Revocation, changes, lapse, ademption

Question 1

Will Revocation

A testator can revoke a will by

Answer 1

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

Question 2

No will or codicil shall be revoked unless:

what 3 points

Answer 2

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

Question 3

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

Answer 3

on the wills words/writing

Question 4

UPC revocation by

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

Answer 4

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

Question 5

UPC “revocatory act on the will” includes:

Answer 5

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

Question 6

UPC revocation

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

Answer 6

touched any of the words on the will

Question 7

Revocaton of a will requires

Answer 7

1. intent AND
2. revocatory act

Question 8

UPC 2-507 Revocation by writing or by act

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

Answer 8

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

Question 9

revocation by writing or act

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

Answer 9

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

Question 10

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

Answer 10

clear and convincing evidence

Question 11

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…

Answer 11

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

Question 12

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…

Answer 12

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

Question 13

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…

Answer 13

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

Question 14

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

Answer 14

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

Question 15

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…

Answer 15

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

Question 16

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

Answer 16

be a supplement and not a revocation

Question 17

UPC 2-507 Revocation by writing or by act

how presumption can be rebutted

Answer 17

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

Question 18

UPC 2-507 Revocation by writing or by act

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

Answer 18

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

Question 19

A document that “wholly” revoked a will:

Answer 19

A will

Question 20

A document that “partly revoked: a previous will:

Answer 20

Codicil

Question 21

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…

Answer 21

remains revoked unless it is revived

Question 22

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

Answer 22

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

Question 23

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

Answer 23

it is revived

Question 24

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

Answer 24

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

Question 25

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

Answer 25

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

Question 26

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

Answer 26

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

Question 27

5 steps for

how to approach a problem that has multiple wills

Answer 27

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

Question 28

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

Answer 28

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

Question 29

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

Answer 29

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

Question 30

Doctrine of revival applies when

Answer 30

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

Question 31

Dependant Relative Revocation applies when

Answer 31

a will revoking a prior will is itself invalid

Question 32

Doctrine of lapse

applies when

Answer 32

a beneficiary named in a will predeceases the testator

Question 33

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

Answer 33

when a beneficiary named in a will predeceases the testator

Question 34

Doctrine of Lapse

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

Answer 34

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

Question 35

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

Answer 35

1) specific
2) demonstrative
3) residuary

Question 36

Specific gifts

Answer 36

my car, my stock, my jewelery

Question 37

Demonstrative gifts

Answer 37

10,000 to be paid from my netflix stock

Question 38

Residuary gifts

Answer 38

everything else I own
or
the residue of my estate

Question 39

Lapse

If a specific, general, or demonstrative gift lapses

Answer 39

the lapsed gift falls into residue

Question 40

UPC 603 Antilapse, Deceased Devisee, Class Gifts

substitute gift

Answer 40

• 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

Question 41

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

Answer 41

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.)

Question 42

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…

Answer 42

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.

Question 43

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.

Answer 43

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)

Question 44

Lapse

Deceased devisee

Answer 44

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

Question 45

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

Answer 45

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

Question 46

UPC 603 Antilapse, Deceased Devisee, Class Gifts

examples of words of survivorship

Answer 46

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

Question 47

UPC 603 Antilapse, Deceased Devisee, Class Gifts

language of surviorship does not

Answer 47

override the antilapse statute

Question 48

lapse

class gift

Answer 48

a gift that applies to only memebers of that class

Question 49

lapse - class gifts

without antilapse statute,

Answer 49

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

Question 50

When a antilapse statute applies to a class gift

Answer 50

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

Question 51

UPC 507 Revocation by writing or act

counts for what kinds of wills

Answer 51

holographic and non-holographic wills

Question 52

UPC 507 Revocation by writing or act

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

Answer 52

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

Question 53

Incorperation by refrence and republication by codicil

elements

Answer 53

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

Question 54

Pour over will structure

Answer 54

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

Question 55

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

Holographic wills

Answer 55

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

Question 56

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

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

Answer 56

is valid

Question 57

Events of Independant Significance

Naming status as a beneficiary

Answer 57

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

Question 58

Events of Independant Significance

naming a status as a beneficiary policy arg

Answer 58

testator leaving power to change their dispostion

Question 59

Events of Independant Significance

Answer 59

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

Question 60

Ademption by satisfaction applies

doctrine of satisfaction

Answer 60

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

Question 61

Ademption by extinction applies when

(ademption)

Answer 61

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

Question 62

Accretions and Accessions

Answer 62

When property that is in the estate has produced additional property

Question 63

Abatement

Answer 63

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

Question 64

Exoneration

Answer 64

when property in the estate has debt associated with it

Question 65

Ademption

Answer 65

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

Question 66

2 types of ademption

Answer 66

1) Ademption by extinction
2) Ademption by satisfaction

Question 67

Ademption by extriction occurs when

Answer 67

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

Question 68

Ademption by extinction results because:

Answer 68

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

Question 69

Ademption Satisfaction occurs when

Answer 69

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

Question 70

Ademption by satisfaction refers to the situation in which

Answer 70

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

Question 71

Ademption by satisfaction is concerned with

Answer 71

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

Question 72

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

Answer 72

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

Question 73

UPC 609 ademption by satisfaction

required evidence of intent can take 1 of 3 forms:

Answer 73

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.

Question 74

How the doctrine of ademption is a intent-effecting doctrine

Answer 74

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

Question 75

Ademption by Satisfaction

the burden is upon

Answer 75

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

Question 76

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

Answer 76

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

Question 77

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:

Answer 77

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

Question 78

Ademption

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

Answer 78

Ademption foes not occur

Question 79

Ademption - trasaction of a specific devise

Ademption occurs when a testator had

what are the 4 requirements

Answer 79

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

Question 80

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:

Answer 80

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.)

Question 81

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…

Answer 81

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

Question 82

UPC 605 Increase in Securities, accessions

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

Answer 82

security are not part of the devise

Question 83

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

Answer 83

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

Question 84

UPC 607 Nonexoneration

Answer 84

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.

Question 85

UPC 902 abatement

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

Answer 85

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

Question 86

UPC 902 abatement

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

Answer 86

• 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

Question 87

UPC 902 abatement

Abatement within each classification is in proportion to the amounts of

Answer 87

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

Question 88

UPC 902 abatement

Distributions in cash before death with respect to a described security

Answer 88

are not part of the devise

Question 89

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

Answer 89

An omitted after-born or after adopted child recieves a share of the estate equal to the value that the child woulf have recieved had the testator died intestate

UNLESS the will devised or substantially all of the estate to another parent of the ommitted child and that parent survives the testator and is entitled to take under the will

Question 90

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:
2) if the testator had one or more children when the testator wxecuted the will AND the will devised property or an interest in propert to one or more of then living children
- The ommitted child is entitled to share in the testators estate as follows:

1-4

Answer 90

1. the portion of the testators extate in which the ommited child is entitled to share is limited to devise made to the testators then living children under the will
2. The ommited child is entitled to the share of the testators estate, as in (1), that the child would have recieved had the testator included all ommitted children with the children who to whom devises were made in the will and had given an equal share of the estate to each child
3. to the extent feasible, the interest granted an ommited child under this section must be of teh same character, whether equitable or legal present or futute, as that devised to the testators then living children under the will
4. In the same satisfaction of a share provided by this paragraph, devises to the testators children who were living when the will was executed abate rarably. in abating the devise of the then-living children, the court shall preserve to the maximum extent possible the character od the testamentary plan adopted by the testator

Question 91

UPC 302 Omitted Child

b. Intentional ommision of child, provision for child outside of will (Nethier A1 or A2 applies if

Answer 91

1. It appears the the ommision was intentional, or
2. the testator provided the ommited child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testators statements or is reasonably inferred from the amount of the transfer or other evidence

Question 92

Marriage outside of a will

UPC 301 assumes that the premarital will

Answer 92

reflects the testators intent to the extent the will benefits the testators issue (children and descendants) but presumes that gift to anyone else are negated upon marriage

Question 93

UPC 301 entitlement of spouse, premarital will

If a testators surviving spouse married the testator after the testator executed the will the surviving spouse is entitled to recieve:

Answer 93

as an intestate share, no less, then the value of the share of the estate the spouse would have recived if the testator died intestate as to that portion of the testators estate
if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse nor is devised to a descendant of such a child or passes under 603 or 604 to such a child or to a descendant of such a child

Question 94

UPC 301 entitlement of spouse, premarital will

If a testators surviving spouse married the testator after the testator executed the will the surviving spouse is entitled to recieve:
as an intestate share, no less, then the value of the share of the estate the spouse would have recived if the testator died intestate as to that portion of the testators estate
if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse nor is devised to a descendant of such a child or passes under 603 or 604 to such a child or to a descendant of such a child
UNLESS

1-3

Answer 94

1. it appears from the will or other evidence that the will was made in contemplation of the testators marriage to the surviving spouse
2. the will expresses the intention that it is to be effective notwithstanding any subsequent marriage, or
3. the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testators statements or is reasonably inferred from the amount of the transfer or other evidence

Question 95

Antilapse statutes creates

Answer 95

a substitute bequest in the beneficiary’s descendants
(may not apply to all people)
(may not apply to lapsed residuary request)

Question 96

lapse happens when

Answer 96

beneficiary predeceases the testators

Question 97

When there is a lapse we look at

Answer 97

1. does the will provide a contingency?
2. what does the antilapse statute provide?
3. are “words of survivorship” sufficient indication of intent?

Question 98

Presumption with lapse

Answer 98

want it to go to the beneficiary’s descendants unless they specify thay do not want it to

Question 99

When there are change to property, 4 things to consider

Answer 99

1. satisfaction
2. ademption
3. accretions and accessions
4. exoneration

Question 100

satisfaction happens when

Answer 100

you dont get another gift after the death because already got a gift

Question 101

ademption by extinction

when gifted property is no longer available under the will bc

Answer 101

sold, lost, or destroyed, or just vanished
(what happens depends on identity or intent approach)

Question 102

sale of the property by an attourney in fact, while testator is incompetent is not

Answer 102

ademption and the devise is entitled to the remaining proceeds of the sale

Question 103

How a problem may occur when figuring out if the propert is a replacement
ex. if a beach home over a mountain home

Answer 103

• look at purpose (ex. vacation home)
• when bought, proceeds from one was used to but the other
• if not comparable value prolly not a replacement (then argue purpose)

Question 104

When a item is sold, the value of the item is

Answer 104

the value of the property at the date it went away.

Question 105

manifested plan of ditribution

“all three kids get a car,” sold one car

Answer 105

The kid gets the value($) of the car because it would disrupt the manifested plan of distribution

Question 106

securities

Answer 106

bonds, trusts, etc

Question 107

debts

general direction to pay off debts

Answer 107

does not mean that a bequest of property with mortgage means that the personal rep. pays off mortgage with residuary of estate
UNLESS
it specifically says to pay off the mortgage

Question 108

has two children.
gives loan to a child, then die.

Answer 108

The loan is an asset to estate
- the 2 children typically get 50%/50%
- Now 1st child owes other child the money

Question 109

has two children.
gives loan to a child, then die.
will says “forgive debt at death”

Answer 109

allows the debt to be forgiven, they no longer owe the debt to the beneficiaries of the will

Question 110

607 nonexoneration

property passes

Answer 110

without the right of exoneration, regardless

Question 111

Abatement

If abate, it will not

Answer 111

be satisafied before general or specifc devises

Question 112

UPC order of categories to be satisafied

Answer 112

1. specific
2. general
3. residuary
4. property that is not disposed by a will

Question 113

If not wanting to follow the predetermined order of categories of gifts to be satisfied

Answer 113

have an abatement clause
- come up with when there are less money in estate in will then what will the eill give away

Question 114

when drafting a will with different cateogories of gifts, when drafting think about how less money

Answer 114

affects the residuary

Question 115

to omit a childm there needs to be

Answer 115

an express disinheritancy statment on the will

Question 116

when there is a divorce, the will automatically

Answer 116

revokes provisions that benefit the previous spouse