Revocation, changes, lapse, ademption Flashcards
Will Revocation
A testator can revoke a will by
a “revocatory act” upon the will or by a “subsquent writing” that revokes the prior will, either expressly or by implication
No will or codicil shall be revoked unless:
what 3 points
- by a subsequent will or codicil OR
- writing declaring an intention to revoke and execute in manner which a will is required OR
- Testator or other in presence and by direction destroying will/codicil or signature thereto with the intent to revoke
If you revoke a will by writing on the will the writing needs to be…
on the wills words/writing
UPC revocation by
A will or any part thereof is revoked by: what 3 things
- By executing a subsequent will that revokes the previous will or part expressly or by inconsistancy OR
- By performing a revocationary act with the intention and for the purpose of revoking the will
- Or if another individual performed the act in the testators concious presence by the testators direction
UPC “revocatory act on the will” includes:
- burning
- tearing
- canceling
- obliterationg
- destroying
the will or any part of it
UPC revocation
A burning, tearing, canaceling is a revacatory act on the will whether or not the burn, tear, or cancellation…
touched any of the words on the will
Revocaton of a will requires
- intent AND
- revocatory act
UPC 2-507 Revocation by writing or by act
If a subsequent will does not expressly revoke a previous will…
the execution of the subsequent willl wholy revokes the previous will by inconsistancy
revocation by writing or act
The testaor is presumed to have intended a subsequent will to replace rather than supplement a previous will if…
the subsequent will makes a complete disposiion of hte tesators estate.
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
clear and convincing evidence
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…
the prevous will is revoked, only the subsequent will is operative on the tesators death.
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…
the subsequent will does not make a complete disposition of the testators estate.
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…
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
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 the testators intent.
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…
an intention to replace the earlier will if the later document “makes a complete disposition, AKA contains a residuary clause
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
be a supplement and not a revocation
UPC 2-507 Revocation by writing or by act
how presumption can be rebutted
by clear and convincing evidence that the testator intended a deifferent result.
UPC 2-507 Revocation by writing or by act
The presumption the UPC makes for when a revoked wills is revived, depends on:
- method of revocation: act or writing
- what is being revoked: the whole or part
A document that “wholly” revoked a will:
A will
A document that “partly revoked: a previous will:
Codicil
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…
remains revoked unless it is revived
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
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
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
it is revived
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
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
If a subsequent will that revoked a previous will in part or whole is thereafter revoked by another, later will, the previous will…
remains revoked in whole or in part, unless it or its revoked part is revived
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
that it appears from the terms of the later will that the testator intended the previous will to take effect.
5 steps for
how to approach a problem that has multiple wills
- Identify all potential testamentary documents
- order the docs by date
- classify doces as wills or codicils
- order them rom older to newest, evaluate the validity of each document
- Resolve any inconsistancies or conflicts, recognizing, the principles of revocation, and the concept of revival
Common law doctrine of dependant relative revocation (law of second best) applies when
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
Common law doctrine of dependant relative revocation (law of second best) allows
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
Doctrine of revival applies when
a testator has revoked a later will that itself revoked an earlier will
Dependant Relative Revocation applies when
a will revoking a prior will is itself invalid
Doctrine of lapse
applies when
a beneficiary named in a will predeceases the testator
When the beneficiary’s gift is said to lapse (fail)
when a beneficiary named in a will predeceases the testator
Doctrine of Lapse
a beneficiary’s gift is said to lapse (fail) UNLESS
the juris. antilapse statute provides a substitute gift to the predeceased beneficiary’s descendants
Common law rule of lapse applies based on how the gifts are classified
1) specific
2) demonstrative
3) residuary
Specific gifts
my car, my stock, my jewelery
Demonstrative gifts
10,000 to be paid from my netflix stock
Residuary gifts
everything else I own
or
the residue of my estate
Lapse
If a specific, general, or demonstrative gift lapses
the lapsed gift falls into residue
UPC 603 Antilapse, Deceased Devisee, Class Gifts
substitute gift
- 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
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 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.)
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.
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 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)
Lapse
Deceased devisee
means a class member who failed to survive the testator and left one or more surviving descendants
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
are not, in the absense of additional evidence, a sufficent indication of an intent contrary to the applicaion in this section
UPC 603 Antilapse, Deceased Devisee, Class Gifts
examples of words of survivorship
in a devise to an individual “if he survives me,”
or
in a devise to “my surviving children”
UPC 603 Antilapse, Deceased Devisee, Class Gifts
language of surviorship does not
override the antilapse statute
lapse
class gift
a gift that applies to only memebers of that class
lapse - class gifts
without antilapse statute,
only the members of the class (those who survive the testator) share in teh gift
When a antilapse statute applies to a class gift
the descendants of a predeceased class member share that deceased beneficiary portion
UPC 507 Revocation by writing or act
counts for what kinds of wills
holographic and non-holographic wills
UPC 507 Revocation by writing or act
no particular words are necessary to show testamentary intent as long as
the record demonstrates that a decedent intended the document to be his last will and testament
Incorperation by refrence and republication by codicil
elements
1) it exists prior to will
2) will has to refer to the doc - proficent to decribe the doc
Pour over will structure
if a trust is nto in existance when I die, I authorize the trustee to create a trust under the same standards.
UPC 513: sep. writing ident. devise of cert. types of tang. pers. prop.
Holographic wills
that dispose of tangible personal prop. other than money is valid.
UPC 513: sep. writing ident. devise of cert. types of tang. pers. prop.
Holographic wills that disposed of tangible personal prop. other than money
is valid
Events of Independant Significance
Naming status as a beneficiary
Doesnt have to name anyone but names a status, “who takes care of me gets the estate”
Events of Independant Significance
naming a status as a beneficiary policy arg
testator leaving power to change their dispostion
Events of Independant Significance
has independant significance apart from testamentary intent
ex. safety deposit box
Ademption by satisfaction applies
doctrine of satisfaction
to a gift that a testator makes during life to “satisfy” a testamentary bequest
(resembles advancement i the intestance context)
Ademption by extinction applies when
(ademption)
a testator’s will contains a gift of a specific item that is no longer in the estate when the testator dies.
Accretions and Accessions
When property that is in the estate has produced additional property
Abatement
When property in the estate is insufficent to make all the gifts
Exoneration
when property in the estate has debt associated with it
Ademption
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
2 types of ademption
1) Ademption by extinction
2) Ademption by satisfaction
Ademption by extriction occurs when
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
Ademption by extinction results because:
the doing of some act with regard to the subject matter which interferes with the operation of the will
Ademption Satisfaction occurs when
the testator, while alive, has already given something of value to the beneficiary in lieu of the legacy
Ademption by satisfaction refers to the situation in which
the testator gives in his lifetime to a legatee, what he had left him in his will
Ademption by satisfaction is concerned with
the intentions of the testator at the time the inter vivos gift was made
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
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
UPC 609 ademption by satisfaction
required evidence of intent can take 1 of 3 forms:
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.
How the doctrine of ademption is a intent-effecting doctrine
It operates to prevent the legatee from recieving a double gift against the testators wishes
Ademption by Satisfaction
the burden is upon
the one who asserted inter vivos gift was intended to satisfy the legacy
2 circumstances when the presumption is that the intent was to adeem
- 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.)
- If a testator has given a legacy in order to accomplish a certain purpose and he subsequently accomplishes that purpose himself
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:
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
Ademption
when specifically devised property is sold as a result of acts that are involuntary to teh testator
Ademption foes not occur
Ademption - trasaction of a specific devise
Ademption occurs when a testator had
what are the 4 requirements
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
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:
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.)
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…
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
UPC 605 Increase in Securities, accessions
(b) Distributions in case before death with respect to a described
security are not part of the devise
Gifts or property that hace some type of lien or mortgage associated with that property
Ask:
If the property passes subject to that debt or is free of it
UPC 607 Nonexoneration
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.
UPC 902 abatement
Shares of distributions, without any prefrence or priority as between real and personal property, in the following order:
1) property not disposed by the will,
2) residuary devises,
3) general,
4) specific
UPC 902 abatement
For purposes of abatement, a general devise charged on any specific property or fund is 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
UPC 902 abatement
Abatement within each classification is in proportion to the amounts of
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
UPC 902 abatement
Distributions in cash before death with respect to a described security
are not part of the devise
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
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
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
- 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
- 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
- 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
- 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
UPC 302 Omitted Child
b. Intentional ommision of child, provision for child outside of will (Nethier A1 or A2 applies if
- It appears the the ommision was intentional, or
- 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
Marriage outside of a will
UPC 301 assumes that the premarital will
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
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
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
- it appears from the will or other evidence that the will was made in contemplation of the testators marriage to the surviving spouse
- the will expresses the intention that it is to be effective notwithstanding any subsequent marriage, or
- 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
Antilapse statutes creates
a substitute bequest in the beneficiary’s descendants
(may not apply to all people)
(may not apply to lapsed residuary request)
lapse happens when
beneficiary predeceases the testators
When there is a lapse we look at
- does the will provide a contingency?
- what does the antilapse statute provide?
- are “words of survivorship” sufficient indication of intent?
Presumption with lapse
want it to go to the beneficiary’s descendants unless they specify thay do not want it to
When there are change to property, 4 things to consider
- satisfaction
- ademption
- accretions and accessions
- exoneration
satisfaction happens when
you dont get another gift after the death because already got a gift
ademption by extinction
when gifted property is no longer available under the will bc
sold, lost, or destroyed, or just vanished
(what happens depends on identity or intent approach)
sale of the property by an attourney in fact, while testator is incompetent is not
ademption and the devise is entitled to the remaining proceeds of the sale
How a problem may occur when figuring out if the propert is a replacement
ex. if a beach home over a mountain home
- 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)
When a item is sold, the value of the item is
the value of the property at the date it went away.
manifested plan of ditribution
“all three kids get a car,” sold one car
The kid gets the value($) of the car because it would disrupt the manifested plan of distribution
securities
bonds, trusts, etc
debts
general direction to pay off debts
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
has two children.
gives loan to a child, then die.
The loan is an asset to estate
- the 2 children typically get 50%/50%
- Now 1st child owes other child the money
has two children.
gives loan to a child, then die.
will says “forgive debt at death”
allows the debt to be forgiven, they no longer owe the debt to the beneficiaries of the will
607 nonexoneration
property passes
without the right of exoneration, regardless
Abatement
If abate, it will not
be satisafied before general or specifc devises
UPC order of categories to be satisafied
- specific
- general
- residuary
- property that is not disposed by a will
If not wanting to follow the predetermined order of categories of gifts to be satisfied
have an abatement clause
- come up with when there are less money in estate in will then what will the eill give away
when drafting a will with different cateogories of gifts, when drafting think about how less money
affects the residuary
to omit a childm there needs to be
an express disinheritancy statment on the will
when there is a divorce, the will automatically
revokes provisions that benefit the previous spouse
