Definitions Flashcards
Unequivocal Intent
Testator must intend the instrument to dispose of his property upon death.
Wrong Will Signed
Majority: Mistakenly signed will is not admissible because the testator did not intend the instrument he signed to be his will.
Modern courts may grant relief through mistake.
Conditional Will
A will that is made expressly conditional upon the happening of an event. If the event does not happen, the will will be denied in probate.
Mental Capacity to Create a Will
At the time of making the will, testator must Know and Understand the
1) nature and extent of his bounty;
2) persons who are natural objects of his bounty and;
3) nature of his disposition.
Insane Delusion
Ideas or beliefs which spring spontaneously from a diseased or perverted mind without reason or foundation in fact. Testator must act on idea or belief.
Fraud in the Execution v. Fraud in the Inducement
- Fraud in the Execution: Testator tricked by bene into signing a document not knowing it to be a will (no intent)
- Fraud in the Inducement: Testator has the intent to make a will but fraudulently is induced into making a particular gift.
Undue Influence
Influence so great as to destroy the free agency of the testator.
Four Elements (considerations) to Undue Influence
- Was Testator susceptible to influence?
- Opportunity to exercise influence
- Disposition to influence for improper purpose.
- Are provisions unnatural?
Ambiguity
Particular words/descriptions subject to multiple interpretations.
Three Elements to Witnessing a Will
- Being present at the same time.
- Understand that the instrument they are witnessing is a will.
- Must sign during the Testator’s lifetime.
Mistake in the Inducement v. Mistake in the Execution
Mistake in the Inducement: General rule; no relief.
Mistake in the Execution: General rule; it will fail for lack of testamentary intent.
Exception to Mistake in the Inducement
Relief will be granted where both the mistake and the actual alternate disposition appear on the face of the instrument.
Ambiguity
Particular words/descriptions that are open to multiple interpretations
Three Requirements for a Formal Will
- Must be in writing
- Must be signed by 2 wits
- Must be signed by Testator (CA. does not require sig to be at end of document)
Three Requirements for Valid Witnesses
- Signing by Testator or acknowledgment by Testator that he signed the will must be in presence of both witnesses.
- Witnesses must understand that the document the witnesses signed is the Testator’s will.
- Witnesses must sign the will while Testator is alive.
In CA, the witnesses do not need to sign in the presence of each other.
Interested Witness
A witness who is receiving a benefit under a will. The fact that the will makes a devise to a subscribing witness creates a rebuttal presumption that the witness procured the devise by duress, menace, fraud, or undue influence.
Integration
A will written on more than one piece of paper
Codicil
A testamentary instrument executed subsequent to the execution of a will ordinarily intended to expand, alter or modify the will. (Same formalities required)
Incorporation by Reference
Document is incorporated into the will be reference so that it is considered part of the will.
Three Elements to Incorporation be Reference
- Document must be in existence at the time the will/codicil was written.
- Will must refer to and show intent to incorporate.
- The document must be identifiable and that which is mentioned must be the document that was incorporated.
- Cannot incorporate by reference a document to be written in the future.
Incorporation by holographs
Most states allow holographs to incorporate by reference printed or typed matter. Thus, a codicil can incorporate a defectively executed typewritten will.
Acts of Independent Significance
Court may fill in “blanks” in a will by reference to an act or event which will have significance apart from its significance to the will.
Four Ways to Revoke a Will
- Subsequent Testamentary Instrument
- Physical Act
- Operation of Law
- Dependent Relative Revocation
Two Ways to Revoke by Subsequent Testamentary Instrument
- Express Revocation
2. Implied Revocation
Express Revocation
A will may be revoked in whole or in part by the express terms of a later will or codicil.
Implied Revocation
A will may be revoked in whole or in part by implication from the terms of a subsequent instrument.
Total Inconsistency: If the second will is totally inconsistent with the first, the first will is revoked instantaneously and can no longer by admitted to probate even if the later will is revoked unless the Testator intended to revive the will
Partial Inconsistency: The latter will prevails over the first to the extent of the partial inconsistency. The prior will is admitted to probate along with the later instrument and the earlier instrument is not revoked but is merely superseded as to the inconsistencies.
Revocation by Physical Act
A will may be revoked by burning, tearing, cancellation, being defaced, obliterated or destroyed with the “requisite intent”. The physical act must be accompanied simultaneously with the requisite intent.
Four Ways a Will can be Revoked by Operation of Law
- Marriage
- Children
- Divorce
- Forfeiture Statute
Revocation by Marriage
If a person marries after the decedent’s execution of their last testamentary instrument, and the spouse survives the marker but the spouse is not provided for, the surviving spouse may take, in addition to his or her share of the community and quasi-community property, his or her intestate share of the estate.
If a child has been omitted from a will, they will not inherit if the following three exceptions are met.
- The Testator’s failure to provide for the child in the will was intentional and that intention appears from the will.
- When the will was executed, the testator had one or more children and devised substantially all the estte to the other parent of the omitted child.
- The Testator provided for the child by transfer outside the will and the intention that the transfer be in lieu of a testamentary provision.
Omitted child born before the last testamentary instrument
Does not receive a share of the estate unless the child is omitted solely because the testator mistakenly believed the child to be dead or was unaware of the birth of the child.
Revocation by Divorce
If Dissolution/annulment of the testator’s marriage after execution of a will occurs after 1-1-85, the will is automatically revoked with regards to all dispositions and powers in the will to the ex-spouse unless the will provides otherwise.
Revocation by Forfeiture Statute
Deems abusers of elders or dependent adults to have predeceased the decedents.
Dependent Relative Revocation
Doctrine applies when a testator revokes his will/gift upon a mistaken belief that another disposition of his property would be effective and, but for the mistake, would not have revoked his will/gift.
Revival
A theory allowing a revoked will to be probated because the revoking will was itself revoked.
Order of Payment of Claims
Debts, Funeral Expenses, Taxes, Expenses of Administration and Family advances.
Devise
Any disposition of real/personal property
Bequest
Gift of personal property
Four Classifications of Gifts
- Specific: Gift of a particular identifiable item
- General: Gift out of general estate
- Demonstrative: General legacy payable first from particular property and then out of the estate if that property is insufficient.
- Residuary: Whatever is left after all other expenses and gifts have been paid.
Ademption
A specific legacy or devise is adeemed (fails) when the specific property given is not part of the testator’s estate at the time of death.
Abatement
Reduce gifts to beneficiaries under a will because the testator’s estate is not sufficient to pay all estate obligations, bequests and devises.
General Order of Abatement
- Intestate property
- Residuary gifts
- General bequests-abate on a pro rata basis in accordance with the percentage of the estate that each gift represents.
- Demonstrative bequests
- Specific Requests
Pretermitted Child
Means of protecting children who have been unintentionally omitted born after the making of the last testamentary instrument. Intent to disinherit must not appear on the face of the will. Effect is that the pretermitted child receives and intestate share.
Pretermitted Spouse
Means of protecting spouse when an individual marries after making of the last testamentary instrument and does not mention the spouse. If omitted, the spouse may take, in addition to his or her share of the community and quasi-community property, his or her intestate sheare of the estate.
Adopted Child
For purposes of succession, adopted child inherits from her adopted parents and not from her natural parents. Exception is if natural parent was married to or cohabiting with other natural parent and parent died before birth. Or adoption was by spouse of natural parent.
Lapse Statute
When a devisee/legatee dies after a testator executes his will but before T dies, the gift to him fails in the absence of testamentary or statutory provisions to the contrary.
Anti-Lapse Statute
Inheritance by descendants of predeceased devisee/legatee. The court will apply the anti-lapse statute if the beneficiary is kindred (blood relative) of the testator and leaves lineal descendants. A spouse is not kindred.
