Construction Problems

Question 1

What is an advancement under common law?

Answer 1

Gifts to heirs during a testator’s lifetime that are considered an advancement on the heir’s intestate share of the estate. These gifts would be deducted from the heir’s share of estate.

Question 2

What is an advancement under the UPC/modern view?

Answer 2

Gifts to heirs during testator’s lifetime that are NOT deemed advancements UNLESS specific requirements are met

Question 3

In what two circumstances will the UPC consider gifts to heirs during a testator’s lifetime to be advancements that should be deducted from their inheritance?

Answer 3

1. The will provides for deduction of the gift, OR
2. It was indicated in writing that the property was in satisfaction of a devise or that it’s value will be deducted from the value of the devise

NOTE: some states do not require a writing and any evidence if testator’s intent may be considered

Question 4

What is the common law rule of lapse?

Answer 4

All gifts in a will are conditioned on the beneficiary surviving the testator, and any gift to beneficiaries who did not survive the testator failed and passed to the residual estate or under intestacy.

Question 5

What is an anti-lapse statute?

Answer 5

Provides that, where a beneficiary under a will predecessors the testator, the gift will vest in the issue of that predeceased beneficiary IF:

1. The predeceased beneficiary is a specified descendant of the testator (by statute), AND
2. The beneficiary leaves issue who survive the testator

Question 6

To which types of relationships will an anti-lapse statute apply to under the UPC?

Answer 6

Issue (kids and grandkids), stepchildren, grandparents, and grandparent’s issue (i.e. siblings)

Question 7

What is ademption?

Answer 7

When a gift fails because the property is no longer in the testator’s estate at the time of their death

(Ademption by extinction)

Question 8

Under the common law, is the testator’s intent relevant to ademption?

Answer 8

No.

Question 9

What is the majority view today on intent as it relates to ademption?

Answer 9

A specific gift will adeem only if the testator intended the gift to fail.

If the testator did not intend for a specific gift to fail, the beneficiary is entitled to:

(a) any real property or tangible personal property (owned by testator at death) which the testator acquired as a replacement for the specific gift; OR
(b) a monetary devise equal to the value of the specific gift

Question 10

Under the modern view of ademption, what is a beneficiary entitled to if a specific gift was destroyed prior to the testator’s death?

Answer 10

Any unpaid insurance recovery or other recovery for injury to the property

Question 11

What is abatement?

Answer 11

Not giving effect to bequests in the will so that creditors’ claims against the estate can be satisfied.

Question 12

Under what circumstances will abatement occur?

Answer 12

When there are more creditor’s claims against an estate than there are assets to cover all of the gifts made under the will.

Question 13

Who always gets first priority to assets of an estate over beneficiaries?

Answer 13

Creditors of the estate

Question 14

Absent provisions in the will, what is the order in which a testator’s property abates?

Answer 14

1. Property passing by intestacy
2. Residuary gifts
3. General gifts
4. Specific gifts

Question 15

Must each category of property be fully abated before moving onto the next category?

Answer 15

Yes

Question 16

How is abatement within each category calculated?

Answer 16

In proportion to the amounts of property each of the beneficiaries would have received.

Question 17

What is the effect of a slayer statute?

Answer 17

An individual who feloniously and intentionally kills the decedent forfeits all benefits and entitlements to the decedent’s estate. If the decedent dies intestate, the estate passes as if the killer disclaimed her intestate share.

Question 18

What must be shown for a slayer statute to preclude receipt of a bequest?

Answer 18

1. Conviction (after all appeals exhausted) conclusive if a felonious and intentional killing, or
2. Preponderance of the evidence proved during a probate or related court proceeding

Question 19

Under modern precedent, when will a slayer statute NOT apply?

Answer 19

To a person acting as an agent under a durable health-care directive when withholding treatment to the decedent because withholding treatment is NOT considered to be the cause of death.

NOTE: states vary on this

Question 20

What is a disclaimer?

Answer 20

When a person renounces their legal right to inheritance

Question 21

What four requirements necessary for effective disclaimer?

Answer 21

Must:

1. Be declared in writing
2. Describe the interest or power disclaimed
3. Be signed by the person making the disclaimer, AND
4. Be delivered or filed.

Question 22

Under CL, what is the time frame in which someone can disclaim?

Answer 22

“Within a reasonable time”

Some states require disclaimers be made within 9 months of (a) the death of the decedent, or (b) the vesting of a future interest

Question 23

Under UPC, what is time frame in which disclaimer must be made?

Answer 23

Can be made at any time, so long as disclaimer is not barred

Question 24

When is a person barred from disclaiming?

Answer 24

If he accepts or transfers the interest

Question 25

What happens to a disclaimed interest?

Answer 25

It either:

1. Passes according to any applicable terms of the will/trust; OR
2. As if the person had predeceased the testator

Question 26

What happens if a disclaimed gift passes as if the person had predeceased the testator?

Answer 26

The gift will lapse unless an anti-lapse statute is applicable

Question 27

What is the effect of a final divorce decree on testamentary provisions to a former spouse?

Answer 27

All states: revokes any disposition or appointment of property made to the former spouse in a prior made will

All revoked provisions are treated as if former spouse had predeceased the testator

Question 28

Does divorce affect any bequests or fiduciary appointments (i.e. power of appointment) in favor of the former spouse’s relatives?

Answer 28

Generally, such provisions will remain intact.

UPC: provisions are deemed to be revoked upon divorce