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
If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse’s behalf by his
conservator, guardian, or agent under the authority of a power of attorney.
In any case, the surviving spouse must:
be
alive when the election is made.
The surviving spouse must make her election within:
_____ months after the date of the decedent’s death, or within ____months after the probate of the decedent’s will, whichever limitation later expires.
9 months after the date of the decedent’s death
6 months after the probate of the decedent’s will
What does the augmented estate consists of:
The augmented estate consists of the sum of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:
(1) the decedent’s net probate estate;
(2) the decedent’s non-probate transfers to persons other than the surviving spouse;
(3) the decedent’s non-probate transfers to the surviving spouse; and
(4) the value of the surviving spouse’s net assets at the decedent’s death, plus the surviving spouse’s non-probate transfers to others.
Under the Uniform Probate Code, the amount of the surviving spouse’s elective share is calculated by applying a specified percentage to the augmented estate as listed in a chart in the UPC.
(1) The percentage of the augmented estate that becomes marital property is 3% if the spouses have only been married for:
(2) For a marriage of 15 years or more, the percentage caps at ____ at which point the spouse takes _____ of that.
(1) 3% if married for only a few months
(2) caps at 100% at which the spouse takes 50% of that
In satisfying the amount of the elective share, the decedent’s probate and non-probate transfers to the surviving spouse and the ______ portion of the surviving spouse’s assets are applied first.
If the amount of the elective share is not satisfied from these items: the decedent’s probate and non-probate ______ to others are proportionally liable to satisfy the balance. (will be given to the spouse)
marital
transfers to others
The UPC also provides for an amount of a supplemental elective share, a special feature for small estates that is designed to bring the surviving spouse’s assets up to at least $______ or as close to that figure as the value of the assets permits.
$75,000,
The right of election of a surviving spouse may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse. This often occurs in?
The waiver will be valid as long as there was?
prenuptial agreements between couples.
there was full financial disclosure, and the agreement is essentially equitable (fair).
T or F If a transfer was supported by adequate and full consideration, it will be excluded from the augmented estate, even if the purchaser is a relative.
True
If a testator’s surviving spouse married the testator after he executed his will, the surviving spouse is entitled to receive: an intestate share unless:
a. there is something in the will that clearly indicates that the spouse was not intended to take anything under the will; or (Note: does not affect elective share spouse can still take)
b. if inter-vivos (lifetime gifts) have been made to the spouse in satisfaction of the spouse’s share.
T or F Generally, under the UPC, a testator cannot disinherit a child intentionally.
False a testator can disinherit a child intentionally. There is no forced or elective share for children as there is for a spouse.
Omitted heirs are children of the testator, living at the time of execution of the testator’s last will, who are neither
mentioned nor provided for in the will and would have inherited from the testator had he died intestate.
the UPC allows: the heirs of the testator to be disinherited provided that it is
express or necessarily implied
If the testator fails to provide in his will for his child born or adopted after making his will, the UPC protects such child from unintentional disinheritance, unless it appears from the will that the failure was intentional. If the testator had no child living when the will was executed, an omitted after-born or after-adopted child: receives
What are the exceptions?
an intestate share
will receive an intestate share unless:
1) unless the will devised all or most of the decedent’s estate to the other parent of the omitted child.
2) It appears from the face of the will that the testator intended not to provide for the child under the will.
If the testator had one or more children living when the will was executed, and the will made a devise to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to:
share in the portion of the testator’s estate that had been devised to the testator’s then-living children as if the child had been given an equal share of that portion of the estate.
EXAMPLE: Testator writes a will when two children are alive, giving each $7,500. After the will is executed, a third child is born. There is no indication that the third child was intentionally omitted or disinherited. The after-born child is entitled to receive under the will. How will the property be disposed of taking the third child into account?
The disposition to the first two children will be combined, and the amount will be distributed proportionally to all three children. In this case, the two $7,500 dispositions will combine for a total of $15,000, and each of the children will get $5,000.
T or F If the testator had living children at the time of the will’s execution but the children receive nothing:
the after born will get nothing as well as the already born children get nothing
True
Non-marital after-born children are entitled to take under this statute from their mother’s estate and from their father’s estate, if
the father and mother of the child marry,
or the father holds the child out to be his during his lifetime, or if there is clear and convincing evidence of paternity.
If a valid codicil is executed after the birth of the after-born child, the entire will is republished as of that date. Thus, the statute does not apply, and the child is
not entitled to an intestate share.
EXAMPLE: A will is executed in 2010. Testator has two children at that time. A third child is born in 2012. A codicil is executed in 2015. The codicil republished the will as of 2015. The third child is no longer an after-born child and will not be entitled to an intestate share.
Any rule that a charitable devise is invalid if it exceeds a certain proportion of the testator’s estate or if it is contained in a will that was executed within a certain time before the testator’s death is _______.
abolished.
Explain the Slayer Act
Any person who participates, either as a principal, co-conspirator, or an accessory before the fact, in the felonious and intentional killing of any other person: may not inherit any property or receive any benefit as a result of the decedent’s death. This will most often arise with insurance proceeds, contracts, and pension plans.
The Slayer Act does not apply if the death was accidental.
EXAMPLE: Howard dies of gunshot wounds inflicted by his spouse, Charlotte, who is later convicted of voluntary manslaughter. He died intestate, leaving Charlotte and his parents, George and Diane. Who takes his property?
Because it is a felonious intentional slaying by Charlotte, she cannot take as an heir. The parents George and Diane will split the property equally.
For purposes of the Slayer Act, The slayer will be deemed:
The Slayer Act applies to property that would have passed from the decedent or his estate to the slayer under the statutes:
to have pre-deceased the decedent.
of descent and distribution or by statutory right of the surviving spouse.
For joint tenancy property, the property is converted from joint tenancy to tenancy in common, and the interest of the slayer prior to the slaying will be kept, but the other half (which the slayer would otherwise have gotten) passes
as tenancy in common property to probate estate.
If the slayer is the beneficiary or assignee of a policy insuring the life of the decedent, or is the survivor of a joint life policy, the proceeds will be paid to
the decedent’s estate, or, if designated, to a contingent beneficiary, even if the contingent beneficiary is a relative of the slayer.
T or F The UPC requires some definitive legal act in order to bar the surviving spouse from taking
True
Effect of divorce and remarriage upon wills:
(1) If there is a divorce and the testator dies, the spouse is no longer the surviving spouse because she is not a spouse anymore.
(2) This ends heirship rights at a minimum.
(3) There must be a final legal decree of divorce; separation is not sufficient.
Under the UPC, a person who cannot be established:
to have survived the decedent by _____hours or __ days by clear and convincing evidence
is deemed to have predeceased the decedent.
120 hours (5 days)
If the time of death of the decedent or the heir, or both, cannot be determined so as to establish that the decedent survived the heir by 120 hours:
each will be deemed to have
failed to survive the other.
Example: A and Spouse, B, die together in a car crash. Witnesses report that B survived A by two hours. B is treated as having predeceased A for purposes of succession, despite sufficient evidence of B’s chronological survival.
What is the survivor rule for a joint tenancy?
For joint tenancy property, the 120-hour survivorship rule is still applied.
EXAMPLE: A and B are sisters and joint tenants in Blackacre. A and B die together in a car crash within 24 hours of one another. They are survived by their brother, C, and a woman named Louise. Sister A died intestate; her closest relative is her brother, C, who is her heir. Sister B died testate, and had a will specifically bequeathing all of her estate to her sister, A, with the residual to her friend Louise. A’s share of the joint tenancy will pass to her brother C through intestacy. However what will happen to Bs property?
As to B’s half of the tenancy, it cannot go to A, because A failed to survive B. Therefore, B’s half of the tenancy will fall into the residual estate, which means Louise will take B’s half of Blackacre. The result is that Louise and C will be tenants-in-common of Blackacre.
For a devisee to refuse a devise:
that person must file a formal disclaimer stating they don’t want it. In order to be effective, a disclaimer must:
a. be in writing or other record;
b. declare the disclaimer;
c. describe the interest or power disclaimed;
d. be signed by the disclaiming party; and
e. be delivered or filed.
Is it permissible for a disclaimer to be only a partial disclaimer and disclaim less than the full bequest, as opposed to having to disclaim all of it?
Yes
It is impermissible to disclaim where:
a. the person receiving the property has waived his right to disclaim the bequest;
b. the person has already received the property and accepted it;
c. the interest in the property to be disclaimed has been assigned or encumbered (i.e., by mortgage); or
d. the property has been sold in a judicial sale.
A disclaimer relates back: to the date of the decedent’s death. The disclaimant is treated as having:
predeceased the testator, even where the disclaimer is made after the death of the testator
Two reasons people disclaim are:
(1) to defeat creditors, because they are treated as having predeceased and thus would not take at all under the will for that property; and
(2) tax purposes.
EXAMPLE: Father dies intestate, and is survived by Son. Son has two children—X and Y—who also survive the death of Father. Father also had a daughter, Daughter, who predeceased Father, and who had a child of her own, Z. In an intestacy proceeding, Father’s estate will pass by representation, and so half would go to Son and half would go to Z, Daughter’s only child. If Son disclaims his share what would theoretically happen? but what if the disclaimer cannot be used in this way what will happen?
it will be as if he predeceased Father, so X, Y, and Z—all the living persons in the next generation—will share Father’s estate equally and take one-third each. This would give Son’s children two-thirds of the total estate, as opposed to the one-half Son normally would have taken.
NOTE: Under the UPC, a disclaimer cannot be used to alter distribution in this way. As a result, a disclaiming party’s children will only take: whatever the disclaimant would have taken had he not disclaimed. So son would only get half as if he never refused.
A specific bequest or specific devise is:
a gift by will of a specific article or other real or personal property, which is identified and distinguished from all other things of the same kind, and is satisfied only by delivery of the particular thing.
NOTE: The use of possessive words (e.g., “my”) indicates that a specific legacy was intended.
A general legacy is
A general legacy is:
one payable out of the general assets of the decedent’s estate and not in any way separated or distinguished other things of like kind.
A bequest or devise is classified as demonstrative when:
a transfer or bequest of a certain sum to be paid out of a particular fund.
If the fund is not in existence at the testator’s death or if it is insufficient: the legatee will be entitled to
satisfaction out of the general estate.
What is ademption?
Ademption is what happens when a gift under a will fails for whatever reason.
A testamentary gift is adeemed by extinction—i.e., it fails—when:
property specifically bequeathed or devised is not in the testator’s estate at his death.
Ademption by extinction can only occur with: a specific bequest/gift/devise. If it is a general gift: it
cannot adeem by extinction.
EXAMPLE: If the testator specifically devised Blackacre to X, and then exchanged Blackacre for Whiteacre prior to death, the devise of Blackacre would be said to be adeemed by
extinction. (gone) The reason the property is not there is irrelevant; only the fact that it is not there at all matters
However, if specifically devised property is sold or mortgaged by a conservator or agent acting by a durable power of attorney for an incapacitated principal: the devisee has the right to
a general devise equal to the sale price, the unpaid loan amount, or the recovery under an insurance pay out.
Non-ademption; Balance (unpaid amounts)
(1) A specific devisee has a right to specifically devised property in the testator’s estate at the testator’s death, and to: (hint: amounts)
(a) any balance of the purchase price, together with any security agreement, owed by a purchaser at the testator’s death by reason of a sale of the property;
(b) any amount due for the condemnation of the property and unpaid at the testator’s death;
(c) any proceeds unpaid at the testator’s death on fire or casualty insurance on or other recovery for injury to the property;
(d) any real property or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised real property or tangible personal property.
EXAMPLE: R provides in his will, “I devise Orangeacre, my vacation property, to J.” Prior to his death, R sold Orangeacre and bought Greenacre, a property that he used until his death as a vacation property. Under the exception (d) to the ademption rule, Greenacre will be considered a
replacement of Orangeacre, as they are both vacation properties, and J will get Greenacre.
If the will says “my fifty (50) shares of Wood stock to Jimmy,” the possessive pronoun makes this a _______disposition of the identified shares (i.e., those the testator owns); if she owns none at her death, the bequest is adeemed.
(c) If the will says “fifty (50) shares of Vladivos stock to Leonid,” and the testator owned no such shares at her death, the court interprets this as a _______bequest, and Leonid is entitled to the value of 50 shares of Vladivos stock as of the date of the testator’s death
specific
general
An ademption by satisfaction occurs when a testator
makes an inter vivos gift of property to a beneficiary of a general or residuary disposition with the intent that the provision of the will be thereby satisfied.
Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise only if:
(1) the will provides for deduction of the gift; or
(2) the testator declared in a contemporaneous writing that the gift is in satisfaction of the devisee or that its value is to be deducted from the value of the devise; or
(3) the devisee acknowledged in writing that the gift is in satisfaction of the devisee or that its value is to be deducted from the value of the devisee.
An inter vivos gift may satisfy a will bequest partially or in total satisfaction. Give an example of both partial and complete ademption by satisfaction
EXAMPLE: T’s will provides, “I leave $10,000 to J.” During T’s life, he makes a gift of $3,000 to J, and in writing at the same time states, “This gift reduces the amount of any gift J takes under my will.” This will be sufficient to find that the gift will satisfy the will bequest. (partial ademption by satisfaction)
It will not be total satisfaction, however, because the gift is below the value of the will’s bequest. J will therefore take $7,000 under the will. If there were no writing at all, it would not be a satisfaction, because a contemporaneous writing is absent.
- If a person is given property under a will, and the property is subject to a lien: the beneficiary takes the property: subject to the lien. (no exoneration)
However, if the testator in the will specifies for the executor to pay the debt on the property, the executor will do so, and the devisee will take the property?
free of the mortgage.
Exception: A direction to pay “all debts and expenses” is considered boilerplate and will not cover mortgages.
If the assets of the testator’s estate are insufficient, after payment of all claims against the estate, to satisfy all the bequests or devises, the beneficiaries’ shares will abate, or be reduced. What is the Order of abatement?
Order of abatement: of property
a. property that would pass intestacy
b. residuary bequests - gift (bequest) of all or a portion of the remaining assets after making distributions of specific bequests.
c. general bequests- a gift of a specific amount, made to a specific person
d. demonstrative bequests- is a gift, usually monetary, left in your Will to be paid from a specific source or account.
e. specific bequests- a specific gift item of property that can be easily identified and distinguished from all other property in the testator’s estate.
Accordingly, the estate will be distributed as follows: order of devisees (beneficiaries)
a. Specific devisees get first and get their full bequests.
b. Then general devisees will take, but their shares will be reduced as necessary (and proportionally) due to abatement.
If a class is receiving a gift and an abatement must be done, the whole class will share in the abatement proportionally to the value of ?
value of their gifts in the will.
A class gift exists when the testator
makes a gift to a number of persons as a group, and the size of the group may either increase or decrease in size. The share of each depends upon the ultimate number in the class.
As a general rule: class gifts close at the time
the will is made effective. (when the testator dies)
Under the common law, a lapse occurs when a disposition fails because
the beneficiary predeceases the testator.
Unless saved by the anti-lapse statute:
a. A lapse in the body of the will falls:
b. A total lapse in the residuary of the will falls to:
intestacy.
c. A partial lapse in the residuary falls to:
d. A lapse in a class gift falls to:
a. into the residuary if there is one, or if not, to intestacy.
c. a partial lapse in the residuary falls to the other residuary takers
d. lapse in class gift to the other class members
Under the anti-lapse statute, a gift is saved if the predeceasing beneficiary was closely enough related to the testator; and (relation of beneficiary)
(a) Narrow view:
(b) Broader view:
(c) Broadest view:
(a) Narrow view: Any descendant.
(b) Broader view: Any relative but a spouse.
(c) Broadest view: Any beneficiary no matter the relation.
note: unless the will clearly expresses a contrary intent
Under the anti lapse statute the gift is saved if predeceasing beneficiary was survived by descendants who also survived the testator unless
the will clearly expresses a contrary intent.
Examples of an expressed contrary intent include:
(a) testator specifically says that the anti-lapse statute does not apply.
(b) testator specifies survival as a requirement and states lapse as a result of failure; or
(c) implies contrary intent by naming a contingent beneficiary.
T or F The UPC requires that words of survivorship for class gifts be explicit that they do not want the anti-lapse statute to apply; otherwise, there is a presumption that it should.
True
