Rules

Question 1

Which law governs the validity of a will?

Answer 1

State law

Question 2

Under the UPC, what are the required formalities to form a valid will?

Answer 2

The will must be:

1) In writing;
2) Signed by the testator (or someone in T’s presence and by T’s direction); &
3) Either (1) signed by at least 2 witnesses within a reasonable time; or (2) notarized

Question 3

What is the UPC Harmless Error Rule?

Answer 3

An improperly executed will is still valid if proven (1) by clear and convincing evidence (2) that decedent intended writing to be his will

Question 4

What is the Doctrine of Integration?

Answer 4

A document will be integrated into a will if the Testator:

(1) intended it to be part of the will; &
(2) It was physically present at time of will’s execution

Question 5

What is a holographic will?

Answer 5

A handwritten will that is not witnessed

Question 6

What are the requirements for a holographic will to be held valid?

Answer 6

Signed, and under UPC and some states, material portions are in the testator’s handwriting

Question 7

What is a codicil?

Answer 7

A document made after a will is executed that modifies, amends, or revokes a will

Question 8

When will a document be incorporated by reference?

Answer 8

When:

1) It was in existence at the time the will was executed;
2) It was sufficiently described in the will; &
3) Testator intended to incorporate it into the will

Question 9

Under the UPC, when will a bequest of tangible personal property (other than money) be incorporated into a will?

Answer 9

If

1) Signed by testator; and
2) item/devisees are described with reasonable certainty

**note** no requirement that document is in existence at time of execution

Question 10

What are the methods of revoking a will?

Answer 10

1) Revocation by Physical Act
2) Revocation by Subsequent Will or Codicil
3) Dependent Relative Revocation

Question 11

Revocation by Physical Act

Answer 11

Requires 1) intent o revoke; & 2) burned, torn, destroyed or cancelled by testator
**note UPC does not require physical contact, words are enough

Question 12

Revocation by Subsequent Will or Codicil

Answer 12

Valid only to the extent that the previous will conflicts with the new, unless the new will expressly revokes the previous will in its entirety

Question 13

Dependent Relative Revocation

Answer 13

A first will is not revoked if a later will is found invalid
-Court looks to testator’s intent when determining applicability of this doctrine

Question 14

What happens to a will upon divorce?

Answer 14

Divorce revokes gifts in favor of a former spouse
*note, filing is not enough. Needs to be actual divorce or annulment

Question 15

What happens if the beneficiary does not survive the testator?

Answer 15

The gift will lapse or fail and fall into the residuary.

Question 16

When does an antilapse statute apply?

Answer 16

All states have antilapse statutes. If the beneficiary predeceases the testator, was related by blood to the testator and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.

Question 17

What is a slayer statute?

Answer 17

An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent’s estate

Question 18

What is ademption?

Answer 18

Ademption occurs when specifically devised property is not in the testator’s estate when the testator dies. The gift adeems, i.e. fails.

Question 19

What is abatement?

Answer 19

Abatement occurs when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will

Question 20

In what order are beneficiaries’ gifts abated?

Answer 20

(1) intestate property
(2) residuary gifts
(3) general gifts
(4) specific gifts

Question 21

What is the test for a testator’s mental capacity?

Answer 21

The testator has capacity when the testator knows:

(1) the nature and extent of his property;
(2) the persons who are the natural objects of the testator’s bounty
(3) the nature of the instrument that the testator is signing; and
(4) the disposition that is being made in the will

Question 22

Describe the CL & UPC approach to Advancements

Answer 22

CL: Gifts to heirs during lifetime were considered advancements, and the amount of the gift was deducted from the heir’s share of the estate

UPC: A gift is not an advancement unless (a) the will provides for a deduction; or (b) a writing indicated that the property was in satisfaction of a devise

Question 23

What are the requirements of an effective disclaimer?

Answer 23

1) in writing;
2) describe interest or power disclaimed;
3) signed by person making disclaimer; &
4) delivered or filed

CL: reasonable time
UPC: any time (as long as not barred, for example by acceptance)

Question 24

What happens to disclaimed property?

Answer 24

a) passes according to terms of will/trust; or
b) treated as though person predeceased testator (lapse or anti-lapse statute)

Question 25

Incorporation by Reference

Answer 25

A document that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty.

(Writing must exist at time will is executed!)

Question 26

Undue Influence (elements)

Answer 26

(1) testator was susceptible to undue influence;
(2) influencer had opportunity to exert
(3) influencer had disposition to exert, and
(4) will appears to be a product of undue influence

Question 27

Who has standing to challenge a will?

Answer 27

a) beneficiaries;
b) someone who should be a beneficiary; or
c) someone who would benefit financially if decedent died without a will

Question 28

What is modern per stirpes (per capita with representation)?

Answer 28

A child will take his parent’s share

Question 29

What is per capita at each generation?

Answer 29

Each cousin will be treated alike

Question 30

Describe the per capita at each generation method for dividing an estate

Answer 30

1. Find first generation where there are issue living.
2. Give one share for each living issue, and one share for each person in that generation who predeceased the decedent but left issue surviving.
3. Combine shares belonging to deceased persons and distribute them equally at the next generational level (Cousins treated alike)

Question 31

Describe the per capita with representation (modern per stirpes) method of distribution

Answer 31

1. Find the first generation with living issue
2. Give one share for each living issue and one for each person who predeceased decedent but left issue surviving
3. Each deceased person’s share is passed on to her issue(s)