Bar Essay Deck Flashcards
Undue influence
To establish undue influence, proof must show: (i) the existence and exertion of influence; (ii) the effect of which was to overpower the mind and free will of the testator; and (iii) the product of which was a will that would not have been produced but for the influence; that is, an instrument that reflects the will, not of the testator, but of the party exerting the influence. Undue influence is raised if one in a confidential relationship procures a will and the will benefits that person.
Sufficient capacity
To have sufficient capacity, it must be shown that at the time the testator signed the will he: (i) knew the nature of the act he was doing; (ii) knew the nature and approximate value of his property; (iii) knew the natural objects of his bounty; and (iv) understood the disposition he was making.
Properly executed will
A will is properly executed if the testator signs it and signed by two attesting witnesses in the testator’s presence.
Extrinsic evidence
Texas courts permit the admission of extrinsic evidence to cure latent defects. Latent defects are ambiguities that appear clear on the face of the will but result in misdrescriptions when applied to the facts.
If a latent defect cannot be cured by extrinsic evidence, the gift will fail and the gift will pass under the residuary clause.
Revocation by proxy
Texas law permits revocation by proxy if it is done at the testator’s direction and in his presence.
Partial revocation
Texas does not recognize partial revocations by physical act.
Abatement
The Estate Code’s abatement rules governing debts and expenses, under which bequests abate pro rata in the following order: (i) personal property in the residuary estate, (ii) real property in the residuary estate, (iii) general legacies of personal property, (iv) general legacies of real property, (v) specific bequests of personal property, and (vi) specific devises of real property.
Pretermitted child
The Texas pretermitted child statute applies to children born or adopted after the execution of the will if they are not provided for or mentioned in the will and are not provided for by any nonprobate transfers. If the testator had other children when the will was executed and provided for those children in the will, then the pretermitted child’s share is limited to the gifts to those other children.
Contract for will
A person can contract to make a will. However, a contract is an agreement between two or more parties, and there must be consideration for the agreement.
If a will is found to be contractual, neither party can revoke the agreed-upon disposition without notice to the other party. For wills executed on or after September 1, 1979, a will cannot be held as contractual unless the contract is established by (i) provisions in a binding and enforceable written agreement, or (ii) provisions in the will stating that the contract’s material terms.
“contemporaneous transaction” doctrine
Texas courts apply the “contemporaneous transaction” doctrine under which the exact order of signing is not critical where the will-signing ceremony was one continuous, contemporaneous transaction.
No-contest clause
If an heir contests a will in the face of a no-contest clause, he forfeits bequests in his favor unless the court finds that there was just cause for contesting the will.
Adopted child’s inheritance rights
If an adoption decree does not explicitly terminate a child’s right to inherit from his natural parents, that child is considered an heir of his biological parents even after being adopted into another family.
Revival of revoked will
Texas applies the common law “no revival of revoked wills” rule. If a will is revoked by a later will, the earlier will is “legally dead” and cannot be revived unless it is (i) reexecuted by the testator and two attesting witnesses, or (ii) republished under the doctrine of republication by codicil.
Beneficiary as witness
The fact that a beneficiary is also one of the attesting witnesses never affects the validity of a will. The only consequence is that the witness-beneficiary may lose his or her legacy if the will cannot be otherwise established.
What do you need to probate a will?
To probate a will, all that is needed is the testimony of one attesting witness in open court.
Adopted adult
A person adopted as an adult may not inherit from his or her biological parents.
Small estate administration by affidavit
If a decedent dies intestate leaving a probate estate whose value, not including homestead and exempt personal property, does not exceed $50,000, there is no need for appointment of a personal representative or any kind of administration. The heirs simply file an affidavit with the court showing the basis upon which they are entitled to distribution. The affidavit must be sworn to by two disinterested witnesses and approved by the probate judge. Any actions with respect to the estate are done under the authority of the affidavit, which functions like letters of administration.
Statutory heirship proceeding
A statutory heirship proceeding establishes, by court order, that the person is dead, she left no will, and that the named persons as heirs survived her. It also fixes the amount of the heirs’ intestate shares. This proceeding does not involve an appointment of a personal representative.
Deceased beneficiary
Where a testator makes a gift to a beneficiary, who unbeknownst to the testator was deceased at the time the will was execute, the gift is void.
Intestate distribution
Like a majority of states, Texas follows the per capita with representation rule for intestate distribution of assets to heirs. Under this rule, an estate is divided equally at the first generation at which there are living heirs. If there is a deceased heir at the first generation of takers, descendants of that heir receive equally divided portions of his or her share.
Adoption by estoppel
Generally, under the Texas Estates Code, children do not inherit from foster parents. However, under the doctrine of adoption by estoppel, a foster child is considered the child of a decedent for inheritance purposes if the foster parent gains custody of a child under an agreement with the natural parent that he will adopt the child and then fails to carry out his promise.
Lost will
A will proponent must establish three elements in order to probate a lost will. First, the will proponent must prove that the will was duly executed. Due execution of the will must be proved by the testimony of at least one attesting witness or the existence of a self-proving affidavit that recites all of the elements of proof to which the witness would testify in open court. Second, the causes of non production of the will must be proved. In several cases, the fact that the will was last seen in the possession of one adversely affected by its contents was deemed to satisfy this requirement. Aside from this situation, the will proponent must somehow overcome the presumption of revocation. Third, the lost will’s contents must be substantially proved by testimony of a credible witness who has read the will, has heard it read, or can identify a copy of the will.
Fraud in the inducement
Where the execution of a will is the result of fraud, the will is invalid. In the case of fraud in the inducement, the testator intends to execute the instrument as her will and to include the particular contents of the instrument, but she is fraudulently induced into making this will or some particular gift therein by a misrepresentation of facts that influence her motivation. A court will set aside the will upon proof of the fraudulent inducement.
The party seeking to prove fraud must show that: (i) the speaker made false representations knowing them to be false, (ii) the representations were made with the intent to deceive the testator, (iii) the testator was ignorant of the falsity, and (iv) relying upon such representations, the testator made a different will than she otherwise would have made.
Class gift
Testators may make gifts to beneficiaries generically described as a class. If a testator devises a life estate to one beneficiary and devises the remainder to a class, the class members are said to have vested remainders subject to open in the estate. A vested remainder subject to open is a future interest held by members of a class, for which the interest is certain to vest. New members, however, may enter the class before the interest vests, thereby reducing each member’s share of the total interest.
Only class members who are alive at the testator’s death take the gift.
Under the rule of convenience, the class remains open so as to include as many class members as possible, as long as it is not inconvenient to do so.
