Highly Tested Issues

Question 1

Intestate Succession

Answer 1

Who will be the successor to the property if the person dies without a last will and testament?

Three schemes:

UPC Per capita at each generation: Initial division is at the eldest generation in which there are living persons. Then for children who did not survive, those shares are combined and distributed in equal shares to the persons in the next generation who are entitled to take.

(NY) Per capita with representation: Initial division is at the eldest generation in which there are living persons.

Per Stirpes: Initial division of the property is made in the generation of the named person’s children, even if none of them are alive at the time the distribution is to be made. Next, the property moves down the family lines dividing and subdividing until it is all distributed to living people

Question 2

Validity of a will

Answer 2

Requirements:

(1) in writing;
(2) signed by the testator
(3) two witnesses;
(3) testator must be over the age of 18; and
(4) intent that the document serves a will.

If not a valid will, is the document a Holographic will?

(1) Signed by the tester
(2) material portions are in testator’s handwriting
(3) clear and convincing evidence that the decedent intended the document to be their will

Question 3

Revocation of a Will

Answer 3

Will may be revoked by a codicil or physical act. Physical act requires some crossing out, burning, destroying of the will with the intention that the will is destroyed.

Question 4

Slayer Statute

Answer 4

an individual who feloniously and intentionally kills the decedent or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent forfeits all benefits with respect to the estate. Involuntary manslaughter is excluded.

Question 5

Undue Influence

Answer 5

A will is invalid if it was executed as the result of undue influence. Undue influence occurs when the wrongdoer exerted such influence over the testator that it overcame the testers free will and the testator to make a donative transfer that the testator would not otherwise have made.

Burden is on the will contestant, who must show, by a preponderance of evidence that:

(1) the testator was susceptible to undue influence, (2) the alleged influencer had the opportunity to exert undue influence upon the testator, (3) the alleged influencer had a disposition to exert undue influence, and (4) the will appears to be the product of undue influence.

Question 6

Testamentary Capacity

Answer 6

(1) testamentary intent–must intend that the instrument operates as the last will
(2) Must be 18 years old
(3) Of sound mind (know she is executing a will; the nature and extent of property; the persons who are the natural objects of her bounty, and the nature of her disposition she is making

Lawyer’s job:

• No contest clause
• Make a gift to potential problem maker
• videotaping
• contemporaneous psychological testing

Question 7

Insane Delusion (capacity)

Answer 7

A legal concept in which a belief in facts that do not exist and that no rational person would believe existed.

Lucid intervals are sufficient to establish capacity-Strittmater

Question 8

Undue influence two part test:

Answer 8

1. Confidential relationship
2. Suspicious circumstances

Presumption is overcome by independent advice and counsel of an uninvolved attorney– Will of Moses

Question 9

Fraud

Answer 9

Fraud occurs when a testator is denied by a misrepresentation and is thereby led to execute a will that the testator would not otherwise have made. Most courts require a finding that the misrepresentation was made with the intent to deceive the testator and for the purpose of influencing the testamentary disposition.

Two types:

Fraud in the inducement

Fraud in the Execution

Question 10

Fraud in the Inducement

Answer 10

1. Occurs when a person misrepresents facts–e.g. whether a proposed beneficiary is alive
2. made with intent to deceive
3. for the purpose of inducing disposition
4. that actually influences the testamentary act

Puckett (nurse lie to T and convict her family is wasting money)

Question 11

Fraud in the execution

Answer 11

Occurs when a person misrepresents the character or contents of the instrument signed by the testator.

Question 12

Intestate Succession (Spouses)

Answer 12

Majority: Spouse takes 1/3 or 1/2 of the estate

Minority: Spouse gets specific dollar amount plus 1/3 or 1/2

UPC (2-102); Surviving spouse takes the entire estate if the D is survived by descendants all of whom are descendants of the surviving spouse and the surviving spouse has not other surviving descendants

Disqualified if:

• Failure to support
• Abandonment

Question 13

Intestate succession (Spouse–NY)

Answer 13

EPTL 4-1.1

Spouse and issue = $50K plus 1/2 the residue

Spouse and no issue = Entire estate

Question 14

Per capita with representation (NY)

Answer 14

Property is divided into equal shares at the first generation at which there are living takers. Each living person at that level takes a share, and the share of each deceased passes to his issue

Question 15

Strict per stirpes

Answer 15

1 share per each child of decedent. If a child is deceased, that child’s shares passes to her issue by representation. The division is always made at the child level, regardless of whether there are any living takers at that level.

Question 16

Per capita at each generation (UPC)

Answer 16

the initial division of shares is made at the first generation, but the shares of the deceased persons at that level are combined and then divided equally among the takers in the next generation.

People with larger families penalized

Question 17

Disinheritance Clauses

Answer 17

Majority: A will provision that expressly disinherits an heir is ineffective if the testator dies partially intestate

Minority (UPC): a testator may exclude the right of an individual to succeed to property passing by intestate succession

Question 18

Collateral Relatives

Answer 18

UPC 2-103: Divide the probate property b/w the maternal and paternal sides. Estate moves up the family tree and splits in half

NY EPTL 4-1.1(a)(6) and (7): when GPs are heirs, the issue are defined to be no one more distantly related to GPs than their grandchildren (d’s first cousin)

• do not go past first cousin once removed and cousins that are predeceased are excluded.