Donations Flashcards
Olographic Testaments
What are the requirements for an olographic testament?
Entirely handwritten by the testator
Signed at the end (signature can appear anywhere)
Dated (uncertain dates valid if “reasonably ascertainable”)
Olographic Testaments
How do courts treat pre-printed forms in olographic wills?
Courts may disregard pre-printed text and only consider handwritten text.
Notarial Testaments
What are the requirements for a valid notarial testament?
Testator must be able to read, write, and sign
Can be typed, printed, or handwritten
Signed on each page and at the end
Dated (anywhere, anytime, by anyone)
Attestation clause (signed by testator, notary, and 2 witnesses)
Notarial Testaments
What must an attestation clause declare?
That the document is the testator’s last will and testament
That all formalities have been met
Capacity
Who is presumed to have capacity to make donations?
Everyone, except those whom the law declares incapable.
Capacity
When must capacity exist for inter vivos and mortis causa donations?
Inter vivos: When the donor makes the donation
Mortis causa: When the testator executes the testament
Capacity
What are the age requirements for making donations?
Under 16: Cannot make inter vivos or mortis causa donations (except to spouse/children)
16-18: Can make a will but cannot make inter vivos donations (except to spouse/children)
Capacity
What is the burden of proof for challenging capacity?
Must be proven by clear and convincing evidence that the donor lacked capacity.
Capacity
What is the standard of proof for fraud, duress, or undue influence?
Clear and convincing evidence, except when a relationship of confidence exists (preponderance of evidence).
Unworthiness
Who can be judicially declared unworthy to inherit?
An heir or legatee who has killed or attempted to kill the decedent.
Unworthiness
What are the consequences of unworthiness?
The successor is treated as predeceased.
Unworthiness
What is the time limit for bringing an action for unworthiness?
5 years from the death of the decedent or probate.
Conditions and Substitutions
What are reprobated conditions?
Conditions that are impossible, immoral, or against public policy (e.g., “Bob gets the watch if he never marries”).
Conditions and Substitutions
What are suspensive conditions?
Conditions based on an uncertain event (e.g., “Bob gets the watch if he is unmarried at my death”).
Conditions and Substitutions
What is a prohibited substitution?
A donation where the first donee must preserve the property and deliver it to a second donee upon their death.
Conditions and Substitutions
What is a vulgar substitution?
A valid “backup” donee (e.g., “If Bob does not accept, then Sue gets it”).
Renunciation
What are the prerequisites for acceptance or renunciation of a legacy?
Death of the decedent
Successor must know of the decedent’s death and that they have succession rights.
Renunciation
How must renunciation be made?
It must be express and in writing.
Renunciation
What happens if a legacy is renounced?
It lapses and may pass to other heirs.
Executors and Attorneys
Is the designation of an executor a bequest?
No, it is not a bequest and is merely a request.
Executors and Attorneys
Can a testator give an executor authority to choose legatees?
No, but they can allow the executor to select assets to satisfy bequests.
Executors and Attorneys
Can an executor delegate their duties?
Yes, via power of attorney, but only if specifically authorized.
Classification of Legacies
What are the three main classifications of legacies?
Universal
General
Particular
How can you tell if a legacy is general?
buzz words = when the testator leaves a certain fraction, portion, or category of their estate to one or more legatees.
