1. Wills

Question 1

What are the two main approaches to intestate succession (and how do they work)?

Answer 1

1. Per Capita at Each Generation - split the estate equally at each generational level
2. Per Capita with Representation (Modern Per Stirpes) - split the estate but if pass to second generation, give passthrough shares (not equal shares)

Question 2

What is the law on advancements?

Answer 2

1. Common Law - Lifetime gift to child only is removed from the child’s share of the will (add value, divide equally)
2. Modern Rule - lifetime gift not an advancement absent evidence of intent otherwise.

Question 3

What are the requirements to execute a valid common law will and what are the exceptions?

Answer 3

1. Writing
2. Testamentary intent
3. Signed by testator
4. Witnessed by two witnesses
5. Over age of 18

But exceptions: harmless error rule (clear and convincing evidence of intent to form), holographic will, notarized will.

Question 4

What are the requirements for a holographic will?

Answer 4

1. material portions in testator’s handwriting

2. signed by testator

Question 5

What are the requirements for incorporation by reference?

Answer 5

1. Identified in will with reasonable certainty
2. Intent
3. In existence at time of execution of will

But! If a tangible property list, can be incorporated even if formed after the will

Question 6

What is required for a valid revocation of a will by physical act?

Answer 6

1. Intent
2. Physical act such as cancelling, tearing, burning, crossing out

Common law must be more complete act but UPC any minor act suffices.

Note a third party can revoke if (a) directed by T and (b) in T’s presence.

Question 7

What are the requirements of Dependent Relative Revocation?

Answer 7

1. Testator made a mistake of law or fact
2. But-for the mistake he would not have revoked
3. Reinstating is in alignment with T’s intent

Question 8

Lapse and Antilapse Statutes

Answer 8

1. Common Law - lapsed devise (person dies) and the devise returns to residuary
2. Modern Law (anti lapse) - if pre-deceasing devisee is a blood descendant of T’s grandparents and leaves issue, passes to issue

Question 9

What are the components of a slayer rule or slayer statute?

Answer 9

Someone who (a) intentionally and (b) feloniously kills the decedent may not inherit under the will. Treated as pre-deceasing

Voluntary manslaughter satisfies this rule.

Question 10

What results from ademption?

Answer 10

** Threshold issue – this ONLY applies to devises of specific property, not cash)

1. General Rule - if property devised in the will does not exist at death, devisee gets nothing
2. Rare Exceptions - (a) guardian of incompetent testator sells the property. (b) insurance proceeds received after death

Question 11

What order does abatement apply in?

Answer 11

1. intestate property
2. residuary devises
3. general devises
4. Specific devises

Question 12

What are the requirements for testamentary capacity?

Answer 12

1. Knows the nature and extent of property;
2. The persons who are the natural object’s of the testator’s bounty;
3. The nature of the instrument being signed;
4. The disposition that is being made in the will

Question 13

What are the requirements of proving undue influence?

Answer 13

SODA

1. Susceptibility
2. Opportunity to influence
3. Disposition in favor of influencer
4. Appears to be product of undue influence

Question 14

What states will a will be valid in during a conflicts of law problem (i.e., executed in state X but disposing of state Y property)?

Answer 14

1. For real property –> laws for the state where property is location
2. For personal property –> laws for the state of testator’s domicile at death

Question 15

What are the rules for when a witness takes under the will?

Answer 15

1. Traditional Majority View - Purge the devise
   - Unless (a) two other uninterested witnesses; or (b) witness would take under intestacy and therefore entitled to the lesser of the two
2. UPC - No purge

Question 16

When will we revive an old will based on the revocation of a new will?

Answer 16

1. The old will still exists;
2. Testator intended to revive it; and
3. Testator revoked the new will by physical act

Question 17

How are increases in devised stock treated under common law?

Answer 17

1. Stock split – devisee gets all additional shares plus original
2. Stock dividend – devisee only gets original shares
3. Stock through new consideration – Devisee only gets original shares
4. Stock acquired through merger – devisee gets none of the stock (fully adeemed)

Question 18

How are increases in devised stock treated under the UPC?

Answer 18

Devisee gets all new stock associated with original devise unless the stock was acquired with new consideration (bought new)

Question 19

What is the law on (a) ambiguous mistakes and (b) unambiguous mistakes?

Answer 19

(a) for ambiguous mistakes you can ALWAYS introduce extrinsic evidence to clarify intent;
(b) for unambiguous mistakes
- Common Law – NO extrinsic evidence, must pass according to plain meaning
- UPC – Can re-write the will with clear and convincing evidence

Question 20

What are the general rules for intestate succession?

Answer 20

(a) if surviving spouse
1. receives entire estate if no children or parents of D
2. receives entire estate if children are also children of spouse
3. Split estate if at least one child is not child of spouse (UPC 1/3 increasing by 2% per year of marriage until 50%)

(b) if no surviving spouse
1. Entire estate goes to children (per capita or per stirpes)
2. If no children, to parents
3. If no parents, to brothers and sisters
4. If no siblings, to nearest relatives

Question 21

Simultaneous Death Act

Answer 21

1. Traditional Rule - if devisee can be proven to have survived even one second longer, devisee still takes
2. Modern Simultaneous Death Act Rule - A party who dies within 120 hrs of the testator is treated as pre-deceasing the testator (lapse or anti-lapse applies)
   - For survivorship assets (joint tenancies, life insurance) this is treated as creating tenancies in common with 1/2 rights

Question 22

Pretermitted Spouse

Answer 22

1. Traditional Rule - pretermitted spouse does not take anything
2. Modern UPC - pretermitted spouse is entitled to what she would receive in intestacy (unless expressly disinherited or provided for otherwise)

• be wary of republication by codicil! Will validate an old will as an express disinheritance (same for pretermitted child)

Question 23

Pretermitted Child

Answer 23

1. Entitled to intestate share UNLESS
   (a) expressly disinherited;
   (b) surviving spouse is parent; or
   (c) provided for otherwise (like in a trust)