Essay misses

Question 1

Testamentary Intent

Answer 1

1. Intent = valid
2. “this is my last will = rebuttable presumption of intent
3. extrinsic evidence allowed to show intent

For a will to be valid the testator must intend that the particular instrument operate as his will.

“this is my last will” raises a presumption of testamentary intent, BUT the presumption is rebuttable.

Generally, extrinsic evidence is admissible to show testamentary intent and, presumably, lack of testamentary intent.

Question 2

Will Revocation

Answer 2

A will may be effectively revoked by operation of law, by:

1. a subsequently written instrument, or
2. by physical act

Question 3

Will revocation by written instrument

Answer 3

There must be:

Intent + formalities

1. a present intent to revoke and
2. instrument must be executed with the same formalities as are required for the execution of a will.

Question 4

Revocation by Act

Answer 4

The statutes of each state specifically prescribe the acts sufficient to revoke a will. Generally, these acts are burning, tearing, or obliterating, or canceling a material portion of the will.

Common Law/most states: the act must be shown to have had an actual effect on the will or its language.

UPC: the words of cancellation must be on the will itself but need not touch any of the words of the will.

Question 5

Interested Witness Attestation

Answer 5

Common Law: no probate with two disinterested witnesses

Most states: Purging statutes - will valid, interested gift void

Some states: no effect on will

Common Law no longer the rule (will could not be probated if one of the two necessary attesting witnesses was a beneficiary)

Most states have statutes called “purging statutes” that eliminate the interest rather than render the will invalid. The will is valid, but the gift to the witness-beneficiary is void.

Some states have repealed their “interested witness” statutes. In these states, the fact that a witness is also a beneficiary has no effect on the will whatsoever.

Question 6

Will Contract

Answer 6

Common Law: no contract writing needed unless land involved

Some states: require all contracts to make a gift by will to be in writing.

UPC: a contract to make a will can be established only by:

1)provisions in the will stating the material provisions of the contract;
2) an express reference in a will to the contract and extrinsic evidence proving the terms of the contract; or
3) a writing signed by the decedent evidencing the contract.

Question 7

Cy Pres

Answer 7

1. If general charitable purpose impossible or impractical,
2. court may apply to another “as close as possible”

If it is impossible or impractical to use a gift for the general charitable intent indicated, the court may apply the gift to another purpose as close as possible to the original one rather than let the gift fail.