Estates: Challenging, comprising, and construing the Will Flashcards
Who has Standing to Object to Probate or Contest the Will?
Only someone who will have a beneficial interest if he succeeds can challenge a will. Heirs always have an interest, even if not named in an earlier will.
In a will contest, a person interested in the distribution of the estate objects to the admission of the will to probate on what basic ground?
that the will is invalid for some reason.
The grounds for contest of a properly executed will are:
a. lack of testamentary capacity
b. undue influence
c. mistake
d. fraud
e. Ambiguity
what are patent ambiguities?
appear on the face of the instrument
What are latent ambiguities?
ambiguities arising with the language of the will when a gift can go to multiple parties due to lack of specificity.
Once an ambiguity, patent or latent, is established, what kind of evidence is considered in resolving the ambiguity in accordance with the donor’s intent?
both direct and circumstantial evidence of the donor’s intention may be considered
What is an in terrorem clause used for?
These clauses are permitted, but courts dislike them and tend to construe them ______.
Generally, an in terrorem clause in a will attempts to disqualify anyone contesting the will from taking under it.
narrowly.
T or F If a challenge goes to some kind of fraud:
the court will never hold that in terrorem clause valid against the challenging party.
True
Most states hold that the in terrorem clause is ineffectual if the person affected: had ______ _______ to challenge the will.
reasonable cause to challenge the will .
Wills are always to be construed in accordance with the discernible will of the
testator
However, if a question of integration does arise, the will proponent must show that the will offered for probate is
actually the will that the testator intended to make, and that no insertions or removals of pages from the will have occurred.
The UPC recognizes the common-law doctrine of incorporation by reference, which permits the inclusion by reference of unattested documents as part of a will if:
a. the writing was in existence at the time of execution of the will
b. the language of the will manifests its intent to incorporate the writing; and
c. language of the Will describes the writing sufficiently to permit its identification.
EXAMPLE: Jane’s will provides, “I want the provisions in the letter written by me on August 10th, 2014, which is now in my desk in my home, to be given effect.” When Jane dies, if a letter is found in Jane’s desk with that date, it will be given effect and
and incorporated into the will.
facts of independent legal significance doctrine
A doctrine that allows the identity of a beneficiary who will take under a will, or the property that will be disposed of under a will, to be determined by facts or events occurring outside of the will that have their own significance apart from their effect on the disposition in the will.
note: a will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after the execution of the will.
EXAMPLE: The actual property disposed under a bequest of “all my household furnishings” will be dependent on what kinds of property the testator dies owning. These are facts of independent—i.e., non-testamentary—significance. Alternatively, a bequest to “such persons as I have named in a paper to be found in my desk marked ‘Last Instructions’” would require the application of the doctrine of incorporation by reference.
a _______ clause, which provides for everything not otherwise disposed to go to a particular beneficiary—everything done in life will affect that residuary clause.
residuary
property list The UPC recognizes the ability of a testator to make a writing that lists personal property the decedent would like to see have passed to certain individuals, if:the writing described
names the beneficiaries and identifies the property to be given away with reasonable certainty.
will the writing dispose of the property (in a list of property) even if not properly attested?
Yes
Does the statute consider money in a list of personal property?
No the statute makes clear that money:
is not personal property for this purpose.
If a testator makes a gift to a trust in existence at the time of the decedent’s death, that gift will be a valid disposition: even if the trust is created
created after the testator’s death.
A will speaks at death, so the situation in existence at the time of death will carry the day—think about after-born children. The UPC takes the position that the will controls all probate assets of the decedent’s estate at the time of death, even if: the property is purchased
prior to death but after the execution of the will.
T or F Property acquired by a decedent after death may also be controlled by the will, such as post-death bonuses.
After-acquired property will not be disposed of by a will if the will does not speak at all to that kind of property interest.
True
A surviving spouse has the right to decline to:
take under the will or pursuant to the intestacy statute, and instead may choose to take
an elective-share amount.
The amount is generally equal to:
______% value of the marital-property portion of the augmented estate.
50% of the value
T or F The right of election survives even where the testator specifically left the spouse out of the will and purposely left nothing to the spouse.
True