MEE Essentials: Wills + Estates Flashcards
When decedent’s parents and spouse are dead, what are two schemes to divide property among children?
1) per capita at each generation (all cousins treated alike)
2) per capita with representation (child takes his parent’s share)
Steps for per capita at each generation
1) find first generation with issue LIVING
2) give one share to each living person and one share for each person who died BUT LEFT ISSUE SURVIVING
3) combined shares belonging to deceased people and distribute them EQUALLY
Steps for per capita with representation
1) first gen with issue LIVING
2) give one share to each living person and to each person who died BUT LEFT ISSUE SURVIVING
3) BUT NOW: pass deceased shares DIRECTLY TO HER ISSUE
(cousins not treated equally)
When no spouse or children, two methods to determine heirship
1) COSANGUINITY (common law): all people with same DEGREE of blood relationship take EQUAL shares (e.g. uncle and niece)
2) PARENTELIC (UPC): descendants of decedent’s PARENTS take to EXCLUSION of descendants of GRANDPARENTS (e.g. younger gen takes–niece is heir but uncle is not)
Who is CHILD for purpose of intestate succession?
-Adopted
-born out of wedlock
-half-bloods
NOT stepchildren
Advancements at common law
lifetime transfer is PRESUMPTIVELY part of intestate share and is TAKEN INTO ACCOUNT
Originally only for gifts to CHILDREN, but most states broadened to ANY HEIR
advancements at majority law
Lifetime transfer is presumed to be GIFT and is IGNORED in computing intestate share UNLESS there is EVIDENCE that decedent INTENDED for it to be advancement
Ademption by satisfaction (advancement under UPC)
Lifetime gift NOT prepayment UNLESS
1) will says it is
2) testator declares in CONTEMPORANEOUS writing that gift should be DEDUCTED
3) devisee ACKNOWLEDGES in WRITING that gift is in SATISFACTION
Does advancement doctrine exist for wills, intestate succession, or both?
ONLY intestate succession
General state requirements for valid will + testator requirements
1) in writing
2) signed by testator (any mark okay)
3) witnessed by two witnesses
Testator must be 18 or older + have PRESENT INTENT
Holographic will requirements
1) Unwitnessed
2) signed
3) MATERIAL portions in testator’s handwriting (UPC/majority rule)
Recognized by about 1/2 of states
Dispensing power
UPC adopts dispensing power to allow court to validate a will upon CLEAR AND CONVINCING EVIDENCE that testator intended it to be will
Incorporation by reference
Writing may be incorporated into will if the will
1) MANIFESTS INTENT to incorporate writing and
2) writing IDENTIFIED with reasonable certainty and
3) writing EXISTS at time will is executed
Right of testator to dispose of tangible personal property
UPC/some states give testator right to dispose of tangible personal property by SIGNED MEMORANDUM
even AFTER execution of will
even if DOES NOT COMPLY with formalities of will
Revocation by physical act
-must be done with INTENT OT REVOKE
-can be done by third party if by direction of testator and in testator’s conscious presence
Dependent relative revocation
A first will is NOT revoked if later will is found INVALID
if testator revokes valid will based on MISTAKEN ASSUMPTION of law or fact, revocation INEFFECTIVE if it appears testator would not have revoked if he had ACCURATE INFORMATION
Effect of divorce on will
Divorce REVOKES gifts in favor of spouse
Requires actual divorce or annulment, NOT just filing
What happens if beneficiary is not alive?
General rule: gift lapses or falls into residuary UNLESS anti-lapse statute
Anti-lapse statute rule
If beneficiary dies before testator and was RELATED BY BLOOD and HAD ISSUE who survived, the gift is SAVED and ISSUE WILL TAKE
Slayer statute
A person who FELONIOUSLY and INTENTIONALLY kills D or abuse/neglects/exploits them forfeits all benefits (including intestate/elective share)
Voluntary manslaughter counts, involuntary manslaughter does NOT
Does not bar gift if person kills someone OTHER THAN DECEDENT (e.g. if you kill testator’s brother, can still collect)
What happens under ademption?
When specific gift no longer in estate at time of death, it fails
BUT many statutes allow testator to replace property OR allow beneficiary to collect payment/insurance proceeds
Disclaimed gifts
A beneficiary can disclaim property, and gift will pass as if disclaiming person predeceased testator.
Anti-lapse statute MAY apply, otherwise gift will fall to residuary
Abatement
When assets of estate cannot satisfy all gifts, beneficiaries will be reduced in accordance with following hierarchy: intestate property, residuary gifts, general gifts, and specific gifts
Usual correct answer when undue influence and mental capacity are tested?
Testator ALMOST ALWAYS has capacity and there was NOT undue influence
Mental capacity test
Testator must have capacity, burden is on proponent to show otherwise
Requirements:
1) WHAT (nature and extent of property)
2) WHO (persons who are natural objects of bounty)
3) WHY (nature of instrument being signed)
4) HOW (disposition being made in will)
Undue influence test
When wrongdoing OVERCOMES TESTATOR’S FREE WILL and causes him to make a gift he WOULD NOT HAVE OTHERWISE MADE
Must show SODA
1) SUSCEPTIBLE to undue influence
2) OPPORTUNITY for party to exert undue influence
3) DISPOSITION to exert undue influence
4) APPEARS that will is product of undue influence
If undue influence test succeeds, will court invalidate entire will?
No, only INFECTED portions
