Intestacy, Wills, and Trusts Flashcards
Will Contest: Grounds for contest
Defective execution, revocation, lack of tesamentary capacity, lack of testamentary intent, undue influence or duress, fraud, and mistake
Probate: Powers and Duties of a Personal Representative
-Give notice to devisees, heirs, and claimants against the estate
-Discover and collect the decednet’s probate assets an dfile an inventory
-Manage the assets of the estate during administration
-Pay expenses of administration, claims against the estate, and taxes
-Distribute property
Intestacy: Intestate Succession
Intestate succession involves the distribution of a decedent’s assets that are not disposed of by will.
Intestate succession issues arise where:
>Decedent dies without a will
>Decedent’s will does not dispose of all her property
>Decendent’s will is denied probate
Varying statutory schemes - states have varying rules for how decedent’s assets are distributed through intestate succession
Terminology:
>”Heir” vs “beneficiary” - heir is one who takes by intestate succession; beneficiary is one named in a will or trust
>”Issue” and “descendants” - often used interchangeably to describe a decedent’s lineal descendants
>”Gifts,” “devises,” and “bequests” - used interchangeably to refer to property disposed of via a will
>”Estate” - roughly refers to property decedent owned upon death
Intestacy: Per capita intestate distributions
When decedent’s estate does not pass to her surviving spouse, but instead to her descendants, statutes control how distributions are made.
>States vary, but generally use one of the two approaches below
Per capita with representation (modern per stirpes) - majority of states
>Divided at first generation with living takers - estate divided into equal shares at the first generation at which there are living takers
»>Each living person takes a share and each share of a deceased person at that level passes to her descendants
Per capita at each generation - UPC and growing number of states
>Divided at first generation with living takers at the next level
>Avoids situations where takers are penalized for having a bigger family
Intestacy: Children’s inheritance rights
Adopted children - treated the same as a natural child for purposes of intestate succession
>Cuts off adoptee’s inheritance rights from his natural parents
»>exception - adoption by spouse of natural parent
Stepchildren & foster children - generally have no inheritance rights
>Exception - adoption by estoppel or equitable adoption
»>A stepchild or foster child can inherit from or through a step/foster parent as though they were legally adopted where step/foster parent gains custody under agreement with natural parents to adopt the child
Non-marital children - all states permit inheritance from the mother
>Inheritance from father is permitted if paternity is established
Posthumous children - a child in gestation at time of decedent’s death inherits as if they were born during decendent’s lifetime
Intestacy: Simultaneous death & death caused by beneficiary
Simultaneous death - one cannot take as an heir or beneficiary unless she survives decedent
>Issues arise where a decedent an dheir or beneficiary pass at or about the same time
>Two approaches - most states use one of the following two rules:
»>Uniform Simultaneous Death Act (USDA) - property passes as though beneficiary/heir died before the decedent unless there is sufficient evidence decedent died first (applies to distributions of property by any means, including will, joint tenancy, intestate succession, etc.)
»>120-hour rule - beneficiary/heir is only treated as having survived decedent if there is clear evidence that she survived by 120 hours or more (i.e., five days)
Decedent death caused by beneficiary/heir (Slayer Rule) - one who wrongly brings about the death of a decedent forfeits an interest in decedent’s estate
>In such cases, property passes as though the killer predeceased the victim
Intestacy: Disclaimers & Advancements
Disclaimers - one may disclaim an interest that otherwise woul dpass to them from a decedent or decedent’s estate
>Requirements - for fed. tax purposes, disclaimer must be in writing, irrevocable, and filed within nine months of decedent’s death
»>States may impose additional requirements, although most are satisfied by compliance with fed. requirements
>Effect - interest passes as if the disclaiming party predeceased decedent
Advancements - gifts made during testator or decedent’s life with the intent that the gift be applied against any share the heir or beneficiary inherits from decedent/testator’s estate
>Common law - gifts were automatically deducted from beneficiary/heir’s remaining interest
>Modern requirement - in most states, gifts to beneficiary/heir during testator/decedent’s life are advancements only if either:
»>(a) Decedent declared her intent to make the gift an advancement in a contemporaneous writing, or
»>(b) Beneficiary/heir acknowleged the gift to be an advancement in writing
Applicability beyond intestacy - the above rules generally apply to gifts/interests that pass in forms beyond intestacy
Wills: Testamentary Capacity & Intent Requirements
For a will to be valid, testator must have capacity and the requistie testamentary intent.
>Contests over the validity of a will often invovle whether testator had the requisite capacity or intent.
Capacity - for a will to be valid, the person executing the will must be 18 or older and have mental capacity
>Age - determined at the time the will is executed
>Mental Capacity - testator, at the time of will execution, must understand:
»>1) Act - nature of his act (i.e., that he is executing a will);
»>2) Property - nature and extent of his property; and
»>3) People - persons who are the natural objects of his bounty
»>4) Nature of Dispostion - how the above three factos relate and formulate a scheme of distribution
>Rebuttable presumption exists that testator had mental capacity
>Physical ailments, drug addition do not raise a presumption of incapacity
Testamentary intent - testator must intend that the instrument operates as his will
>Usuaully established by provisions in the will (e.g., “I, Testator X, hereby declare that this is my last will”)
>Present intent required - testator must have present testamentary intent (i.e., intent to make a will in the future is insufficient)
>Extrinsic evidence is allowed to prove requisite intent or lack thereof
Wills: Wills & Requirements for Execution
A will is an instrument that directs the dispostition of a person’s property when they die (i.e., will direct the dispostion of testator’s property)
>No legal effect before testator’s death - operative upon death
>May be revoked or amended until testator’s death; named beneficiaries have only an expectantcy interest (i.e., no property rights)
Requirements - will is valid if it complies with the state’s specific formalities; generally, in most states a will must be at least:
>1) In writing
>2) Signed by testator - any mark inteded to be a signature sufficies
»>If testator is incapable of signing, must be signed by another in her presence and by her direction
>3) Signed by at least two witnesses - must see testator sign the will and must sign as witnesses in testator’s presence in a reasonable time
»>Licensed notary satisfies this requirement in many states
»>”Testator’s presence” = line or range of senses, although many states require witnesses be in testator’s line of sight
Attestation clause - clause included immediately between testator and witness signatures ina will, which sets forth the above required elements and that they were satisfied
>Constitutes prima facie evidence of the facts recited in the clause (i.e., that execution requirements have been satisfied)
Wills: Witness Requirements & Limitations
Witnesses must be competenet and, in most states, there are limitations on witnesses who stand to benefit from the will.
Competency - witnesses must be of sufficient maturity and mental capacity to understand and appreciate the nature of what they witness and attest to
>I.e., witness could sufficiently testify in court if required
Interested witnesses - where a witness stands to benefit under the will
>At common law, entire will could not be probated (mostly abolished)
>Majority rule - will is valid but gift to witness-beneficiary is void
»>Exceptions - interested witness can still be a beneficiary where either
»»>a) There were two witnesses who disinterested
»»>b)Interested witness would take if there was no will
>UPC - [resnce of interested witness does not invalidate a will or any part of it
Wills: Codilics & Holographic Wills
Codicil - an amendemnt, modification, or alteration to a previously executed will
>Same formalities requires - to be valid, a codicil must be executed with the same formalities required for the will itself
>Effect - when a codicil is validly executed, the original will is treated as repiblished and deemed to have been executed on the date the codicil was executed
Holographic will - handwritten, unwitnessed will
>Not recognized in all states
>Requirements - to be valid, a holographic will must:
»>1) Be in testator’s writing - some states require the entire will to be in testator’s handwriting, while others allow typewritten text if types portion is not material
»>2) Be signed - testator’s signature must be somewhere on the will
»>3) Reflect testator’s intent to make a will - document must, as a whole, reflect that it is testator’s intent to make a will
>Replaces and revokes any prior valid will
Oral wills - not permitted in most states
Wills: Integration
Integration issues can arise where a part of a will becomes separated
>Issue becomes determining whether separate pages can be integrated and construed as testator’s complete will
Test - a document will be integrated into a will if:
>1) Physical presence - the document was physically present at the time of the will’s execution; and
>2) Intent of inclusion - testator intended the document to be part of the will
Evidence - witness testiomny and other extrinsic evidence may be used to establish that the requirements have been satisfied
Presumption - requirements are presumed where there is a physical connection of pages or when there is some internal coherence (i.e., pages comprise a compete, orderly disposition when combined)
Wills: Acts of Independent Significance
A will can dispose of property by reference to acts or events occurring after testator executes the will
>I.e., identification of a beneficiary or amount of a gift in a will may be determined by some future act or event
>Valid as long as the act or event has some independent significance during testator’s lifetime other than providing a gift in her will
Identifying beneficiaries - future act or event can involve identification of beneficiaries
>E.g., X’s will leaves “$100 for each person employed as my gardener upon my death”; two years after executing the will, X fires one gardener and hires three others, who remain employed until she dies
»>Valid b/c it is presumed that X would not hire and fire gardeners to change who is a beneficiary under her will, i.e., the employment decisions have independent significance
Identifying property - e.g., X leaves “all automobiles I own at the time of my death to A” and owns three cars at the time of execution; thereafter she sells one and buys two other before she dies, leaving A with a valid bequest for the four automobiles X owns upon her death
>Valid b/c it is presumed that X did not buy and sell the cars for the sole purpose of changing A’s gift
Wills: Incorporation by Reference
Documents extrinsic to the will (e.g., not part of the will) may be incorporated by reference into the will in most states
Requiremetns - document will be incorporated by reference where:
>1) Intent to incorporate - the will manifests testator’s intent to incorporate the document;
>2) Authenticated document - the will sufficiently describes the document such that it can be authenticated; and
»>Description must be such that the document can be reasonably identified
»>Document must correspond to the will’s description
>3) In existence upon will execution - the document must be in existence at the time the will is executed
»>Tangible property exception - in most states, a will may incorporate by reference a document that disposes of testator’s tangible personal property
»»>Document can be prepared before or after execution of the will and can be changed before testator’s death
»»>Requirements: Document must: (i) be signed by testator; and (ii) describe items and to whom they are devised with reasonable certainty
Wills: Revocation by Testator
A person who has testamentary capacity to make a valid will can revoke a will any time before their death.
Revocation by written instrument - a will or any part of it can be revoked or changed as long as there is:
>1) Intent - present intent to revoke; and
>2) Formalities - instrument revoking the will is made with the same formalities required for will execution
Revocation by physical act - a will may be revoked in most states by burning, tearing, or otherwise destroying the will
>Present intent required - testator must intend to revoke at the time of the physical act
>Act by another (revokation by proxy) - a person other than testator may revoke the will by physical act if done at testator’s direction and in testator’s presence
Partial revocation - revocation may be accomplished by making marks of cancellation on the will (e.g., crossing out provisions) in most states
>Where such marks are found on a will known to have last been in testator’s possession, a presumption is created that the marks were made by testator with the requiste intent to revoke
Wills: Revocation by Operation of Law
A will and/or its provisions can be revoked by operation of law upon the happening of certain events, usually involving changes in marital status or children.
Marriage following execution of a will (omitted spouse) - no effect on the existing will in most states
>Variation - under the UPC, where a person marries after executing a will and spouse survives testator, omitted spouse will tkae a share of decedent’s estate equivalent to what their intestate share would be
»>Not applicable if will provides for the omitted spouse, was made in contemplation of marriage, or otherwise makes clear that the omission was intentional
Divorce following execution of a will - revokes all bequests made in favor of the former spouse, unless the will expressly provides otherwise
>Remainder of the will remains valid
>Effect - will is treated as if the former spouse predeceased testator
Pretermintted children - arises where testator’s will does not provide for children born or adopted after the will was executed
>Most states give the pretermitted child a share of testator’s estate equal to what they would have received through intestate succession
Wills: Reviving Revoked Wills & Dependent Relative Revocation
Revival - where a will is revoked and the revoking instrument is subsequently revoked, the original will is presumptively revived
>Exception - revoked will is not revived if testator’s statements or other evidence make clear she did not intend to revive the prior will
>Re-execution - a revoked will may be re-executed by a subsequent will or codicil if testamentary formalities are satisfied
Dependent Relative Revocation (DRR) - court doctrine under which a court disregards a revocation that was done to create an alternative disposition to the original will, but was based on a mistake of fact or law
>Court will apply DRR and revive the recoked will if doing so would come closer to giving effect to what testator tried, but failed, to do than would intestate succession
>Requirements - court may apply DRR (ignore will revocation) where:
»>1) Revocation was premised on some mistake of law or fact;
»>2) Revocation would not have occurred absent testator’s mistaken belief that some other plan for disposition of property was valid; and
»>3) The originally revoked will is closer to testator’s preference than would be intestate succession
Wills: Lapsed Gifts & Anti-Lapse Statutes
A gift provided in a will lapses where the beneficiary predeceases testator
>Absent application of an anti-lapse statute, the gift will go back into the residue of testator’s estate
Anti-lapse statutes - a gift that would otherwise lapse vests in the predeceased beneficiary’s descendants, who becomes substitutes
>Application - lapsed gifts will be saved if predeceased beneficiary was: (1) a relative of testator (usually descendants only); and (2) had descendants
>Who may be substituted - some states allow only testator’s descendants, while others (and UPC) allow any of testator’s relatives
Lapse in the residue - can arise where a bequest is made to a person who predeceases testator and the anti-lapse statute does not apply (e.g., predeceased beneficiary was not testator’s relative)
>Common law - lapsed gift passes to testator’s heirs via intestacy
>Modern view - residuary beneficiaries who survive testator and deceased beneficiary take the deceased beneficiary’s share
Class gifts - if a will makes a gift to a class of people and a class member predeceases testator, surviving class members take predeceased’s gift absent an alternative provision in testator’s will
>Exception - if an anti-lapse statute applies to the predeceasing class member, gift vests in predeceased’s descendants, not the class
Wills: Ademption
Under the doctrine of ademption, a gift of specific property in a will fails if it is no longer in testator’s estate at death
Applies to specific devises only - ademption only occurs with specific gifts that are satisfied only by giving the actual described property
Not applicable to general or demonstrative devises
>General devise = gift of a dollar amount payable from estate’s assets
>Demonstrative devise = gift of a general amount that identifies some asset as a source of the payment (e.g., certain stock holding)
>Where a general or demonstrative gift fails (e.g., stock is not worth as much as provdided in a demonstrative legacy), estate generally must sell off other property to satify the gift
Exception - in intent theory states, adeemed gifts may be saved
>a minority of states apply the intent theory of ademption, under which an adeemed bequest is saved if evidence establishes that ademption would be inconsistent with testator’s intent
>Effect - benefiticary gets montetary value of the specific bequest or gets property that was acquired as a replacement for the adeemed gift
Wills: Abatement
Where an estate’s value is insufficient to pay its obligation and provide for disposition of property under a will, it must reduce (abate) gifts in order to pay the obligations and satisfy some bequests and devises.
Requirements to pay obligations - estate must always pay off obligations before distributing assets
>Abatemetn occurs when, after doing so, the estate lacks sufficient funds to carry out disposition of property under terms of the will
Order of abatement - testator’s will may set out an order of abatement
>Absent provisions in the will, most state statutes provide for an order of abatement setting a priorirty as to which categories of property in the estate will be sold off first
>Order - most states abate estate property in the following order:
»>1) Property not disposed of by will (intestacy)
»>2) Residuary estate
»>3) General devises - abate pro rata
»>4) Specific devises and bequests
Wills: Contracts involving wills, joint & mutual wills
Valid Ks to make, not make, or revoke a will are generally enforceable
>Governed by K law and Ks regarding wills are not considered wills
>K requirements must be satisfied
Writing required - most states require Ks involving wills to be in writing
>Additional requirements - UPC and some states require either:
»>a) Provisions in the will state the material provisions of the K,
»>b) Express reference in the will to the K and extrinsic evidence proving the K terms, or
»>c) Writing signed by decedent/testator evidencing the K
Remedy for breach - constructive trust
>Upon breach of a K to make a will, court usually probates the will and imposes a constructive trust in favor of the intended beneficiary under the K
Joint will - will or two or more people executed in a single document
>Admissible to probate upon death of either testator
>If one testaor revokes the joint will, it remains valid as the other’s will
>May be interpreted as K for a will, particularly if executed pursuant to a promise between each party not to revoke
Mutual will - separate wills of two or more people containing reciprocal or substantially similar provisions
>Usually not interpreted as a K to make a will or a K not to revoke a will
Wills: Will contests & no-contest clauses
A will may be contested for any number of reasons challenging its validity
Common grounds for contesting a will:
>Lack of capacity or testamentary intent
>Defective execution
>Undue influence, fraud, or mistake
>Will has been revoked
Standing to contest a will - generally only those with a pecuniary interest have standing to contest
>Includes beneficiaries, someone who should be a beneficiary, or someone who would benefit if decedent had died intestate
No-contest clauses - clause in a will providiing that a beneficiary loses their interest under the will if they contest it
>Does not apply to suits challenging executor appointment, jurisdiction, or asking the court to interpret the will
>Application - states vary on how strictly they apply no-contest clauses
»>Majority - no forfeiture of interest if beneficiary challenges in good faith and on the basis of probable cause
»>Minority - no-contest clauses given full effect regardless of challenging beneficiary’s cause or intent
Wills: Undue Influence & Fraud
Undue influence - a will is invalid if executed while testator was subject to undue influence that effectively overrode testator’s free will
>Requirements - will contestant has burden of proof and must show
»>1) Influence was exerted on testator;
»>2) Testator’s mind and free will were overpowered; and
»>3) Testator’s will would not have been executed absent undue influence
>Presumption - a presumption of undue influence arises if:
»>1) A confiendential relationship (e.g., attorney-client) existed between a testator and beneficiary, who exerted influence; and
»>2) Beneficiary particiated to a significant degree in executing, drafting, or procuring testator’s will
»Once established, burden shifts to propoent of the will to prove the will was not induced by undue influence
Fraud - where a will or one or more of its provisions are the result of fraud, the will or the provision is invalid
>Requirements - must be shown that:
»>1) Testator has been intentionally deceived as to:
»»>a) Character or content of the will or its provision, and/or
»»>b) Facts extrinsic to the will that would induce the will or a particular provision or disposition in the will
»>2) Testator acted in reliance on the misreprentation
Wills: Mistake
Mistakes may be made in execution of the will or inclusion of its provisions
>Mistakes can arise in varying circumstances
>Relief is oftentimes not available
Mistake as to nature of instrument - extrinsic evidence may be permitted to show that tesator was mistaken as to the nature of the instrument he signed (e.g., he did not know he was signing his will)
>Mistake may nullify the testamentary intent requirement
Mistake in inducement - no relief is availabel if a mistake relates to the reason testator made a will or made (or did not make) a gift in the will
>Note - relief may be available if there is a separate ground for contesting the will
Mistaken omission - no relief is available and no extrinsic evidence is admissible to show that a will mistakenly omitted a provision or contains provisions that do not reflect testator’s intent
>Note - relief may be available if there is a separate ground for contesting the will
Reformation for a mistake - UPC allows a court to reform terms of a will to conform to testator’s intent
>Requirements - must be shown by clear and convincing evidence that a mistake of law or fact affected the will and testator’s intent
