MEE Wills Flashcards
When does property pass by intestacy?
Property may pass by intestate succession when:
(1) A decedent dies without having made a will or their will is denied probate (“total intestacy”)
(2) A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”).
Where does intestacy property pass if no spouse and no descendants?
The estate passes in the order below, proceeding down the list until takers are found:
(1) Parents or surviving parent;
(2) Brothers and sisters and their descendants;
(3) One-half to paternal grandparents and one-half to maternal grandparents and their descendants;
(4) One-half to nearest kin on maternal side and one-half to nearest kin on paternal side.
What law controls personal property in intestate succession? What about real property?
For personal property, we use the law of the decedent’s domicile at death.
For real property, we use the law of the situs of the property.
What is the rule for “interested witnesses”?
All states now provide that the will is still valid, but the bequest to the interested witness may be void under a “purging statute” unless they are supernumerary (excess of normal) or would have taken a share as an heir if the will had not been probated. Note that under the UPC, however, gifts to interested witnesses are not purged.
What is a “holographic will”?
A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses.
What can serve as a testator’s signature? Can there be a proxy signature?
Any mark made by the testator with the intent that it operate as their signature satisfies the signature requirement.
The testator’s signature may be made by another person at the testator’s direction and in their presence.
What are the requirements for witness signatures?
Most states require that the will be attested by two competent witnesses.
Must be present. To determine when a person is in another’s presence, most courts use the “conscious presence” test. Under this test, the presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance
of the other parties.
What is integration?
The person probating the will must be able to show that the pages present at the time of execution are those present at the time of probate. Physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed.
What is testamentary intent?
The testator must have present intent that the instrument operate as their will.
What happens to foreign wills?
Most states and the UPC have a “savings statute,” that is, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of:
(1) That jurisdiction,
(2) The state where the will was executed,
(3) The testator’s domicile at the time of the will’s execution, or
(4) The testator’s domicile at death.
What are the requirements for incorporation by reference? What is the exception?
(1) The will manifests an intent to incorporate the document
(2) The document is in existence at the time the will is executed; and
(3) The document is sufficiently described in the will.
Exception: Many states permit a testator to refer in their will to a list specifying the distribution of items of tangible personal property and to write or alter that list after executing the will.
What is a codicil?
A codicil modifies a previously executed will and must itself be executed with the same formalities. Under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution. This date may be important, for example, for purposes of determining whether a child was born after the will’s execution for purposes of the pretermitted child statute.
Can a codicil validate a prior invalid will?
A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will.
What is an “Act or Fact of Independent Significance”?
A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will. However,the law may require certain items represented by title documents to be transferred in a particular manner such as real property, stock certificates, and bank accounts. Acts of third persons, as well as those of the testator, can be used under this doctrine.
What is “dependent relative revocation”?
The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will. Ask yourself:
(1) Was the revocation of Will 1 impliedly conditioned on the validity of Will 2?
(2) Would Testator have preferred Will 1 over intestacy?
The more similar the wills, the more likely DRR.
Is partial revocation by physical act permissable?
Most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes. Extrinsic evidence is admissible to determine whether a partial or total revocation was intended.
Can a will be revoked by physical act?
Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke.
Can a will be revoked by a subsequent instrument?
All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will.
Can be express revocation or revocation by inconsistency.
What happens to a will in the case of a divorce?
In most states, divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. (In some states this extends to spouse’s family).
What are the different methods to figuring out if a will may be revived?
(1) Look at Testator’s Intent (UPC approach);
(2) Automatic Revival (Revoke was revoked prior to death);
(3) No Revival Approach.
What are some grounds for challenging a will?
(1) Defective execution,
(2) Revocation,
(3) Lack of testamentary capacity,
(4) Lack of testamentary intent,
(5) Undue influence or duress,
(6) Fraud, and
(7) Mistake.
What is the majority and minority rule for “no contest” clauses?
Majority Rule—No Forfeiture If Probable Cause for Contesting Will
Minority Rule—No-Contest Clause Given Full Effect
What happens in the case of a lapse of a residuary gift?
Most states have replaced the “no residue of a residue” rule with one allowing the surviving residuary beneficiaries to divide the share in proportion to their interests in the residue.
Who gets to share in a class gift?
If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met.
