Jenkins Rules Flashcards
Test of reasonableness for restraint on marriage.
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.
Invalid clause
A bad provision in a will does not invalidate the entire will, it will only invalidate the bad provision.
Destruction of property at death.
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.
What is the statute of limitations for probating a will?
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
When must a will be probated?
256.002 - after the testator dies.
What happens if a will cannot be found.
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.
What is included in Succession?
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.
What is a donee’s interest in property?
Donee’s interest in a future inheritance is mere expectancy and has no value in the present.
Public policy - will’s restraint on marriage
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.
Forced Succession
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.
freedom of disposition
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.
Confiscation by the state
Decedent’s property could be confiscated by the state on the theory that the decedent’s property rights terminate on death. Escheat.
Personal representative
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.
Purpose of probate administration
1 provides evidence of transfer of title
2 protects creditors by procuring payment for debts
3 distributes decedent’s property to those intended
property of estate
all property owned at the time of death or acquired after death belongs to the estate.
transferring property under a will
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.
when to probate
256.002 probate of a will of a living person is void
what must the application to probate contain
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
additional information for application if will can’t be found
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.
proof of execution of attested will
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
proof of execution of holographic will
2 witnesses testify it is the testator’s handwriting
can be testimony, affidavit or deposition
determination of death
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.
Rule for Simultaneous Death.
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.
Self proving affidavit
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.
