Estates: Wills and intestate

Question 1

Examples of non-probate assets:

Answer 1

joint tenancy, tenancy by the entirety, POD and TOD accounts, revocable trusts, and life insurance policies that pay to a third party rather than to the decedent’s estate.

Question 2

T or F A decedent can die totally or partially testate or intestate

Answer 2

True

Question 3

What is a Will?

Answer 3

A will is a document executed by a testator or testatrix that takes effect on the death of the testator or testatrix Usually, a will disposes of a person’s property, but need not actually do so in order to constitute a valid will..

Question 4

A will may also include any codicil and testamentary instrument that: (actions)

Answer 4

a. appoints an executor; to that will
b. nominates a guardian;
c. revokes or revises another will; or
d. expressly excludes or limits the rights of an individual or class to succeed to property of the decedent passing by intestate succession.

Question 5

Questions pertaining to testate succession generally fall into one of four categories:

Answer 5

a. making a will;
b. revoking a will;
c. challenging a will; and
d. comprising and construing a will.

Question 6

There are three types of wills:

Answer 6

a. attested or formal will with witnesses
b. holographic will (unattested will)
c. oral Will (very limited; nuncupative)

Question 7

While the formal requirements of a will depend on what type of will is in issue, all wills require: 3 components

Answer 7

a. testamentary capacity
b. testamentary intent
c. appropriate formalities

Question 8

Capacity to enter a will

A person must be at least ___ years old and of sound mind at the time the will was ________.

Answer 8

18

executed.

Question 9

Generally, sound mind means that the testator, at the time the will is executed, must have the ability to understand:

what, how, whom

Answer 9

(1) the nature and extent of his property (what)
(2) the nature of the distribution or disposition being made (how)
(3) the names of and his relationship to the so called natural objects of his bounty. (whom)

Question 10

T or F The fact that a testator may be eccentric or may have unusual opinions or behavior does not necessarily render him mentally incapable of making a will.

Answer 10

True

Question 11

An insane delusion is defined as

Answer 11

an irrational belief that has no grounding in reality or fact.

Question 12

(1) A person who suffers from an insane delusion is not necessarily deprived of capacity to make a donative transfer.
(2) A particular donative transfer is invalid, however, to the extent: that it was
Similarly Similarly, a suspicion with some basis in fact is not an insane delusion.

Answer 12

the product of an insane delusion

Question 13

what is testamentary intent?

Answer 13

At the time of the execution:

a testator must intend that this particular document be the Will.

Question 14

A testator sends a letter to his sister saying he intends to make up a will next week and details how he wishes to have his property distributed. If testator dies before making that will, can the letter be admitted into probate? why or why not?

Answer 14

No, because at the time the testator wrote the letter, he did not intend that letter to be a will. The letter cannot be deemed to be the testator’s will because the testator lacked testamentary intent.

Question 15

Tom sends his niece Caroline a handwritten, signed letter that professes his love for her and promises to leave her his entire estate. However, Tom dies before making a will. Does this letter constitute a will?

Answer 15

NO, This letter was not intended to be a will, so it is not a will.

Question 16

Three concepts that prevent testamentary intent:

Answer 16

a. undue influence most commonly tested
b. fraud
c. mistake

Question 17

Undue influence is sufficient to void a will if:

Answer 17

(1) a contestant can prove that the wrongdoer exerted such influence over the donor that it overcame the donor’s free will; and
(2) caused the donor to make a donative transfer that the donor would otherwise not have made.

Question 18

A presumption of undue influence arises if:

Answer 18

(1) the alleged wrongdoer was in a confidential relationship with the donor
(2) if there were suspicious circumstances surrounding the preparation, formulation, or execution of the will.

Question 19

(a) Factors to consider whether there is undue influence include:

Explain the burden of proof:

Answer 19

1) the extent to which the alleged wrongdoer participated in the preparation or procurement of the will
2) the extent to which the donor was in a weakened condition; physically, mentally, or both and therefore susceptible to undue influence.

3) a substantial devise by will to a person who is one of the witnesses to the execution of the will.

(4) This rule also covers a relationship whereby:
the testator is reliant to someone else for day to day affairs, most often caring for an elderly resident.

Burden of proof: clear and convincing evidence
***If these factors are shown by clear and convincing evidence, the burden of proof returns to the proponent of the will to show that the gift or bequest was not the product of undue influence.

Question 20

The existence of a confidential relationship is not sufficient to raise a presumption of undue influence. There must also be suspicious circumstances surrounding the preparation, execution, or formulation of the will raising an inference of an abuse of the confidential relationship between the alleged wrongdoer and the donor. In evaluating whether suspicious circumstances are present, all relevant factors may be considered, including:

Answer 20

1) the extent to which the donor was in a weakened condition physically, mentally, or both, and therefore susceptible to undue influence;
(2) the extent to which the alleged wrongdoer participated in the preparation or procurement of the will;
(3) whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will;
(4) whether the will was prepared in secrecy or in haste;
(5) whether the donor’s attitude toward others had changed by reason of his relationship with the alleged wrongdoer;
(6) whether there is a decided discrepancy between new and previous wills of the donor;
(7) whether there was a continuity of purpose running through former wills indicating a settled intent in the disposition of his property; and
(8) whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.

Question 21

T or F The fact that a parent does not leave property to her children without disclosing her reasons for disinheriting them, without anything more, does not by itself raise a presumption of undue influence.

Answer 21

True

Question 22

If undue influence is proven what is the legal effect?

Answer 22

it will void the provisions of the will that benefit the person exerting the undue influence.

Question 23

What is fraud in the execution and what is its legal effect?

Answer 23

(1) Fraud as to the nature of contents or writing itself.

(2) If shown to be fraud in the execution, the will is invalid.

Question 24

Radar O’Reilly presents a stack of papers for Colonel Henry Black to sign, stating they are all important documents. Radar inserted a piece of paper that states, “I, Henry Blake, leave all my property to Radar O’Reilly.” Radar used fraud to have Colonel Blake sign the document. Is the Will valid why or why not?

Answer 24

Will is invalid. (no testamentary intent) fraud by the execution

Question 25

explain fraud in the inducement
How is fraud in the inducement established?

What is the test?

Answer 25

(1) Intrinsic facts that induce someone to take action that affects the distribution.

2, Fraud in the inducement is established upon proof that a beneficiary made a knowingly false representation to the testator for the purpose of inducing the testator to draw a will in his favor, and that the testator made a different will than he would have made in the absence of the representation
3. The test is: would the testator have made the same gift if he had known the truth?

Question 26

EXAMPLE: A child fraudulently claims to be the testator’s illegitimate son. As a result, the testator leaves half of the estate to the child. Would the testator have left half of the estate to the child, if the testator had known the true facts?

Answer 26

If no, invalidate the gift.

If yes, then effectively the fraudulent claim is ignored and the gift stands.

Question 27

Mistake in the execution and its legal effect.

Answer 27

(1) Mistake as to the nature of the document.

(2) Will is invalid.

Question 28

Mistake in the inducement and its legal effect.

Answer 28

The testator executes a will or a clause in the will because the testator is mistaken to the true facts.

This does not affect testamentary intent, thus no relief is granted.

Question 29

When a mistake is made, there is very little that a court may do. There are some circumstances where a court may reform the terms of a will, but they require what burden of proof?

Answer 29

clear and convincing evidence.

Question 30

What are the 4 basic formal requirements of a Will?

Answer 30

A valid attested will must be:
a. in writing: Any reasonably permanent record is sufficient.

b. signed by the testator or by a proxy or other individual in the testator’s name in the testator’s conscious presence and by the testator’s direction. Conscious presence includes within earshot.
c. Witnessed or Attested: One of two requirements (witnessed or attested) must be met

EITHER: signed by at least two individuals each of whom signed within a reasonable time after the individual witnessed either the signing of the will or the testator’s acknowledgement of that signature or acknowledgment of the will.
OR acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments

d. There is no requirement that the testator “publish” the document as his will, that he request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other.

Question 31

Assisted signatures are permitted whether or not the testator requested assistance as long as the testator was the?

Answer 31

Assisted signatures are permitted, whether or not the testator requested assistance, provided the testator was the motivating force of the signature (signifying intent).

Distinguishable from a directed or guided signature, whereby somebody grabs the testator’s wrist and moves the pen for him.

Question 32

Does the signature have to be the person’s name for a will? explain

Answer 32

the signature is in the testator’s name; it can be anything which indicates the person’s intent that the document be that person’s will.

Question 33

T or F the signature must be at the end of the will.

Answer 33

False, The signature is in a specific place in the will, as long as it is signed and in the testator’s own handwriting; it does not have to be at the end, and can appear in the beginning.

Question 34

T or F there is no requirement that the witnesses sign before the testator’s death. In a particular case, the reasonable time requirement could be satisfied even if the witnesses sign after the testator’s death.

Answer 34

True

Question 35

What is the rule regarding contemporaneous act says
if the witnesses sign the will before the testator but all in the same . . .
it is permissible

Answer 35

if the witnesses sign the will before the testator but all in the same event, act, or time frame, it is permissible

Question 36

There is no requirement that the witnesses who sign the will do so in each other’s presence; each can sign it separately if within a reasonable time. But recall that the will is not formally executed until:

Answer 36

until the second witness signs the will.

Question 37

T or F A will, whether or not it is properly witnessed, can also be acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.

Answer 37

True

Question 38

There is no requirement that the testator “______” the document as his will, that he request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other.

Answer 38

publish

Question 39

EXAMPLE: Alice signed her will across the front of the document after reading and folding it up. Is her signature valid? why or why not

Answer 39

Yes, because there is no requirement that she sign any place specifically on the will.

Question 40

explain the harmless error rule

Answer 40

Any attempt to make a will, notwithstanding its failure to meet these requirements, will be validated if:
the proponent proves by clear and convincing evidence that the testator intended the document the document to constitute his Will.

Question 41

The Integration Rule

Answer 41

Any pieces of paper actually present at execution that are intended to be part of the will will in fact be part of the will.
In other words, when the will consists of several sheets of paper, the testator need not sign each page if the sheets compose one instrument connected in composition. No state requires each sheet of paper of a multiple-page will to be separately executed.

Question 42

Generally, a witness is competent if he has the ability to observe the testator affix his signature:
coupled with

Answer 42

the ability to comprehend the nature of his act.

Question 43

what is an interested witness?

is an interested witness valid for purposes of a will?

Answer 43

An interested witness is a witness who is also a beneficiary of the will to which they are witnessing.

Under the Uniform Probate Code, an interested witness is perfectly fine; the will will be valid, and the gift to the witness will be valid. (1) Additionally, under the Code, an interested proxy is permissible.

note: If an interested witness is involved in the will, it may give rise to questions as to whether or not the witness had undue influence over the testator in writing the will.

Question 44

EXAMPLE: Arnold executes a will signed by two witnesses: his wife Maria and his attorney Wellington. The will’s primary beneficiaries are Maria, Arnold’s children, and several nonprofit organizations. Is this will valid?

Answer 44

Assuming all other formalities met, the will is valid because an interested party can serve as a witness.

Question 45

The “proving” of a will involves the process by which

Answer 45

by which the testator’s signature is established.

Question 46

If the will is self-proved, the will satisfies the requirements for execution without the testimony of any attesting witness, upon filing of the will, the acknowledgment, and affidavits, unless there is:

An execution of a self-proving will avoids problems with

Answer 46

evidence of fraud or forgery affecting the acknowledgment or affidavit.

hostile or unavailable witnesses.

Question 47

A will may be made self-proved if it is

Answer 47

simultaneously executed and attested by acknowledgment of the testator and affidavits of the attesting witnesses, each made before an officer authorized to administer oaths and evidenced by the officer’s certificate, under official seal.

Question 48

A will may also be made self-proved at any time after its execution by

Answer 48

acknowledgment of the testator and affidavits of the attesting witnesses, (each made before an officer authorized to administer oaths and evidenced by the officer’s certificate, under official seal.)

Question 49

what is a holographic will?

In order to qualify as a valid will under the Uniform Probate Code:

Answer 49

A holographic will is one written by the testator, entirely in his own handwriting.

(1) only the material portions of the Will must be in the testator’s handwriting. Material portions are:
those distributing money and property, as opposed to form wills or those downloaded over the internet.

(2) The Will must be signed by the testator

NOTE: The testator is still required to have:

(1) The capacity required to make a will and
(2) The intent that the document be a will.

Question 50

Conditional wills are permitted; a will can be

Answer 50

conditioned upon some event.

Question 51

The UPC will uphold as valid a contract to dispose of by will all or part of a person’s property, whether real or personal.
2. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, may be established only by:

Answer 51

a. provisions of the decedent’s will stating material provisions of the contract;
b. an express reference in the decedent’s will to a contract and extrinsic evidence proving the terms of the contract; or
c. a writing signed by the decedent evidencing the contract.

Question 52

In many states, when two persons execute a single document as their joint will, this gives rise to a presumption that the parties:

Under the UPC, the execution of a joint will or mutual will does not create a presumption of

Answer 52

had contracted not to revoke the will except by consent of both.

of a contract not to revoke the will.

Question 53

T or F Both joint and mutual wills:

are revocable by either party

Answer 53

True

Question 54

EXAMPLE: A has three children from a previous marriage. A, who is penniless, marries B, who is very wealthy. A and B have one more child. A and B enter into a contract that the child of their marriage should get half of their property, and the other half should be split among A’s children from the previous marriage. A and B execute wills in line with the contract. After B dies, A wants to change her will so that all her children get equal shares of her estate. If the existence of the contractual agreement can be proven because it is stated in the will along with the contractual provisions, then the contract will be honored. How can it be honored?

Answer 54

​ the changed will will be admitted to probate, but the beneficiary who was negatively affected can sue the estate for damages or for specific performance

Question 55

What is a codicil?

Answer 55

A codicil is an instrument that is executed subsequent to a will and may be holographic. A codicil by its nature refers to another document, by adding to, explaining, or deleting from an earlier testamentary instrument.

Question 56

As to the original will, a codicil republishes the will to which it refers, which means that the

Answer 56

will is treated as if it was written for the first time as of the date of the codicil.

Question 57

A validly executed codicil cures:

Answer 57

most defects in the execution of the original will.

Question 58

In 2012, A signs a typed will witnessed only by J. The will provides, among other things, that Blackacre should go to X. The will is not valid. It is typed, and thus not holographic. It has only one witness, and so fails to meet the attestation requirements, nor was it attested by a notary public. Four years later, A executes a codicil specifying it a codicil of A’s 2012 will, making additional dispositions, and specifically republishing the 2012 will in all other respects If the 2016 codicil is valid—if it is signed by A and properly attested. what happens to the invalid 2012 will’s provisions?

Answer 58

—the invalid 2012 will’s provisions will become valid through the formalities of the codicil. (incorporation by reference)

Question 59

EXAMPLE: A executes a will in September 2013, at which point he has two children. He executes a codicil in December 2015, by which point he has a third child, unnamed in either the will or the codicil. Because the codicil republished the original will as of the date of the codicil, could the third child claim to be after-born?

Answer 59

No, the left-out third child could not claim to be after-born and would be deemed intentionally disinherited.

Question 60

A will is validly executed if executed in compliance with:
a. the UPC sections relating to form and execution of a will (Sections 2-502 or 2-503); or

b. in compliance with the law at the time of execution of the place where? or
c. the law of the place where at the time of execution or at the time of death, the testator is?

Answer 60

b. where the will is executed; or

c. where the testator is domiciled, has a place of abode, or is a national.

Question 61

Under the UPC, wills may be revoked by:

Answer 61

physical act, or performing a revocatory act on the will (must be original)

Question 62

A “revocatory act on the will” includes:

The key is that: the physical act is done with?

Answer 62

burning, tearing, canceling, obliterating, or destroying the will or any part of it, whether or not the burn, tear, or cancellation touched any of the words on the will.

the intent that it revoke the will.

Question 63

If the testator does not perform the revocatory act, but directs another to perform the act, the act is a sufficient revocatory act if the other individual performs it?

Answer 63

in:

the testator’s conscious presence. The act need not be performed in the testator’s line of sight.

Question 64

EXAMPLE: A called her attorney, B, and told him to immediately destroy her will. He did so while she was on the line. Is the attempted revocation valid?

Answer 64

The attempted revocation is invalid. (phone calls are not sufficient)

Question 65

EXAMPLE: T’s will leaves Cynthia $10,000. T becomes disenchanted with Cynthia and crosses out the final zero (0), seeking to reduce her bequest to $1,000. Is T’s reduction of Cynthia’s gift valid? why or why not?

Answer 65

Yes, T’s reduction of Cynthia’s gift is valid because it is a partial revocation by physical act. Cynthia will get $1,000.

Question 66

The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will?

If the presumption arises and it is not rebutted by clear and convincing evidence what happens to the previous will?

Answer 66

makes a complete disposition of the testator’s estate.

If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked.

Question 67

EXAMPLE: Testator has a first will that says, “Blackacre to A, my car to B, residue of the estate to C.” Testator then writes and properly executes a second will that makes no reference to revoking the earlier will. The second will provides, “I give Blackacre to R, and my residue to X.” There is no mention of the car in the second will. A and C have clearly lost their bequests by inconsistencies between the wills. B will not receive the car, because the later will

Answer 67

makes a total disposition of the estate.

Question 68

If a subsequent will does not fully dispose of the testator’s estate, it will revoke the previous will:
only to the extent that the subsequent will is

Answer 68

inconsistent with the previous will.

Question 69

If the testator is divorced after making a will, all provisions of the will in favor of or relating to the spouse so divorced:

Answer 69

become ineffective for all purposes unless it is apparent in the will that the provisions were intended to survive the divorce.

Question 70

The doctrine of dependent relative revocation aka law of second best

Answer 70

The doctrine of dependent relative revocation is the law of second best, i.e., its application does not produce the result the testator actually intended, but is designed to come as close as possible to that intent.

Question 71

DRR (conditional revocation) says if a revocation was based on a mistaken belief?

Answer 71

lift the revocation if that’s what T would likely prefer.

Question 72

What is the general rule of revival of a revoked will?

Answer 72

once a will is revoked, it cannot be brought back to life

Question 73

However, it can be revived: if the will is?

Answer 73

the will is restated, re-executed, there is an actual republication, or other clear evidence of intent to revive.

Question 74

Republication can be made by:

Answer 74

resigning the original will that was later revoked, along with having witnesses attest the will.

Question 75

A codicil to a will: revives a will, so if a codicil is made to a revoked will, it will

Answer 75

revive the revoked will as of the date of codicil.

Question 76

If a will is traced to the testator’s possession and cannot be found after death: the law presumes:

Answer 76

that the testator destroyed the will with an intent to revoke it.

Question 77

If the will is not in possession of the testator: the presumption that the testator destroyed the will with an intent to revoke it the presumption is?

Answer 77

is not raised.

Question 78

T or F If testator signs the copy of a will, it becomes an executed copy and functions as a will. Revocation of an executed copy is effective revocation.

Answer 78

True

Question 79

What are the effects of an unexecuted will?

Answer 79

Unexecuted copies have no legal effect.

b. The revocation of an unexecuted copy means nothing.

Question 80

If there are multiple executed copies, the revocation of one is presumed to

Answer 80

extend to and revoke all copies.