Bar Essay Deck

Question 1

Undue influence

Answer 1

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.

Question 2

Sufficient capacity

Answer 2

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.

Question 3

Properly executed will

Answer 3

A will is properly executed if the testator signs it and signed by two attesting witnesses in the testator’s presence.

Question 4

Extrinsic evidence

Answer 4

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.

Question 5

Revocation by proxy

Answer 5

Texas law permits revocation by proxy if it is done at the testator’s direction and in his presence.

Question 6

Partial revocation

Answer 6

Texas does not recognize partial revocations by physical act.

Question 7

Abatement

Answer 7

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.

Question 8

Pretermitted child

Answer 8

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.

Question 9

Contract for will

Answer 9

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.

Question 10

“contemporaneous transaction” doctrine

Answer 10

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.

Question 11

No-contest clause

Answer 11

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.

Question 12

Adopted child’s inheritance rights

Answer 12

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.

Question 13

Revival of revoked will

Answer 13

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.

Question 14

Beneficiary as witness

Answer 14

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.

Question 15

What do you need to probate a will?

Answer 15

To probate a will, all that is needed is the testimony of one attesting witness in open court.

Question 16

Adopted adult

Answer 16

A person adopted as an adult may not inherit from his or her biological parents.

Question 17

Small estate administration by affidavit

Answer 17

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.

Question 18

Statutory heirship proceeding

Answer 18

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.

Question 19

Deceased beneficiary

Answer 19

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.

Question 20

Intestate distribution

Answer 20

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.

Question 21

Adoption by estoppel

Answer 21

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.

Question 22

Lost will

Answer 22

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.

Question 23

Fraud in the inducement

Answer 23

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.

Question 24

Class gift

Answer 24

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.

Question 25

Anti-lapse statute

Answer 25

Generally, if a will beneficiary dies during the testator’s lifetime, the gift lapses. However, under the Texas anti-lapse statute, the gift passes to the predeceasing beneficiary’s defendants if the beneficiary was a descendant of the testator’s parents.

Question 26

Satisfaction of legacies

Answer 26

Under the Texas statute governing satisfaction of legacies, a lifetime gift to a beneficiary named in an earlier will is treated as being in total or partial satisfaction of the bequest if: (i) the intention to have it so treated is declared in a contemporaneous writing signed by the donor or in a writing signed by the donee-legatee, or (ii) the will provides that legacies are to be reduced by such lifetime gifts.

Question 27

Acceptance and contesting

Answer 27

A person who accepts benefits under a will is estopped from contesting it. However, that rule applies only if the person had full knowledge of the facts on which the possible contest might be based at the time he accepted the benefits.

Question 28

Disclaiming interest

Answer 28

A will beneficiary may disclaim an interest that otherwise would pass to her under the will if she delivers to the estate’s personal representative a written, signed disclaimer that describes the interest being disclaimed.

Question 29

Paternity is presumed if what?

Answer 29

(i) the child was born during the marriage; (ii) the parties married after the child’s birth and the man voluntarily asserts his paternity of the child; or (iii) during the first two years of the child’s life, the man continuously resided in the same household as the child and represented to others that the child was his.

SOL to challenge paternity is within 4 years of the child’s birth.

Question 30

Wrongful death action

Answer 30

Must be brought by beneficiaries and not the estate unless: (i) a statutory beneficiary does not bring the action within three months of the decedent’s death, and (ii) the estate is not asked by the beneficiaries to refrain from bringing the action.

Question 31

Both attesting witnesses died

Answer 31

Where neither attesting witness is living, the will may be proved by the testimony or deposition of two witnesses to the handwriting of any one of the signatories to the will: the testator or either of the attesting witnesses.

Question 32

Holographic will

Answer 32

To be valid, a holographic will must be wholly in the testator’s handwriting and signed by him. There is no requirement that the will be signed by attesting witnesses.

Question 33

Muniment of title

Answer 33

Only requires one trip to the courthouse to probate the will upon proof of its due execution.

No unpaid debts.