the testator.
33
Under traditional doctrine, when is an unattested holographic will admissible to probate?
The **will satisfies all 3 of the following requirements**:
1. **demonstrates testamentary intent**, or intent for the document to serve as the testator’s will;
2. is **entirely handwritten by the testator**; and
3. is **signed and dated by the testator**.
| Courts interpret these requirements pretty strictly.
## Footnote
Note: If part of the will is in the testator’s handwriting and part of it isn’t, **courts will disregard the portions that aren’t in the testator’s handwriting** unless they meet the requirements of an attested will.
Note: Holographic wills can take many forms (e.g., a letter), provided they meet the aforementioned requirements.
34
Under the Uniform Probate Code, when is an unattested holographic will admissible to probate?
Under the Uniform Probate Code, or UPC, a holographic will is valid **if the signature and material portions are in the testator’s handwriting**.
35
Can a testator make handwritten changes to a holographic will without signing it again?
In most jurisdictions, yes (provided that the **changes are in the testator’s handwriting** and **the will remains valid**).
36
Can a testator make handwritten changes to an attested will?
In states acknowledging unattested holographic wills, a testator may normally make handwritten changes to an attested will, **provided he separately signs and, in some states, dates the changes**.
37
What is the harmless-error rule?
Some **deficiencies in execution**, particularly in attestation, **can be overlooked if it's proven by clear and convincing evidence that the testator intended to adopt the document** as her will.
The **lack of a writing or a signature**, though, **typically can't be excused** under this rule.
## Footnote
Note: Not all jurisdictions have adopted the harmless-error rule.
38
What is a court's number one objective in interpreting a will?
To ascertain and effectuate (to the extent possible) the testator's **intent**.
39
When contrusing a will, under what circumstances will a court consider extrinsic evidence?
1. First, courts consider extrinsic evidence **to establish whether the will itself is valid**.
2. Second, most courts consider extrinsic evidence **to determine whether a will provision is ambiguous**.
3. Third, and relatedly, courts consider extrinsic evidence **to resolve ambiguities in the will**.
40
In the context of construing a will, what is a **patent ambiguity**? To what extent will a court consider extrinisic evidence to resolve a patent ambiguity?
A patent ambiguity **appears on the will’s face**, often due to inconsistent or unclear language.
**Virtually any court will consider extrinsic evidence to resolve a patent ambiguity**.
41
In the context of construing a will, what is a **latent ambiguity**? To what extent will a court consider extrinic evidence to resolve a latent ambiguity?
An ambiguity is latent if the will, on its face, appears clear, certain, and internally consistent but the **surrounding context shows that the will is ambiguous**.
**Most courts will also consider extrinsic evidence** to resolve a latent ambiguity, **though some won’t**.
42
Under the Uniform Probate Code, when can a will be reformed?
This remedy of reformation **requires that two things be proven by clear and convincing evidence**.
1. First, **a factual or legal mistake affected the will’s terms**.
2. Second, **the testator’s true intent at the time the will was executed**.
43
In the context of construing a will, what is a mistake in expression?
A mistake in expression can be **a term that inaccurately states the testator’s intent**, **a term the testator meant to omit** but somehow wound up in the will, or **a term the testator meant to include** but somehow got left out.
44
In the context of construing a will, what is a mistake in inducement?
The **will accurately states the testator’s intent but that intent was predicated on a mistake of fact or law**.
45
In the context of construing a will, what is the plain-meaning rule?
This rule **flatly bars extrinsic evidence to vary or reform the terms of an unambiguous will**.
46
What is a codicil, and what effect does it have on a previous will?
A codicil is a **testamentary document that amends or supplements a previous, valid will**.
The **previous will is revoked to the extent that its dispositive provisions are inconsistent with those in the codicil**.
47
What are the requirements for a codicil?
1. It must **meet the same formal requirements as a will**.
2. It must **refer to the will it modifies**.
48
Under the Uniform Probate Code, how does one distinguish between a codicil and a total revocation of a prior will?
If the later document **disposes of the testator’s whole estate**, then it’s **presumed to be a later will** entirely revoking the prior will and not a codicil.
However, if the later document **disposes of only part of the estate**, then it’s **presumed to be a codicil** and not a full-blown will.
These **presumptions can be rebutted by clear and convincing evidence**.
49
What is republication by codicil?
Under this rule, **a will is deemed reexecuted and republished entirely as of the date of the most recent valid codicil modifying it**, **unless that result would defeat the testator’s intent**.
50
Describe the doctrine of incorporation by reference.
For an **extrinsic document** to be incorporated by reference, there are **four requirements**:
1. First, **the document must predate the will**.
2. Second, **the extrinsic document must be a written document**.
3. Third, **the will itself must manifest the testator’s intent to incorporate** the extrinsic document.
4. Fourth, and relatedly, **the will must describe the document in enough detail to permit one to identify it with reasonable certainty**.
51
Is the doctrine of incorporation by reference acknowledged in all states?
**No**. **Most do**, but a few lack any statute or caselaw espousing the doctrine.
52
Under what circumstances can a list of tangible property become part of a will even if the requirements of incorporation by reference are not met?
If:
1. a **statute authorizes lists of tangible personal property**,
2. the **list disposes only of tangible personal property other than money**,
3. the **disposition in the list is not contrary to the will’s terms**,
4. the **testator signs** the list, and
5. the **list describes the relevant items and their recipients with reasonable certainty**.
53
In the context of wills and intestacy, what is disclaimer?
Disclaimer is the rule that **an intended devisee may refuse any benefit**, including a gift of property, power of appointment, or anything else **that can pass by will or intestacy**.
Disclaimer **can be selective**.
54
What is the result of disclaimer?
To the extent of the disclaimer, **the gift is deemed revoked and treated as though the devisee predeceased the decedent** and died as of the time immediately before distribution.
The result, then, is that **the gift lapses, unless the will or a statute provides otherwise**.
55
What are the requirements for a legally effective disclaimer?
A legally effective disclaimer must be **voluntary**, **express**, **overt**, and **made with full knowledge of the consequences and all relevant facts**.
Under the **Uniform Probate Code**, there must also be **a signed writing that states the disclaimer**, **particularly describes the disclaimed interest**, and satisfies other formalities.
56
When can disclaimer occur?
1. **Any time before the decedent’s death**.
2. After the decedent's death: The **later of a reasonable time after the decedent’s death or after the devisee has had a reasonable time to disclaim**.
## Footnote
Note: In some states, a statute may specify a different time to disclaim.
57
When does disclaimer take effect?
Courts generally treat a disclaimer as though it **relates back to the time of the decedent’s death**, meaning the disclaimant never had any right to the disclaimed interest. The result: **creditors may generally not reach the disclaimed interest to satisfy the disclaimant’s liabilities**.
The **IRS, however, is a notable exception** to this rule.
58
In the context of wills and intestacy, what is lapse?
Lapse occurs **whenever an heir or devisee predeceases the decedent or is treated as though she predeceased the decedent** (e.g. disclaimer).
59
What happens when a gift lapses?
The general rule is that, to the extent a gift lapses, **it fails entirely**. Having failed, **the gift does not pass to the intended recipient’s estate**. Rather, **it passes into the residue or intestacy**.
60
What happens when a **class gift** lapses?
**At common law and many states**: A class gift **lapses only if no class members survive the testator**.
61
What is an anti-lapse statute?
A statute providing that **a lapsed testamentary gift to a specific predeceasing beneficiary** will not pass into the residue or intestacy. Instead, it **will pass to certain designated substitute takers**—usually any descendants of the intended taker who survive the testator. These substitute takers will take by representation.
62
What are the two requirements for an anti-lapse statute to apply?
1. First, the **intended taker must be within a specific degree of family relation to the testator**, usually a parent, descendant of a grandparent, or stepchild of the testator.
2. Second, the **intended taker has descendants who survive the testator**.
**If either requirement fails, then the lapsed gift will pass into the residue or intestacy.**
63
How does an anti-lapse statute apply to class gifts?
**Only to single-generation class gifts**.
The gift is divided into **one share each for every class member who survived the testator and every class member who predeceased the testator but left behind surviving descendants**.
Each surviving class member takes her share. Any surviving descendants of a predeceased class member take that member’s share by representation. Any class member who predeceased the testator and left no surviving descendants is disregarded.
64
Under what circumstances can a testator preclude an anti-lapse statute?
An antilapse statute **will not apply if the testator intended that it not apply**.
**Courts are divided over whether an express survivorship requirement in the will is enough, by itself, to preclude the antilapse statute**. Most courts hold that it is. A strong minority of states and the UPC hold that it isn’t.
65
What are the two ways in which a testator can revoke a will?
1. By **later testamentary instrument**.
2. By **physical act** (revocatory act).
66
What are the two ways in which a testator can revoke a will by later testamentary instrument?
1. **Express**: A later testamentary instrument **explicitly** revokes a prior one by the same testator
2. **Implicit**: The testator executes a later, valid testamentary instrument whose dispositive provisions are **inconsistent** with those of a prior one by the same testator. **The later instrument revokes the prior one to the extent of the inconsistency**.
67
What is a revocatory act?
Some action that the testator performs on the will with intent to revoke it. The testator **must perform the act on the original will**, not a mere copy.
## Footnote
Examples include canceling (e.g., the testator applies some writing or mark to the will), burning, obliterating, tearing, or destroying a prior will.
68
What happens if the will was last in the testator’s possession before her death, but after her death, it can’t be found?
There is a **rebuttable presumption** that the **testator destroyed the will**, intending to revoke it.
But the will’s proponent can get the will admitted to probate by **proving that the testator didn’t revoke it**, **establishing its contents**, and **proving due execution**.
69
What is revocation by changed circumstances?
In **some states**, a will may be **revoked by operation of law** due to **changes in the testator’s family circumstances** (e.g., testator gets married after executing the will).
## Footnote
Note: Generally, a will can override a revocation by changed changed circumstances by **express** provisions.
Also, in the case of marriages/spouses, a will revoked by changed circumstances (i.e., divorce) may be revived if the testator later remarried the spouse.
70
What is revival?
Revival **reinstates the revoked will**.
71
How can a will be revived?
1. In **any jurisdiction**, a testator can revive a revoked will **by later testamentary instrument**.
2. In **some jurisdictions**, a revoked will is revived if the testator performs **a physical act on the revoked will**, and **the act shows, by clear and convincing evidence, the testator’s intent to revive the will**.
72
A second will revokes the first. A third revokes the second. What becomes of the first will?
In most states (and under the Uniform Probate Code), the first will is **not** revived **unless** the terms of third will show that the testator intended to revive the first will.
73
What is dependent relative revocation?
If DRR applies, then a **will remains valid despite the testator’s efforts to revoke it,** even if those efforts would normally be legally effective to revoke the will. DRR applies in one of two cases.
1. The testator attempted to revoke the will to effectuate an alternative scheme of distribution to the one set forth in the will, yet the scheme proves invalid.
2. Second, the testator attempted to revoke the will based on a false legal assumption or a false belief about objective fact.
BUT if the circumstances show that the testator would rather die intestate than have the will survive, DRR won’t apply.
Also, the UPC rejects DRR.
74
What is a will substitute?
Any transaction in which any **property or contractual rights**:
1. are **created or transferred by means other than will**, such as a deed, trust instrument, or contract;
2. remain **largely subject to the donor’s control while the donor lives**; and
3. **transfer on the donor’s death and outside probate**.
75
Name four examples of will substitutes.
1. Joint tenancies.
2. Totten trusts.
3. Life insurance.
4. Revocable inter vivos trusts.
76
What is a Totten trust?
A Totten trust is a **simple bank account** on which the **depositor designates herself as trustee for a named beneficiary**.
During the depositor’s life, the **trust is freely revocable**, and the depositor may withdraw funds from the account at will.
**Once the depositor dies**, though, the **named beneficiary becomes entitled to any funds remaining** in the account at that time.
Because the **funds pass immediately to the beneficiary**, they never become part of the depositor’s probate estate and, hence, **cannot pass by will**.
77
What is a revocable inter vivos trust?
## Footnote
Also known as a revocable lifetime trust.
In a typical case, the **donor commits specified property to a trustee for the benefit of a beneficiary**.
The donor-settlor will normally direct the trustee to **pay the income to one beneficiary for the donor’s life**, then **on the donor’s death, transfer the principal to that same beneficiary or a different one**.
The posthumous transfer occurs entirely outside probate.
78
What are the elements of testamentary capacity?
Testamentary capacity requires that the testator be:
1. **at least 18 years old or**, if younger, **an emancipated minor**, and
2. of **sound mind**.
79
In the context of testamentary capacity, what does it mean to be of "sound mind"?
The testator must be able to **understand**, at least **in a very general way**:
1. the **nature and extent of her property**, so that she can at least index the major categories of her property;
2. the **natural objects of her bounty**, generally the testator's close family members;
3. the **will's testamentary significance**, or the fact that the will's purpose is disposing of the testator's property upon her death; and
4. **how the will would dispose of her property**.
In addition, **the testator must be able to relate these things to one another in an orderly manner** and form an orderly desire regarding her estate's disposition.
80
What is a lucid interval?
A **testator without testamentary capacity may regain it for a time, even briefly**. We call these periods lucid intervals.
If the testator executes the will during a lucid interval, then the testamentary-capacity requirement is satisfied.
81
In the context of wills, what is undue influence?
Someone exercises **undue control over the testator's mind and overcomes the testator's free will**, causing the testator to execute a will that she wouldn't have executed but for the undue influence.
Undue influence has four basic elements:
1. the **testator was susceptible to undue influence**;
2. the **wrongdoer had the opportunity to exert undue influence**;
3. the **wrongdoer had a disposition, or motive, to exert undue influence**; and
4. the **will features an unnatural disposition of property**, which **appears to be the result of undue influence**.
82
Under what circumstances, if any, will a court presume undue influence in the execution of a will?
Most courts will **rebuttably presume** that the four elements of undue influence are satisfied if:
1. the **testator and the influencer share a confidential relationship**,
2. **suspicious circumstances** surround the will's execution, and
3. the **will makes an unnatural disposition of property without a reasonable basis**.
83
For the purposes of undue influence, what are the three general types of confidential relationships?
1. **Fiduciary** relationships (e.g., attorney-client relationship).
2. **Reliant** relationships (e.g., doctor-patient relationship).
3. **Dominant-subservient** relationships in which the testator is somehow subservient to the wrongdoer (e.g., testator is isolated and ill and, therefore, depends on the wrongdoer for care).
84
For the purposes of undue influence, what factors will a court consider when determining whether a will was executed under suspicious circumstances?
Relevant factors include, but aren't limited to, the **testator's susceptibility to undue influence because of a weakened physical or mental condition**, the **will's hasty or secret preparation**, and the **seeming unfairness of the disposition**.
85
For the purposes of undue influence, what is an unnatural disposition?
An unnatural disposition is **one that a reasonable person would regard as aberrant, unjust, or unfair**.
Courts are typically more likely to find an unnatural disposition insofar as **the will leaves property to someone who isn't a natural object of the testator's bounty, at least without a reasonable explanation**.
86
What is the result of a will contest?
Any **property** that was to be disposed of in the voided provisions then **passes into the residue** or, if there’s no valid residue, into **intestacy**.
87
What are common bases for will contests?
1. Lack of testamentary capacity.
2. Duress.
3. Undue influence.
4. Fraud.
5. Insane delusion.
88
What is an insane delusion?
An insane delusion means that the **testator, against *all* rational evidence, espouses a false belief**. The **false belief must materially affect at least one disposition in the will**. Only those provisions affected by the delusion are void, unless perhaps the delusion influenced the will at large.
## Footnote
Note: "Insane" modifies "belief." It does not necessarily describe the testator.
89
Who has standing to contest a will?
To challenge a will, someone **must have a pecuniary or beneficial interest in the estate**.
Most of the time, the challenger is someone who would take by intestacy if the challenged provision were set aside. More indirect interests might not suffice (e.g., someone who’d inherit from another person who’d take by intestacy if the will contest succeeded).
90
Do creditors have standing to contest a will?
No (generally), because creditors usually get paid ahead of donees under the will.
91
Who has standing to contest a will under the Uniform Probate Code?
**Anyone with a property right in or claim against the estate** could, depending on the circumstances, have standing (e.g., creditors, heirs, devisees).
92
What is a no-contest clause?
A no-contest clause **purports to rescind or nullify a gift to, or fiduciary appointment of, anyone who contests the will**.
93
Is a no-contest clause enforceable?
In most states and under the UPC, a no-contest clause is enforceable **unless the challenger has probable cause to contest the will**.
Probable cause exists if, at the time of the will contest, a reasonable person fully aware of all material facts would conclude that the will contest has a substantial likelihood of success.
94
What are the elements of a class gift?
1. The gift is slated for a **group of people**.
2. Each member of the group takes a **fraction of the whole**.
3. Both the **beneficiaries’ identities and their fractional shares of the overall gift can change over time**.
95
How does a donor create a class gift?
By using **a term of relationship**, like children, or **a group label**, such as the players on the local football team.
96
If a class gift identifies the class by a term of family relationship, who is included?
Unless the donor intends otherwise, courts normally presume that the gift is meant to go to **relatives by blood or adoption**, not to relatives by affinity or marriage.
97
What is a postponed class gift?
Class gift taking the form of a future interest (e.g., the class may be slated to take the principal when the income beneficiary dies).
98
What is the rule of convenience?
**No new members** can enter a class **once the first class member becomes eligible to take** (i.e., the class closes).
99
What is an exception to the rule of convenience?
Typically, the rule of convenience doesn’t apply **if the gift is by will, and there aren’t any class members at the time the class would ordinarily close**.
100
Can a class member in gestation when the class closes take of a class gift?
Generall yes, so long as she’s ultimately born viable.
The Uniform Probate Code requires a class member in gestation at the class’s closing to **survive for 120 hours after birth** to take anything under the gift.
101
What is a single-generation gift, and how is it distributed?
A single-generation class gift is one that, by its terms, **can span only one generation of lineal descendants**. Common examples include gifts to brothers, sisters, grandchildren, and so on.
**Per capita distribution**: each member in equal shares.
102
What is a multi-generational class gift, and how is it distributed?
A multiple-generation class gift can vest in **members across several generations**, for instance, gifts to someone’s issue, relatives, descendants, and similar terms.
A multiple-generation class gift is normally divided among living class members **by representation according to the members’ degree of relationship**.
103
What is the general rule of survivorship for class gifts? What is one exception to this general rule?
The class member **must not have pre-deceased** (in fact or in law) the donor.
**Exception for single-generation, postponed class gifts**: Here, a **class member won’t necessarily be precluded from taking if she dies after the class closes but before the gift is distributed**. Rather, unless the instrument creating the gift states otherwise, the **gift will go to the deceased class member’s estate**.
