Health Care Directives, Administration, Contests, Misc. Flashcards
Slayer Statutes
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.
Standard for determining conduct barring party from sharing
Civil standard - preponderance of the evidence
Renunciation
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.
Living Will
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.
Execution of Living Will
1) in writing
2) signed by an adult testator
3) most states require at least two adult witnesses
Revocation of Living Will
by any manifestation of intent to revoke at any time before death without regard to the principal’s mental or physical condition
Durable Healthcare Power
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.
Execution of Durable Healthcare Power
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
Revocation of Durable Healthcare Power
by written or oral notice of revocation to either the agent or the principal’s healthcare provider.
Liability under Durable Healthcare Power
An agent under DHP is not civilly or criminally liable or subject to discipline for unprofessional conduct for healthcare decisions made in good faith.
Personal Representative
Person who administers the estate
Executor
PR that the decedent nominated
Administrator
PR if the decedent died intestate
Publication of Notice to Creditors
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.
Standing for will contests
Any person who would take more as heir if there were no will or as beneficiary under a prior will
Lack of Testamentary Capacity
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?
If T has been adjudicated incompetent and a guardian appointed, this is evidence of . . .
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
Insane Delusion
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.
Undue Influence
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
These factors alone are not enough to prove undue influence:
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.
Presumption of undue influence arises upon a showing that
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.
“No contest” clause
Clause in will that states “Any person who contests this will shall forfeit his legacy.”
Effect of no contest clause
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
