Pg 21

Question 1

What is the special pro rata abatement scheme that applies for omitted children?

Answer 1

The same as omitted spouse.
– first look at any property that was not disposed of by the will
– then all of the devisees take a pro rata hit
– the court has discretion to deviate from this if it thinks it is necessary to follow the testator’s intent

Question 2

If there is a spouse and two or more children, what happens under intestacy or omitted child statutes with regard to the percentage of the separate property that is taken by each?

Answer 2

The spouse gets 1/3 and the children share 2/3s

Question 3

If a child is born before the last testamentary instrument is executed, can he still take an omitted child share?

Answer 3

Yes, if at execution the ONLY reason that the decedent didn’t provide for the child was because he believed that the child was dead or he didn’t know the child was born. The burden is on the child to establish that the SOLE reason he was omitted was because of this. If there were multiple reasons, then the child doesn’t take.

Question 4

What is a negative will or clause?

Answer 4

These are wills when the testator doesn’t dispose of property but instead tries to exclude someone from inheriting his intestate share.

Question 5

What are the common law and UPC approaches to negative wills or clauses?

Answer 5

• CL: the testator cannot disinherit heirs by words alone, he must give the property to someone else
  – UPC: negative wills are authorized.

Question 6

Is it OK to use a will to control the life of a devisee?

Answer 6

No, this violates public policy. I.e.: “House to my fiancé as long as she stays unmarried“

The only time these conditions are OK is if the dominant motive of the testator was to provide support until marriage, instead of inducing the devisee to stay unmarried.

Question 7

Partial restraints on marriage are OK in a will as long as they don’t do what?

Answer 7

Unreasonably limit the freedom to marry. I.e. it’s OK if the devise is only given if the son marries a Jewish girl, but you can’t have a dominant motive to break up a family relationship such as a condition that is meant to induce divorce or separation. If the motive is to provide support in the event of divorce, that is OK, or to encourage divorce when it is for the welfare of the child because the spouse is abusive.

Question 8

What is a will substitute?

Answer 8

Other ways to distribute the decedent’s property on death such as life insurance, pay on death bank accounts, pensions, retirement accounts with a beneficiary designation, stocks, property held in joint tenancy, any contract with a pay on death provision, trusts, etc.

Question 9

Why does tangible personal property like jewellery and clothes not need a document to reflect title?

Answer 9

The presumption is that whoever is in possession at the time of death is the owner. This only applies to things of low value

Question 10

What are different ways that delivery can be made for a gift?

Answer 10

• physically giving the item
• actual delivery
• constructive delivery (giving access to the item such as keys to a car)
• symbolic delivery (giving title registration for a car)

Question 11

When does a gift become irrevocable?

Answer 11

Upon delivery, because that is the transfer of ownership

Question 12

What is the divorce presumption for will substitutes that are made to an ex spouse?

Answer 12

The same as provisions in the will, it is assumed that the testator didn’t want anything to go to the ex-spouse, so that person is treated as if they pre-deceased the decedent. This applies to things like life insurance, employee benefit plans, retirement accounts, etc.

Question 13

If a husband put his wife down as the life insurance beneficiary, and then they divorce, and he dies one month later and doesn’t change the policy, what is the presumption?

Answer 13

The statute will revoke the gift because the wife is his ex so it is assumed he didn’t intend for her to benefit. This can be rebutted if the will says, “all SP to spouse to take care of the kids. If we divorce, I still want this to be the case.“

Question 14

Is a promise to make a gift in the future enforceable?

Answer 14

No

Question 15

If you make a contract to make a will, is that self-effectuating?

Answer 15

No, it just gives the right to take action to enforce the contract

Question 16

If there is a contract to make a will and this gets breached, what is the important consideration?

Answer 16

Which party breached

Question 17

If there was a contract to make a will, and the party that should have benefitted from the will breaches the contract, what happens?

Answer 17

Contracts regarding the making of a will do not have to be in writing. I.e.: if you promise to leave your nephew $1 million in the will if he cares for you until death, and you put that in your will, but then he left town, the estate can sue him for breach of contract. The court can impose a constructive trust on the devisee under the will that doesn’t perform his side of the bargain which makes it so that because of his breach he just holds the devise under the will for the benefit of whoever is next in line to take.

Question 18

If there was a contract to make a will and the breaching person was the party that should’ve drafted the will, what happens?

Answer 18

If the party can prove the existence of the contract and his own performance under it, then he can get expectancy damages of what he would’ve gotten if the contract had been performed. I.e.: if an uncle says if you care for him until his death he will leave you $1 million in his will, but at his death there is no will, as long as you can prove that the agreement was made and that you performed, the court will give you the money as a creditor of the estate.

Question 19

What is involved in a contract not to revoke a will?

Answer 19

There must be clear and convincing evidence that this was formed.

Ie: If a married couple decides to each make a will leaving everything to the other, and then to the kids if the other spouse dies, and they also agree that neither will change the will if the other one dies, courts will not revoke a second will in favor of the first if one spouse breaks his or her promise, but if the court decides that a contract was formed, the other spouse can sue the estate for damages or have a constructive trust imposed.

Question 20

If a husband and wife divorce and the husband remarries and changes the will to leave property to his new wife and his new kids even though he contracted with the first wife not to change his will that left everything to her, what happens?

Answer 20

Because wheels are revocable until death but contracts are not, that doesn’t mean that he cannot modify his will, it just means that the other spouse can sue for breach of contract.

Question 21

What is a joint will?

Answer 21

A single document that gives testamentary instructions for two people. It is essentially a will for both people.

Question 22

Does execution of a joint or mutual will create a presumption of a contract not to revoke the will?

Answer 22

No