Final

Question 1

Intestacy

Answer 1

Property passes by the laws of descent and distribution

Question 2

Heir (EC § 22.015)

Answer 2

person who is entitled under the statutes of descent and distribution to a part of the estate of a decedent who dies intestate. The term includes decedents surviving spouse.

Question 3

What law typically governs?

Answer 3

Personal Property - state domiciled at time of death

Real Property - where the property is located

Question 4

Separate v. Community Property

Answer 4

Separate - All property owned before the marriage AND all property acquired by gift, devise, or descent

Community Property - everything else, property acquired during the marriage that is not separate property

Make sure to note that the presumption is community property.

Question 5

Consanguinity

Answer 5

Related by blood

Question 6

Affinity

Answer 6

Related by marriage

Question 7

Laughing Heirs

Answer 7

Someone who had no clue about the decedent and is laughing all the way to the bank with inheritance

Texas DOES NOT cut out laughing heirs, we go all the way without end (some states do cut out laughing heirs)

Question 8

Half-blooded heirs

Answer 8

Collateral relative that share just one common ancestor

Majority Rule - half-blood heirs take same as whole blood heir

TEXAS (Minority Rule) - Half-blood takes 1/2 share

Easiest method: give half bloods one share and whole bloods two shares and that gives you common denominator

Question 9

Unworthy heirs

Answer 9

Life insurance and no will. H1 kills T.

• Insurance Code says the beneficiary forfeits share
• Probate estate - court may impose constructive trust. Estate passes to H1 as it is supposed to but with a constructive trust imposed requiring it benefit H2. H2 must bring suit to get this.

Question 10

EC § 201.062 - Bad Dad Statute

Answer 10

• Permits probate court on clear and convincing evidence that a parent not inherit from the child under certain circumstances
• What are those:
  
  • Voluntarily abandoned and failed to support the child
  • Father, knowing of the pregnancy, voluntarily abandoned pregnant mother and does not support either the mother or child
  • Convicted of criminal responsibility of any child
  • (b) if subsection a applies, treat as if predeceased child

Question 11

Effect of voided marriage

Answer 11

other party to marriage is not considered spouse under any laws of the states

• Wont be surviving spouse for any purposes in intesacy
• Will could be fine

Question 12

120 hour rule

Answer 12

if dies in less than 120 hours then the insured is considered to have survived the beneficiary for determining rights under policy. Which means she predeceases D.

Applies to intestacy and testate succession, unless will says otherwise

Question 13

Valid disclaimer

Answer 13

• 240.009
  
  • In writing
  • Declare the disclaimer
  • Describe the interest or power disclaimed
  • Be signed by the person making disclaimer AND
  • Delivered or filed in manner provided by Subchapter C
    
    • Subchapter C says 240.102 - personal rep of decedent estate or if none then filed in official pub records (county records)
• Disclaiming takes effect as of time of death and relates back for all purposes (240.0501)
  
  • Disclaimed interest is not subject to the claims of ANY Creditor

Question 14

Valid disclaimer, revocable or irrevocable?

Answer 14

Irrevocable

Question 15

How does disclaimed property pass?

Answer 15

• 240.051 and .0511
  
  • 051(d)-e - pass according to any provision in instrutment creating interest that provides for if dsclaimed
  • If no provision - if not an individual passes as if did not exist and if it is individual it as if the disclaimer died immediately before the decedent
  • F - if intestacy, its just like the heir died immediately before decedent

Welder Case - only changes for the shares of the disclaimer

• Don’t have to redo everything
• Only touch the disclaimed interest

Question 16

§ 122.201 - Assignment

Answer 16

Assignment - can assign your interest to someone

Assignment is a gift and IS NOT a disclaimer

This means creditors can reach it before it gets to you

Could also be estate and gift tax issues

Government clean up issues, I might still be on chain of title and have to pay

Question 17

If creditor is child does a valid disclaimer avoid paying that debt?

Answer 17

No, cannot be used this way

Question 18

Expectancy

Answer 18

Mere hope or expectation that a person will inherit or receive a bequest from a will. Not a recognized protected interest in property.

• Not a present protected legal interest
• BUT I can release or assign my expectancy
• Assignment or release is valid - if supported by consideration and knowingly and voluntarily made

Question 19

Doctrine of Equitable conversion

Answer 19

• Allows purchasor to have equitable title, even when legal title has not passed yet for some reason.
  
  • NEED BETTER DEFINITION
• It is basically when K is pending but all drafted up and all that and maybe seller changes her mind or dies or whatever

Question 20

Escheat

Answer 20

When there is no heir at all, property is transfered to the state

Question 21

Aliens

Answer 21

201.060

Not disqualified because you are or have been an alien

Question 22

Passage of Title

Answer 22

§ 101.001

• Even though it may not be distributed immediately, if you are ultimately adjudged the prop - it is to be immediate upon death of deceased subject to .051 - subject to payments of debt and court ordered child payments
• Title vests immediately upon death, even when not distributed immediately, but subject to debts (nonexempt)

Question 23

Posthumous heirs

Answer 23

§ 201.056

Have to be born or in gestation before decedent died

Question 24

Tortious interefence with inheritance rights

Answer 24

• Intentionally interferes, may be liable to heir for loss of inheritance
• Intentional tort
• Estate code 54.001
  
  • (a) filing or contesting in probate court is not tortious interference

Question 25

Disinheritance - Negative will

Answer 25

• CL - only way to do this was to make a will and not have person in it
• Estate code 251.002
  
  • May disinherit an heir

Question 26

quasi community property

Answer 26

Statute on point in Family Code 7.002. Look at property in non community prop state and it will treat it as if it had been acquired in Texas

Come up if you were in State with no community prop and you move to Texas and had you got that property in Texas it would have been community property, then for a DIVORCE you can treat it as community property.

CANNOT USE IT FOR WILLS/Intestacy

Question 27

Is perfect compliance required for a will execution to be valid in Texas?

Answer 27

Yes, there is no substantial compliance

Question 28

What prop may dispose of by will?

Answer 28

• 251.002 of estates code
  
  • May devise all the estate, right, title, and interest
  • ANY and All property

Question 29

LEGAL CAPACITY (Who can make a will)

Answer 29

• 251.001 at time will is made
  
  • Person of sound mind AND one or more:
    
    • 18 years old; or
    • Married at time or has been married; or
    • Presently in the US Armed Forces

Question 30

Test for sound mind

Answer 30

1. Understand the business in which he was engaged (the act of making a will)
2. Understand the effect of his act in making a will
3. Understand the general nature and extent of his property
4. Know his next of kin and natural objects of his bounty and their claims upon him
   
   • Recognize who would I normally expect to leave my property to
5. Collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to be able to form a reasonable judgment as to them
   
   • Got to be able to do all 4 of the above long enough to understand it all entire time to execute will

Question 31

Who has standing to challenge a will?

Answer 31

In order to have standing to challenge a will you have to be someone who would take if held invalid

Question 32

Testifying about soundness of mind

Answer 32

Don’t have to be an expert to testify about opinion about sound mind, don’t have to testify as to the factual basis of that but you can.

nonexpert can give opinion without factual basis because it is easier to see signs of unsound mind than it is for those of sound mind

• Testifying of unsound mind, probably need basis because it is easy to describe

Question 33

Testamentary Intent

Answer 33

• Even if I meet sound mind and one more of others you also need testamentary intent
  
  • Have to intend that this document be my will
• Yes, may have testamentary intent even if does not know making a “will”
  
  • All that is needed is that I intend that this is how I intend for my property to pass after I die

Question 34

Wills act requirements 251.051

Answer 34

• Must be in writing;
• Signed by
  
  • Testator
  • Another person on behalf of testator
• Attested by two or more credible witnesses who are at least 14 years who subscribe their name to the will in their own handwriting in the testator’s presence
  
  • EXCEPTION for holographic will - a will written wholly in testator’s handwriting is not required to be attested by subscribing witnesses

Question 35

Purging Statute

Answer 35

• § 254.002
• Unless there is an exception, If you were a devisee and subscribing witnesses, the bequest is void and you are allowed and compelled to testify as if the bequest had not been made
• Policy - historical. If an attesting witness is also beneficiary, the thought was that the beneficiary might be tempted to lie about if of sound mind and if proper and all that, they have an interest in the will being upheld. They were thought to be an interested witness and thought to be not credible.
  
  • 251.051
    
    • Attested by two credible witnesses
  • Therefore will was invalid
  • There comes the purging statute and it makes the witness credible

Question 36

Exceptions to Purging Statute

Answer 36

• Will cannot be otherwise established
• Entitled to share of estate if died intestate, entitled to that share as does not exceed value of the bequest to the witness under the will
  
  • Take lesser of the will and intestate
• Testimony is corroborated by at least one disinterested and credible person who testifies subscribing witnesses testimony is true and correct
  • not void and not treated as incompetent

Question 37

Self-Proving Affidavit v. Attestation Clause

Answer 37

SPA is sworn to. Why does that matter? Form of testimony. If contested will, statute says do not have to call witnesses to prove up will. Serves as testimony. AC is NOT sworn to so it is not testimony so you need to call witnesses to prove up will.

SPA is NOT part of the will. Evidentiary in nature.

251.1045 - a will may be simultaneously executed, attested, and made Self proved before officer authorized to administer oaths and testimony of witness

Combines execution, attestation, and SPA in one step.

Question 38

Using SPA for a will that does not have necessary witness or Testator signatures

Answer 38

251.105 - still applies if the documents are separate and party forgets to sign one, then you can use this to make will valid but then it is not Self proving

But if you use one step process, don’t have problem but you have to have everyone sign

Question 39

Holographic wills

Answer 39

Wholly in testators handwriting and signed by T

Can have a SPA for holographic will

If not self proving: 256.154 - may be proved by two witnesses to the testator handwriting (either sworn to or testified in court)

Question 40

Surplusage Rule (holographic wills)

Answer 40

if such words are not necessary and do not affect its meaning, those words will simply be ignored and not defeat the requirement that it be wholly in T’s handwriting.

Question 41

Oral Wills

Answer 41

Texas use to allow BUT this was repealed in 2007

Question 42

What is a nuncupative will and is permitted in Texas?

Answer 42

An oral will. No longer permitted (2006/2007) in Texas

Question 43

What is a notarized will and is that permitted in Texas?

Answer 43

Will that does not have witnesses other than the notary and it is not permitted in Texas under our wills act; however, the notary could count as one witness; also, if the will was executed in another state where it was in accordance and valid under the laws of the other state

Question 44

Devise

Answer 44

testamentary disposition of real property, personal property, or both (statutory definition)

Casebook - gift of real property

Question 45

Legacy

Answer 45

Gift or devise of real or personal property made by a will (statutory)

Casebook - gift of money

Question 46

Bequest

Answer 46

gift made under a will. Get clarification from Alton as to differnce between Bequest, Devise, and Legacy.

Casebook - gift of personal property

Question 47

Specific gift (devise, legacy, bequest)

Answer 47

Specifically identifiable piece of property (Real or Personal) left in the will. Gift in will that is identified in sufficient detail so it is clear which exact assets from the testator’ estate the beneficiary is entitled to receive.

Example - I leave blackacre to X

Question 48

General gift

Answer 48

Gift insufficiently described to be specific. In other words, the exact property to which the gift refers cannot be determined when the testator executed the will nor upon testator’s death.

Book says most common is a legacy, which it says is gift of money - I leave $25,000 to X.

Question 49

demonstrative gift

Answer 49

• NEVER TEST ON THIS (Possible a definition question) - in practice they are rare
• Hybrid of general and specific
• Treated as general sometimes and specific others
• General in nature but payable from a specific source
  
  • “I leave you 10K from Bank A” = demonstrative

Question 50

residuary gift

Answer 50

Property remaining after all specific, general, and demonstrative gifts have been satisfied.

Question 51

How are testamentary gifts classified based on the beneficiary?

Answer 51

Private -

Charitable -

Question 52

Ademption

Answer 52

• The act by which a specific legacy becomes inoperative because of the disappearance of its subject matter from the testator’s estate in his lifetime. The general rule is that a specific legacy is adeemed if the thing given is disposed of by the testator during his lifetime. (pg. 142)
• Absent a contrary intention expressed in the will, the alienation or disappearance of the subject matter of a specific bequest from T estate adeems the devise or bequest. A will speaks at the time of the T death, and it is the estate he then possessed that passes according to the terms of that will. (pg. 145)
• Only applies to specific gifts
• Rule of construction - will can always draft around this

Question 53

Exceptions to Ademption

Answer 53

• Draft around in will
• Change in form only
• Classify gift as something other than specific
• involuntary disposition of the property

Question 54

Examples of involuntary disposition of property (ademption)

Answer 54

• Foreclosure - I leave Blackacre to A and it is mortgage and it gets foreclosed and I get 20K in excess proceeds to estate - A gets the 20K because it was involuntary disposition; if nothing left after foreclosure, then obviously you take nothing
• Alton old and infirmed and incapacitated and someone is guardian and sells Blackacre for a million and then Alton dies. Arguably, no ademption because it was not voluntary so you can get the proceeds.
• Casualty loss - suppose Alton has columbian potery and leaves it to me in his will. Maybe he buys and sells these up to time of death. Suppose, his collection is destroyed in fire right before he dies and he collects a million dollars in insurance from this. Involuntary so Alton says you get million under this but could also argue change in form only.
  
  • However, what if, the pre columbian pottery was not in his estate and we don’t know where it is? Take nothing. Ademption. Would have to prove involuntary and if we cant show why, then ademption.
  • What if - shortly before he dies, it is in fire and it is not insured; what then? Alton does not know if there is an abatement or if you get nothing.

Question 55

Examples of changing in form only

Answer 55

• Alton leaves blackacre to me. Before he dies, he sells it and takes proceeds and buys similar property, whiteacre. Residuary going to TAMU. He dies. Do you take white acre or does TAMU? This is the argument you make but you will lose, property is unique. TAMU gets it.
• THIS IS ON FINAL SOMETIMES - Alton will says blackacre to me. Part of his estate plan later on after making will, he decides to go through 1 transaction to transfer blackacre to a corp for tax purposes and he owns 100% stock in corp. he dies. Do you take or do you take nothing? Alton thinks it’s a change in form only. But you can make an argument it should be ademption.
  
  • Courts rarely apply this form

Question 56

Satisfication

Answer 56

Satisfaction is a principle which denies a legatee under a will, the right to receive the legacy, if the testator, after execution of the will, has made an inter vivos gift of the legacy to the legatee, with the intention that the gift shall constitute satisfaction of the legacy.

CL rule - presumed satisfaction if given something after execution of will unless clear otherwise

Statute (255.101) reverses:

• T will provides for deduction of the lifetime gift from devise
• T declares in a contemporaneous writing that the lifetime gift is to be deducted from or is in satisfication of the devise; OR
• devisee acknowledges in writing that the lifetime gift is in satisfaction of devise

IMPORTANT DISTINCTION FOR FINAL:

• satisifcation = will
• Advancement = intestacy

Question 57

Exoneration

Answer 57

255. 301 - a specific devise passes to devisee subject to the debt secured on the date of T death and not entitled to exoneration
256. 302 - will can draft around

General provision that debts to be paid is not specific enough for this purpose

Question 58

Securities

Answer 58

This is usually on the final

Will can draft around the rule

255. 251 - stock means securities
256. 252 - unless will of T clearly provides otherwise, devise of secutiies owned by T on date will executed includes additional securities subsequently acquired by T as a result of T’s ownership of the devised securities:
257. same organization acquired because of action initiated by organization or any sucessor, related, or acquiring organization - stock splits, stock dividends, and new issues of stock acquired in reorganization, redemption, or exchange, other than those acquired through purchase options or through a plan of reinvestment
258. securities of another organization acquired as result of merger, consolidation, reorganization, or other distribution by the organization or sucessor - includes stock splits, dividends, and new issues

Question 59

Abatement

Answer 59

Reduction or elimination of testamentary gift to pay an obligation of the estate or a testamentary gift of a higher priority.

Question 60

Abatement order

Answer 60

First, look to will for order. If not, statute sets forth an order:

1. property not disposed of by will, but passing intestacy
2. personal property of the residuary estate
3. real property of the residuary estate
4. general bequests of personal property
5. specific bequests of personal property
6. specific divses of real property

Question 61

Estate Tax

Answer 61

Supposedly will not be tested. Does not abate in same manner as abatement. Estate tax applies pro rata on all the gifts.

Question 62

Will provisions made before dissolution of marriage

Answer 62

If, after T makes a will, T marriage is dissolved, unless will says otherwise:

1. all provisions shall be read as if the former spouse and each relative of the former spouse not related to T had FAILED TO SURVIVE T; AND
2. all provisions disposing of property to an irrevocable trust in which former spouse or relative is a beneficiary or nominated as trustee shall be read to instead dispose of property to a trust the provisions of which are identical to the irrevocable trust, except those conferring beneficial interest or trurstee to the former spouse or relative of former spouse not related to T.

Question 63

May a court enjoin a person from executing a new will during pedency of divorce?

Answer 63

• Court cannot prevent from making a new will, codicil to exisiting will, or revoking will/codicil in whole or part
  
  • Court order that purports to do so is void and may be ignored without penalty or sanction of any kind

Question 64

Pretermitted Child

Answer 64

• A T’s child who is born or adopted: during T lifetime or after death; AND after the execution of T will
  
  • Not any heir or decedent - ONLY CHIDREN
• COMMON MISTAKE - when there is pretermitted child, does NOT mean it goes to intestacy, they may just take a share equal to the intestacy, everything else still goes as will sets out

Question 65

Lapse gift

Answer 65

Thing is there but beneficiary is gone or treated as predeceased

Question 66

General rules for lapse gifts

Answer 66

If a devise other than residuary devise fails for any reason, the devise becomes part of residuary - THiS CODIFIES COMMON LAW RULE

residuary passes as if T had died intestate if all residuary devisees: are deceased at time of the T will is executed, fail to survive the T, or are treated as if residuary devisees predeceased the T

if residuary estate is devised to two or more persons and the share of one of the residuary devisees fails for any reason, that residuary devisee’s share passes to other devisees, in proportion to the residuary devisee’s interest in residuary estate.

Question 67

Anti-lapse statute

Answer 67

If 255.153 applies, the gift won’t lapse and it will be saved for someone else.

Devisee is decedent of T or T’s parent (certain close relationship) (one of their own kids or grandkids or their siblings or nieces and nephews or so on down) and that devisee must have descendants who survive by 120 hours, that descendant will take.

This is default rule, can draft around. So “to my children” or “to such of my children as shall survive me” prevents application of 153 (anti lapse) and 154.

Question 68

How can you revoke a will?

Answer 68

Writing with same formalities of will

Physical act

Question 69

Can T orally revoke will?

Answer 69

Nope, need more than that.

Oral statement - hereby revoke my will and then I tear it up, that shows my intention to revoke, the oral statement did not do it, it just cohobates intention

Question 70

Partial Revocation by physical act?

Answer 70

Not in Texas. All or none game here, either admitted for probate or entire will revoked.

Question 71

Expressed Revocation

Answer 71

Likely won’t be tested on. T expressly states in revocating document that will is only revocated if certain event happens

Question 72

Doctrine of Dependent Relative Revocation (Implied Conditional Revocation)

Answer 72

• If T purports to revoke his will (will number 1) upon mistaken assumption of law (or law or fact - Alton says this; however, some say just law) the revocation is ineffective if T would not have revoked his will had he known the truth (will number 2 not valid).
  
  • Usual situation - writes will number 2 saying revoking other will and then also tears up will number 1 (revokes by physical act) and for whatever reason will number 2 is not valid. Court will apply DRR if they believe he would not have torn up will number 1 if he known number 2 invalid
  • Its not revival of will 1. we do not revive in texas. We just ignore revocation that mistakenly occurred.

Question 73

Patent ambiguity

Answer 73

apparent on face of will itself, don’t need extrinsict evidence to show ambiguity

• Example: T will says leave my “jp,e” to my son S. validly executed.
  
  • Old CL rule was no extrinsic evidence. Not rule now.
  • Now, admit extrinsic evidence to show what he meant by “jp,e” - look at keyboard, meant “home” - could clear it up and show what was meant.
• What if it is a blank space? “my ___ to S” Held no, cannot admit extrinsic evidence to show intent - not admissible to show an omitted bequest. Omitted bequest different from ambiguity.

Question 74

Latent ambiguity

Answer 74

A defect which does not appear on the face of language used or an instrument being considered. It arises when language is clear and intelligible and suggests but a single meaning, but some intrinsic fact or some extraneous evidence creates a necessity for interpretation or a choice between two or more possible meanings.

Question 75

Less common type of latent ambiguity - equivocation

Answer 75

• Description in will that applies to one person or thing; here two or more thing or people fit that description
  
  • Example - leave my vacation home in new Mexico to my friend Jane smith; he has two vacation homes and two friends named Jane smith

Question 76

Plain meaning rule

Answer 76

Plain meaning rule is that extrinsic evidence is not admissible to change the plain meaning of the will. Only for patent or latent ambiguity.

Question 77

what extent can we admit extrinsic evidence when no ambiguity?

Answer 77

CL rule - extrinsic evidence is not admissible. Plain meaning rule is that extrinsic evidence is not admissible to change the plain meaning of the will. Only for patent or latent ambiguity.

THIS YEAR, it changed in Texas. 255.451(a) - court may order terms modified … if order is necessary to correct scrivner’s error in terms of will, even if unambiguous, to conform to T intent. Has to be shown by clear and convincing evidence.

Narrow exception

Personal representative is only person with standing to bring suit. Not required to do so.

Question 78

When do we allow extrinsic evidence to be admitted?

Answer 78

• Latent and patent ambiguity
• Revoked by mistake, DRR
• Will Prove up if not self proving
  
  • T capacity and sound mind
  • T intent
• Due execution
  
  • Holographic that its his handwritting
  • Witnesses on other will
• Undue Influence
• Insane delusion
• Fraud
• Duress
  *

Question 79

External integration

Answer 79

• All valid testamentary instruments taken together form the T intention (a will and all codicil’s)
• All need to be properly executed and found together

Question 80

Internal Integration

Answer 80

Means every piece of paper that was present at time of execution that was intended to be part of the will is part of that will

Question 81

Incorporation by reference

Answer 81

allows some thing/instrument/paper that was not physically a part of the will to be a part of the will even though not executed with same formalities required by law.

Elements of IBR, document must be:

• In existence at time of will execution (and cannot be changed after execution)
• Clear intention to incorporate that document
• Clearly identify the document

Question 82

Pour-Over Wills

Answer 82

This will be a definition question on final. Get clarification from Alton as to best definition.

Casebook: A pour-over provision is a clause of a will that leaves property to an inter vivos trust.

Statutes in context: A testamentary gift to an inter vivos trust.

notes - Takes some or all of will and pour overs into a trust - either someone else or my own during lifetime

Question 83

Hinson v. Hinson Rule (IBR exception)

Answer 83

a valid holographic will or codicil cannot incorporate by reference or republish a non-holographic instrument or document

Question 84

Facts of Independent Significance

Answer 84

Even though a disposition cannot be fully ascertained from the terms of the will, it is not invalid if it can be ascertained from facts which have significance apart from their effect upon the disposition in the will.

Uniform Probate Code - a will may dispose of prop by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after T death.

Question 85

Contents

Answer 85

Tangible personal property, other than titled personal property, found inside of or on a specifically devised item.

Must - not require formal transfer of title and are located in another item such as a chest or other furniture

Devise of Real Prop does not include personal property located on or associated with the real property unless the will says.

Legacy of personal property does not include contents unless will says it does.

Question 86

Precatory Language

Answer 86

• Instructive but not binding (“I wish” “I would like” “I recommend”)
• For example: look at note 1 on 243
  
  • Binding - “is to be” “he shall have the right”

Question 87

What is a class?

Answer 87

• If labels as class, generally a class - “kids, cousins, ect”
• When designated as same general label, gift must be aggregate sum to body uncertain in number at time of gift
• Will speaks at the time of death, unless it says otherwise

Question 88

Class Gifts - member of the class predeceases T

Answer 88

• Look to will first
• CL Rule - the other members just divide it
  
  • 255.154 - applies anti-lapse statute if predeceasing member bears the necessary relationship (decedent of T or T’s parents)

Question 89

Who and when can a person oppose probate proceeding?

Answer 89

Any person with a pecuniary interest in the estate may at any time before court decides an issue in a proceeding, file written opposition regarding the issue.

Question 90

What does it mean to be interested in an estate?

Answer 90

Heir, devisee, spouse, creditor, or any other having a prop right or claim against an estate being administered

Question 91

Necessary Party?

Answer 91

EC § 55.052 - Institution of higher education, private institution of higher education, or charitable org that is a necessary distributee under a will is necessary

Question 92

Entitled to jury trial in probate court?

Answer 92

Yes, 55.002

Question 93

Statute of Limitations - filing for probate

Answer 93

May not be admitted for probate after fourth anniversary of T’s death

Question 94

Statute of Limitations - contesting will

Answer 94

After admitted to probate, an interested person may commence suit to contest validity not later than second anniversary it was admitted to probate EXCEPT that in case of fraud or forgery it is 2 years after discovered forge or fraud.

• Incapacitated may commence the contest on or before second anniversary of the date the person’s disabilities are removed
  
  • Disabilities - Age, mental or actual health issues, service in army during time of war (not sure if this one applies here according to Alton)

Question 95

Mistake - in the factum/execution

Answer 95

T did not know nature of instrument or thought had substantially different terms or signed wrong will

Question 96

Mistake - in the inducement

Answer 96

• Reliance component, believe a fact true and execute based on belief
• Some mistake extrinsic fact or legal effect that T relies on when executing will
• Extrinsic evidence is not admissible typically, but is admissible to to clarify a mistake about the revocation of the will (ie, DRR)

Question 97

Insane delusion

Answer 97

The belief of a state of supposed facts that do not exist, and which no rational person would believe.

Question 98

Undue influence

Answer 98

must prove:

1. Existence and exertion of an influence
2. Effective operation of such influence so as to subvert or overpower the mind of the T at time of execution of the testament
3. Execution of testament which maker thereof would not have executed but for such influence

Question 99

Duress

Answer 99

• Duress is typically from use of force, violence, or threats
  
  • Undue influence could be badgering
  • Duress, here is a gun, sign the will bitch
• In practice, you usually claim duress, undue influence, and fraud

Question 100

Devises to Attorney

Answer 100

Devise of property in a will is void if the devise is made to:

1. an attorney who prepares or supervises the prep of will
2. parent, descendant of a parent, or employee of the attorney
3. spouse attorney or person described in 2

DOES NOT APPLY TO:

1. a devise made to a person who is:
   
   1. T’s spouse
   2. is an ascendant or descedant of the T
   3. related within the third degree by consanguinity or affinity to the T; OR
2. Bona fide purchaser for value from a devisee in will

Also look at DR 1.08 - any substantial gift (devise or inter vivos) but it does not provide for will contest action. Exception - where client is related to donee.

Question 101

Fraud

Answer 101

Elements:

1. False rep made to T
2. Rep was known to be false by person made it (could be reckless disregard)
3. Reasonably believed by T
4. Representation caused the T to execute a will that T would not have made but for the misrepresentation (hard to prove)

Question 102

In terrorem provisions

Answer 102

• If beneficiary contest will, gift will lapse and treat them as if they died before T.
• These clauses need to be carefully and clearly drafted. Need to say exactly what triggers them
  
  • Simply filing will contest, does that trigger or does have to go to judgment - note three says, filing is unlikely to trigger unless clear to include in language
  • Forfeiture clauses not favored so courts construe narrowly
  • Declaratory suit to construe? Note 4, no it does not trigger unless it is clearly drafted to include
  • Beneficiary bringing suit to change or challenge executor or actions? Note 7, answer is not so clear
  • Note 6 - important issue - has to leave would be contestant enough of gift to stop and think whether she should contest. Prof. Beyer says to carefully draft in torrorem clause and person want to cut out you have to leave that person enough to make them not want to challenge to risk.
• Good faith exception
  
  • Estate code 254.005 - enforceable UNLESS person who brought contrary to clause establishes by preponderance of evidence that just cause existed and maintained in good faith
    
    • Wont be tested
    • Don’t know what good faith is
  • Court wont enforce clause if chooses to apply this

Question 103

Ante-Mortem Probate

Answer 103

Probate of a will of a living person is void in Texas (Some allow) we say fuck that, it is waste of resources, will can always be changed

Question 104

Joint wills

Answer 104

• Litigation breeders. Don’t use.
• One instrument intended to be the will for more than one Testator, usually husband and wife.

Question 105

Contractual wills

Answer 105

• Alice and Betty agree that if something (take care of her), Alice will leave Betty something in will. Never makes will, what remedy?
• 254.004 - special Statute of Frauds (only applies after 1979 entered into)
  
  • To make a will or devise or not to revoke may be established if in writing (SoF) OR enforced by a will stating K exists and list material provisions.
• Reciprocal and joint wills do not create K wills by itself. Need more.
• What is remedy?
  
  • Breach of K action

Question 106

Reciprocal wills

Answer 106

• Two instruments and they mirror each other.
• Example - Wife leaves everything to husband and husband leaves everything to wife.

Question 107

Election Wills

Answer 107

Suppose that H’s will clearly states that in this will H is disposing not merely of his OWN property but also disposing of property that is owned as CP by H and W. For example, H&W own Blackacre as CP. In H’s will, H purports to leave ALL of Blackacre, not merely his ½ CP interest in it, to X. H’s will also leaves Whiteacre to W; perhaps Whiteacre is H’s SP. May W reject H’s disposition of 100% of Blackacre under the will and retain her own ½ CP interest in Blackacre, while at the same time also taking H’s 100% interest in Whiteacre that H left to W under the will?

This raises the issue of a so-called “election will.” As defined by the TX SCT (Wright v. Wright,1955, p. 327), “if the will disposes of property of the beneficiary and at the same time gives the … [beneficiary] some ‘benefit’, however small, the beneficiary cannot take the benefit under the willwithout accepting also the disposition it makes of his or her own property.” (328, middle)

As was stated by the TX SCT in 1859, “the principle of election is that he who accepts a benefit under a will must adopt the whole contents of the instrument so far as it concerns him, conforming to its provisions and renouncing every right inconsistent with it.” (327) That is, if the beneficiary wants to take any benefits under the will, then he or she must let the will operate on his or her share of jointly owned property.

So, in our example, above, W is put to an election: (1) W can take 100% of Whiteacre under thewill, but must let the will operate to dispose of her ½ interest in Blackacre to X, OR (2) W can reject the will entirely (i.e., NOT take the interest in Whiteacre left to W by H) and retain her ½ interest in Blackacre. W is put to the election of ONE of those two alternatives, but W cannot pick and choose which provisions of the will to accept and which to reject. It’s all or nothing!

Question 108

non-probate property

Answer 108

LIKELY ON THE FINAL AS DEFINITION -

Property that passes in some other way than will or intestacy.

Examples:

• Inter vivos gift
• Passes in a Trust
• Joint Tenancy with Right of Survivorship
• Joint Bank account or brokerage
  
  • You were beneficiary, which is a POD (payable on death account) or (TOD - transferable)
• Property that passes at death by K - has overlap with above
  
  • Life Insurance

Question 109

Parties in a trust

Answer 109

1. Settlor (trustor, grantor)
2. Trustee (legal title)
3. Beneficiary (Equitable title)

Question 110

Creating a trust benefiting settlor and passing property after death (Westerfeld case and Prop code 112.033)

Answer 110

Settlor may retain virutually all interests over the trust property provided there is some beneficial interest created in another person. this interest may be quite weak because it is contingent on some future event or is subject to revocation.

Question 111

Powers of Appointment

Answer 111

• Can be created in or out of trust
• If A owns property I can give right who to designate who to take property or I may give you right to designate anyone other than yourself
• Donor can give to donee the right to decide who prop goes to, could include donee or could exclude donee
• Different than power of attorney because:
  
  • Means I principal to give you wide range in handling my assets - just means you can manage my shit. Like a poor persons trusts. PoA is FAIR GAME FOR FUCKING FINAL
• THIS WONT BE ON THE FINAL

Question 112

Survivorship

Answer 112

Right of survivorship can be real or personal prop

Last man standing bitch

Nothing passes in will to heirs or devisees

Default rule is that when one joint owner dies, the property held with others does not pass to the other owners unless the owners have agreed in writing that the property will pass that way; they would be tenants in common instead of JTWROS

Question 113

Difference between POD and JTWROS

Answer 113

Revocability - JTWROS cannot be revoked unilaterally bc a completed gift has been made, but POD can be revoked

Question 114

Payable on Death (POD) provisions

Answer 114

by K, transferred by terms of K at death, not by probate - most common is life insurance but also bank accounts and shit like that

Question 115

Equitable adoption

Answer 115

• former elements:
  
  • both of the child’s parents were parties to the agreement to adopt
  • the date that the agreement to adopt was made
  • child conferred affection and benefits on Decedent in reliance on the agreement to adopt
  • child conferred affection and benefits on decedent in reliance on decedent’s representations that child was his adoptive child
• Other elements/ new elements
  
  • first the existence of an agreement to adopt
  • second, performance by the child (i.e.e, conferring of affection and benefits on the adoptive parents)

Question 116

An applicant for the probate of a will must prove to the court’s satisfaction that:

Answer 116

(1) the testator is dead;
(2) four years have not elapsed since the date of the testator’s death and before the application;
(3) the court has jurisdiction and venue over the estate;
(4) citation has been served and returned in the manner and for the period required by this title; and
(5) the person for whom letters testamentary or of administration are sought is entitled by law to the letters and is not disqualified.

Question 117

Disclaimer or Renounce?

Answer 117

Disclaimer - beneficiary (will)

Renounce - Heir (intestacy)

Question 118

Guardian of the Estate

Answer 118

• Expensive and innefficient - high level of court supervision and typically can’t act without court order
• Manages the financial and other property assets of the estate for a minor/disabled adult when appointed to do so.
• Must be confirmed by the court

Question 119

Guardian of the person

Answer 119

• for minor or diabled adult
• can nominate before the need arises
  
  • by will or other separate duly executed document
• Must be confirmed by the court
• take care of the physical needs of the individual
• NO power to deal with financial or other property assets

Question 120

Ways to avoid Guardian of the Estate

Answer 120

• Trusts
  
  • Trustee manages for benefit of beneficiary
• Durable General Power of Attorney
  
  • DONT CONFUSE WITH Power of Appointment

Question 121

Durable General Power of Attorney

Answer 121

• EC 751 and 752
• Powerful instrument that grants broad range of powers
• Agent, owes a duty, and has power over principals assets
  
  • DOUBLE CHECK - langauge of duty owed
• Prinipal needs to trust

Requirements:

• Written
• Signed by principal
• The instrument designate the agent to act inwide range of financial matter

There is a statutory form, but it is not required

Authority is durable - means it is NOT terminated by an incapcity

Can be springing (starts when become incapacitated) or can start immediately

Question 122

Terminating Durable General Power of Attorney (DGPA)

Answer 122

Surives incapcity - thats the point of these.

TERMINATES:

• When the document says it does
• Revoked by prinicpal
• death of principal
• Agent dies, resigns, or becomes incapacitated
• Also can terminate by divorce (assuming this is if agent is principal’s spouse)

Question 123

Can trusts survive death?

Answer 123

Yes, they can be drafted to survive death

Question 124

Do disappointed beneficiaries have a cause of action against drafting attorneys for negligent malpractice in drafting a will?

Answer 124

• No, the common law rule, which Texas follows (minority view), the disappointed beneficiary is not in privity with the attorney so they cannot sue for malpractice
• Only those in privity with the attorney (client) may sue attorney for malpractice
• This means, the executormay bring suit against the attorney for malpractice on BEHALF OF THE ESTATE - this worked in one TX Sup. Ct. case.
• Could possibly bring suit for Intentional Tortious Interference With an Expectancy claim this is an intentional tort, hard to prove and all that.
• Personal Reps can, not required, bring suit to correct scrivnor errors, need clear and convincing evidence.