Decedents' Estates Flashcards
Last Will and Testament
The document captioned “Last Will and Testament” is not a valid will because it was never executed. A valid partial will, or codicil, that refers to an earlier will is said to republish that will. When republication takes place, the republished will is deemed to be executed on the same day as the codicil. See generally RESTATEMENT (THIRD)OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.4 (1999). Republication can cure defects that might otherwise affect the validity of bequests made under a will. For example, in a jurisdiction that voids bequests to interested witnesses, a bequest to such a witness can be saved if the will is republished by a later-executed codicil witnessed by two disinterested witnesses. However, by most accounts, a document that is not a valid will cannot be republished by codicil.
Incorporation by reference
The document captioned “Last Will and Testament” was not incorporated by reference into Testator’s valid partial will because the partial will did not specifically refer to the earlier document or reflect Testator’s intent to incorporate that will.
A writing that is not valid as a will but is in existence when a will is executed may be incorporated by reference into the will if the will manifests an intent to incorporate the writing and the writing to be incorporated is identified with reasonable certainty.
Slayer Statute
Daughter is Testator’s sole heir, and she is not barred from inheriting from Testator by a slayer statute because these statutes apply only when the heir has murdered the decedent whose estate is at issue.
Ademption Doctrine
Under the common law ademption doctrine, if specifically devised property (i.e., property that is specifically described in the will) is not in the testator’s estate when the testator dies, the bequest adeems (i.e., fails). See generally WILLIAMMCGOVERN &SHELDON KURTZ,WILLS,TRUSTS, AND ESTATES 315 (3d ed. 2004). Under this common law doctrine, the testator’s intentions are irrelevant; all that matters is whether the testator owned the specifically devised asset at his or her death.
Some modern courts have rejected the common law “identity test” for ademption in favor of an intent test. Under the intent test, a beneficiary of specifically devised property is entitled to substitute property that was owned by the testator at his or her death if the beneficiary proves that the testator intended the beneficiary to take the substitute property.
Devisee of common stock
Under the common law, a devisee of common stock was entitled to additional shares of that stock obtained by the testator through a stock split, but not to additional shares acquired as a stock dividend.
Today, virtually all jurisdictions treat stock splits and dividends the same way; in each case, additional shares obtained by the testator go to the specific devisee. See, e.g., UNIF. PROBATE CODE § 2-605.
