Jenkins 2018 Wills & Codicils Flashcards
What is intestate succession?
The way a person’s property is distributed if she/he dies without a will.
What does it mean if you die intestate?
It means you die without a valid will. Your property is distributed to your heirs under Ch 2 of probate code.
What is a testator?
A person who makes a will or person who dies leaving a will.
What is the difference between descent and distribution?
In common law, both refer to the passage of property from testator to person inheriting. Real property is passed by descent and person property passes by distribution. Use term devise for both now.
What is the difference between devisees and legatees?
In common law, person receiving land is a divisee, a person receiving personal property is a legatee. Now we use divisee for both.
What is renunciation in the context of estate property?
When a person is entitled to a gift under a will or share of an intestate’s estate but they turn it down. The gift is renounced or disclaimed. It is executed after death.
What is a release of expectancy in the context of estate property?
When a person is entitled to a gift under a will or share of an intestate’s estate but they turn it down before their death. There must be consideration for the release.
Why in the world would anybody want to renounce their share of a decedent’s estate?
To avoid creditors, or estate taxes.
What is a Will?
A legal declaration of a person’s intention to dispose of their property after their death, usually specifying how it is to be distributed.
What are the three requirements of a valid will?
1 testamentary capacity
2 physical compliance with formalities
3 testator’s intent
What is testamentary capacity?
Testator must be mentally competent at the time of the execution. Must know character of property, natural objects of his bounty, & effect of making will. Elements:
1 sound mind
2 requisite age
What is physical compliance with the formalities of a will?
Meeting the elements prescribed by statute of the jurisdiction in which the will is executed.
What is a testator’s intent?
Intent that the instrument be a will. Intent that it takes effect on testator’s death.
What can invalidate a will?
the presence of fraud or undue influence.
failure to meet the 3 requirments
What is the difference between a will and a testament?
In common law, a will disposes of real property, a testament disposes of personal property.
not relevant anymore.
At what point does a will become irrevocable?
Never.
or until the testator dies or becomes incapacitated (can’t make a new will at that point)
What is the difference between a devise, a legacy, and a bequest?
in common law devise - gift of land legacy - gift of money bequest - gift of personal property not relevant anymore
What is a personal representative?
Anyone authorized by the court to administer the estate whether by will or intestacy.
What is an executor?
Person the testator named in the will to administer the estate.
What is an administrator?
Person appointed by the court to administer an estate of an intestate.
What is an administrator with the will annexed?
Person appointed to administer the estate of a decedent although his will names an executor. Occurs if will fails to name executor or if the person can’t or won’t serve as executor.
What is sound mind in regards to testamentary capacity?
Testator must understand 1 the extent of his property 2 natural objects of his bounty 3 the nature of the testamentary act 4 relate these elements to one another and ability to form orderly desire as to how his property should be distributed.
What is undue influence?
any type of coercion, physical, mental or moral, which subverts the desire of an individual. elements:
1 susceptibility
2 opportunity to influence
3 wrongdoers has disposition to exert undue influence
4 result showing effect of such influence
What happens if it’s found that a testator’s will was executed through undue influence or fraud?
the will is invalid
What is the difference between undue influence and fraud?
Fraud involves deceit and undue influence does not.
What are the 2 types of fraud that will invalidate a will?
fraud in execution
fraud in inducement
What is fraud in the execution of a will?
testator is deceived into thinking he’s not signing a will or is deceived about the contents of the will.
What is fraud in the inducement with regards to a will?
someone knowingly lies about a material fact and testator makes or changes a provision in the will based on the misrepresentation.
Under what circumstances may a testator’s mistake involving his will invalidate the will or part of it?
The testator signs the wrong document by mistake, if a provision is inserted by mistake, or if the testator is mistaken about the status of a relative.
What if an attorney makes a mistake in drafting the will?
The attorney can be held liable for malpractice. The estate can sue because it has privity. Beneficiaries don’t have privity but can sue in tort (negligence) or contract.
What are the three types of wills.
1 written and witnessed - types and executed with witnesses and notary
2 holographic - completely hand written and executed
3 nuncupative - oral or video
How do you determine authenticity of holographic and nuncupative wills?
Holographic - entire will must be in testator’s handwriting, usually witnessed
nuncupative - must satisfy requirements
What are the typical formalities required to create a valid written will in Texas?
1 a writing - entire document typed (can be a readable inscription on a permanent surface)
2 signed by testator or by another person at his direction and in his presence
3 attested by 2 or more credible witnesses in testator’s presence
publication not required in Texas
Does the UPC follow the 3 requirements (writing, signing and witnesses)?
yes, but it has an exception, the will is consider valid if there is clear and convincing evidence that it is the testator’s intent that the document be his will.
Issues related to signatures on wills?
1 doesn’t have to be full name, has to be testator’s mark, can sign dad, husband, grandpa, etc
2 doesn’t have to be written by the testator but must be in his presence and at his direction
3 can be anywhere on the will unless the jurisdiction’s statute requires it to be on last page.
Must a testator sign his will in the presence of his witnesses?
No, the testator can acknowledge his signature to the witnesses by telling them it’s his signature and his will.
What does it mean to acknowledge a will?
When testator shows the witnesses his signature on the will and tells them it’s his signature and the document is his will.
Does the testator have to watch the witnesses sign the will and do the witnesses have to see the testator sign the will?
No, most jurisdictions are liberal in accepting the will if the witnesses and testator are aware of the signings.
What are the functions performed by the witnesses in a will execution?
signing and attestation
What is attestation in a will execution?
When the witnesses intend to bear witness to the act of signing a will.
How many witnesses does a valid will require?
most states require 2..
What is the purpose behind having witnesses to a will?
To prevent fraud.
What happens if a witness to a will has a pecuniary interest in the will?
The witness’s interest in the will will be purged (removed).
The witness can’t testify to the will’s validity.
What is a purging statute in the context of witnesses to wills?
A statute that eliminates the bequests of a beneficiary to a will that is also a witness to the will.
What is an attestation clause in a will?
A clause in which the witnesses certify that the will has been properly executed by the testator in their presence.
What is a self-proving will?
A will that contains an affidavit in which the testator and witnesses swear under oath that the formalities required for proper execution of the will have been fulfilled. Prima facie evidence of testator capacity that must be over come by someone challenging will.
What is a holographic will?
A will that is handwritten and signed by the testator. No witnesses are required.
What happens if a holographic will contains material that’s not in the testator’s handwriting?
three approached depending on jurisdiction
1 entire will is valid
2 entire will is not valid
3 parts not in testator’s handwriting are invalid
What are the requirements for nuncupative wills?
No longer valid in Texas.
1 testator is close to death or knows he is dying
2 will disposes of personal property not real property
3 testator tells witnesses he wants him to witness his oral will
4 must be 3 witnesses (at least 14 yrs old)
5 must be probated within 6 months of when will is made
Do nuncupative wills require witnesses?
yes, 3 of them.
Is it possible to use witness testimony to determine what the testator’s intent was?
No, intent has to be obvious from the face of the document.
What does integration mean in regards to wills?
Several instruments can be merged into one if they make up the entire will. Must meet the statutory formalities and cannot contradict each other.
What 2 elements are necessary to cause a document to be integrated into the testator’s will?
1 all pages sought to be probated must be present at the time of execution
2 testator intended all these pages to constitute a part of his will
In figuring out which papers form part of the testator’s will, what does the term incorporation by reference mean?
The testator refers to document outside of the will in the language of the will.
What are the requirements to incorporate documents by reference?
1 extraneous material existed when the will is signed
2 will refers to material as it existed at the time
3 will shows testator’s intent to incorporate
4 material is identical to what is referred to in the will
What are the protected classes of potential beneficiaries in the family?
Surviving spouse and children of the testator.
How do statutes and common law rules protect the testator’s family when it comes to wills?
They provide mandatory shares to prevent unintentional and intention disinheritance of spouse and to prevent unintentional disinheritance of children
How is the surviving spouse protect by modern statutes?
Elective shares give the surviving spouse the choice of one of several alternatives:
1 what spouse gets under deceased spouse’s will
2 1/3 of deceased spouse’s estate
3 what spouse would get under intestacy
How do transfers made by a deceased spouse during his or her lifetime affect the surviving spouse’s elective share?
depends:
Did the deceased spouse make the transfer with the intent of depriving the surviving spouse of a share?
Was the transfer real or illusory?
How is a spouse protected against unintentional disinheritance, under modern statutes?
If the spouse married after the will, statutes give the spouse a share of the estate. (Omitted spouses)
Can a spouse waive his or her elective share in the other spouse’s estate?
Yes, rights can be waived, released, or contracted away in a pre-nupt or post-nupt.
What are dower and curtesy?
In common law, dower protects wife, curtesy protects husband. Not valid anymore.
As a general rule, may parents completely disinherit their children if they want to?
Yes but statutes will protect children that are unintentionally disinherited.
What is a pretermitted heir?
A child that unintentionally left out of a will. (usually born after will signed)
What portion of deceased parent’s estate may be claimed by a pretermitted child?
Whatever portion the child would have received if parent died intestate.
In the context of wills, what is the doctrine of independent significance?
Doctrine that provides for the disposition of property based on an act or event that is independent of the will itself.
When it comes to proving the contents of a will, what is extrinsic evidence?
Evidence found outside the body of the will.
When is extrinsic evidence available to prove the contents of a will?
Only to prove latent ambiguities.
In the context of wills, what is patent ambiguity?
Ambiguity that is obvious from the face of the will.
In the context of wills, what is latent ambiguity?
Ambiguity that is not obvious from the face of the will but is discovered when it is probated.
In the context of wills, what is misdescription?
When the description in the will can fit more than one person and you can’t tell who it refers to.
When does a gift in a will lapse?
When the beneficiary was alive at execution but dies before testator.
What is a class gift?
A bequest to a group of people that are designated as a group and not as individuals.
What happens when the beneficiary is already dead when the will is executed?
The gift is void.
What if the residuary beneficiary predeceases the testator, who gets the beneficiary’s interest?
It passes to other residuary legatees.
What is an antilapse statute?
if devisee dies but leaves issue that survive the testator, and the testator doesn’t provide for alternative disposition, then that divisee’s gift passes to his issue not the residuary beneficiary under the will.
What are the four different classifications for distributions under a will?
1 specific
2 demonstrative
3 general
4 residuary
