Compiled Quizzes

Question 1

T/F: ​​The Twelve Tables made intestacy a mandatory system of entrance rather than a default system.

Answer 1

False. The Twelve Tables is notable for granting testamentary freedom to Roman citizens.

Question 2

At common law, the Church historically had jurisdiction over the inheritance of personal property, real property, or community property?

Answer 2

Personal Property. The Church had jurisdiction over the inheritance of personal property and applied Roman law principles. Real property was governed by secular law and historically ruled by primogeniture.

Question 3

T/F: Most early American jurisdictions continued the practice of primogeniture.

Answer 3

False. Early Americans rejected primogeniture for various reasons. In particular, it had been critical to establishing and maintaining a landed aristocracy and royalty in England—a practice early Americans sought to break with.

Question 4

A common law state has a body of statutes titled “Of Descent and Distribution.” What laws are likely contained in that body of statutes?

Answer 4

Laws governing intestacy.

Question 5

Jurisdiction over a probate proceeding is usually determined by _____.

Answer 5

The decedent’s domicile at death. The decedent’s domicile usually determines where his estate proceeding should be opened.

Question 5

D died this year. Which of the following property is/are his “non-probate” property?
(i) Real property held by D and his siblings as “Joint Tenants with Right of Survivorship”
(ii) Real property held by D and his siblings as “Tenants in Common”
(iii) Real Property held by D and his spouse as “Tenants by the Entirety”

Answer 5

(i) and (iii) → JTWROS and TBE are both non-probate forms of title recognized by states other than LA. TIC property, however, is akin to LA co-ownership and usually does not result in a non-probate transfer

Question 6

D died this year. Which of the following property is/are his “non-probate” property?
(i) Proceeds of D’s life insurance policy that designates X as a beneficiary.
(ii) proceeds of D’s 401k retirement plan that designates X as a beneficiary. A 401K plan is a plan that is governed by a set of federal laws called ERISA
(iii) A U.S. Savings bond titled D, Pay on Death, X

Answer 6

All of the above. Life insurance is non-probate, usually due to special legislation, jurisprudence, or both. Proceeds of 401k retirement plans and U.S. Savings Bonds are both subject to federal preemption. The federal law recognizes the non-probate transfer of such property.

Question 7

Which part of the U.S. Constitution affords a Constitutional right to refuse medical treatment?

Answer 7

The Fourteenth Amendment. Patients have a constitutionally protected liberty interest in refusing medical treatment afforded by the Due Process Clause of the Fourteenth Amendment. The right has been recognized by Cruzan v. Director and a host of other cases.

Question 8

T/F: Federal law forth the form requirements for advance planning documents in the medical context.

Answer 8

False. 42 U.S.C. §1395cc is a federal law that requires all MEdicare providers to provide information to patients about their rights, including the right to accept or refuse treatment, right to execute a living will, and the right to execute a medical power of attorney. However, the form requirements for these documents are generally determined by applicable state law.

Question 9

T/F: Attorney meets with Client for estate planning and discovers that Client has advanced dementia and cannot make reasoned decisions. Attorney should proceed to prepare estate planning documents for Client.

Answer 9

False. MPRC 1.14 sets forth the ethical obligations of attorneys when dealing with clients with diminished capacity. The ACTEC commentaries to Rule 1.14 offer additional guidance. An attorney can assist in preparing estate planning documents in cases of borderline capacity However, a client with advanced dementia usually lacks capacity and the attorney should not prepare new documents for the client.

Question 9

A document, usually prepared by an attorney, that appoints a surrogate decision maker in the event a patient is unable to consent to or refuse treatment on the patient’s own behalf is called a _________?
Medical Power of Attorney.
Do not Resuscitate Order
Physician’s Order for Life Sustaining Treatment
Living Will

Answer 9

The terminology used in the advanced planning setting can be confusing and inconsistent. Generally, the documents might be prepared by or with the assistance of an attorney include:
Advance directive: sets forth client’s desires with respect to end-of-life treatment and other treatment options.
Power of Attorney: also called power of attorney for healthcare, durable power of attorney (for healthcare), or healthcare proxy. This appoints a surrogate decision maker for the client.
Living Will: often refers to a statutory form where the client consents to the termination of end of life treatment. It is like an advance directive addressing a limited issue.
DNR: an order written by the attending physician directing the patient not to be resuscitated if the patient’s heart/lungs stop functioning
Out of Hospital DNR: many states allow EMS personnel to honor a DNR outside of the hospital setting. Still best not to call EMS if death is anticipated and resuscitation not desired.
POLST (Physician’s Order for Life-Sustaining Treatment): Medical form summarizing advance directive information and other matters. It essentially turns the Advance Directive into a doctor’s order.

Question 10

T/F: An attorney may, ethically, represent both spouses jointly in their estate planning.

Answer 10

True. Joint representation of spouses in estate planning matters is permitted under the Model Rules. See ACTEC commentaries to Rule 1.7. Of course, joint representation is not ideal or even permitted in all cases. Marital discord and other factors may prohibit a joint representation.

Question 10

T/F: A “durable” power of attorney survives the incapacity of the principal.

Answer 10

True. Default laws vary by state. In some states a POA is presumed to be durable (FL), in other states it is not presumed to be durable. Durable “general” or “financial” POAS are common estate planning documents. (FL Durable POA Statute)

Question 11

T/F: A “springing” power of attorney is effective immediately upon execution.

Answer 11

False. A springing power of attorney does not become effective until the occurrence of some specified event, such as the incapacity of the principal. Estate planners vary on whether they recommend springing powers or immediate durable powers for financial planning.

Question 12

T/F: Attorney prepared a will for Client’s property to Client’s child, A, and cutting out Client’s other child, B. Due to Attorney’s negligence in DRAFTING and overseeing the will, the will is deemed invalid. Child A has a valid malpractice claim against Attorney.

Answer 12

True. A malpractice claim usually requires proof of three elements. Per the Restatement, Child Amust show: 1. Duty of care to person alleging harm; 2. Failure to exercise reasonable care; 3. Failure to exercise care caused the injury. Most jurisdictions have rejected the privity of contract defense in the circumstances described in this hypo and will impose a duty of care to Child A, the intended beneficiary, under these facts.

Question 13

Intestacy statutes are sometimes called ______?

Answer 13

Law of descent and distribution

Question 14

D died intestate domiciled in State 1. He owned personal property physically located in State 2 at the time of his death. All potential heirs to the personal property were domiciled in State 3 at the time of D’s death. Which state’s law govern the inheritance of the personal property?

Answer 14

State 1. Generally the decedent’s domicile determines the inheritance of his personal property. Restatement (second) of Conflict of Laws § 222 sets forth some general principles related to conflict of laws and property (The interests of the parties in a thing are determined, depending upon the circumstances, either by the “law” or by the “local law” of the state which, with respect to the particular issue, has the most significant relationship to the thing and the parties under the principles stated in § 6.). §260 Intestate Succession to Movables (The devolution of interests in movables upon intestacy is determined by the law that would be applied by the courts of the state where the decedent was domiciled at the time of his death.) provides more detailed rules for personal property.

Question 15

D died intestate domiciled in State 1. He owned personal property physically located in State 2 at the time of his death. All potential heirs to the personal property were domiciled in State 3 at the time of D’s death. Which state’s law govern the inheritance of the personal property?

Answer 15

State 2. Generally, the inheritance of real property is governed by the law of the state in which the property is physically located because that state will have the most compelling interest in determining the rights to immovables located within its borders. See §260 Intestate Succession to Movables.

Question 15

In community property jurisdictions, the surviving spouse in intricacy usually has _____ rights to the community property than to the separate property.

Answer 15

Superior

Question 16

D died intestate survived by children B and C. He was also survived by V, the child of his predeceased son A. How should D’s estate be distributed?

Answer 16

⅓ to V, ⅓ to B, ⅓ to C. In every state the answer to this question is the same. D’s estate is divided among his children, per capita. V is entitled to inherit A’s share by representation. Notice that it is irrelevant whether B or C has children. Because B and C are alive and are related to D more closely than their own children, they will inherit to the exclusion of their own children.

Question 17

D died intestate survived by his brother, B; his mother, M, and his grandchild, G. G is the child of D’s predeceased child, C. How should D’s estate be distributed.

Answer 17

All to G. The answer to this question is the same in every state. The class of descendants is preferred to all other relatives (with the exception of the surviving spouse). G is D’s only descendant and he will inherit the entirety of D’s estate to the exclusion of all of D’s other relatives.

Question 18

D died intestate survived by his children A and B. D was also survived by his great grandchildren Q, R, S, X, and Y. All of these great grandchildren are the descendants of D’s predeceased child, C. Q, R, and S are descendants of C’s child L. X and Y are descendants of C’s child M. How should D’s estate be distributed in a strict (English) per stirpes jurisdiction?

Answer 18

⅓ to A; ⅓ to B; ⅙ to Q, R, and S; ⅙ to X and Y. In a strict per stirpes system, divisions are made at each generation. The estate would first be divided into thirds at the first generation (A, B, and C). A and B would each inherit their ⅓ interests in their own rights. C’s ⅓ interest would be divided in half at the next generation because C had two predeceased children with surviving descendants — L and M. L’s ⅙ interest (½ of ⅓) would be distributed equally to his children. M’s ⅙ interest would be equally distributed to his children.

Question 19

D died intestate survived by his children A and B. D was also survived by his great grandchildren Q, R, S, X, and Y. All of these great grandchildren are the descendants of D’s predeceased child, C. Q, R, and S are descendants of C’s child L. X and Y are descendants of C’s child M. How should D’s estate be distributed in a modern per stirpes (per capita with representation) system?

Answer 19

⅓ to A; ⅓ to B; ⅙ to Q, R, and S; ⅙ to X and Y. Under these facts, the outcome is the same in the modern per stirpes system as it is under a strict per stirpes. The modern per stirpes system instructs you to make the first division of D’s estate in the first generation where there are takers. Thereafter, a traditional per-stirpes system is used. Because D has takers in the first generation of descendants (his children A and B), the allocation will be exactly the same as under the strict English per stirpes system.

Question 20

D died intestate survived by his children A and B. D was also survived by his great grandchildren Q, R, S, X, and Y. All of these great grandchildren are the descendants of D’s predeceased child, C. Q, R, and S are descendants of C’s child L. X and Y are descendants of C’s child M. How should D’s estate be distributed in a modern per stirpes system with the variation adopted by a handful of states that is called the “per capita with per capita representation system”?

Answer 20

⅓ to A; ⅓ to B; ⅓ divided equally among Q, R, S, X, and Y. This system only has a different outcome than the modern per stirpes system in a handful of factual scenarios. This factual scenario happens to be one of those scenarios. The system directs you to make the first division in the first generation with takers. Here, that is ⅓ each to A, B, and C. Because C predeceased the decedent, his ⅓ share is then divided per capita in the generation in which there are survivors. Because L and M both predeceased the decedent, that division is made in the next generation. Therefore Q, R, S, X, and Y split that ⅓ interest equally.
Notice: The outcome would be different if L survived. If L survived then a division of C’s ⅓ interest would occur at that generation. L would receive ½ of that ⅓ (or ⅙). The other ⅙ would then be divided equally among M’s children.

Question 21

D died intestate survived by his children A and B. D was also survived by his great grandchildren Q, R, S, X, and Y. All of these great grandchildren are the descendants of D’s predeceased child, C. Q, R, and S are descendants of C’s child L. X and Y are descendants of C’s child M. How should D’s estate be distributed in 1990 UPC/Pe rCapita at Each Generation System?

Answer 21

⅓ to A; ⅓ to B; ⅓ divided equally among Q, R, S, X, and Y. This system directs you to make the first division in the first generation in which there is a surviving taker. Here, the first division is made among D’s children. ⅓ to A, B, and C. Because C predeceased D, his descendants will inherit by representation. The 1990 UPC/Per Capita at Each Generation system then reallocates the ⅓ that C would have inherited equally among Q, R, S, X, and Y.
Notice: The outcome would be similar to that discussed in the previous example.

Question 22

The strict (English) per stirpes system of inheritance favors _____ equity?

Answer 22

Vertical. In maintaining divisions among each line of descent, the system favors vertical equity. In contract, the 1990 UPC/Per Capita at Each Generation system favors horizontal equality among each generation of heirs. For that reason, it is sometimes described as “equally near, equally dear.”

Question 23

Which of the following individuals is not a member of the first parentela?
Child
Sibling
Grandchild

Answer 23

The first parentala consists of the decedent and his own descendants. A sibling is not a descendant.

Question 24

T/F: In most states, siblings and half-siblings are treated differently in intestacy.

Answer 24

False. A majority of states make no distinction between full blooded and half blooded siblings. The UPC also treats them the same. A minority of states, however, treat them differently. This is sometimes called the “Scottish Rule” and likely derives from Civil Law.

Question 24

T/F: In most states, the adopted child may inherit in intestacy from both his biological family and his adoptive family.

Answer 24

False. In most states adoption severs all rights—between the adopted child and his biological family. The adopted person is treated for all purposes as though he is the biological child of his adoptive parent(s). However, a handful of jurisdictions—including Louisiana—follow the traditional civilian approach that places the adopted person in a position of privilege and permits him to inherit from both his biological family and his adoptive family. Consider how that distinction may be relevant in an issue with multistate contacts in light of the conflict rules we discussed earlier.

Question 24

Who is at the head of the third parentela?
Parents
Grandparents
Great-Grandparents

Answer 24

The first parentela is headed by the decedent. The second parentela is headed by the decedent’s parents. The third parentela is headed by the decedent’s grandparents.

Question 25

D died testate survived by his children, A, B, and C. D is also survived by C’s children X and Y. C renounces/disclaims his interest in D’s estate. How should D’s estate be distributed?

Answer 25

⅓ to A; ⅓ to B; and ⅓ to X and Y. Generally, when an heir disclaims his interest in an estate he is treated as though he predeceased the decedent. Here, if C predeceased but was survived by his own children, then his children would inherit by representation.

Question 25

D died testate survived by his children, A, B, and C. D is also survived by C’s children X and Y. The court with jurisdiction over the probate proceeding determines that C was responsible for the felonious and intentional killing of D. How should D’s estate be distributed?

Answer 25

⅓ to A; ⅓ to B; and ⅓ to X and Y. This question involves the slayer rule. Generally, the slayer is precluded from inheriting and is treated as though he predeceased the decedent. His crimes are not generally imputed to his own heirs. In most (but not all) states the slayer rule is a matter of statute.

Question 26

T has been diagnosed as being in the early stages of Alzheimer’s dementia. T is still functioning independently. However, consistent with the typical progression of Alzheimer’s dementia, T has some trouble with short term memory. T sometimes has to read things several times to understand them. T has trouble remembering names when introduced to new people. And, T often has trouble coming up with the right word or name. T generally knows the extent of his assets and is consistent in his explanation of who he wants to inherit his property. T has asked his attorney to draft a will. Which of the following is correct?

Answer 26

T has testamentary capacity. T’s attorney should prepare a new will for him.
Capacity can run a spectrum and the fact that T has diminished capacity does not mean that he lacks testamentary capacity. Remember, the bar for testamentary capacity is quite low. As is explained in Will Contests §6:8 , people in the early stages of Alzheimer’s dementia often have the requisite testamentary capacity. Beyond that, capacity is more doubtful. MPRC Rule 1.14 sets forth the general ethical requirements for an attorney whose client suffers from diminished capacity. The ACTEC Commentary to that rule offers additional helpful guidance.

Question 26

T/F: A finding of lack of capacity will usually invalidate the entire will.

Answer 26

True. This stands in contrast to other types of challenges based on undue influence or insane delusions. Those types of challenges could, in theory, invalidate just the proportion of the will that was affected by the influence or the delusion.

Question 27

In most states, a testator must be at least __ years old to have the legal capacity to execute a will.

Answer 27

18. In most states the testator must have attained the age of legal majority—18. See Restatement §8.2. Some states—like Louisiana—take a more nuanced approach and set the age younger.

Question 28

T began showing signs of declining mental capacity in Year 1. In Year 2, T executed a last will and testament. In Year 3, T was adjudicated incompetent by a court. In Year 4, T died and his will was offered for probate. The proponents of the will have established that it was duly executed in conformity with the applicable state law. Some of T’s intestate heirs not named in the will have challenged the will on the basis that T lacked testamentary capacity. Which of the following is correct?

Answer 28

T is presumed to have possessed capacity when he executed the will.
The presumption may be rebutted. The relevant date for determining capacity is the date that T executed the will— in Year 2. Generally, testators are presumed to possess the requisite mental capacity to execute a will. That presumption is, of course, rebuttable. The fact of the later declaration of incompetence by the court might be compelling evidence that the testator lacked capacity. In most jurisdictions, however, a declaration of incompetence does not automatically negate testamentary capacity. Even in jurisdictions where a court declaration of incompetence raises a negative presumption relating to capacity, timing is important here. The court declaration would usually only have prospective effect—it would only affect testamentary actions after the commencement of the court proceedings and/or the declaration of incompetence. It would usually not affect testamentary actions that took place prior to the court proceedings.

Question 29

T signed his will while two witnesses observed him signing. When the witnesses observe T signing his will they _.

Answer 29

Attest. Attest and Subscribe have different legal meanings. Per Swift v. Wiley: “To attest the publication of a paper as a last will, and to subscribe to that paper the names of the witnesses, are avery different things, and are required for obviously distinct and different ends. Attestation is the act of the senses, subscription is the act of the hand; the one is mental, the other is mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual legal publication: but to subscribe a paper published as a will, is only to write on the same paper the names of the names of the witnesses, for the sole purpose of identification.”

Question 30

Rank the form requirements for an attested will from most onerous to least onerous.
1) English Statute of Frauds of 1677
2) English Wills Act of 1837
3) Uniform Probate Code

Answer 30

2, 1, 3. Most to Least: English Wills Act of 1837, English Statute of Frauds of 1677, Uniform Probate Code. See Restatement (Comment f):
The main statutory formalities for attested wills have been in force for centuries. They are writing, signature, and attestation. The will must be: (1) in writing; (2) signed by the testator; and (3) signed by a specified number of attesting witnesses in accordance with procedures provided by applicable law. . . . The later English statute, the Wills Act of 1837, increased rather than decreased the statutory formalities. Prior to the promulgation of the Original Uniform Probate Code, most American states had opted for a statute modeled on the lower-formality Statute of Frauds. . . . A court should never impose formal requirements beyond those in the statute.

Question 31

T/F: T executes an attested will. The signature of T’s witnesses are preceded by an attestation of clause reflecting the basic requirements for due execution of an attested will. T’s will is presumed to be duly executed. The presumption is rebuttable.

Answer 31

True. The attestation clause established a rebuttable presumption of due execution. Read more here . To further strengthen the will, T could have made the will self-proving.
§234 Attestation clause: a proper attestation clause merely raises the presumption of the will’s validity, or at least its legal execution. . . . The absence of an attestation clause merely imposes upon the proponent of the will the BOP at the time of probate the necessary facts of execution.

Question 32

Who should sign the attested will first?
Testator
Witnesses
Notary

Answer 32

The testator should sign first in all states. See e.g. Restatement §3.1, Comment (m):
Because the act of signing by the witnesses is the final act of authentication, the testator must ordinarily sign the will before the witnesses sign.If, however, the testator and the witnesses sign as part of a single (or continuous) transaction, the exact order of signing is not critical.
Under the UPC and under non-UPC statutes modeled on the English Statute of Frauds, the witnesses need not see the testator sign nor see the testator’s signature.
Non-UPC statutes modeled on the English Wills Act commonly require that the testator’s signature “be made or acknowledged by the testator in the presence of” the witnesses.

Question 33

Y/N: T signed her will while lying in her hospital bed. Both witnesses saw T sign. Because the hospital room was small, the witnesses took the will out of the room and to a nearby nurses’ station to sign as witnesses. T knew the witnesses were signing, but could not have possibly seen them sign from T’s position in the hospital bed. Applicable state law requires T’s witnesses to sign in T’s presence. The state law uses a line-of-sight test to determine presence. Is T’s will in proper form?

Answer 33

No. The line of sight test requires the testator to actually be able to see the witnesses sign the document. For example, in Chester v. Smith the Georgia Supreme Court explained the rule this way: “from the place where the testatrix is situated (such as sitting in a chair or lying in a bed) when the witnesses shall sign the will, she must be able to see the witnesses sign the will if she desired to do so without changing her place. This test is referred to as the “line-of-vision” test, and under this test, it is not necessary for the testator to have watched the witnesses sign, as long as the testator could have watched them sign. A Maryland court described the test as follows in Groat v. Sundberg: “It is well established that, with regards to the “in the presence of the testator” requirement ot E.T. §4-102, “the subscription by such witnesses must be made within the unobstructed range of vision, although if he is able to see it, without any material change of position, the fact that he does or does not avail himself of the privilege is immaterial. Brittingham v. Brittingham. This test is referred to as the “line-of-vision” test, for which “[i]t is not necessary for the testator to have watched the witnesses sign, as long as the testator could have watched them sign.”

Question 33

How many witnesses are required for an attested will in most states?

Answer 33

2. See Restatement §3.1, Comment (o):
   Nearly all states require two attesting witnesses. . . .In this country, most non-UPC statutes require the witnesses to be either “credible” or “competent. . . . A few states specifically provide by statute a minimum age, such as 18, for attesting witnesses. More commonly, however, no age is specified in the statute. If no age is specified in the statute, a minor is a valid witness, unless the minor was not old enough to observe, remember, and relate the facts occurring at the execution ceremony.

Question 34

T executed an attested will before his death. T was single when he died. T was survived by his brother (b), and by T’s three children (Q, R, and S). T’s will divided his estate equally among B, Q, R, and S. Applicable state law has a typical purging statute applicable to interested witnesses. Q served as a witness to T’s will. What, if anything, is Q entitled to inherit from T?

Answer 34

¼ of T’s estate. A typical purging statute purges the excess benefit meaning the witness is entitled to the lesser of the gift under the will or under intestacy. Under these facts Q would receive ⅓ in intestacy.

If T had died intestate survived by a sibling and 3 children, then T’s children would inherit to the exclusion of T’s siblings. T’s estate would then be divided equally among the children: ⅓ each.

The share Q received in the will (¼) is less than Q would have received in intestacy. Therefore Q can inherit under the terms of the will.

The implicit assumption here is that Q must not have done anything to unduly influence T. If Q had done something untoward, surely he would have convinced T to leave him MORE property that Q was entitled to receive in intestacy!

Question 34

Y/N: T signed her will while lying in her hospital bed. Both witnesses saw T sign. Because the hospital room was small, the witnesses took the will out of the room and to a nearby nurses’ station to sign as witnesses. T knew the witnesses were signing, but could not have possibly seen them sign from T’s position in the hospital bed. Applicable state law requires T’s witnesses to sign in T’s presence. The state law uses a conscious presence test to determine presence. Is T’s will in proper form?

Answer 34

Yes. Restatement §3.1, Comment (p):
Under the line-of-vision test, the witnesses must sign within the testator’s “line of vision.” It is not necessary for the testator to have watched the witnesses sign, as long as the testator could have watched them sign. Even under the line-of-vision test, an exception is made for a blind testator; the witnesses need only sign in the testator’s conscious presence. The line-of-vision test is disapproved in this Restatement.
This Restatement adopts the conscious-presence test, which recognizes that a person can sense the presence or actions of another without seeing the other person. If the testator and the witnesses are near enough to be able to sense each other’s presence, typically by being within earshot of one another, so that the testator knows what is occurring, the presence requirement is satisfied.
“in the testator’s conscious presence.” The “presence” requirement is retained only for cases in which the testator directs someone else to sign on his or her behalf. The Original Code required that person to sign the testator’s name “in the testator’s presence.” The UPC does not require the witnesses to sign in the presence of the testator or in the presence of each other. It requires the witnesses to “witness” the testator’s act of signing the will or “witness” the testator’s act of acknowledging either the signature or the will. The witnessing requirement means that the witnesses must observe the act. The requirement would not be satisfied by showing simply that the act took place in their line of vision.

Question 35

T executed an attested will before his death. T was single when he died. T was survived by his brother (b), and by T’s three children (Q, R, and S). T’s will divided his estate equally among B, Q, R, and S. Applicable state law has a typical purging statute applicable to interested witnesses. B served as witness to T’s will. What, if anything is B entitled to inherit fromT?

Answer 35

Nothing. A typical purging statute purges the excess benefit meaning the witness is entitled to the lesser of the gift under the will or under intestacy. Under these facts B would get nothing in intestacy.

Nothing is less than ¼. Therefore, B will inherit nothing. You may wonder who would inherit B’s interest if B cannot inherit it. B will be treated as though he predeceased T and, under these facts, his interest would likely accrete to the other beneficiaries: Q, R, and S. So, Q, R, and S will each inherit ⅓. The same amount they would have inherited in intestacy.

Question 36

Rank these interpretative doctrines from most strict to most lenient.
Substantial compliance
Harmless error
Strict compliance

Answer 36

3, 1, 2. See text beginning at p. 169 (nice). For some illustrations see Restatement §3.3

Question 37

About ___ of the states in the United States permit testators to execute olographic (or holographic) wills.

Answer 37

½. See Restatement Restatement §3.2 for further discussion about olographic wills.

Question 38

The Restatement explains that a typical “first generation” holographic will statute provides: “A holographic will is one that is entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and need not be witnessed.” Which of the following served as the source for this type of statute?

Answer 38

The Code of Napoléon served as the source for most of these statutes. The olographic will is a creation of the civil law. Read more here: “Planiol explains that the olographic will, as we know it today, apparently gained acceptance in the customary laws of some regions of France during the 16th and 17th centuries and was officially endorsed by the Code Napoléon in 1804. . . .The olographic testament gained acceptance in many American states through French and Spanish influences. Like their European counterparts, American states adopted both the definition and the spelling used by the Code Napoléon–a testament to the Code’s incredible influence. The California Civil Code, for example, once provided: “An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself.”

Question 39

T/F: Most states require that the holographic will be dated.

Answer 39

False. A date is a helpful addition to any will. The Code of Napoléon (and legislation based on it) required a date. Most states, however, do not require attested will or holographic wills to be dated. A handful, however, continue to require a date and hold a will invalid in the absence of a date.

Question 40

T/F: Testator executed an otherwise valid holographic testament on a piece of paper that had a preprinted letterhead on it. The letter included the name, address, and contact information for a business on it. Because the preprinted letterhead is not in the testator’s handwriting, the holographic will is wholly invalid.

Answer 40

False. Most courts would easily disregard the letterhead and deem it to be surplusage. See 1Restatement §3.1, Illustration 1:

Printed letterhead. G wrote her will by hand on a piece of stationary containing a printed letterhead. G also dated and signed the will in her own handwriting. The controlling holographic-will statute is a first-generation holographic-will statute, i.e., a statute requiring a holographic will to be entirely written, signed, and dated in the testator’s handwriting. G’s will is valid as a holographic will under the surplusage theory. Although the printed letterhead was not in the handwriting of the testator, the letterhead is surplusage because the handwritten provisions make sense as a will without regard to the printed letterhead. G’s will is also valid as a holographic will under the intent theory. Because the printed letterhead is surplusage, it is presumed that it was not intended by the testator to be part of her will.

Question 41

Which of the following statements is true regarding the common law attested will?
(i) All attested wills are self proving
(ii) Attested will must be notarized
(iii) Attested wills are derived from the Civil Law notarial will.
(iv) None of the above:

Answer 41

(iv) None of the above:

The attested will is not automatically self-proving. Rather, a self-proving affidavit may be executed in connection with the execution of the attested will in order to make the attested will self-proving. Attested wills do not generally require notarization. Rather, they require the attestation by two witnesses. To make the will self-proving, the self-proving affidavit is generally required to be executed before a notary. Attested wills are not derived from the Civil Law notarial will. Rather, they are derived from the English Statute of Frauds. The attested will, in turn, inspired Louisiana’s notarial will form.

Question 42

T died testate and left the entirety of his estate to charity. T was survived by his child, (C), his brother, (B), and his parent, (P). T had no prior will. Who has standing to challenge T’s will on the basis of lack of capacity?

Answer 42

C. T’s child is the only party with standing. Usually, only an interested party can challenge a will based on a lack of capacity. An interested party under these facts would be someone who stood to inherit in intestacy. Only C would be T’s intestate heir under these facts because children inherit to the exclusion of parents and siblings in every state.

Standing to Bring Will Contest: “Statutes in all but a handful of states provide for standing to contest a will. These statutes are divided into two classes: (1) those which confer status on anyone who is “interested” or “aggrieved” by the probate of a will: and 2) those which have no statutory standard for standing.10 In practice, an “interested” or “aggrieved” person must have a direct pecuniary interest in denying probate to the will, because he or she would receive a greater share of the decedent’s assets if the will were not probated.

Question 43

The existence of a confidential relationship between the testator and an alleged influencer will ____ the likelihood of a finding of undue influence.

Answer 43

Increase. As explained in Will Contests §7.4, a confidential relationship is usually critical to a successful undue influence challenge. In some states, the existence of certain confidential relationships can shift the burden of proof or applicable presumptions. A discussion of the varying approaches to burdens of proof begins at Will Contests §7.8 and continues through several selections.

§7.4 Elements of undue influence: “In a case of undue influence, a respondent is alleged to be the dominant party to a confidential relationship with the testator and to have taken advantage of his or her dominance in order to influence the testator’s post-death distribution plan. At least four states presume that will is the product of undue influence if a beneficiary is in a confidential relationship with the testator and receives an unusual or disproportionate bequest in the testator’s will.”