General Info Flashcards
Exam Tip (Probate Transfers)
Be sure to distinguish between probate assets (those transferred at death) and non-probate assets (pre-death transfers and pass outside of testate or intestate succession.
Examples of Non-Probate Assets
Include: joint tenancy, tenancy by the entirety, revocable trusts, and life insurance policies that pay to a third party rather than to the decedent’s estate.
What is a Will?
A document executed by a testator testatrix that takes effect at testator’s death.
Negative Will
A testamentary document that expressly excludes or limits the rights of an individual or class to succeed to property of the decedent passing by intestate succession (is permitted).
Three Types of Wills
- Attested/formal will- one with witnesses and exists in all jurisdictions
- Holographic will- unattested (no witnesses) and exists in most jurisdictions
- Oral will (aka nuncupative will)- exists in a very limited way in a few jurisdictions
Requirements for All Wills
Include:
- Testamentary capacity
- Testamentary intent
- Appropriate formalities (will vary depending on type)
Testamentary Capacity: Age
To execute a valid will, most states demand that testator be 18 years of age or older.
Testamentary Capacity: Mental Capacity
Testator must be of sound mind (determined at the time the will is executed).
What is Sound Mind?
At the time the will is executed, testator holds the ability to understand:
- the nature, condition, and extent of testator’s property
- the nature of the disposition that testator is making of his or her property
- the names of and testator’s relationship to the natural objects of testator’s bounty
Eccentric Tendencies
-The fact that a testator may be eccentric, hold unusual opinions, or exhibit unique behavior does not necessarily render testator mentally incapable of making a will.
Insane Delusions
- An irrational belief with no basis in fact or reality. One who suffers from an insane delusion does not necessarily lack soundness of mind and might still hold the capacity to make a donative transfer during life or at death.
- However, if a gift or will was the product of an insane delusion it is invalid.
Testamentary Intent
At execution, a testator must intend that the particular document under discussion be his or her will (note of a future promise is insufficient)
Three Concepts that Prevent Testamentary Intent
- Undue Influence
- Fraud
- Mistake
Testamentary Intent: Undue Influence
Is sufficient to void a will if:
- a contestant can prove the wrongdoer exerted such influence over testator that it overcame testator’s free will; and
- the influence caused testator to make a donative transfer that the testator would not otherwise have made.
Presumption of Undue Influence
Arises when an opponent to a will can show by clear and convincing evidence that:
- (confidential relationship)- the alleged wrongdoer was in a confidential relationship with the donor (any relationship where the testator relies on another for day-to-day affairs); and
- (suspicious circumstances)- there were suspicious circumstances surrounding the preparation, formulation, or execution of the will (all relevant factors may be considered).
Rebutting the Presumption of Undue Influence
If the factors are shown, the BOP returns to the proponent of the will to show that the gift or bequest was not the product of undue influence.
When Undue Influence is Found
Undue influence will void the provisions of the will that benefit the person exerting the undue influence.
Testamentary Intent: Fraud
Includes:
- Fraud in the execution of a will; or
- Fraud in the inducement of a wil
Fraud in the Execution of a Will
Fraud as to the nature of contents or writing itself (will invalidate the will).
Fraud in the Inducement
When a beneficiary made a knowingly false representation to the testator for the purpose of inducing the testator to draw a will in his favor. The test is whether the testator would have made this gift had testator known the true facts.
Partial Fraud?
If fraud is alleged with respect to only a part of the will, the court may reject that part and admit the rest to probate. The legacy that is void due to fraud would then fall into “the residue” or if there is no residuary clause, through intestacy.
Testamentary Intent: Mistake
Include:
- Mistake in the execution
- Mistake in the inducement
Mistake in the Execution
Mistake as to the nature of the document. Will is invalid.
Mistake in the Inducement
Mistake as to the true facts that causes testator to execute a will or will clause. Because this has no effect on testamentary intent, no relief is granted. Therefore, there is little a court can do.
