General Terminology

Question 1

Residuary Estate

Answer 1

portion of estate remaining following distribution of assets and payment of costs

Question 2

testamentary instrument

Answer 2

instrument that takes effect upon death of maker/testator

Question 3

intestate

Answer 3

die w/o will

Question 4

testator

Answer 4

one who executes will

Question 5

legal custodian

Answer 5

one who has legal responsibility for a person or person’s property

Question 6

Disclaimer

Answer 6

Heir or devisee’s refusal to take property designated to him/her

Most often done to reduce taxes or keep property from creditors

Question 7

attestation

Answer 7

action required to be taken by witness to the execution of a document in order for that instrument to be subsequently valid

Question 8

attestation clause

Answer 8

portion of the will where witnesses certify execution and method of execution

Question 9

executor

Answer 9

person designated to effectuate disposition of property pursuant to testamentary instrument following death

Question 10

legatee

Answer 10

person granted legacy or bequest pursuant to will

Question 11

clear and convincing evidence

Answer 11

evidentiary standard requiring that fact sought to be proven is reasonably certain

Question 12

holographic will

Answer 12

will handwritten by testator

Question 13

testamentary intent

Answer 13

a determination that the document was intended to be a will and as such reflects the writer’s true wishes

Question 14

codicil

Answer 14

supplement to a will

Question 15

clear and convincing evidence

Answer 15

fact sought to be proven must be reasonably certain

Question 16

May the doctrine of dependent relative revocation be applied to preserve a gift that was revoked by a codicil that the testator intended to be a valid substitute for the gift in the will, but which was actually invalid?

Answer 16

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

Question 17

doctrine of dependent relevant revocation

Answer 17

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

Question 18

doctrine of integration

Answer 18

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

Question 19

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?

Answer 19

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.

Question 20

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?

Answer 20

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

Question 21

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?

Answer 21

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.

Question 22

reciprocal will

Answer 22

testamentary instruments pursuant to which two or more individuals make reciprocal provisions in favor of the other

Question 23

dead man’s statute

Answer 23

evidence of a deceased’s promises or statements may not be introduced by a claimant against the deceased’s estate