MEE - Wills

Question 1

Intestacy

Answer 1

A person who dies without a will dies intestate and their belongings are divided according to applicable rules of intestacy

Question 2

Survived by spouse and descendants

Answer 2

1/2 goes to spouse, remainder goes to descendants. Under UPC, if descendants offspring of surviving spouse, all goes to spouse

Question 3

Children for the purposes of intestacy laws

Answer 3

Children are all adopted children, children born out of wedlock are considered to be the children of the mother, but not the father unless he marries the mother or paternity is established via independent means. Step children and foster children are not children unless adoption by estoppel is proved

Question 4

Survived only by descendants

Answer 4

If the decedent is not survived by a spouse the descendants take all

Question 5

Not survived by a spouse or descendants

Answer 5

In this case, the decedents parents, siblings, nieces/nephews etc will take going down the line of the family tree until there is a taker

Question 6

Slayer statutes

Answer 6

A beneficiary who has killed the decedent will be disinherited. The issue becomes more complicated if there is no conviction to prove the killing or the killing was not intentional. Most states will disinherit where the killing was unlawful / intentional

Question 7

Disclaimer by beneficiary

Answer 7

A beneficiary may disclaim a bequest
1/ In writing
2/ Irrevocable
3/ Notarised by notary public
4/ Within 9 months of the gift (or 9 months of turning 18)
* Beneficiary will be estopped from disclaiming if they’ve made use of the property

Question 8

Effect of disclaimer

Answer 8

An effective disclaimer will act as if the disclaiming predeceased the beneficiary. This means that the gift will go to intestacy / residuary estate of the testator or the beneficiary’s substitutes or beneficiaries if the state has a Anti Lapse statute and depending on the words of the statute

Question 9

Advancements

Answer 9

An advancement made during the testator’s life will reduce a beneficiary’s rights upon intestacy / death. However, the modern view will only treat such gifts as advancements (i) if the decedent said it was an advancement in a writing or (ii) the heir/beneficiary acknowledged it as an advancement

Question 10

Formal requirements of a will

Answer 10

1/ Has to be made by someone over 18 years old
2/ Has to have been made with testamentary capacity (knowledge of property, people, the act)
3/ Has to have the intention to bequeath
4/ Has to comply with writing and witnessing formalities

Question 11

Testamentary capacity?

Answer 11

Testamentary capacity is PRESUMED. The testator has to have had capacity AT THE TIME OF THE EXECUTION - but circumstantial evidence of capacity around the time is admissible. What must be proved is:
1/ that the testator knew the act
2/ the testator knew the people
3/ the testator knew the property and knew all these factors at once

Question 12

Testamentary intent?

Answer 12

Intention to devise via a will, generally presumed through boilerplate language like “I declare this to be my will and testament.” However, extrinsic evidence may disprove the intent such as a note attached which says “I do not intend this to be my will” may disprove the intention

Question 13

Writing (for wills)

Answer 13

Wills have to be in writing; can be an informal writing. Some states allow e-wills but not all do

Question 14

Signed and witnessed (wills)

Answer 14

Wills have to be signed by the testator and 2 uninterested witnesses. The order of the signing is not relevant so long as they were made in one contemporaneous transaction

Question 15

, Conscious presence theory

Answer 15

Requires that witnesses are aware of each other and aware that the testator is signing the will. [Note: witnesses via videoconference does not satisfy this test].

Question 16

Scope of vision theory

Answer 16

Requires that the witnesses are aware that they’re signing a will and could have noticed each other had they looked. [Note: witnesses via videoconference does not satisfy this test].

Question 17

Witness capacity?

Answer 17

Some states require that a. witness be 18, other states require that the witness sue “mature enough”

Question 18

Interested beneficiaries

Answer 18

Under the traditional COMMON LAW VIEW, a witness who stood to to gain from the will could not witness and their signature would invalidate the will in its entirety (unless there were 2 additional uninterested witnesses)
Under the MODERN VIEW, a signature by a witness who stands to gain will not invalidate the whole will however the beneficiary’s interest will be purged unless there are 2 uninterested witnesses OR the beneficiary would have benefited in intestacy in any event.
Under the UPC, the beneficiary’s interest will not be purged

Question 19

Affidavit by testator

Answer 19

An affidavit by a testator can recite execution of the will, works as a deposition and saves having to call everyone back, witness signatures on affidavit can function as witness signatures on the will

Question 20

Codicil

Answer 20

A codicil is a will amendment or modification. To be valid, it has to satisfy the usual formalities of a will (1/ testamentary capacity, 2/ testamentary intent, 3/ legal capacity and 4/ writing and witnessing requirements). Where a codicil is effectively executed, the will is treated as being republished on that day

Question 21

Holographic will

Answer 21

A holographic will is wholly or partially handwritten by the testator. The requirements of a holographic will are:
1/ that it be in the testator’s handwriting - in whole or in part
2/ that it be signed by the testator
3/ that it evince an intention to create a will

Question 22

Holographic codicil

Answer 22

A holographic codicil is where the testator’s amendments are handwritten over an existing, typed, will. In some states that do not recognise holographic wills, handwriting over an existing will will act as a revocation of the previous will.

Question 23

Ademption

Answer 23

A specific testamentary gift will have been deemed if it is disposed of during the testator’s life time. The doctrine of ademption does not apply to general gifts and demonstrative devises

Question 24

Ademption through inter vivos transfer

Answer 24

For a gift to be adeemed through inter vivos transfer, the gift has to be in writing and there has to be specific instructions in the will for the ademption.
The UPC has more flexible requirements: 1/ testator can provide for satisfaction in his will OR 2/ There is a contemporaneous writing OR 3/ the beneficiary acknowledges in a wiring that the gift is adeemed

Question 25

Exceptions to ademption (intention theory, identity theory & UPC)

Answer 25

Under the INTENTION THEORY, the court will look to se if the testator intended to gift property that replaced the adeemed property.
Under the IDENTITY THEORY, the court will not substitute replacement property for the adeemed gift.
Under the UPC, the court will always trace the adeemed gift to replacement property

Question 26

Exceptions to ademption (insurance payout & conservator)

Answer 26

The beneficiary will receive an insurance payout that was paid out after death in respect of the adeemed property.
The beneficiary will receive the proceeds of the adeemed gift if the gift is adeemed via a sale from the tesator’s guardian / conservator

Question 27

Exoneration

Answer 27

Exoneration means that the beneficiary is entitled to property free of encumbrances and mortgages. In the majority of states, exoneration is not implied and must be stated expressly

Question 28

Abatement

Answer 28

Where a state is insufficient to pay its obligations and provide for a disposition under a will, the gifts under the will will be abated or reduced. Unless the will provides otherwise, the order of abatement is:
1/ gifts that passed through to intestacy 2/ general gifts 3/ demonstrative gifts 4/ specific gifts

Question 29

Anti Lapse Statutes

Answer 29

Where a beneficiary predeceases the testator, the gift lapses and goes to the estate in insolvency (traditional view) or to the residuary estate (modern view). Where there is an anti lapse statute, the gift is saved where the there is no condition that the beneficiary survive the testator and the beneficiary is related to the testator (spouses are not relations).

Typically, the gift goes to the predeceased beneficiary’s decedents (as substitutes) but some statutes transfer the gift to the predeceased beneficiary’s beneficiaries.

Question 30

Class gifts

Answer 30

If a gift is made to a class and some members of the class predecease, the remainder will take the gift. Unless, the predeceased beneficiaries are relatives of the testator in which case the anti lapse state would save the gift

Question 31

Integration (interpretation)

Answer 31

A document will be integrated to the will where it was present when the will was signed and the testator intended it to be part of the will. These requirements will be presumed if the will was stapled, page numbered or where, read together, it evinces an orderly disposition of assets

Question 32

Incorporation by reference (interpretation)

Answer 32

Documents extrinsic to the will may be incorporated where they exist at the time of execution of the will and they are sufficiently identifiable

Question 33

Acts of independent significance

Answer 33

Acts of independent significance after the death of the testator may assist in identifying the beneficiaries or the property

Question 34

Mistake

Answer 34

Where there is a mistake on the face of the document, it can be reformed

Question 35

Increases / decreases in property

Answer 35

Increases and decreases to property are generally not relevant. Appreciation in real property goes to the beneficiary devised the property whereas rents go to the estate. Stock splits - the stock split goes to the beneficiary of the estate; whereas, if the split is the result of a dividend it goes to the residuary / estate.

Question 36

Contractual wills

Answer 36

Agreement to make, not make or revoke a will. Enforceable and governed by contract law. Most states require the will to be in writing. UPC requires EITHER: 1/ the contract be in writing 2/ the will refer to the contract and its contents 3/ there is a signed document by the decedent showing the contract

Question 37

Contractual wills (remedies)

Answer 37

Often the remedy is a constructive trust over the property the aggrieved party says should have been theirs

Question 38

Contractual wills (alternatives)

Answer 38

1/ Part performance 2/ Quantum meruit 3/ Equitable estoppel

Question 39

Joint wills (single document)

Answer 39

Joint wills are executed between two or more people; revocation by one will not revoke the will by the other

Question 40

Omitted spouse (revocation of wills)

Answer 40

A marriage subsequent to the will typically has no effect on the will.

However, under the UPC, an omitted spouse is entitled to their intestate share unless the will was executed in contemplation of marriage or the spouse was otherwise addressed in the will or the will shows an intention not to include the spouse.

Question 41

Divorce (revocation of wills)

Answer 41

A divorce revokes a will as to the divorced spouse and the revocation acts as if the divorced spouse predeceased the testator. However, under the common law, the divorce does not revoke for relatives of the divorced child (like step children).

Under the UPC, a divorce revokes against the divorced spouse as well as their relatives / children.

Question 42

Pretermitted children

Answer 42

Pretermitted children are born OR ADOPTED after the will is executed. Most states give pretermitted children a share they would have in intestacy.

Question 43

Revocation by testator in writing

Answer 43

A testator can revoke a will in a writing. A will can be revoked in WHOLE or in PART. An effective revocation in writing must comply with all the will requirements (1/ must be in writing 2/ testator must have legal capacity 3/ testator must have testamentary capacity (with respect to the act, property, people) 4/must be witnessed by 2 uninterested witnesses).

Question 44

Revocation by testator by physical act

Answer 44

A testator may revoke a will by physically destroying it, provided that the intention is to destroy or revoke the will. Under the common law, the revocation must affect/destroy the words of the will. Under the UPC, the words of the will need not be obscured (revocation can occur by attaching a note to that effect to the will).

Question 45

Revival where revocation revoked

Answer 45

Some states presume that a will will revive where the revocation is itself revoked, However, the presumption can be rebutted If there is evidence that the testator intended to die intestate

Question 46

Revival where revocation instrument invalid

Answer 46

If the will is revoked by an instrument that is itself invalid, the doctrine of dependent relative revocation applies to determine whether the old will revokes or whether the testator dies intestate. the answer will depend on whether, via the old will and the invalid revocation, the testator can be said to have preferred intestacy or not (i.e. was he trying to avoid giving to his children)

Question 47

Standing (will contests)

Answer 47

A beneficiary, someone who believes they should be beneficiary or someone that would have received in intestacy has standing to challenge a will

Question 48

No contest clause (will contests)

Answer 48

Minority view - enforced in full, disinheriting the contester
Majority view - contester will not be disinherited where it can be shown that the contester had (i) good faith (ii) probable clause, to wage the challenge

Question 49

Undue influence (will contests)

Answer 49

A will will be invalidated if it was procured by undue influence which exists where the testator’s will was overpowered by another. Undue influence will be presumed where there is a (i) confidential relationship between the defendant and the testator and (ii) the defendant procures the writing / preparation of the will.

Question 50

Fraud (will contests)

Answer 50

To establish fraud, the plaintiff will need to prove that the will was procured by fraud in either that the testator did not know that they were signing a will or that a fraudulent representation was made to induce execution of the will (cf. negligent misrepresentation is not enough).