General Terminology Flashcards
Residuary Estate
portion of estate remaining following distribution of assets and payment of costs
testamentary instrument
instrument that takes effect upon death of maker/testator
intestate
die w/o will
testator
one who executes will
legal custodian
one who has legal responsibility for a person or person’s property
Disclaimer
Heir or devisee’s refusal to take property designated to him/her
Most often done to reduce taxes or keep property from creditors
attestation
action required to be taken by witness to the execution of a document in order for that instrument to be subsequently valid
attestation clause
portion of the will where witnesses certify execution and method of execution
executor
person designated to effectuate disposition of property pursuant to testamentary instrument following death
legatee
person granted legacy or bequest pursuant to will
clear and convincing evidence
evidentiary standard requiring that fact sought to be proven is reasonably certain
holographic will
will handwritten by testator
testamentary intent
a determination that the document was intended to be a will and as such reflects the writer’s true wishes
codicil
supplement to a will
clear and convincing evidence
fact sought to be proven must be reasonably certain
May the doctrine of dependent relative revocation be applied to preserve a gift that was revoked by a codicil that the testator intended to be a valid substitute for the gift in the will, but which was actually invalid?
yes. Under the doctrine of dependent relative revocation, if the testator clearly intended that a revocation be dependent on the valid substitution of a subsequent gift or will, and the validity of that subsequent gift or will fails, then the revocation fails because it was dependent on the subsequent gift or will being valid.
lacroix v senecal
doctrine of dependent relevant revocation
if the same person executes a will which revokes an earlier will, the earlier will is revoked only if the latter will is effective; otherwise the earlier remains in full effect and force
if new will fails for whatever reason court will assume T prefers estate divided based on old will rather than intestacy
doctrine of integration
when a holographic will consists of more than one page it must be clearly apparent that T intended all pages to represent their final will and testament.
this can be shown by a clear reference by one of the pages to the other pages
or invalidated by contradictions made between pages
Can a multipage document be admitted into probate as a will if it is not clearly apparent that the testator intended that all of the pages together should constitute his last will and testament?
No. Where a purported will contains more than one page, it must be made clearly apparent that the testator intended that all of the pages together should constitute his last will and testament.
May an informal document not executed in the manner of a will be incorporated by reference into a will if the document was in existence when the testator executed a codicil to the will and evidence shows it to be the document referenced in the will?
Yes. If such a document was in existence at the time a codicil was executed, and the codicil ratifies the language referencing the informal document, the document may be incorporated by reference
Is the mere fact that the provisions of two wills mirror each other sufficient to show an intent to make the provisions of the wills irrevocable?
No. The mere fact that the provisions of two wills mirror each other is insufficient to show intent to make the provisions of the wills irrevocable. Wills are generally unilaterally revocable. A will does not become irrevocable simply because it mirrors another’s will. Rather, there must be clear and satisfactory proof of the intent to make reciprocal wills binding contracts. Proof can be found in the express terms of the wills, presented through the testimony of witnesses, or implied from the circumstances. When presenting proof of intent through witnesses, their testimony must be sufficiently corroborated.
reciprocal will
testamentary instruments pursuant to which two or more individuals make reciprocal provisions in favor of the other
dead man’s statute
evidence of a deceased’s promises or statements may not be introduced by a claimant against the deceased’s estate
