Rules Flashcards
Which law governs the validity of a will?
State law
Under the UPC, what are the required formalities to form a valid will?
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
What is the UPC Harmless Error Rule?
An improperly executed will is still valid if proven (1) by clear and convincing evidence (2) that decedent intended writing to be his will
What is the Doctrine of Integration?
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
What is a holographic will?
A handwritten will that is not witnessed
What are the requirements for a holographic will to be held valid?
Signed, and under UPC and some states, material portions are in the testator’s handwriting
What is a codicil?
A document made after a will is executed that modifies, amends, or revokes a will
When will a document be incorporated by reference?
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
Under the UPC, when will a bequest of tangible personal property (other than money) be incorporated into a will?
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
What are the methods of revoking a will?
1) Revocation by Physical Act
2) Revocation by Subsequent Will or Codicil
3) Dependent Relative Revocation
Revocation by Physical Act
Requires 1) intent o revoke; & 2) burned, torn, destroyed or cancelled by testator
**note UPC does not require physical contact, words are enough
Revocation by Subsequent Will or Codicil
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
Dependent Relative Revocation
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
What happens to a will upon divorce?
Divorce revokes gifts in favor of a former spouse
*note, filing is not enough. Needs to be actual divorce or annulment
What happens if the beneficiary does not survive the testator?
The gift will lapse or fail and fall into the residuary.
When does an antilapse statute apply?
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.
What is a slayer statute?
An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent’s estate
What is ademption?
Ademption occurs when specifically devised property is not in the testator’s estate when the testator dies. The gift adeems, i.e. fails.
What is abatement?
Abatement occurs when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will
In what order are beneficiaries’ gifts abated?
(1) intestate property
(2) residuary gifts
(3) general gifts
(4) specific gifts
What is the test for a testator’s mental capacity?
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
Describe the CL & UPC approach to Advancements
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
What are the requirements of an effective disclaimer?
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)
What happens to disclaimed property?
a) passes according to terms of will/trust; or
b) treated as though person predeceased testator (lapse or anti-lapse statute)
Incorporation by Reference
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!)
Undue Influence (elements)
(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
Who has standing to challenge a will?
a) beneficiaries;
b) someone who should be a beneficiary; or
c) someone who would benefit financially if decedent died without a will
What is modern per stirpes (per capita with representation)?
A child will take his parent’s share
What is per capita at each generation?
Each cousin will be treated alike
Describe the per capita at each generation method for dividing an estate
- Find first generation where there are issue living.
- Give one share for each living issue, and one share for each person in that generation who predeceased the decedent but left issue surviving.
- Combine shares belonging to deceased persons and distribute them equally at the next generational level (Cousins treated alike)
Describe the per capita with representation (modern per stirpes) method of distribution
- Find the first generation with living issue
- Give one share for each living issue and one for each person who predeceased decedent but left issue surviving
- Each deceased person’s share is passed on to her issue(s)
