MEE Essentials: Wills + Estates

Question 1

When decedent’s parents and spouse are dead, what are two schemes to divide property among children?

Answer 1

1) per capita at each generation (all cousins treated alike)

2) per capita with representation (child takes his parent’s share)

Question 2

Steps for per capita at each generation

Answer 2

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

Question 3

Steps for per capita with representation

Answer 3

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)

Question 4

When no spouse or children, two methods to determine heirship

Answer 4

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)

Question 5

Who is CHILD for purpose of intestate succession?

Answer 5

-Adopted
-born out of wedlock
-half-bloods

NOT stepchildren

Question 6

Advancements at common law

Answer 6

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

Question 7

advancements at majority law

Answer 7

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

Question 8

Ademption by satisfaction (advancement under UPC)

Answer 8

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

Question 9

Does advancement doctrine exist for wills, intestate succession, or both?

Answer 9

ONLY intestate succession

Question 10

General state requirements for valid will + testator requirements

Answer 10

1) in writing
2) signed by testator (any mark okay)
3) witnessed by two witnesses

Testator must be 18 or older + have PRESENT INTENT

Question 11

Holographic will requirements

Answer 11

1) Unwitnessed
2) signed
3) MATERIAL portions in testator’s handwriting (UPC/majority rule)

Recognized by about 1/2 of states

Question 12

Dispensing power

Answer 12

UPC adopts dispensing power to allow court to validate a will upon CLEAR AND CONVINCING EVIDENCE that testator intended it to be will

Question 13

Incorporation by reference

Answer 13

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

Question 14

Right of testator to dispose of tangible personal property

Answer 14

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

Question 15

Revocation by physical act

Answer 15

-must be done with INTENT OT REVOKE
-can be done by third party if by direction of testator and in testator’s conscious presence

Question 16

Dependent relative revocation

Answer 16

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

Question 17

Effect of divorce on will

Answer 17

Divorce REVOKES gifts in favor of spouse

Requires actual divorce or annulment, NOT just filing

Question 18

What happens if beneficiary is not alive?

Answer 18

General rule: gift lapses or falls into residuary UNLESS anti-lapse statute

Question 19

Anti-lapse statute rule

Answer 19

If beneficiary dies before testator and was RELATED BY BLOOD and HAD ISSUE who survived, the gift is SAVED and ISSUE WILL TAKE

Question 20

Slayer statute

Answer 20

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)

Question 21

What happens under ademption?

Answer 21

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

Question 22

Disclaimed gifts

Answer 22

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

Question 23

Abatement

Answer 23

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

Question 24

Usual correct answer when undue influence and mental capacity are tested?

Answer 24

Testator ALMOST ALWAYS has capacity and there was NOT undue influence

Question 25

Mental capacity test

Answer 25

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)

Question 26

Undue influence test

Answer 26

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

Question 27

If undue influence test succeeds, will court invalidate entire will?

Answer 27

No, only INFECTED portions