! Ray- Essay Wills

Question 1

General Rule

Answer 1

PA sets forth specific rules in regards to intestancy distributions.

Question 2

Revocation:

DRR?
when does it apply?

Answer 2

In Pennsylvania, a will may be revoked by POSR (i) physical act, (ii) operation of law, or (iii) subsequent instrument.

1. Physical act: T must posesses intent + physical act (Result: Extrinsic evidence is permissible= determine whether T intended revocation be partial/full.
2. Operation of Law
   (marriage, birth, adoption, divorce)
   =Divorce effectively revokes a will (all provisions in favor of former spouse are revoked)
   = Marriage (gifts abated to extent to satisfy spouse share)
   = Child(gifts abated to extent to make up share for predetermined child)
3. Subsequent instrument
   Where codocil makes no reference to the will, and contains inconsistent terms, if possible, they will be read together. To the extent possible, as to the inconsistencies involved, the later document controls and revokes inconsistency of prior will.

Rule: DDR allows us to disregard a revocation, which is based on mistake of law or fact if the court is satisfied that, but for the mistake, T would have never made the revocation.
—> Applies where T strikes out gift (10 dollars) and rights in higher number next to it (15) Does not apply if gift goes from 10 to 4

Question 3

Anti Lapse Statute

Answer 3

Under Pennsylvania, when beneficiary named in the will, the gift lapses, unless saved by the antilapse statute.

The pennsylvania statute applies when the predeceasing beneficiary is T’s descendent sibling or child of sibling who leaves issue who survive testator

Question 4

Execution of Wills: requirements?

Answer 4

a) General Requirements
i) 18 years or older
ii) Signed at the end of the will
iii) Disposes of property
iiii) No witnesses required if the testator signs himself
b) Self-

Question 5

Revocation by T

Revocation by 3d party?

Answer 5

Revocation by T
a) General Rule
i) Intent to revoke
ii) Physical act (burn, tear, cancel, obliterate, or destroy)
iii) If T was in possession and control until time of death and
will is lost or destroyed, presumption that T revoked the
will

Revocation by 3d party

i) At T’s direction, proved by 2 witnesses
ii) In T’s presence

Question 6

Latent Ambiguity

Answer 6

patent- will be left undisturbed
latent ambiguity- parole evidence used to construe intention of T. T

Under PA law, will will be analyzed by plain meaning. The language will not be disturbed unless there is a latent ambiguity of the will. Parol evidence will only be considered if it is a latent ambiguity as opposed to patent ambiguity. If latent ambiguity exists, presumed that T intended for it to pass

Question 7

Lost Will, what must p show?

Answer 7

by clear and convincing evidence

ii) Copy from attorney is sufficient
iii) Testimony by an interested witness is insufficient

Question 8

Inconsistent Will and Codocil

how will they be read?

Answer 8

i) Will and codicil read together to the extent possible
ii) If there is an inconsistency, the later document controls and
revokes the prior inconsistencies
iii) If a later will has a residuary clause, it revokes the first will

Question 9

If there is will and codicil what happens if the will is revoked?

what happens if codicil is revoked?

Answer 9

i) Revocation of a will revokes all codicils

ii) Revocation of codicil does not revoke will

Question 10

Divorce- revocation

Answer 10

Divorce
i) General Rule: Divorce revokes all provision in favor of an exspouse
ii) Exception: Will shows T’s intention that the will would
survive the spouse
iii) NOTE: Separation (no divorce) does not affect the rights of
the wife

Question 11

Lapse

WHat is the rule

Answer 11

General Rule: Where beneficiary dies before the testator, the gift lapses unless saved by anti lapse statute.

Under Pennsylvania antilapse statute, an
Issue of the deceased beneficiary takes in
beneficiary’s place if they are 
i) T’s descendant
ii) T’s sibling
iii) Child of T’s sibling

c) Class Gift Rule: Where gift is to an entire class and one member
of the class dies, the surviving class members still take
d) Residuary Rule: If residue is left to two or more persons and one
dies, the remaining beneficiaries take in their proportionate share

Question 12

Abatement

Answer 12

a) Gifts are sacrificed to satisfy funeral expenses, expenses of
administration, and creditor’s claims in the following order:

Crew— IRGD

i) Intestate Property
ii) Residuary Bequests
iii) General Legacy
iiii) Demonstrative Legacy
v) Specific Devise or Bequest
b) Specific Devise or Bequest

“I devise Blackacre to my son John.”
Legally Significant Words: “I devise my car to John.” Which Car? Determined at the time of death

Question 13

Ademption*** JUST TESTED IN 2018

Answer 13

Where the gift is gone or destroyed, beneficiary takes nothing

i) Applies to specific gifts ONLY
ii) Does not apply where T is incompetent UNLESS the will was
executed before T was declared incompetent

Question 14

exception to ademption

Answer 14

Exception: Specific devisee gets a general legacy equal to the amount of the remaining specifically devised gift

i) Balance of the purchase price in contract that is executory at
T’s death

ii) Amount of a condemnation award
iii) Amount of fire or casualty insurance proceeds
iiii) Stocks: dividends and other stock as a result of merger etc.

Question 15

Exoneration of Liens

Answer 15

a) Specific devisee of encumbered property is not entitled to have
the debt paid off by the residuary
b) Exception: T’s intent to do so is clear in the will. (NOTE:
General direction to pay debt is insufficient)

Question 16

Ambiguities & Mistakes

Answer 16

a) Plain Meaning Rule: Cannot disturb the plain meaning of a will
regardless of mistakes
b) Latent Ambiguity: Extrinsic evidence is admissible to resolve a
latent ambiguity. Otherwise, the gift goes to the residue.

Question 17

Inheritance

Answer 17

a) Surviving Spouse
i) No issue or parent = everything
ii) Parent + no issue = First 30,000 + ½ rest
iii) Spouse + issue = First 30,000 + ½ of the
iv) adopted kid from brother= entitled
v) step children are not entitled to take

Question 18

Share not Going to Spouse or If no Surviving Spouse

Answer 18

i) Issue
ii) Parents
iii) Brothers, sisters, and their children

Question 19

Children Born Out of Wedlock

Answer 19

Biological child cannot inherit
from decedent (bio parent) unless
i) Marriage to other biological parent
ii) Decedent held child out as his/hers and either received the child into his/her home or provided support or
iii) Clear and convincing evidence of paternity

Question 20

Adoption

Answer 20

Adoption

Adopted children, so long as
i) Adoption cuts off inheritance rights from the natural parents
ii) Exception:
stepparent adoptions do not cut off the inheritance rights from natural parent if the natural parent marries the
stepparent and the stepparent adopts
iii) Class gifts to “children” included adopted children

Question 21

Simultaneous Death Act (120-Hour Rule)

Answer 21

i) Intestate succession +

ii) Survivor must survive the decedent for 120 hours (5 days) in order to take

Question 22

Advancements (Intestacy) RECENTLY TESSTED

Answer 22

i) Common Law: Any lifetime gift was considered advancement

ii) In Pennsylvania: No presumption of advancement unless either the decedent or the heir acknowledge the advancement
in writing

Question 23

Rights of Surving Spouse

a) Pretermitted Spouse (Marriage to Testator after the Will was Executed)

Answer 23

1. General Rule: Spouse gets the intestate share UNLESS exceptions:
   (1) Will gives spouse a greater share or
   (2) Will was executed in contemplation of the marriage
2. ELECTIVE SHARE
   (A) ELECTIVE ESTATE
   Equal to the net testamentary estate AND the following lifetime donative transfers to the spouse or others:
   (1) Transfers retaining the power to revoke for the decedent’s
   benefit (e.g., revocable trust)
   (2) Property interests with rights of survivorship (joint tenancy
   with right of survivorship; joint accounts)
   (3) Transfers in excess of $3000 made by decedent within a year of death (i.e., gifts to mistresses)

(B) ELECTIVE SHARE
One-third (1/3) the elective estate excluding
nontestamentary transfers
(1) Insurance policies
(2) Trusts
(3) Pension plans
iii) Waiver: Right to take elective share can be waived in writing after fair disclosure (watch for prenup)

Question 24

Predetermined Child

Answer 24

11) Pretermitted Children
a) Defined: Born/adopted after the execution of the will
b) Share: entitled to the child’s intestate share UNLESS it appears
from the will that the omission was intentional
c) Caveat: NEVER take property away from the spouse to satisfy
the pretermitted share

Question 25

Children believed to be dead

Answer 25

12) Children Believed to be Dead

a) No relief for child when T under mistaken belief that child was dead when will was executed UNLESS will states the mistake
and reasons why child is omitted (“I leave everything to X because my child is dead—otherwise my child would’ve gotten
everything”)

b) Exception: fraud in the inducement: constructive trust imposed
for the child believed to be dead

Question 26

Conduct Barring Party from Sharing Estate

a) intentional killing

Answer 26

a) Intentional Killing
i) Felonious and intentional killing of the decedent
ii) Killer cannot benefit from the killing by will, intestacy,
elective share, life insurance, contract or otherwise
iii) Property passes as if killer predeceased the decedent
iiii) Joint property: half passes to victim’s estate and half to killer
for life with remainder to victim’s estate
v) Acquittal is not controlling: “preponderance of the evidence”
standard

Question 27

Conduct Barring Party from Sharing Estate

b) desertion

Answer 27

Inheritance and elective share rights of spouse are forfeited if the spouse willfully and maliciously deserts or otherwise fails to support his or her spouse for a year or more

Question 28

Will Contests

a) Standing

Answer 28

i) Any person whose share would increase if the will were invalid
ii) Personal representative must defend
iii) If personal representative wants to challenge the will, he/she
must resign as representative

Question 29

Will Contests

b) Lack of Testamentary Capacity

Answer 29

i) Generally (Any of the following renders T incapacitated)
(1) T did not understand the nature of the act
(2) T did not know the nature and character of his property
(3) T did not know the natural objects of his bounty or
(4) T did not understand the disposition he wished to make

ii) Other Rules
(1) Capacity must relate to circumstances at time of execution
(2) Mere old age or physical frailty, sickness, failing memory,
etc. not sufficient for lack of capacity
(3) Adjudication of incompetency is not conclusive (apply the
factors above)

Question 30

Lack of Testamentary Capacity

d) Undue Influence:

Answer 30

i) General Rule: Burden of proof on contestants to show
(1) Existence and exertion of influence
(2) Effect is to overpower the mind and will of testator
(3) Result is a will that would not have been executed but for
the influence
ii) Presumption: Presumption of undue influence arises when
principal beneficiary under the will stands in the confidential
relationship to the testator (attorney-client etc.) draws up or
procures the execution of the will

Question 31

e) Forfeiture Clauses

Answer 31

i) Clause will not be enforced against claimant as long as
claimant had probable clause
ii) If claim is spurious, the clause will be enforced

Question 32

TRUSTS

1) Requirements

Answer 32

a) Trust: Trustee holds legal title to property for the benefit of the beneficiaries
i) No magic words required
ii) Cannot be wishes or desires

b) Res: subject matter of the trust.
Must be certain and identifiable trust property

c) Beneficiaries:

i) Private trust must have ascertainable beneficiaries
ii) Charitable trust need not have ascertainable beneficiaries
d) Trustee: must have one or more trustees
i) Trust does not fail for want of a trustee
ii) Court will appoint a trustee

Question 33

2) Revocable Trusts

Answer 33

a) Defined: Settlor reserves the right to revoke, alter, or amend trust
and obtain income from the trust during his lifetime
b) Rule: Revocable trusts are valid
c) Pour-Over Trust: IF the trust exists before or concurrently
executed with a will, the testamentary gift to the trust is upheld

Question 34

3) Ineffective Testamentary Trusts

Answer 34

a) Secret
i) Defined: Absolute devise with oral promise to hold on trust
ii) Oral evidence is admissible to show the existence of the trust
iii) If proven, constructive trust is imposed as equitable remedy
b) Semi-Secret
i) Defined: Devise “in trust” with oral agreement
ii) Resulting trust is created for the benefit of T’s heirs

Question 35

4) Charitable Trusts

Answer 35

a) Not subject to Rule Against Perpetuities or Rule Against
Accumulations
b) Must be for charitable purposes (education, medicine, religion,
science, government parks, etc.)
c) When specific purposes can no longer be accomplished, trust can
be reformed under cy pres doctrine (“as near as possible”). Look
at intent of settlor

Question 36

5) Spendthrift Trusts

Answer 36

a) Defined: Income interest in trust is interest in property
b) General Rule: Creditors cannot get trust property from
beneficiary
c) Exceptions
i) Alimony
ii) Child support
iii) Necessities have been provided by the creditors to the
beneficiary
iiii) Settlor is trust beneficiary

Question 37

Trust Administration

a) Self Dealing

Answer 37

i) Trustee cannot buy or sell trust assets to the trustee
ii) Trustee cannot borrow trust funds
iii) Trustee cannot sell assets from one trust to another
iiii) Corporate trustee cannot purchase its own stock as a trust
investment

Question 38

Trust Administration

b) Prudent Investor Rule:

Answer 38

b) Prudent Investor Rule:

Trustee must manage property as a
reasonably prudent person would
i) Keep trust productive
ii) Balance return with potential risk
iii) Maintain marketability
iiii) Diversify investments
v) No commingling
vi) Delegation: reasonable care in selecting agents for delegation
of duties

Question 39

Trusts

c) Liability for Breach:

Answer 39

Beneficiary can
i) Ratification: Ratify the transaction and waive the breach
ii) Surcharge: sue for the resulting loss
iii) Trace: in self-dealing cases, beneficiary can trace the profits
and recover the profits
iiii) NOTE: Each breach is judged separately

7) Termination
a) Most States
b) Pennsylvania
c) Settlor