General Info

Question 1

Exam Tip (Probate Transfers)

Answer 1

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.

Question 2

Examples of Non-Probate Assets

Answer 2

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.

Question 3

What is a Will?

Answer 3

A document executed by a testator testatrix that takes effect at testator’s death.

Question 4

Negative Will

Answer 4

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).

Question 5

Three Types of Wills

Answer 5

• 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

Question 6

Requirements for All Wills

Answer 6

Include:

• Testamentary capacity
• Testamentary intent
• Appropriate formalities (will vary depending on type)

Question 7

Testamentary Capacity: Age

Answer 7

To execute a valid will, most states demand that testator be 18 years of age or older.

Question 8

Testamentary Capacity: Mental Capacity

Answer 8

Testator must be of sound mind (determined at the time the will is executed).

Question 9

What is Sound Mind?

Answer 9

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

Question 10

Eccentric Tendencies

Answer 10

-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.

Question 11

Insane Delusions

Answer 11

• 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.

Question 12

Testamentary Intent

Answer 12

At execution, a testator must intend that the particular document under discussion be his or her will (note of a future promise is insufficient)

Question 13

Three Concepts that Prevent Testamentary Intent

Answer 13

• Undue Influence
• Fraud
• Mistake

Question 14

Testamentary Intent: Undue Influence

Answer 14

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.

Question 15

Presumption of Undue Influence

Answer 15

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).

Question 16

Rebutting the Presumption of Undue Influence

Answer 16

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.

Question 17

When Undue Influence is Found

Answer 17

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

Question 18

Testamentary Intent: Fraud

Answer 18

Includes:

• Fraud in the execution of a will; or
• Fraud in the inducement of a wil

Question 19

Fraud in the Execution of a Will

Answer 19

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

Question 20

Fraud in the Inducement

Answer 20

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.

Question 21

Partial Fraud?

Answer 21

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.

Question 22

Testamentary Intent: Mistake

Answer 22

Include:

• Mistake in the execution
• Mistake in the inducement

Question 23

Mistake in the Execution

Answer 23

Mistake as to the nature of the document. Will is invalid.

Question 24

Mistake in the Inducement

Answer 24

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.

Question 25

Will a Court Ever Reform a Will in Light of a Mistake in the Inducement?

Answer 25

Only in very rare circumstances where clear and convincing evidence of testator’s intent exists.

Question 26

General Formality Requirements of Wills

Answer 26

• Writing
• Signed
• Witness or attested/acknowledged

Question 27

Formal Req.: Writing

Answer 27

Any reasonably permanent record is sufficient

Question 28

Formal Req.: Signature

Answer 28

• Will must be signed by the testator; or

- In a testator’s name by another in the testator’s conscious presence (within earshot) and by the testator’s direction.

Question 29

Type of Signature

Answer 29

There is no requirement that a signature is the testator’s formal name; it can be anything that indicates the testator’s intent that the document be testator’s will or the mark be testator’s signature.

Question 30

Placement of Signature?

Answer 30

There is no requirement that the signature is in a specific place in the will; it can appear at the beginning or the back.

Question 31

Witnessed or Attestation/Acknowledgement

Answer 31

A will must either:

• be signed by at least two individuals; or
• acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments

Question 32

Signature By at Least Two Witnesses

Answer 32

• Must be done within a reasonable time after having witnessed: the signing of the will; the testator’s acknowledgement of that signature; or testator’s acknowledgment of the will.
• There is no requirement that the signing witnesses sign the will in each other’s presence; each can sign it separately within the requisite reasonable time.

Question 33

Contemporaneous Acts

Answer 33

Witnesses can sign the will before the testator if all are acting within the same event, act, or time frame.

Question 34

Qualifications of Will Witnesses

Answer 34

Generally, a witness is competent if the witness has the ability to observe the testator affix his or her signature and comprehend the nature of the act.

Question 35

Interested Witnesses

Answer 35

A witness who is also a beneficiary of the subject will.

• some states will purge the interested witness’s share by treating that witness as having predeceased the testator,
• under the Uniform Probate Code and other states, there is no issue with interested witnesses

Question 36

Violation of Will Formalities: Harmless Error Rule

Answer 36

Any attempt to make a will – even a defective or failed one – will be validated if the proponent of that document proves by clear and convincing evidence that the testator intended the document to constitute testator’s will.

Question 37

Integration Rule

Answer 37

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 (e.g. a will that consists of several sheets of paper need not be signed by the testator and all witnesses on each page.

Question 38

Probate of Will

Answer 38

The proving of a will. The court process where the testator’s signature and other formalities are established.

Question 39

Self-Proving Will

Answer 39

A will that satisfies all will execution requirements without the need for testimony of any attesting witnesses immediately upon filling of the will, acknowledgement, and affidavits

Question 40

When Can a Will Be Self-Proved?

Answer 40

• If it is simultaneously executed and attested by the 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.
• At any time after its execution 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.