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Wills > Outline > Flashcards

Outline Flashcards

1
Q

Real property applicable law?
Personal property applicable law?

A

Personal property - domicile
Real Property - situs

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2
Q

Intestate Share of Surviving Spouse - Common Law

A

Eliminated

Wife - Dower: life estate in 1/3 of real property owned by husband at time of marriage.

Husband - Curtesy: life estate in all real property if child born to the marriage.

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3
Q

Intestate Share of Surviving Spouse - Modern Law WITH Descendants

A

Most states - 1/3 or 1/2 of the estate

UPC states - Entire estate if all descendants are of the surviving spouse

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4
Q

Intestate Share of Surviving Spouse - Modern Law WITHOUT Descendants

A

Most states - entire estate

UPC states - entire estate if not survived by descendants or parents

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5
Q

Classic Per Stirpes

A

Divided at first generation. Dead and living get equal shares.

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6
Q

Per Capita with Representation

A

Majority

Divided at first generation with survivors. Dead and living in that generation get equal shares.

Descendants take equal share of the dead’s share.

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7
Q

Per Capita at Each Generational Level

A

Modern Trend/UPC

Initial division at first generation with survivors.

Dead shares combined and divided equally at next generation.

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8
Q

Adoption by Estoppel

A

Permits child to inherit from step/foster parent when legal custody is gained through unfulfilled agreement to adopt.

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9
Q

Nonmarital children - intestacy

A

Will inherit from father if:

  1. married mother after birth
  2. he was adjudicated the father, or
  3. after his death and during probate he is proved by clear and convincing evidence to be the father.
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10
Q

Half blood - intestacy

A

UPC/Most States - no distinction from whole bloods

Some jdx - give half shares or cut them out if whole-blood child exists

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11
Q

Posthumous Children

A

If in gestation at time of death, most states allow inheritance.

Some states allow child born within statutorily stated period to inherit under specified circumstances.

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12
Q

Disinheritance

A

Provision expressly disinheriting an heir is ineffective regarding property passing through intestacy. Will must dispose of everything to completely disinherit.

Some states and UPC allow a negative will provision. It excludes right to succeed to property passing by intestate succession. The property will pass as though disclaimed.

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13
Q

Advancement of Intestate Share

A

Common Law - substantial lifetime gift presumed to be an advancement

Most courts - presumptively not an advancement unless show to be intended as one

Many states - Advancement only if:

  1. declared as such in contemporaneous writing, or
  2. acknowledged as such in writing by the heir
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14
Q

Procedure for Advancement deduction

A
  1. Value of gift added back to hotchpot.
  2. Shares equally divided from full amount.
  3. Gift subtracted from appropriate heir.

Heir does not have to return advancement in excess of their share.

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15
Q

Advancee Predeceases Intestate

A

Generally successors are bound.

UPC states - not binding on successors unless required writing states it is

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16
Q

Simultaneous Death

A

Cannot take as heir or beneficiary unless you survive decedent.

USDA - If no sufficient evidence of survival and disposition depends on order of death, the property of each is disposed of as though they each predeceased the other.

UPC/Revised USDA (120 hour rule) - must survive by 120 hours to take. If not, treat as though predeceased.

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17
Q

Disclaimer

A

In most states, must be:

  1. written,
  2. signed by disclaimant,
  3. notarized, and
  4. filed with court within nine months of death

Cannot disclaim if accepted

Property passes as though disclaimant predeceased.

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18
Q

Death Caused by Heir

A

In nearly all states:
a person who
1. feloniously and intentionally
2. brings about the death of a decedent
3. forfeits any interest in the estate.

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19
Q

Will admissible to probate in…

A
  1. state where executed
  2. domicile at time of execution
  3. domicile at time of death
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20
Q

Requirements for a valid will

A

AM I WAS
1. Testator is 18 and of sound mind
2. Written
3. with Testamentary intent
4. Signed by Testator
5. Signed by 2 attesting witnesses (UPC: this or signed by notary)

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21
Q

Testator must have the capacity to understand…

A

BDAP
1. A - nature of the act
2. P - nature and extent of property
3. B - natural object of their bounty (family)
4. D - be able to formulate an orderly scheme of disposition

A person adjudicated incompetent may be able to execute a will during a “lucid interval”

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22
Q

Testamentary Intent

A

Testator must have present intent the instrument will operate as his will.

Intent will be found if shown that testator intended:

  1. dispose of property
  2. upon his death
  3. by that instrument
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23
Q

UPC harmless error

A

Defectively executed/revoked will can be given effect if clear and convincing evidence the testator intended the document to be their will

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24
Q

Holographic Wills

A

UPC and most states that recognize holographic wills allow typewritten text so long as material portions are in testator’s handwriting.

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25
Q

Attorney liability

A

Most states: duty runs to client AND intended beneficiaries

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26
Q

Ademption by Extinction

A

Gift no longer in estate.

Applies only to specific devises and bequests (particular identifiable items)

Most states - beneficiary takes nothing

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27
Q

Partial Ademption

A

beneficiary takes what remains

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28
Q

Ademption by Satisfaction

A

Gift may be satisfied in whole or in part by inter vivos transfer if intended

Most states require writing to be a satisfaction

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29
Q

Abatement

A

Process of reducing gifts when estate assets are insufficient tp pay all claims and satisfy all gifts.

30
Q

Default Order of Abatement

A

Abate in following order:

  1. property passing by intestacy
  2. residuary estate
  3. General legacies
  4. Demonstrative legacies
  5. Specific bequests and devises

SIMPLIFIED VERSION:
1. residuary
2. general
3. specific

31
Q

Lapsed Gifts in general

A

Failed gifts

A gift lapses if the beneficiary predeceases or is treated as he did.

32
Q

Anti-Lapse Statutes

A

Can save a gift if:

  1. predeceased beneficiary is requisite degree of consanguinity and
  2. has surviving issue

Issue takes UNLESS specifically stated otherwise

Words of survivorship in will defeat statute EXCEPT in UPC

33
Q

Class gifts

A

only members who survive the testator take unless provided otherwise or saved by anti-lapse statute

34
Q

Void gifts

A

Beneficiary dead or nonexistent.

35
Q

When no evidence of intent, the following rules of construction will be used:

A
  1. favor avoiding intestacy
  2. last of contradictory provisions will prevail
  3. construe the will as a whole, not parts
  4. words given ordinary meaning, unless clear other intent
36
Q

Patent Ambiguity

A

Obvious ambiguity

Traditional view: no extrinsic evidence

Modern view: extrinsic evidence allowed but not to fill blanks or supply omitted gifts

37
Q

Latent Ambiguity

A

Language is clear on its face, but not right

Ex. “to my sister Pat” but T doesn’t have a sister named Pat

extrinsic evidence allowed

38
Q

Mistake: Plain Meaning Rule

A

traditional approach

no extrinsic evidence

39
Q

Mistake: Modern Rule

A

extrinsic evidence allowed

40
Q

Incorporation by Reference

A

document may be incorporated by reference into a will if:

  1. the will manifests intent to do so
  2. the document is sufficiently described in the will
  3. the document is in existence at the time of creation
    many states and UPC have an exception that
    allows a list of item distribution to be altered
    after
41
Q

Codicil

A

modifies a previously executed will and must be executed with the same formalities

42
Q

Alterations on the face of the will

A

if made after executed, it is ineffective unless it is re-executed with proper formalities

43
Q

Pour-over

A

provision in a will making a gift to an inter vivos trust

the trust may be created after execution of the will

It does not have to be funded prior to death

44
Q

Power of Appointment

A

enables person (donee) to designate persons to take and the manner in which they can take

General: exercisable in favor of anyone

Special: limited class of appointees

Creditors of donee cannot reach the property until he exercises the power unless donee is also the donor.

45
Q

Revocation of Will

A

will may be revoked by:

  1. operation of law
  2. subsequent instrument
  3. physical act
46
Q

Revocation by operation of law - marriage

A

In most states, marriage following will execution has no effect.

In some states/UPC, new spouse takes intestate share as “omitted spouse” unless:

  1. will makes provision for new spouse
  2. omission was intentional, or
  3. will was made in contemplation of the marriage
47
Q

Revocation by operation of law - divorce/annulment

A

Most states: revokes all gifts and appointments as if spouse predeceased testator.

Some states/UPC: extend application to in-laws

re-marriage undoes revocation

48
Q

Pretermitted Children

A

Most states: if testator fails to provide for a child born or adopted after will execution, child takes share given in statute

Many states: if entire estate is left to the child’s other parent, no forced share to child

Many states withhold forced share if:
1. it appears omission was intentional or
2. testator provided for child outside the will in lieu of testamentary gift.

49
Q

Revocation by Physical Act

A

Testator must have intent to revoke at the time of the act.

Accident or mistake = NO revocation

50
Q

Proxy Revocation

A

Testator may direct someone to destroy or cancel will, but in most states must be done in testator’s presence

51
Q

Partial Revocation

A

Permitted in most states by physical act if sufficient evidence testator made the changes.

Extrinsic evidence admissible to determine intent

Some states give no effect to the changes

52
Q

Effect of Revocation on Other testamentary instruments

A

Revocation of will revokes all codicils

Revocation of codicils DOES NOT revoke will

53
Q

Revocation by written instrument

A

Express revocation: subsequent instrument expressly revoking prior will

By inconsistency:

  1. if new instrument completely disposes of property, the old will is completely revoked by inconsistency.
  2. if new instrument partially disposes of property, old will is revoked only to extent of inconsistent provisions
54
Q

Presumption of revocation

A

If will last seen in testator’s possession cannot be found after death or is found mutilated, a rebuttable presumption arises that it was revoked.

If third person or person adversely affected by will had access to it, no presumption of revocation

Will admissible if can prove:
1. valid execution
2. cause of nonproduction other than revocation
3. contents of will (by testimony or copy)

55
Q

Revival of Revoked Will - UPC

A

if will that wholly revoked previous will is revoked, it does not revive unless evident testator intended revival

If will that partly revoked previous will is revoked, the revoked provisions revive

56
Q

Automatic Revival

A

In some states, revival is automatic because revoking did not take effect because the revocation was revoked

57
Q

No Revival Approach

A

In some states, earlier will can be revived only if it is re-executed or republished by codicil

58
Q

Implied Conditional Revocation/Dependent Relative Revocation (DRR)

A

Testator revokes will under mistaken belief that another disposition or property would be effective. But for this mistaken belief the first will would not have been revoked. Revocation fails if new will fails.

Ex. Will 1 executed, Will 1 revoked, Invalid Will 2 created

Ask:

  1. Was revocation conditioned on validity of new will?
  2. Would Testator have preferred Will 1 over intestacy?
59
Q

Spouse Elective Share

A

Spouse may take statutory share in lieu or that under will.

Elective share will be paid first from assets spouse would have taken by will. Abatement rules apply after.

60
Q

Standing to Contest a Will

A

Interested parties such as heirs or beneficiaries of prior wills

61
Q

Grounds for Will Contest

A
  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
62
Q

Insane Delusion

A

destroys capacity only if there is a connection between the delusion and disposition

63
Q

Undue Influence

A

Must establish:

  1. influence existed and was exerted
  2. effect of influence overpowered the mind and free will; and
  3. causation

Factors court will look at:

  1. unnatural dispositions such as cutting someone out
  2. opportunity or access to testator
  3. confidential or fiduciary relationship
  4. ability to resist
  5. beneficiary’s involvement in drafting or executing will
64
Q

Presumption of Undue Influence when…

A
  1. there was a confidential relationship and
  2. the beneficiary was active in procuring, drafting, or executing the will

Burden then shifts to will proponent

65
Q

Fraud

A

Testator must have been willfully deceived as to:

  1. character and content of instrument
  2. extrinsic facts inducing the disposition/will OR
  3. facts material to a disposition
66
Q

Elements of Fraud

A
  1. False representation
  2. knowledge of falsity
  3. testator reasonably believed statement
  4. causation
67
Q

Fraud in Factum (Fraud in the execution)

A

Testator did not know the document was a will or what it contained. Lack of intent.

68
Q

Fraud in the inducement

A

Testator was deceived as to some extrinsic fact and makes the gift/will based on that fact.

69
Q

Mistake in Execution (in Factum)

A

Did not know the document was a will or what it contained but not cause by evil conduct.

Ex. signs the wrong will

Some courts deny relief. Relief may be granted where mistake is obvious.

70
Q

Mistake in the Inducement

A

Mistaken as to a fact and will made based on that fact.

Generally no relief. Maybe relief if mistaken inducement appears on the face of the will. UPC grants relief if mistake was as to death of child.

71
Q

No-contest Clause (in terrorem)

A

Beneficiary forfeits interest in estate if they contest the will and lose.

Majority: no forfeiture if probable cause for contest

Minority: Clause given full effect

Wills (2 decks)

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