Health Care Directives, Administration, Contests, Misc.

Question 1

Slayer Statutes

Answer 1

In UPC, a person who feloniously and intentionally kills the decedent is not entitled to any benefit from decedent’s estate by will, by intestacy, or under life insurance contract or otherwise. Property passes as if killer predeceased decedent.

Question 2

Standard for determining conduct barring party from sharing

Answer 2

Civil standard - preponderance of the evidence

Question 3

Renunciation

Answer 3

Before acceptance, an heir, devisee, or appointee of a power of appointment may renounce his interest in writing in whole or in part within nine months after the death of decedent.

Results in property passing as if renouncing party predeceased decedent.

Question 4

Living Will

Answer 4

A statement of an adult individual’s desires with respect to life-sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment when the individual becomes terminally ill or is in a persistent vegetative state.

Question 5

Execution of Living Will

Answer 5

1) in writing
2) signed by an adult testator
3) most states require at least two adult witnesses

Question 6

Revocation of Living Will

Answer 6

by any manifestation of intent to revoke at any time before death without regard to the principal’s mental or physical condition

Question 7

Durable Healthcare Power

Answer 7

Used by one person (the principal) to appoint an agent to make healthcare decisions for the principal. This instrument does not become operative until the principal loses capacity.

Question 8

Execution of Durable Healthcare Power

Answer 8

1) in writing
2) signed by an adult principal
3) and by two adult witnesses
4) most states require that the agent not serve as a witness

Question 9

Revocation of Durable Healthcare Power

Answer 9

by written or oral notice of revocation to either the agent or the principal’s healthcare provider.

Question 10

Liability under Durable Healthcare Power

Answer 10

An agent under DHP is not civilly or criminally liable or subject to discipline for unprofessional conduct for healthcare decisions made in good faith.

Question 11

Personal Representative

Answer 11

Person who administers the estate

Question 12

Executor

Answer 12

PR that the decedent nominated

Question 13

Administrator

Answer 13

PR if the decedent died intestate

Question 14

Publication of Notice to Creditors

Answer 14

PR must publish notice of administration in the legal notices section of the newspaper. In addition, PR must send actual notice of administration to all known or reasonably discoverable creditors.

Question 15

Standing for will contests

Answer 15

Any person who would take more as heir if there were no will or as beneficiary under a prior will

Question 16

Lack of Testamentary Capacity

Answer 16

Burden of proof on contestants. The test:

1) Did T understand the nature of the act he was doing?
2) Did T know the nature and character of his property?
3) Did T know the natural objects of his bounty?
4) Did T understand the disposition he wished to make?

Question 17

If T has been adjudicated incompetent and a guardian appointed, this is evidence of . . .

Answer 17

lack of capacity but it does not raise a conclusive presumption. Why? the test for whether a guardian should be appointed is different from the four point test for testamentary capacity

Question 18

Insane Delusion

Answer 18

A distinctive form of testamentary incapacity. Where T is otherwise sane, but the will is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, and where the will is the product of the insane delusion.

Question 19

Undue Influence

Answer 19

Burden of proof is on the contestants to show:

1) Existence and exertion of the influence
2) Effect is to overpower the mind and will of the testator
3) the result is a will that would not have been executed but for the influence

Question 20

These factors alone are not enough to prove undue influence:

Answer 20

1) mere opportunity to exert influence
2) mere susceptibility to influence due to illness, age.
3) mere fact of “unnatural disposition” - that some children take less than others or are excluded entirely.

Question 21

Presumption of undue influence arises upon a showing that

Answer 21

a principal beneficiary under the will who stands in a confidential relationship to the testator (attorney client, priest parishioner, doctor patient) draws or procures the execution of the will.

Question 22

“No contest” clause

Answer 22

Clause in will that states “Any person who contests this will shall forfeit his legacy.”

Question 23

Effect of no contest clause

Answer 23

1) If party contests and loses the majority rule is that the clause will not be enforced against the party as long as he has probable cause for his contest
2) BUT, if the party’s claim is spurious, then the clause will be enforced against him