PA Wills & Trusts Flashcards
Execution of Wills: Five Elements to Execute a Will + Remember Threshold for Signature + Remember Witnesses Nuance
1) Testator (T) must be over 18;
2) T must sign (Any mark-initials, i.e. “X” will serve);
3) Signed at the logical end of the Will;
4) Two attesting witnesses to T’s signing (ONLY when T signs by mark or if someone signs on behalf of the testator)
5) The will MUST have an operative effect (dispose of property, nominate personal representative or revoke or modify another will)
Execution of Wills: [HYPO] What happens if T signs the will above one of the clauses?
Everything below the signature is legally operative, everything below is void.
Execution of Wills: [HYPO] T writes a document in her own handwriting that reads: “This is my last will. I revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument. Is it admissible to probate?
Yes, witnesses are not required in holographic wills, they are only required if T signs his will by mark or someone else signs for T.
Execution of Wills: [HYPO] “I give to my faithful nurse Nell the sum of $30,000.” Nell is one of two attesting witnesses to the will. Any problem for Nell?
In PA, no. While it raises questions of undue influence, it does not invalidate the witness requirement.
Revocation: Revocation by Physical Act Elements
(i) Intent to revoke, and
ii) Requisite physical act (burnt, torn, obliterated, or destroyed
Revocation: [HYPO] What if you revoke when there are duplicate copies? + Remember Revoking the Copied Will
The act of revocation on the original executed copy revokes all duplicate copies.
Remember: Revoking the copy WILL NOT invalidate the original, only the other way around.
Revocation: [HYPO] What effect does writing “VOID” on the back of the will have? + What about writing “VOID” on the back and signing it at the bottom?
Writing “VOID” on the back of the will is NOT VALID because the act must cross some of the language of the will (not all, but some)
However, writing “VOID” and signing underneath would technically count as a valid EXPRESS revocation.
Revocation: Physical Act Rebuttable Presumptions (when will found mutilated or missing will) + Remember How to Rebut
1) Will in T’s possession from time of execution until death and found mutilated PRESUMES T did the mutilating and intended to revoke
2) Will last seen in T’s possession and control not found after T’s death assumes T destroyed with intent to revoke
Remember: Rebut these presumptions by showing T was not last in possession.
Revocation: [HYPO] T calls his attorney, the place where the will is located, and orders his attorney to destroy T’s will. The order is never carried out. Will revoked?
No, missing second element of revocation by physical act: a requisite physical act (burnt, torn, obliterated, or destroyed)
Revocation: Revocation by Agent of T Elements
Revocation by another person must be (i) at T’s direction, (ii) in T’s presence, and (iii) T’s direction must be in front of two witnesses
Revocation: [HYPO} How can a will be probated if it was destroyed?
Proponents must meet the burden of proving the contents of the lost will by “clear and convincing proof”
Revocation: What is the rule if there is a codicil (or second will) inconsistent with an original will?
Where codicil makes NO REFERENCE to a will, but contains slightly inconsistent provisions, the will and codicil are read together to the extent possible, but the MOST RECENT document provisions control the older document’s inconsistent provisions
Revocation: Revocation of a Codicil’s Effect on a Will v. Revocation of a Will’s Effect on a Codicil
Revocation of a will revokes all codicils thereto, BUT revocation of a codicil to a will does not revoke the will.
Revocation: Effect of Divorce on a Will + Remember if a couple remarries + Remember Mere Separation of a Couple
Unless the will shows it was intended to survive divorce, a divorce revokes ALL PROVISIONS IN FAVOR of an ex-spouse in a decedent’s will, revocable trust or life insurance policy
Remember: If couple remarries, the spouse is read back into the will as if nothing had happened
Remember: Mere separation has no rights on a will, UNLESS grounds for a divorce has been established and divorce is pending
Revocation: How can a post-execution change to a will become effective (i.e. line through a number w/ new value)? + Remember Effect of Line Through Provisions
Post-execution changes are not effective unless the will is either re-executed
or republished by codicil after the changes are made.
Remember: The effect of a line through a provision will automatically revoke that provisions, therefore if that provisions is not re-executed the beneficiary of that provision must apply DEPENDENT RELATIVE REVOCATION (see another card for this info)
Revocation: Define Dependent Relative Revocation (DRR) + Remember When Ineffective Gift is Smaller in Amount
DRR allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, BUT FOR the mistake, T never would have made the revocation.
Remember: If ineffective gift was intended to be SMALLER than the testator original gave, DRR WILL NOT GO INTO EFFECT
Revocation: Revival of Wills That T Revoked + Remember DRR
In PA, you CANNOT REVIVE a will by revoking a will that took the place of the first.
Remember: If T’s intent was to revive, and if BUT FOR the legal mistake T never would have made the revocation, DRR can bring back THE MOST RECENT WILL (not the original)
Incorporation by Reference: Incorporating Extrinsic Documents by Reference Elements
To incorporate an extrinsic document by reference:
(i) Writing must be IN EXISTENCE at the time the will was executed;
(ii) Will must MANIFEST INTENT to incorporate the document;
(iii) Will must DESCRIBE THE WRITING sufficiently to permit its identification
Incorporation by Reference: Doctrine of Independent Significance
A person’s changes to their life that indirectly impact their will is allowed (i.e. I give X my car, and T upgrades car during lifetime)
***Lapse: Lapse Rule + Remember Anti-Lapse Statute
When a beneficiary named in a will dies before the T, the gift lapses UNLESS it is saved by the state’s ANTI-LAPSE statute
***Lapse: PA Anti-Lapse Statute
The PA statute applies when the predeceasing beneficiary is T’s decedent, sibling, or child of a sibling who LEAVES ISSUE (a.k.a decedents) who survived the T.
- **Lapse: [HYPO] T executes will in 2009; it provides (inter alia) “I give the sum of $5,000 to my sister, Paula. I leave the residue of my estate to brother, X.” Paula dies in 2010; she is survived by her husband H and two children. Paula has a will which leaves all of her estate to H. T dies in
2015. Who takes the $5,000?
Paula’s issues (her children) receive the gift. Even though Paula’s husband is the recipient in HER ESTATE, the ANTI-LAPSE statute refers to T’s estate, not a beneficiaries.
***Lapse: Anti-Lapse Exception
In the case of a gift to T’s sibling or to a child of a sibling, the gift will lapse to the extent it would pass as a result to T’s own spouse or issue (i.e., the spouse or issue are the residuary beneficiaries).
***Lapse: Class Gift Rule
When there is a gift by will to a group of persons generically described as a class (“children,” “nephews” and nieces,” etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take
***Lapse: Class Gift Rule In Conjunction with Anti-Lapse
If the class gift is to a decedent, sibling, or child of sibling, and one of the class members die before the T, then the anti-lapse statute would kick-in for that class member and pass to his or her issue
***Lapse: What happens when a lapse occurs in the residuary estate? + Remember Anti-Lapse
If the residuary estate is devised to two or more persons, and the gift to one of them fails, the surviving residuary devisees take the entire residuary estate in proportion to their interest in the residue
Remember: If a decedent, sibling, or sibling’s child dies in the residuary estate, the anti-lapse statute would kick in and pass to his or her issue
***Lapse: Hierarchy of Gifts When Dealing with Abatement + Abatement Rule + Tip
Hierarchy from last used to first used:
1) specific devise (e.g. I give my car to),
2) demonstrative legacy (e.g. I give $5k to be paid out of my stocks)
3) General legacy (e.g. I give $5k to my daughter)
4) Residuary
5) Intestate property
Rule: Money needed to pay expenses and claims is raised by selling intestate
property, the residuary estate, general gifts and finally the subject matter of demonstrative and specific gifts, in that order
Tip: It goes in order from most general to most specific
Ademption: Common Law Ademption Rule + Exception
When the subject matter of a specific gift is not owned by T at death, the gift in the will is adeemed. That is, the beneficiary takes nothing.
Exception: Ademption DOES NOT APPLY to general gifts (e.g. demonstrative, general, residuary, or intestate) those gifts will be funded by other means
Ademption: PA Ademption Rules - Will Executed Before T Declared Incompetent
When an event that would otherwise cause ademption occurs during the testator’s incapacity this statute gives the beneficiary a cash legacy EQUAL to the fruits of the transaction involved
Ademption: PA Ademption Rules - A specific devisee has the following rights to the remaining specifically devised property if not in T’s possession at his death
1) Any balance of PURCHASE PRICE owing from purchaser on land sale contract at T’s death
2) Any amount of CONDEMNATION AWARD for taking the property, to the extent unpaid at T’s death
3) Any amount of UNPAID INSURANCE at death
Ademption: [HYPO] - “I give and bequeath my Rembrandt painting to my daughter Dora.” The Rembrandt painting was incinerated in 2017. The painting was insured, and the insurance company
duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the
insurance proceeds?
No, Dora was adeemed, T was not incompetent so not first exception, and no unpaid insurance so no second exception
Ademption: Increase in Value Rule for Securities Owned By T + Example
Specific devisee takes “any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.”
Example: “I bequeath my 100 shares of stock in Tax Shelters, Inc. to my son, Simon.” At his death, T
owned 200 shares of stock in Tax Shelters, Inc., consisting of the 100 shares he owned when he executed the will, plus 100 shares distributed to T by the corporation six months
after the will was executed. Simon would own all 200 stocks.
Ademption: Change in Value Rule for Securities Owned By T + Example
A specific devisee is entitled to securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.
Example: TS was acquired by LTV, and as a part of the merger each shareholder was given one share of LTV for every two shares of TS. At T’s death he owned 50 shares of LTV stock. The conversion would all be given to beneficiary.
Exoneration of Liens on Specific Devises Rule
A specific devisee of encumbered property is NOT ENTITLED to have the encumbrance paid out of the residuary estate UNLESS the will shows such intent. “A general direction in the will to pay debts does not show such an intent.”
Latent Ambiguities Rule + How do courts resolve this issue?
Extrinsic evidence is admissible to clear up a latent (i.e. does not appear on the face of the will ambiguity), the same is generally true for patent ambiguities as well (i.e. face of the will)
Courts will correct ambiguities by STRIKING OUT WORDS
