Elective Share statute: "Right of renunciation" Flashcards
What is the elective share statute?
Law that allows the surviving spouse to contest the will, usually for the benefit of obtaining a specifically outlined “elective share”
What is the amount of an elective share?
For the surviving spouse:
If decedent was survived by descendants: 1/3
If decedent was NOT survived by descendants: 1/2
What is the legal effect of making the election?
The surviving spouse is renouncing the will.
When must you file for election?
Within 7 months after will is admitted to probate in IL
Who may make the election?
Surviving spouse, or guardian of surviving spouse if he/she is legally incapacitated. CANNOT make election if surviving spouse dies.
How do you calculate the elective share from other beneficiaries?
Other beneficiaries will contribute on a pro rata basis, apply property devised to spouse first, it counts towards their share!
Hank established a revocable inter vivos trust naming Bank as trustee: Income to Hank for life, and on Hank’s death remainder to his son Steve. Hank dies a few years later, leaving a will that bequeathed his estate to his wife Wendy and Steve in equal shares. While that sounds fair enough, nearly all of Hank’s property had been placed in the trust. Hank left a net probate estate of $36,000, and the value of assets in his trust to $900,000. Wendy files for elective share, does Wendy’s elective share right apply to the assets in the revocable trust?
Apply UPC?
Apply IL law?
UPC: YES, policy rationale.
IL: NO! Wendy can’t touch the trust., The elective share giving 1/3 or 1/2 only applies to PROBATE ESTATE, does NOT apply to any non-probate transfers, such as revocable trusts, Totten trust accounts etc.
Who may contest a will for its validity?
Only interested parties who have an economic interest that would be adversely affected by will’s probate. no one else has standing
What must you show to prove the testator had sufficient capacity to execute the will?
Must show:
- Understood the nature of the act he was doing
- Know the nature and approximate value of his property
- Know the natural objects of his bounty?
- Understand the disposition he was making?
T was 93 years old when he executed his will. Six months earlier, T has been adjudicated incapacitated; a guardian was appointed to manage his property. The trial judge granted the heirs’ motion for a directed verdict on the grounds that T did not have testamentary capacity. Was this proper?
NO. Should reverse and remand, b/c adjudication of incapacity involves a different legal test than four point test for making a will. Jury could find he made it in lucid intervals.
To declare testator was under undue influence when making the will, what must you show?
- Existence and exertion of the influence
- Effect of which was to overpower the mind and will of the testator
- Product is a will (or gift in the will) that would not have been made but for the influence
Definition of mental duress?
“Influence is not undue unless the free agency of the testator is destroyed and a will is produced that reflects the will, not of the testator, but of the person exerting the influence.
What type of evidence, standing alone, is insufficient to prove undue influence?
- Opportunity
- Susceptibility
- Unnatural disposition
When will there be a presumption of undue influence?
Where a person in a confidential or fiduaciary relationship was active in procuring the will, and that party will receive a substantial benefit under the will.
How do you overcome the presumption of undue influence in confidential/fiduciary relationship cases?
With clear and convincing evidence that no undue evidence has been exerted.
What is a no contest clause?
Clause in the will that states that the person contesting the will shall forfeit his legacy.
Are there any exceptions to the no contest clause for UPC/majority?
In UPC: yes, beneficiary won’t have to forfeit his legacy if he contests the will in good faith and probable cause.
Are there any exceptions to the no contest clause in IL?
NO. In IL no-contest clauses are given FULL effect regardless of probable cause, because a testator should be permitted to protect his testamentary plan, and his reputation, against post-death attack.
What is the purpose of a power of appointment?
It allows the testator to permit the life beneficiary to designate the remaindermen.
T dies in 1980, his will created a trust “to pay the income to my daughter D for life, and on her death to distribute the trust principal to such persons, including S’s estate, as she appoints by her last will. If she doesn’t exercise this power of appointment, on D’s death the trustee shall distribute the trust principal to D’s descendants” What kind of power was given to D?
D is the donee of a GENERAL testamentary power of appointment, she has NO LIMIT to whom she can appoint.
What are D’s descendants considered?
They are takers in default of appointment.
D died last year, leaving a will that bequeathed her residuary estate “one-half to my husband H and one-half to my son Steve. Did the residuary clause in D’s will operate to exercise power of appointment?
NO. power must be EXPRESSLY exercised, so D’s descendants in default take.
Mom’s will creates a trust: “Income to my daughter B for like, and on her death the principal to such of B’s descendants as she shall appoint by her last will. In default of her appointment, to B’s children in equal shares. What kind of power does B have?
B has a life estate and a special testamentary power, because she is limited to her children to appoint the trust principal to.
B dies and her will devises “all my property, including any property over which I may have power of appointment, to my daughter D. Is this a valid exercise of testamentary power?
Yes, D takes.
