Creation of Wills + Intestacy Flashcards
Will
Document executed by a testator/testatrix that takes effect at testator’s death
Usually re: property, but not necessarily
Includes codicil or testamentary instrument that:
-Appoints an executor OR
- Nominates a guardian OR
-Revokes or revises prior will OR
Expressly excludes or limits the right of an individual or class to succeed in intestate succession (negative will)
Requirements for Wills
1) Testamentary capacity
AND
2) Testamentary intent
AND
3) Compliance w/ appropriate formalities
Also applies to codicils, but can mix + match–ex. formal will, holographic codicil
Testamentary Capacity
Of sound mind at time will executed (low bar)
= have ability to understand
1) Nature, condition and extent of testator’s property AND
2) Nature of the disposition that testator making of his/her property AND
3) Names of and testator’s relationship to the natural objects of testator’s bounty
Most jx: must be 18+
Insane delusion can invalidate, but only to extent product/caused by delusion (think aliens are tracking you, will your UFO books to cousin–prob. fine–no causation)
Insane Delusion
Irrational belief with no basis in reality
Can invalidate a will/soundness of mind–but only to extent that gift/action product of the delusion
Having eccentric opinions, unique behavior (“I wear a tinfoil hat so the FBI can’t track me”) ≠ no capacity
Testamentary Intent
Must be present intent–intent that document under discussion = will
“I’m going to make a will and leave A this”–invalid
Void if:
1) Undue Influence
2) Fraud
3) Mistake
Undue Influence In General
In general: show
1) Wrongdoer exerted enough influence over testator that overcame testator’s free will AND
2) The influence caused testator to make a donative transfer testator would not have otherwise made
Presumption if:
1) Wrongdoer in confidential relationship with testator AND
2) Suspicious circumstances surrounding the prep, formulation or execution of will
Prove u. infl. –> void parts of will that benefit person exerting u. infl.
Confidential relationship re: undue influence
Broadly defined–can include children, spouses, caretakers, etc.,
Includes any relationship where testator relies on others for day-to-day affairs (ex. caretakers)
Suspicious Circumstances
Totality of the circ., ex.:
1) If testator in weakened condition physically/mentally, + susceptible
2) Extent of influencer in prep./procurement of will
3) If testator got indep. advice from attorney, disinterested advisor
4) If will prepared secretly/ in haste
5) If testator’s attitude to others changed due to rel. w/ influencer
6) If continuity of purpose through former wills (shows settled intent)
7) If r. person would regard as unjust, unnatural, unfair
NOT mere fact kids treated unequally/cut out
Presumption of Undue Influence
1) Wrongdoer in confidential relationship with testator AND
2) Suspicious circumstances surrounding the preparation, formulation or execution of will
Shown by clear and convincing evidence**–> burden on other party to show not u. influence
Fraud in the execution
Fraud re: nature of the contents or writing itself
Extrinsic– Is this document I’m signing a will? (ex. slip into stack of papers, say important loan docs)
Result = invalidate whole will
Fraud in the inducement
Intrinsic fraud re: facts that caused will to be written x way
Test: Would testator have made gift if knew the truth?
Must show:
1) Made knowingly false representation
2) For purpose of getting testator to make favorable will AND
3) Testator made different will than would have as a result of misrepresentation
Result = excise parts tainted by fraud–fall into residue or intestacy
Whole will tainted = invalidate will
Types of Mistake
1) In the execution–re: nature of doc–what type of thing signing (ex. think it is doctor’s note)
Result = will invalid
2) In the inducement–re: mistake re true facts that causes testator to make/not make will/clause
Result = no relief (v. v. rarely, if c+c evidence re: testator’s intent, may reform)
Formal Will Requirements
Formal (non-holographic) =
1) In writing AND
2) Signed by the testator OR in testator’s name w/ proper procedure AND
3) Witnessed or Attested/Acknowledged
In writing
Any reasonably permanent physical record
NOT electronic (v. few jx allow)
Broad def.–can be eggshells, fender, stucco interior of hotel room
Signature/Signed Req.
Anything made with intent to authenticate– indicates testator’s intent that document be will or mark is sig (ex. initial, “mom,” X, sometimes thumbprint)
Not req to be in particular place (ex. end, beginning)
Also valid if 1) in testator’s name, 2) in T’s conscious presence AND 3) at testator’s direction
Conscious presence CAN be w/in earshot–CANNOT be on phone
CAN be assisted signature
CANNOT be guided signature
Assisted v. Guided Signature
Assisted = assistance re: sig, but testator motivating force = OK
Guided–grabbing hand, moving pen for testator–might not be OK
Witnessed or Attested/Acknowledged Req.
1) Signed by at least 2 ppl, AND each signed w/in r. time of a) seeing T sign will OR b) T’s acknowledgement of sig. OR c) T’s acknowledgement of will (= witnessed)
OR
2) Acknowledged by testator before a notary public or other authorized individ. (= attested/acknowledged)
Witnessed
1) Signed by at least 2 ppl AND
2) Each signed w/in r. time of seeing T sign OR T’s acknowledgement of sig OR T’s acknowledgement of will
R. time ≠ before T’s death–can be OK if after (ex. deathbed)
Still valid if witnesses don’t sign in each other’s presence–can sign at diff. times, if w/in r. time
No publication required–DO NOT have to know signing will, read will, be specifically requested to sign
Contemporaneous Acts Rule
Some jx have–allows witnesses to sign before T signs IF acting with same event, act or time frame
Idea–like wills, want to encourage them to be valid
Attested/Acknowledged
Acknowledged by testator before notary public OR other individual authorized by law to take acknowledgements
Alt to witnesses–notary stands in lieu
NOT SAME as having notary involved in self-proving will–diff. role
Harmless Error Rule re: Wills
Even if defective/failed attempt, will be validated IF proponent of doc. proves by clear and convincing evidence that T intended doc to be T’s will
Integration Rule
Any pieces of paper present at execution that are intended to be part of will will actually be part of will
(i.e.–don’t need to sign/execute every page of will)
Witness Competence
Have ability to 1) observe testator affix signature AND 2) comprehend nature of act
Gen.–don’t have to be over 18 to witnessess
Interested Witnessess
= Witness who is also beneficiary
Maj./UPC–OK if interested–no effect on will (unless undue influence)
UPC–also OK if interested proxy
Min.–“purge” int. witness’ share–treat int. witnesses as if predeceased T
Probate
Process of “proving” will–burden on proponent to establish T’s sig., other formalities (ex. witnesses testifying saw T sign, etc.)
Self-proving will
“Proves” itself–satisfies all will execution reqs w/out the need for testimony of attesting witnesses in probate
Use self-proving affidavit (SPA) to make self-proving will
N/A if evidence of fraud, forgery
How to create self-proving will
Simultaneous: 1) Will simultaneously executed + attested by 2) acknowledgement of T and affidavits of attesting witnesses (self-proving affidavit–SPA) AND 4) each SPA made before officer auth. to admin. oaths AND 5) evidenced by officer’s certificate under official seal
Retroactive: 1) acknowledgement of testator and affidavits of attesting witnesses any time after AND 2) made before auth. officer 3) evidenced by officer cert. under seal
Self-proving affidavit
SPA–way to create self-proving will–lessen/avoid probate, “proving”
Basically: “this is how it went, we signed our names as valid witnesses/testator, I swear to this before notary under seal”
NOT same as having notary stand in lieu of witness to make formal will
Have will + SPA, w/ signatures only on SPA (ex. stapled to will) = OK, will still valid
Holographic Will
Handwritten will–no witnesses req.
UPC: Valid if material portions + signature in T’s handwriting (traditionally–fully handwritten)
Material = distributing $$ + prop–“who gets what”
Most jx allow holographic wills
Contract to Make/Not Make/Not Revoke Will or Devise
ONLY IF
1) Provisions of will state material conditions of contract OR
2) express reference in will to contract AND extrinsic evidence proving terms OR
3) Writing signed by decedent evincing
Minority–joint will or mutual will = presumption of contract, can’t modify w/out mutual consent
Remedy for violation of contract to make/not make/not modify will
Sue for breach ONLY
CANNOT stop probate of new will
Change will in violation of contract - new will is valid, can’t challenge–but can sue for damages, specific performance in sep. action
Foreign Will
Includes out-of-state, not just foreign country
Valid if
1) Comply w/ all will formalities of jx OR harmless error OR
2) Comply w/ rules at time + place of execution OR
3) Comply w/ rules of place where testator domiciled/had a residence/is a national of at time of death
Choice of law re: Validity of Wills
Common law–if conflict b/tween law of where executed + where domiciled when died–> law of place where domiciled when died controls
Will Copies
Generally–no legal significance on own–need original
Exception = Executed copy–copy testator signs–treated same as original
Specific Bequest
Gift by will of personal property that:
1) Can be ID’d and distinguished from all other things of same kind AND
2) Is satisfied only by delivery
“My ring,” “*my pigeon,” my 1st edition LOTR, my 100 shares”
-Can’t sub. replacement–no flexibility
Specific Devise
Gift by will of real property that:
1) Can be ID’d and distinguished from all other things of same kind AND
2) Is satisfied only by delivery
Ex. “my farm,” “my house”
General Legacy
Gift payable from gen. assets of T’s estate and not separated/distinguished from other things of same kind
Usually cash, stock, acreage
Ex. “100 shares of stock,” “$100 worth of gold coins”
If not in estate, can satisfy if purchase + give OR give value of what would be worth (vs. specific)
Specific bequest/devise vs. general legacy
Specific = only satisfied by that thing–look for “my”
General = OK if substitute/obtain equivalent OR transfer value (what would be worth)
“My 100 shares of stock” = can’t go out and buy shares after death, give (vs. “100 shares”–can buy OR give value of stock)
“A first edition LOTR” vs. “my first edition LOTR”, “100 gold coins vs. my 100 gold coins”
Total Intestacy
Either never made a will, or tried to make a will but failed (invalid document and can’t be saved by harmless error, valid will + revoked, will successfully challenged, etc.)
Even today–most people die intestate
Partial Intestacy
Will does not cover all of testator’s estate (due to terms, lapse, no residual clause, etc.)
Ex. “my car to A, my house to B” = all other assets distrib. via intestacy
General Intestacy Guidelines
Goal–what would most ppl want most of time? (or what do legislators think most ppl want most of time?)
Usually–surviving spouse takes some–but amt. depends on what other relatives left alive
Gen: Spouse gets more if look like will care for T’s remaining relatives–in-laws, stepchildren = loyalty more divided–spouse gets less, trust less
General Sequence re: Intestacy Priorities
Spouse–>descendants–>parents–>descendants of parents (siblings)–>grandparents–>descendants of grandparents–>next of kin–>escheat to state
UPC Intestacy: Surviving Spouse + No surviving descendants or parents
UPC = majority, (25+)
Spouse takes whole estate
UPC Intestacy: Surviving Spouse + Surviving Descendants (all from spouse + decedent–no stepkids, either side)
Spouse takes whole estate
UPC Intestacy: Surviving Spouse + Parents, but no descendants
Spouse takes first 300K + 3/4 of remaining balance
Rest to surviving parents equally
UPC Intestacy: Surviving Spouse + surviving descendants from decedent and spouse + surviving spouse has own descendants (i.e.–decedent has stepkids plus children with spouse)
Spouse takes first 225K + 1/2 of remaining balance
Rest to decedent’s descendants
UPC Intestacy: Surviving Spouse + descendants who are not from spouse (“wicked stepmother” scenario)
Spouse takes first 150K + 1/2 of remaining balance
Rest to decedent’s descendants
Intestacy + No Surviving spouse
To decedent’s descendants “by representation” (3 ways to do)
Intestacy and “By Representation”
3 options
1) Pure/strict per stirpes (older, least common today)
2) Modern/modified per stirpes (newer, most common today)
3) Per capita by representation at each generation (UPC)
Key: Look at levels and live roots
Pure/Strict Per Stirpes Representation
Old rule–least common today/modernly
Steps
1) Always start at child level (even if all kids predeceased)
2) Count live roots (i.e. which have still living line?)
3) Divide down (each root gets = amount, divide down re: survivors–if member of root deceased, split share among member’s kids)
Modern Per Stirpes Representation
Started around 1970s–most common modernly
Steps
1) Start at first level w/ at least one living member (vs. pure–always start at child level)
2) Count live roots (i.e. which have still living line?)
3) Divide down (each root gets = amount, divide down re: survivors–if member of root deceased, split share among member’s kids)
Per Capita By Representation/With Representation At Each Generation
UPC method
1) Start at first level w/ at least one living member
2) Count live roots (i.e. which have still living line?)
3) Distribute 1 share to each live person in generation/level (2 out of 3 alive = both get 1/3)
4) Combine remainder and distribute equally at next gen (3 out of 5 alive = get 1/5, 2/5 remainder distributed among all of next gen)
Intestacy + No Surviving Spouse or Descendants
Surviving parents take equally
Intestacy + No Surviving Spouse, Parents, or Descendants
Descendants of decedent’s parents (i.e. siblings, half-siblings, step-siblings) take by representation
Min consider degree of blood-relatedness (consanguinity)–not maj.
Intestacy + No surviving spouse, descendants, parents, descendants of parents
Grandparents take by representation
Grandparents dead = children of grandparents take by rep.
Intestacy + No surviving spouse, descendants, parents, siblings, grandparents, descendants of grands
Either next closest related by blood or escheats to state
