Power to Transfer Flashcards
What is an omitted spouse?
A marriage or domestic partnership formed after the execution of the will and spouse is not mentioned in will
When is an omitted spouse not entitled to an intestate share?
An omitted spouse is entitled to an intestate share unless:
(1) The omission was intentional;
(2) The spouse was given property outside of the will in lieu of a disposition in the will; or
(3) The spouse is party to a valid contract (e.g. pre-nup) waiving his/her right to a share of the estate.
What is an omitted child?
When either (1) the child is born or adopted after the will is created or T mistakenly believe the child was dead or (2) the child is unintentionally omitted.
When is an omitted child not entitled to an intestate share?
(1) The child has been provided for outside the will; or
(2) T had other children at time of will and left substantially all of the estate to the omitted child’s parent
What portion of estate will an omitted child take when the testator has no other children?
His/her intestate share
What portion of estate will an omitted child take when the testator has at least one other child living at will execution and devised property to that child?
Omitted child’s share will be taken from the devise to the other child(ren) and it will be equal to the share the other child receives
What is a slayer statute?
A slayer statute bars succession when the beneficiary intentionally kills the testator. Both the UPC and majority rule is to treat the killer as if he/she predeceased the decedent (i.e. gift lapses).
How does a beneficiary disclaim a gift?
A party must actively disclaim it. When a party disclaims a gift, the disclaiming party is treated as if she had predeceased the decedent.
What is a “will contest”?
An objection raised against the validity of a will based on the argument that the will does not reflect the intent of the testator because of lack of capacity, was under insane delusion, and was subject to undue influence or fraud.
What is an insane delusion?
A belief that a rational person in the testator’s situation could not have had.
Causation: The party arguing insane delusion must show that the testator would not have disposed of the property “but for” the insane delusion.
What is undue influence and what is its effect on a will?
A will contestant must show 4 elements:
1) Susceptibility: Testator was susceptible to being influenced
2) Motive: Influencer has reason to benefit
3) Opportunity: Influencer had opportunity to influence
4) Causation: Influencer caused an unnatural result
If shown, the will may be invalidated in whole or in part.
What is fraud in the inducement?
Must be shown that beneficiary intentionally made a misrepresentation that caused the testator to make a different will than they otherwise would have with the purpose of influencing the testamentary.
What is fraud in the execution?
A misrepresentation as to the will itself or its contents (e.g. testator does not know he/she is creating a will or is not told the true content of the will)
