Changes in Family after will/ problems associated with T's gifts/ reference to acts outside will/ other will doctrines Flashcards
in IL what if T marries after a will is executed
marriage following execution of a will has NO effect on the will
- elective share statute, marriage has no effect on will
what is the effect of T marrying after the execution of w will under the UPC
if a T writes a will and marries after, the omitted spouse takes an intestate share of T’s share
what does divoroce do of a will
FINAL DECREE of divorce or annulment REVOKES ALL GIFTS AND FIDUCIARY APPOINTMENTS in favor of former spouse
- acts as if former spouse had predeceased the T
what need to happen for the divorce or annulment to get the former spouse out of will
must be FINAL DECREE OF DIVORCE no revocation of gift if divorce action has been filled and is still pending
does divorce decree rule apply to insurance policies
no those pass outside probate
T’s child was born AFTER executed will
pretermitted child:
- if ALIVE at time of will then statute does not apply
- if BORN AFTER execution of will, than get as as intestate share
what is the x/c of pretermitted child
UNLESS it appears from the will that the omission was intentional, then do not get intestate share
what is th republication by codicil rule for premitted children
if a republication by codicil and child was alive at that time, than the date of the last codicil governs the date of execution
- so if alive at time of codicil and no mention of child, than does not get intestate share
ex: of specific devise or bequest
a gift of specifically described property
ex: to blackacre to S
demonstrative legacy
a gift of general amount from a specific source
ex: sum of 25k from sale of shell stock
general legacy
give 10k to my nephew
abatement
when there is not enough money to pay everyone
who gets paid first for abatement
1) specific bequests
2) general legacies
3) residuary clauses
4) intestate property
how is a demonstrative legacy treated udner abatement
as specific property (last to abate)
- but only to the extent of value references assest; treated the same as general legacy to the extent of any excess
ademption
whre a will makes SPECIFIC GIFT in property and is not owned by the testator at death
- does not matter to used proceeds to property
what is the only property that applies to ademption problem
SPECIFIC PROPERTY
does it matter if proceeds are traceable for sale under ademption
NO
- does not matter if proceeds are used to buy new property, still ademped and do not have rights to that property
equitable conversion
entered into K to SELL property but died B4 the K was fully performed, take the PAYMENTS of the sale of land
what if T is incacapacited and someone else sold the property for ademption problem
divisee has right to general legacy of the proceeds of sale
what is the rule for when T is incapacitated and property is sold by someone other than T for ademption problem
right to proceeds but only to the extent that
1) they are traceable and not
2) used for medical care or treatment of T
what is the rule for stock SPLITS in IL
additional shares under stock splits are allowed
what is the rule for stock dividends under IL
NOT allowed.
what is the rule for specific bequest of encumbered property in IL
a specific legatee of encumbered property is NOT entitled to have the lien exonerated unless will states so
- person getting property must continue to pay off the mortgage
what is the rule for specific bequest of encumbered property in CL
absent contrary provisions, liens specifically devised property are EXONERATED from the residuary estate
what is doctrine by incorporation
an extrinsic document not present when will was executed
what needs to happen for doctrine by incorporation
1) document MUST BE IN EXISTENCE at time will was executed AMD
2) will MUS REFER to the document being in existence and
3) will must reasonably identify the document
what does the UPC allow for valid dispostion for doctrine of incorproation
will may refer to a written statement that disposes of
1) tangible personal property (but not money) not specifically devised in will.
- Must be signed by T, describe property with reasonably certainty.
- may be written before or AFTER the will is executed and can be altered at any time
what does acts of independent significance apply to
TANGIBLE PROPERTY and CASH ONLY
plain meaning rule
when no ambiguity, extrinsic evidence is NOT ALLOWED to change the plan meaning of the words
is patent ambiguity allowed for extrinsic evidence
yes. (mistake on its face)
are latent ambiguity allowed for extrinsic evidence
yes, b/c there is a misdiscription
what type of extrinisc evidence is allowed for patent and latent ambiguity
1) facts and circumstances: evidence about family relationship
- ( not testimony of friend)
- attorney testimony allowed who prepared will
what if the extrnisic evidence does not cure the ambiguity
it fails, no ascertainable B, goes to residuary
factors in IL to determine if K not to revoke wills
where MOST of the following are found
1) will labeled JOINT AND MUTUAL
2) will leaves entire estate to SPOUSE
3) will disposes of all their property in a UNIFIED way
4) there is a common dispositive scheme on death of the survivor
under the UPC when is a will contractual
will is NEVER contractual unless will expressly states that K exists
what are reciprocal wills
separate wills containing reciprocal or mirror provisos
are reciprocal wills presumed to be contractual
NO, unless clear and convincing evidence of a K
in IL what effect does a disinheritance clause have on stuff passing by intestacy
partial intestacy words of disinheritance of the will are INEFFECTIVE
rule for disinheritance clause have on stuff passing by intestacy of UPC
negative bequest rule, a will can provide how property SHALL NOT be disposed of, allowing effect, and distributed as though disinherited person predeceased the t
when will the courts not enforce unlawful conditions for wills
public policy against
1) encouraging divorce and
2) TOTAL restraint on marriage
is a partial restriant on marriage valid (ex: only if they marry a certain religion type)
YES partial restraints on marriage are allowed
slayer statute test
killer forfeits interest in victims estate if he
1) INTENTIONALLY AND UNJUSTIFIABLY causes the death of another
- acts as if predeceased victim
can a civil court hold a person intentionally and unjustifiably killed T and slayer statute applies>
YES, do not need a criminal conviction
where the slayer statute does NOT apply
1) joint tenancy, does not forfeit their share owned, just destroy the j/t relationship and get tenants in common
does the slayer statute apply to life insurance
YES
il statute on elder abuse
abuse of elderly or disabled person, person forfeits all interests in estate if convicted of
1) criminal abuse or neglect or
2) financial exploitation of elderly or disabled person
non probate assets
1) right of survivorship (j/t, j/t bank accounts)
2) contract: insurance benefits, benefits under retirement plan
3) revocable trust
can a party change the insurance k by a will?
NO. under insurance law, must transfer K by K only and not by will
satisfaction
IL a lifetime gift to a child is preemptively in satisfaction of the prior legacy.
- A lifetime gift to anyone other than a child does not trigger presumption of satisfaction; the gift will be deemed in satisfaction of the legacy only if the T intended the gift to be in satisfaction.
IL: satisfaction of child
IL a lifetime gift to a child is preemptively in satisfaction of the prior legacy.
IL: satisfaction of anyone other than child
A lifetime gift to anyone other than a child does not trigger presumption of satisfaction; the gift will be deemed in satisfaction of the legacy only if the T intended the gift to be in satisfaction.
when is the only time satisfaction can apply
a gift cannot be in satisfaction of a bequest in a will that has not been yet executed.
- Will must be executed before satisfaction applies
Effects of child being adopted and inheriting from natural parents
usually, once a child is adopted, their rights to inherit from and through their natural parents is severed.
x/c where child is adopted and can inheriting from natural parents
Under UPC, a parent-child relationship continues to exist b/w both natural parents and the adoptee when the child is adopted by a relative of a natural parent- but only for the purposes of the child inheriting from the natural parents.
Statute where appointing personal representative of estate if not named in will
1) a person named as executor of will
2) the surviving spouse, if a will Beneficiary
3) any will beneficiary
4) the surviving spouse
5) any other heir
6) after 45 days, a creditor.
who can be a personal representative
any person with capacity to contract
CL: stock dividened
a specific bequest of stock includes additional shares produced by stock split but not STOCK DIVIDENDED
MAJORITY/ UPC: stock dividend
a specific bequest of stock includes stock dividends.
UPC rule for adeemption
a specific devisee has the right to any real property owned by the T at death that was ACQUIRED as a REPLACEMENT for the specifically devised property.
descendant vs. decedent
1) descendant: child, or grandchild of T
2) decedent: person who died
what is abatement
the process of reducing gifts
