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Wills & Trusts > Revocation, changes, lapse, ademption > Flashcards

Revocation, changes, lapse, ademption Flashcards

1
Q

Will Revocation

A testator can revoke a will by

A

a “revocatory act” upon the will or by a “subsquent writing” that revokes the prior will, either expressly or by implication

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2
Q

No will or codicil shall be revoked unless:

what 3 points

A
  1. by a subsequent will or codicil OR
  2. writing declaring an intention to revoke and execute in manner which a will is required OR
  3. Testator or other in presence and by direction destroying will/codicil or signature thereto with the intent to revoke
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3
Q

If you revoke a will by writing on the will the writing needs to be…

A

on the wills words/writing

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4
Q

UPC revocation by

A will or any part thereof is revoked by: what 3 things

A
  1. By executing a subsequent will that revokes the previous will or part expressly or by inconsistancy OR
  2. By performing a revocationary act with the intention and for the purpose of revoking the will
  3. Or if another individual performed the act in the testators concious presence by the testators direction
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5
Q

UPC “revocatory act on the will” includes:

A
  1. burning
  2. tearing
  3. canceling
  4. obliterationg
  5. destroying
    the will or any part of it
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6
Q

UPC revocation

A burning, tearing, canaceling is a revacatory act on the will whether or not the burn, tear, or cancellation…

A

touched any of the words on the will

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7
Q

Revocaton of a will requires

A
  1. intent AND
  2. revocatory act
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8
Q

UPC 2-507 Revocation by writing or by act

If a subsequent will does not expressly revoke a previous will…

A

the execution of the subsequent willl wholy revokes the previous will by inconsistancy

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9
Q

revocation by writing or act

The testaor is presumed to have intended a subsequent will to replace rather than supplement a previous will if…

A

the subsequent will makes a complete disposiion of hte tesators estate.

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10
Q

UPC 2-507 Revocation by writing or by act

The testaor is presumed to have intended a subsequent will to replace rather than supplement a previous will if… this presumpption arises, it can be rebutted by

A

clear and convincing evidence

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11
Q

UPC 2-507 Revocation by writing or by act

The testaor is presumed to have intended a subsequent will to replace rather than supplement a previous will if… this presumpption arises and is not rebutted by clear and convincing evidence…

A

the prevous will is revoked, only the subsequent will is operative on the tesators death.

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12
Q

UPC 2-507 Revocation by writing or by act

The testator is presumed to have intended a subsequent will to supplement raher than replace a previous will if…

A

the subsequent will does not make a complete disposition of the testators estate.

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13
Q

UPC 2-507 Revocation by writing or by act

The testator is presumed to have intended a subsequent will to supplement raher than replace a previous will if… if this presumption arises is not rebutted…

A

the subsequent will revokes the previous will only o the extent the subsequent will is inconsistant with the previous will; each will is fully operative on teh testator’s death to the extent they are not incosistant

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14
Q

UPC 2-507 Revocation by writing or by act

If a later document, will or codicil, is silent about how it affects an earlier document

A

UPC 2-507(b) instructs us to look at the testators intent.

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15
Q

UPC 2-507 Revocation by writing or by act

If a later document, will or codicil, is silent about how it affects an earlier document, UPC 2-507(b) instructs us to look at eh testators intent. It presumes…

A

an intention to replace the earlier will if the later document “makes a complete disposition, AKA contains a residuary clause

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16
Q

UPC 2-507 Revocation by writing or by act

If the later document simply changes a bequest or adds a devise or changes the executor, the later is presumed to

A

be a supplement and not a revocation

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17
Q

UPC 2-507 Revocation by writing or by act

how presumption can be rebutted

A

by clear and convincing evidence that the testator intended a deifferent result.

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18
Q

UPC 2-507 Revocation by writing or by act

The presumption the UPC makes for when a revoked wills is revived, depends on:

A
  1. method of revocation: act or writing
  2. what is being revoked: the whole or part
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19
Q

A document that “wholly” revoked a will:

A

A will

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20
Q

A document that “partly revoked: a previous will:

A

Codicil

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21
Q

UPC 2-509 Revival of a Revoked WIll

If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under 507, the previous will…

A

remains revoked unless it is revived

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22
Q

If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under 507, the previous will remain revoked unless revived. The previous will is revived if

A

it is evident from the circumstances of the revocaton of the subsequent will or from the testatorys conemporary or subsequent declarations that the testator intended the previous will to take effect as executed

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23
Q

If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under 507
What happens to the revoked part of the previous will

A

it is revived

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24
Q

If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under 507, a revoked part of the previous will is revived unless

A

it is evident from the circumstances of the subsequent will or form the testator’s circumstances of the revocation of subsequent will or from the testators contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as created

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25
Q

If a subsequent will that revoked a previous will in part or whole is thereafter revoked by another, later will, the previous will…

A

remains revoked in whole or in part, unless it or its revoked part is revived

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26
Q

If a subsequent will that revoked a previous will in part or whole is thereafter revoked by another, later will… the previous will or its revoked part is revived to the extent

A

that it appears from the terms of the later will that the testator intended the previous will to take effect.

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27
Q

5 steps for

how to approach a problem that has multiple wills

A
  1. Identify all potential testamentary documents
  2. order the docs by date
  3. classify doces as wills or codicils
  4. order them rom older to newest, evaluate the validity of each document
  5. Resolve any inconsistancies or conflicts, recognizing, the principles of revocation, and the concept of revival
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28
Q

Common law doctrine of dependant relative revocation (law of second best) applies when

A

Applies when a testator executes a new will revoking a formerly valid will, but the new will turns out to be invalid for some reason

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29
Q

Common law doctrine of dependant relative revocation (law of second best) allows

A

allows courts to re-establish the older, valid but revoked will, reasoning that the revocation of the older will “depended” on the new will being valid

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30
Q

Doctrine of revival applies when

A

a testator has revoked a later will that itself revoked an earlier will

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31
Q

Dependant Relative Revocation applies when

A

a will revoking a prior will is itself invalid

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32
Q

Doctrine of lapse

applies when

A

a beneficiary named in a will predeceases the testator

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33
Q

When the beneficiary’s gift is said to lapse (fail)

A

when a beneficiary named in a will predeceases the testator

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34
Q

Doctrine of Lapse

a beneficiary’s gift is said to lapse (fail) UNLESS

A

the juris. antilapse statute provides a substitute gift to the predeceased beneficiary’s descendants

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35
Q

Common law rule of lapse applies based on how the gifts are classified

A

1) specific
2) demonstrative
3) residuary

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36
Q

Specific gifts

A

my car, my stock, my jewelery

37
Q

Demonstrative gifts

A

10,000 to be paid from my netflix stock

38
Q

Residuary gifts

A

everything else I own
or
the residue of my estate

39
Q

Lapse

If a specific, general, or demonstrative gift lapses

A

the lapsed gift falls into residue

40
Q

UPC 603 Antilapse, Deceased Devisee, Class Gifts

substitute gift

A
  • If a devisee fails to survive the testator and
  • is a grandparent,
  • a descendant of a grandparent,
  • or a stepchild of either the the testator or
  • the donor of a power of appointment exercised by the testators will
41
Q

UPC 603 Antilapse, Deceased Devisee, Class Gifts

If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the the testator or the donor of a power of appointment exercised by the testators will, the following applies:
1) if the devisee is not in the form of a class gift and the deceased devisee leaves surviving descendants

A

A substitute gift is created in the devisee’s surviving descendants
(they take respresentation the property to which would have been entitled to had the devisee survived the testator.)

42
Q

UPC 603 Antilapse, Deceased Devisee, Class Gifts

If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the the testator or the donor of a power of appointment exercised by the testators will, the following applies:
2) if the devisee is in the form of a class gift, other than…

A

a devise to “issue,” “descendants,” “heir of the body,” “heirs,” “next of kin,” “relatives,” or “family” or a class described by language of similar import.

43
Q

UPC 603 Antilapse, Deceased Devisee, Class Gifts

If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the the testator or the donor of a power of appointment exercised by the testators will, the following applies:
2) if the devisee is in the form of a class gift, other than a devise to “issue,” “descendants,” “heir of the body,” “heirs,” “next of kin,” “relatives,” or “family” or a class described by language of similar import.

A

A substitute gift is created in the surviving descendants of any deceased devisee
( the property to which the devises would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the decesed devisee)

44
Q

Lapse

Deceased devisee

A

means a class member who failed to survive the testator and left one or more surviving descendants

45
Q

UPC 603 Antilapse, Deceased Devisee, Class Gifts

If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the the testator or the donor of a power of appointment exercised by the testators will, the following applies:
3) Words of survivorship

A

are not, in the absense of additional evidence, a sufficent indication of an intent contrary to the applicaion in this section

46
Q

UPC 603 Antilapse, Deceased Devisee, Class Gifts

examples of words of survivorship

A

in a devise to an individual “if he survives me,”
or
in a devise to “my surviving children”

47
Q

UPC 603 Antilapse, Deceased Devisee, Class Gifts

language of surviorship does not

A

override the antilapse statute

48
Q

lapse

class gift

A

a gift that applies to only memebers of that class

49
Q

lapse - class gifts

without antilapse statute,

A

only the members of the class (those who survive the testator) share in teh gift

50
Q

When a antilapse statute applies to a class gift

A

the descendants of a predeceased class member share that deceased beneficiary portion

51
Q

UPC 507 Revocation by writing or act

counts for what kinds of wills

A

holographic and non-holographic wills

52
Q

UPC 507 Revocation by writing or act

no particular words are necessary to show testamentary intent as long as

A

the record demonstrates that a decedent intended the document to be his last will and testament

53
Q

Incorperation by refrence and republication by codicil

elements

A

1) it exists prior to will
2) will has to refer to the doc - proficent to decribe the doc

54
Q

Pour over will structure

A

if a trust is nto in existance when I die, I authorize the trustee to create a trust under the same standards.

55
Q

UPC 513: sep. writing ident. devise of cert. types of tang. pers. prop.

Holographic wills

A

that dispose of tangible personal prop. other than money is valid.

56
Q

UPC 513: sep. writing ident. devise of cert. types of tang. pers. prop.

Holographic wills that disposed of tangible personal prop. other than money

A

is valid

57
Q

Events of Independant Significance

Naming status as a beneficiary

A

Doesnt have to name anyone but names a status, “who takes care of me gets the estate”

58
Q

Events of Independant Significance

naming a status as a beneficiary policy arg

A

testator leaving power to change their dispostion

59
Q

Events of Independant Significance

A

has independant significance apart from testamentary intent
ex. safety deposit box

60
Q

Ademption by satisfaction applies

doctrine of satisfaction

A

to a gift that a testator makes during life to “satisfy” a testamentary bequest
(resembles advancement i the intestance context)

61
Q

Ademption by extinction applies when

(ademption)

A

a testator’s will contains a gift of a specific item that is no longer in the estate when the testator dies.

62
Q

Accretions and Accessions

A

When property that is in the estate has produced additional property

63
Q

Abatement

A

When property in the estate is insufficent to make all the gifts

64
Q

Exoneration

A

when property in the estate has debt associated with it

65
Q

Ademption

A

the destruction or extinction of a testamentary gift by reason of a bequethed asset’s ceasing to be apart of the estate at the time of the testators death

66
Q

2 types of ademption

A

1) Ademption by extinction
2) Ademption by satisfaction

67
Q

Ademption by extriction occurs when

A

the unique property that is the subject of the specific bequest has been sold, given away, or destroyed, or is otherwise not in existance at eth time of the testators death

68
Q

Ademption by extinction results because:

A

the doing of some act with regard to the subject matter which interferes with the operation of the will

69
Q

Ademption Satisfaction occurs when

A

the testator, while alive, has already given something of value to the beneficiary in lieu of the legacy

70
Q

Ademption by satisfaction refers to the situation in which

A

the testator gives in his lifetime to a legatee, what he had left him in his will

71
Q

Ademption by satisfaction is concerned with

A

the intentions of the testator at the time the inter vivos gift was made

72
Q

UPC 609 Ademption by Satisafaction

An inter vivos gift made by the testator to a devise or to the member of the devisee’s family

A

adeems the devise by satisfaction, in whole or in part, if the testator indicated in contemporaneous writing, or if the devisee acknowledged in writing, that the gift was so to operate

73
Q

UPC 609 ademption by satisfaction

required evidence of intent can take 1 of 3 forms:

A

1) A statement of the will itself providing for deduction of the gift or any future gift
2) A written statement of the testator in a cotemporaneous writing indicating that the gift is in full or partial satisfaction of the devise, OR
3) A written statement of the devisee acknowledging that the gift is in full partial satisfaction of the devise.

74
Q

How the doctrine of ademption is a intent-effecting doctrine

A

It operates to prevent the legatee from recieving a double gift against the testators wishes

75
Q

Ademption by Satisfaction

the burden is upon

A

the one who asserted inter vivos gift was intended to satisfy the legacy

76
Q

2 circumstances when the presumption is that the intent was to adeem

A
  1. if the bequests are for a particular purpose, a subsequent gift to the legatee by the testator in his lifetime for the same purpose operates as a satisfaction of the legacy to the amount of the gift (must not be substantially differnt in kind from the legacy.)
  2. If a testator has given a legacy in order to accomplish a certain purpose and he subsequently accomplishes that purpose himself
77
Q

UPC 209 Ademption by Satisfaction

Property a testator gave in his or her lifetime to a person is treated as a satisfaction of a devise in whole or in part ONLY IF:

A

1) The will provides for deduction of the gift
2) the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise
3) The devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise

78
Q

Ademption

when specifically devised property is sold as a result of acts that are involuntary to teh testator

A

Ademption foes not occur

79
Q

Ademption - trasaction of a specific devise

Ademption occurs when a testator had

what are the 4 requirements

A

1) knowledge of a transaction involving devise,
2) realize the effect of the transaction on his or her estate plan, and
3) has oppertunity to revise the will

80
Q

UPC 206 Nonademption of Specific Devises

A specific devisee had a right to specically devised property in the testators estate at the testators death and to:

A

3) Any Proceeds unpaid at death on fire or casulaty insurance on or other recovery for injury to the property,
5) Any real property or tangible personal property owned by the testator at death which the testatoe acquired as a replacement for specifically devised real property or tangible personal property.
6) a pecuniary devise equal to teh value as of its date of disposition of other specifically devised propery disposed of during the testator’s lifetime (but only to the extent it is established that ademption would be inconsistant with the testators manifested plan of distribution or that at the time of the will was made the date of disposition or otherwise, the testator did not intend ademption of the devise.)

81
Q

UPC 605 Increase in Securities, accessions

(a) If a testor executes a will that devise securities
and
the testator then owned securiteis that meet the description in the will,
Then…

A

the devise includes additional securities owned by the testator at death to the extent the additional securities were acquired by the testator after the will was executed as a result of the testators ownership of the described securities

82
Q

UPC 605 Increase in Securities, accessions

(b) Distributions in case before death with respect to a described

A

security are not part of the devise

83
Q

Gifts or property that hace some type of lien or mortgage associated with that property
Ask:

A

If the property passes subject to that debt or is free of it

84
Q

UPC 607 Nonexoneration

A

A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

85
Q

UPC 902 abatement

Shares of distributions, without any prefrence or priority as between real and personal property, in the following order:

A

1) property not disposed by the will,
2) residuary devises,
3) general,
4) specific

86
Q

UPC 902 abatement

For purposes of abatement, a general devise charged on any specific property or fund is a

A
  • specific devise to the extent of the value of the property on which it is charged,
  • and upon failure or insufficiency of the property on which it is charged, a a general devise to the extent of the failure or insufficiency
87
Q

UPC 902 abatement

Abatement within each classification is in proportion to the amounts of

A

property each of the beneficiaries would have recieved, in full distribution of the property had been made in accordance with the terms of the will

88
Q

UPC 902 abatement

Distributions in cash before death with respect to a described security

A

are not part of the devise

89
Q

UPC 302 Omitted Child

(Parent-child relationship established after the execution of will)
If a testator becomes a parent after the execution of the testators will and fails to provide in the will for the child,
the ommited child recieves a share in the estate as follows:
1) if the testator had no children when executed the will

A

Wills & Trusts (8 decks)

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