Components of Wills

Question 1

Integration

Answer 1

the entirety of all the components of a will into one coherent document.

Question 2

Codicil

Answer 2

a written modification to a previously executed will which is executed using the same formalities as a will.

Question 3

When a will is republished by codicil, how is the will treated?

Answer 3

As though it had been written and executed on the date the codicil was executed.

Question 4

Can an invalidly executed will be republished?

Answer 4

No, technically.

Question 5

How can an invalidly executed will be published by a codicil?

Answer 5

An improperly executed will can be validated if in a subsequent codicil the codicil incorporates the will by reference.

Question 6

Can a completely unexecuted document be impliedly validated by incorporation by reference in a subsequent codicil?

Answer 6

No, because to be validated by incorporation by reference, a document must have been intended to be a will; i.e. have some kind of execution that is incomplete. A document with no execution whatsoever evinces no intent to be a will.

Question 7

How can an external document be incorporated into a will by reference?

Answer 7

A document can be incorporated into a will by reference if 1) it is in existence at the time of execution; 2) it is sufficiently described in the will; and 3) the will manifests intent to incorporate the document.

Question 8

How does the UPC differ in its requirements for incorporation by reference?

Answer 8

Under the UPC, a document which is intended to be incorporated need not be in existence at the time of the creation of the will. Rather, the testator can refer the reader to a list which lists off the documents incorporated.

Question 9

Acts of Independent Significance

Answer 9

a will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.

Question 10

Can a testator make a conveyance to a trust in their will?

Answer 10

Yes. The testator can add a pour-over clause which conveys property from the testator’s estate to the trust.

Question 11

Power of Appointment

Answer 11

an authority granted in a person enabling that person (the donee) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they take it.

Question 12

What are the two types of powers of appointment?

Answer 12

General and special.

Question 13

General Power of Appointment

Answer 13

A power of appointment exercisable in favor of the donee, their estate, their creditors or the creditors of his estate the takers of the property.

Question 14

Special Power of Appointment

Answer 14

A power of appointment which is exercisable in favor of a limited class of appointees which does NOT include the donee, his estate, his creditors, etc.

Question 15

Presently Exercisable Power of Appointment

Answer 15

a power of appointment that can be exercised by the donee during her life.

Question 16

Testamentary Power of Appointment

Answer 16

a power of appointment which is exercisable only by the testator’s will.

Question 17

Can a surviving spouse take property included in a power of appointment as part of her elective share when the testator dies intestate?

Answer 17

No.

Question 18

What is a “blanket” exercise of a power of appointment?

Answer 18

a clause in a will which conveys all property which the testator held in a power of appointment. “ . . . including all property over which I have a power of appointment.”

Question 19

When will an a power of appointment be exercised by implication?

Answer 19

When the testator purports to dispose of property over which he holds a power of appointment as if it were his own property. He does not expressly state it as being appointed, but in effect it is.

Question 20

Can a holder of a power of appointment create other rights or interests with the property?

Answer 20

Yes. A holder of a power of appointment can create future interests, present interests, trusts, life estates, etc. with the property over which he has a power of appointment.

Question 21

Can a donee contract to make a power of appointment?

Answer 21

No.

Question 22

Can a will make a gift of nonprobate assets?

Answer 22

No, because they are nonprobate assets, i.e. they are conveyed by themselves, not by a will.