Jenkins Rules

Question 1

Test of reasonableness for restraint on marriage.

Answer 1

Restraint is invalid as unreasonable if a marriage permitted by the restraint is not likely to occur. The likelihood of marriage is a factual question, to be answered from the circumstances of the case.

Question 2

Invalid clause

Answer 2

A bad provision in a will does not invalidate the entire will, it will only invalidate the bad provision.

Question 3

Destruction of property at death.

Answer 3

Before ordering a property destroyed pursuant to the will, the court will weigh the motivation and the social utility of the destruction against the value to society of the resource.

Question 4

What is the statute of limitations for probating a will?

Answer 4

256.003 - 4 years unless an applicant can prove they are not in default for failing to probate. A purchaser or property has clear title if he purchases in good faith and property is not claimed within 4 years or decedent’s death

Question 5

When must a will be probated?

Answer 5

256.002 - after the testator dies.

Question 6

What happens if a will cannot be found.

Answer 6

If a will can’t be found there is a presumption of revocation if the testator was the last one to possess the will. If someone else was the last one to have the will there is no presumption of revocation. To overcome the presumption person must state:
reason it can’t be produced
the contents of the will
his relationship to testator
a list of devisees
a list of persons who would inherit under statute.

Question 7

What is included in Succession?

Answer 7

it includes the law of wills, the law of intestacy, the law of trusts, the law of charitable foundations, the law concerning death taxes and even the law of future interests.

Question 8

What is a donee’s interest in property?

Answer 8

Donee’s interest in a future inheritance is mere expectancy and has no value in the present.

Question 9

Public policy - will’s restraint on marriage

Answer 9

the rule against a will or trust provision that imposes an unreasonable restraint on marriage is a specific application of the more general rule against conditions that are contrary to public policy.

Question 10

Forced Succession

Answer 10

the decedent’s property could pass by mandatory or force succession, such as a rule that provides for primogeniture or succession to a spouse, children or other dependents or kin.

Question 11

freedom of disposition

Answer 11

The decedent’s property could pass in accordance with the decedent’s declared wishes if they are reliably preserved, or if not, then in accordance with a default system of succession that tracks the probable intent of a typical decedent.

Question 12

Confiscation by the state

Answer 12

Decedent’s property could be confiscated by the state on the theory that the decedent’s property rights terminate on death. Escheat.

Question 13

Personal representative

Answer 13

a fiduciary who collects and inventories the property of the decedent, manages and protects the property during administration of the estate, processes the claims of creditors, files federal and state tax returns, and distributes property to those entitled.

Question 14

Purpose of probate administration

Answer 14

1 provides evidence of transfer of title
2 protects creditors by procuring payment for debts
3 distributes decedent’s property to those intended

Question 15

property of estate

Answer 15

all property owned at the time of death or acquired after death belongs to the estate.

Question 16

transferring property under a will

Answer 16

256.001 A will is not effective to prove title of any property disposed of by the will until the will is admitted to probate.

Question 17

when to probate

Answer 17

256.002 probate of a will of a living person is void

Question 18

what must the application to probate contain

Answer 18

1 name domicile and last 3 numbers of license or social of each applicant
2 fact date and place of death
3 facts proving venue
4 statement of property
5 date of will
6 contact for executor
7 names of witness of will
8 names of children born or adopted after will signed
9 if marriage dissolved after execution
10 state, gov agency or charitable organization named in will
11 executor is qualified
12 reason for any missing information

Question 19

additional information for application if will can’t be found

Answer 19

1 reason will can’t be produced
2 contents of will if known
3 address and relation of devisees or heirs who would inherit in intestacy.

Question 20

proof of execution of attested will

Answer 20

1 sworn testimony of affidavit
2 deposition testimony
3 testimony that it is deceased witness’s signature
4 court satisfied effort was made to find witness

Question 21

proof of execution of holographic will

Answer 21

2 witnesses testify it is the testator’s handwriting

can be testimony, affidavit or deposition

Question 22

determination of death

Answer 22

454.001 if there is no direct evidence the person is death, the court can determine the fact, time, and place of a person’s death.

Question 23

Rule for Simultaneous Death.

Answer 23

Claimant must live 120 hours (5 days) longer than deceased. It must be proved by clear and convincing evidence or it presumed they died at the same time.

Question 24

Self proving affidavit

Answer 24

A self proving affidavit is prima facia evidence of the testator’s capacity. It shifts the burden to the challenger to prove there was no capacity at the time of execution.

Question 25

What is the harmless error rule?

Answer 25

when the document is not executed in compliance with the rule it is treated as if it had met the rule if the evidence shows testator intended it to be his will.

Question 26

Are preprinted will forms valid in Texas?

Answer 26

only if the material provisions are in the testator’s handwriting. If the handwritten parts can stand independently it is considered a valid will.

Question 27

Are there special formalities for a codicil?

Answer 27

No they are the same formalities as the ones for wills or holographic wills depending on they type of codicil.

Question 28

What is presumed when there is a conditional will?

Answer 28

it is presumed the language of the condition is not meant to be a condition but rather a statement of inducement for making the will.

Question 29

What are the requirements for a self-proving affidavit?

Answer 29

it must be signed by testator and witnesses before a notary. Must be signed at the same time as the will and attached to the will.

Question 30

rule for integration

Answer 30

All papers that are present at the time of execution and are intended to be part of the will are treated as part of the will.

Question 31

rule for republication by codicil

Answer 31

A validly executed will is treated as re-executed as oft he day of the codicil. The will is treated that way even if it’s not stated in the codicil.

Question 32

rule for incorporation by reference.

Answer 32

Texas allows for a writing that was in existence but not present at the time of execution and that was not itself executed with testamentary formalities to be absorbed into the will.

Question 33

Rule for duress

Answer 33

When the wrongdoer threatens to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Question 34

Constructive Trust rule.

Answer 34

The formula thru which the conscious of equity finds expression.
An equitable remedy used by the court to take the money from the wrongdoer and give it to the deserving party.

Question 35

Plain meaning rule.

Answer 35

Plain meaning may be admitted to resolve certain ambiguities but the plain meaning of the words of a will cannot e disturbed by evidence that the testator intended another meaning

Question 36

Duty of prudence rule

Answer 36

trustee shall administer trust as a prudent person would, considering purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill and caution.