Other MEE Rules Flashcards
Simultaneous death and the term “surviving” (3.7% + 1.9%)
Simultaneous Death.
Under the initial version of the Uniform Simultaneous Death Act (USDA), where title to property depends upon priority of death, evidence of survivorship, no matter how brief in duration, is sufficient to establish a sequence of death.
Under the UPC and Revised Uniform Simultaneous Death Act (RUSDA), a beneficiary is only treated as having survived the testator if there is clear and convincing evidence that the beneficiary survived the testator by 120 hours (5 days).
“Surviving.” In most states, when the term “surviving” is used in a will, it requires the beneficiary to survive the date of distribution of the testator’s estate. However, some states only require the beneficiary to outlive the testator.
Integration of wills (1.9%)
Integration of documents usually arises when pages or portions of a will become separated. A document will be integrated into the will if:
(1) The testator intended the document to be part of the will; AND
(2) The document was physically present at the time of the will’s execution.
Facts of independent significance (1.9%)
A court may give effect to events that would change the disposition of a testator’s estate after the testator has executed his will IF those events have significance apart from a change in the testator’s testamentary scheme.
Devises to persons named in an unattested memorandum, not properly incorporated by reference, are invalid on the basis that the memorandum has NO independent significance apart from the will (e.g., The will states, “I leave my diamond wedding ring to the person designated in a memorandum that I shall leave in my safety deposit box.”)
Holographic codicils (3.7%)
In states that recognize holographic wills, a valid holographic codicil (i.e., handwritten and not witnessed) can
(1) alter, amend, or modify a valid attested will
(2) validate a will that was not originally valid because it failed to meet statutory requirements.
A valid holographic codicil revokes any earlier valid will to the extent it conflicts with the holographic codicil.
Revocation by divorce (3.7%)
In certain circumstances, dispositions made under a will are revoked by operation of law. At common law, divorce did NOT revoke a testator’s devise to a former spouse by operation of law. Today, a divorce revokes provisions in a will that devise property to the testator’s former spouse (usually also includes relatives of the former spouse) by operation of law UNLESS the will or court expressly provides otherwise. However, the devise may be revived if the spouses remarry.
If a provision in favor of the former spouse is revoked by operation of law, the devise passes as if the former spouse predeceased the testator.
Classification of devises (1.9%)
Specific Devises. A devise is specific if the subject matter of the devise is specific personal or real property (e.g., a devise of a specific diamond ring or parcel of land).
General Devises. A devise is general if it can be satisfied with any of the estate’s assets (e.g., a devise of a specific dollar amount is general, because it can be funded with cash or other property of equal value).
Demonstrative Devises. A devise is demonstrative if the testator makes a general devise AND specifies a specific source that the general devise should come from (e.g., a devise of a specific dollar amount that is payable from a designated bank account).
Exoneration (1.9%)
At common law, a specific devise of encumbered real property was entitled to have the mortgage on the property paid from the estate as a debt of the decedent. Today, a beneficiary of real property assumes the mortgage, regardless of a general directive in the will to pay debts.
Fraud (invalidating a will, or in inducement or execution of a will) (1.9%)
A will is invalid if the will reflects the testator’s belief in false information arising from another person’s fraudulent misrepresentation. To prevail in a will contest for fraud, the contestant must prove:
(1) A misrepresentation of a material fact was made to the testator;
(2) The misrepresentation was made to induce reliance by the testator; AND
(3) The testator relied on the misrepresentation in disposing of his property by will.
Fraud may occur in the inducement or execution of a will:
(1) Fraud in the inducement occurs when a person misrepresents a fact related to the instrument (usually regarding property or beneficiaries).
(2) Fraud in the execution occurs when a person misrepresents the contents or nature of the instrument executed by the testator.
Mistake and ambiguity (3.7%)
Mistake. If there is clear and convincing evidence of a mistake (e.g., testator mistakenly leaves out an intended clause, typographical errors, etc.), most courts will permit modification of a will to conform to the testator’s intent.
Ambiguity. If a will is ambiguous, courts allow extrinsic evidence to resolve the ambiguity (i.e., the facts and circumstances surrounding the execution of the will may be considered to resolve the ambiguous term).
No-contest clauses (1.9%)
The purpose of a no-contest clause is to discourage potential will contestants by forcing them to choose either:
(1) The gift bestowed to them in the will if no contest action is filed; OR
(2) Nothing if their contest action fails.
Majority: A no-contest clause is unenforceable IF probable cause exists for initiating the will contest action (i.e., contestant has a good faith and reasonable belief in challenging the will).
Minority: Some wholly enforce no-contest clauses while others strictly prohibit no-contest clauses as a matter of public policy.
Standing to contest (3.7%)
Generally, only those who have a pecuniary interest in an estate have standing to contest it. This includes any person who:
(1) Is a beneficiary of the will;
(2) Should be a beneficiary of the will; OR
(3) Would benefit if the decedent died without a will.
Inter vivos gifts (1.9%)
A gift inter vivos means that the gift is given by a living person to another living person. A valid transfer of property as an inter vivos gift occurs when:
(1) The donor has intent to make a gift;
(2) The donor delivers the gift; AND
(a) Actual delivery of property qualifies as valid delivery (e.g., physically handing the gift to the donee).
(b) Constructive and symbolic delivery of property (e.g., handing over the key to a safe that contains the gift) are valid methods of delivery if the subject matter of the gift cannot be physically delivered to the donee at the time the donor wishes to complete the gift.
(3) The donee accepts gift.
(a) Acceptance of an inter vivos gift is presumed if the subject matter of the gift is something of value.
Joint tenant bank accounts (1.9%)
Generally, a surviving joint tenant is entitled to the money in a joint bank account when the other joint tenant on the account dies (right of survivorship), UNLESS the account was set up merely for the convenience of the parties.
Creditors. Under the common law, the deceased joint tenant’s creditors have NO claim to the money in the joint bank account. Under the UPC, if a decedent’s estate is insufficient to pay the claims of creditors, the creditors’ claims to funds in the joint bank account are superior to the rights of the surviving joint tenant.
Totten trusts (1.9%)
A Totten trust is created when a person opens a bank account for himself as trustee for another. Absent clear and convincing evidence of a different intent, the trustee is the sole owner of the account throughout his lifetime. Upon the trustee’s death, the remaining funds pass to the designated beneficiary free and clear of the trust.
Totten trusts are revocable both by will (revocation must be made expressly clear) and during the trustee’s lifetime if the trustee:
(1) Withdraws all funds from the account; OR
(2) Delivers a signed revocation in writing to the bank naming a new beneficiary.
Life insurance (3.7%)
Life insurance is a contract made between a policyholder and an insurance company. Usually, life insurance contracts prohibit the change of a beneficiary under the policy by execution of a will. Most courts uphold such limitations that are set out in the insurance contract; however, some courts permit a policyholder to change a beneficiary by will if his insurance company does not object.
