MEE - Wills Flashcards
*What is required for a will to be valid?
For a will to be valid, the testator must meet the formal requirements of due execution imposed by the statutes of the state. Most states require that the will be signed by the testator and two winless, who must sign in the testator’s presence. The UPC and a majority of states also recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator.
Scope of vision test
Conscious presence test
*What is an interested witness?
An interested witness stands to benefit under the will.
Common Law: At common law, entire will could not be probated. This has been abolished in every state.
Modern Rule: A will is valid but the gift to the interested witness is void. There are exceptions: If there were two other witness who were disinterested, or the interested witness would take if there was no will. Under the UPC, an interested witness has no effect on probate of will.
*What is a codicil?
A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will. A will is treated as having been executed (republished) on the date of the last validly executed codicil.
*What is incorporation by reference?
In most states, a document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will. To incorporate a document by reference: (1) the document must be in existence at the time the will was executed, (2) the language of the will must sufficiently describe the writing to permit its identification, and (3) the will must manifest an intention to incorporate the document.
In addition, for the disposition of items of personal property, many states and the UPC dispense with the requirement that the document be in existence at the time the will is executed if the writing is signed by the testator and the items and devisees are described with reasonable certainty.
*What is a slayer statute?
Under intestacy statutes, the portion of the estate not passing to the surviving spouse passes to the decedent’s children and descendants of deceased children. Parents and collateral kin never inherit if the decedent is survived by children or more remote decedents. One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the decedent. The slayer statutes apply only when the heir kills the decedent whose estate is at issue. They do not apply to bar someone from taking a share of an estate because she killed another person- even if that person is the source of the decedent’s property.
*What is the doctrine of ademption?
Under the doctrine of ademption, a gift of specific property in a will fails if it is no longer in the testator’s estate at death. The specificity is important, ademption only occurs with specific gifts that are satisfied only by giving the actual described property. Most courts decide the ademption issue solely on the basis of an objective test - whether the specifically bequeathed property is part of the testator’s estate at death - and do not consider intent. For purposes of stock splits and dividends, most courts consider all bequests of stock to be specific bequests.
Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend. Under the UPC and the statutes of nearly all states, a specific bequest of stock includes stock dividends.
Ademption is not applicable to general or demonstrative devises. A general devise is a gift of a dollar amount payable from the estate’s assets. A demonstrative devise is a gift of general amount that identifies some asset as a source of the payment (certain stock holding. Where a general or demonstrative device fails, the estate generally must sell off the other property to satisfy the gift.
In Intent theory states, deemed gifts may be saved if evidence establishes that ademption would be inconsistent with testator’s intent.
*What is revocation by operation of law?
If a testator is divorced after making a will, all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator.
If a person is married after executing a will, there is no effect on the existing will.
However, under the UPC, where a person marries after executing a will and the spouse survives the testator, the omitted spouse will take a share of decent’s estate equivalent to what their intestate share would be. This does not apply if the will provides for the omitted spouse, was made in contemplation of marriage, or the testator makes clear that omission was intentional.
Most states give pretermitted children a share of testers estate equal to what they would have received through intestate succession.
*What is revocation by the testator?
A person who has testamentary capacity to make a valid will can revoke a will at any time before death.
Revocation by written instrument: A will or any part of it can be revoked or changed as long as there is: (1) Intent, and (2) the instrument revoking the will is made inconformity with the same formalities required for will execution.
Revocation by physical act: A will may be revoked in most states by burning, tearing, or otherwise destroying the will. The testator must intend to revoke the will at the time of the physical act. A person other than the testator may revoke the will by physical act if done at testator’s direction and in testator’s presence.
*What is intestate succession?
Intestate succession is the statutory method of distributing assets that are not disposed of by will. If a decedent’s will is denied probate, his entire estate passes by intestacy. If there is no surviving spouse, the entire estate passes to the decedent’s children and descendants of deceased children.
Per Stirpes: Under the common law strict per stripes distribution, one share passes to each child of the decedent, regardless of whether there are any living takers at that level. If the child is deceased, that child’s share passes to his descendants by representation.
Per Capita with Representation: In most states, the issue take per capita with representation whereby the property is divided into equal shares at the first generational level at which there are living takers, with the shares of each deceased person at that level passing to his issue by right of representation.
Per Capita at Each Generational Level: Under per capita at each generational level scheme, the initial division of shares is made a the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.
*What is Per Capita Intestate Distribution?
When decedent’s estate does not pass to her surviving spouse, but instead to her descendants, statutes control how distributions are made using one of two approaches:
(1) Per capita with representation (Modern Per Stirpes) - Majority. Here the property is divided at first generation with living takers. Each living person takes a share and each share of a deceased person at that level passes to her descendants.
(2) Per capita at each generation - UPC and growing number of states. Under this scheme, property is divided at the first generation with living takers, but shares of deceased are combined and divided equally among takers at the next level.
*What is a holographic will?
A holographic will is a handwritten, unwitnessed will. This is not recognized in some states, but where it is the following requirements must be met: (1) it must be in the testator’s handwriting, though some states allow some typed text if it is immaterial to the overall will, (2) it must be signed by the testator, and (3) the will must reflect the testator’s intent to make a will.
If there is a valid holographic will, it may replace and revoke a prior valid will.
Oral wills are not permitted in most states.
*What are non-probate transfers?
Life insurance proceeds are a non-probate assets and pass to the beneficiary outside of the estate. A life insurance policy is a contract, and the disposition of the proceeds is governed by the terms of the contract. Most life insurance policies, like the one here, provide that a change in beneficiaries can be made only by notifying the company during the owner’s lifetime. A will cannot change the beneficiary desgnation unless the terms of the contract permit it.
A Joint bank account goes to the surviving joint tenant. Arises when an account is in the name of two or more people with the right of survivorship.
*What is a Lapse and what are anti-lapse statutes?
A gift provided for in a will lapses where the beneficiary predeceases the testator. Absent application of an anti-lapse statute, the gift will go back into the residue of the estate.
Anti-Lapse Statute: An anti-lapse statute provides that a gift that would otherwise lapse vests in the predeceased beneficiary’s descendants, who becomes substitutes. The lapsed gift will be saved if the predeceased beneficiary was (1) a relative of the testator (usually descendants only), and (2) had descendants.
Residuary: At common law and in some states, if a testator’s residuary estate is bequeathed to two more more beneficiaries and one of the beneficiaries’ shares lapse, that share does not pass to the remaining beneficiaries, but instead falls out of the will and passes by intestacy. However, most states have replaced this rule by statute, under which the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue.
Class gifts: If the will provides for a class gift, and a class member predeceases testator, the surviving class members take the predeceased’s gift absent an alternative provision to the contrary. However if an anti-lapse statute applies to the gift, then the gift vests in the predeceased’s descendants.
Generally, the word “children” in a will is interpreted consistently with the definition of the world children determining rights to intestate succession. An adopted child is considered a natural child of his adopting parents. All states permit non marital children to inherit from their mothers, and most states permit inheritance from the father if paternity is established.
*What is the abatement of a gift?
Where an estate’s value is insufficient to pay its obligations and provide for disposition of property under a will, it must reduce (abate) gifts in order to pay the obligations and satisfy some bequests and devices.
Barring the will describing the order of abatement, he following is the order of abatement:
(1) Property not deposed of by will (passing under intestacy,
(2) residuary estate
(3) General devises (abate pro rata)
(4) Specific devises and bequests.
*What effect does undue influence and fraud play on the validity of a will?
Undue Influence: A will or gift in a will is invalid if it is obtained through the exercise of undue influence. To establish undue influence, the contestants, who have the burden of proof, bust establish that: (1) influence was exerted on the testator, (2) the effect of the influence was to overpower the mind and free will of the testator, and (3) the product of the influence was a will that would not have been executed but for the influence.
A presumption of undue influence arises when: (1) a confidential relationship existed between the testator and the beneficiary who was alleged to have exercised undue influence, (2) the beneficiary participated in procuring or drafting the will, and (3) the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence.
A will is void if its execution is procured by undue influence. If only a part of the will was so procured, only that part is void, and the remainder of the will is given effect.
Fraud: Fraud occurs where a will or one or more of its provisions are the result of fraud, the will or the provision becomes invalid. Requires: (1) Testator has been intentionally deceived as to: (a) the character or content of the will or its provisions, and/or (b) Facts extrinsic to the will that would induce the will or a particular provision or disposition of the will, (2) Testator acted in reliance on the misrepresentation.
