TBE WILLS & ADMIN--Quick & Dirty Rules Flashcards
EXECUTION OF WILLS
What are the Formal Requirements (4)?
Formalities
The requirements are:
1) The testator MUST BE OF SOUND MIND AND 18 years of age, married, or in the armed forces.
2) The will must be SIGNED BY TESTATOR, or by someone at the testator’s direction and in his presence, which is called the proxy signature.
3) The will must be WITNESSED BY TWO ATTESTING WITNESSES over 14 years old.
4) Each witness must sign in the testator’s CONSCIOUS PRESENCE.
This means that the testator must be generally conscious that the will is being signed by the witness.
Here, the testator does not have to see the process of signing.
He only needs to be in the same room or close by where he could see is sufficient.
The testator is considered not in presence, however, if the witness signs the will in an adjoining room or while the testator is unconscious.
For Example, if the testator is dead or in a coma.
On the other hand, witnesses do not need to know that they are signing a will or sign in each other’s presence.
Also, the testator does not need to sign in presence of witnesses or sign before the witnesses. This means the testator
can sign afterwards as long as he signs immediately afterwards.
The testator also does not have to sign at the end of the will or date the will.
EXECUTION OF WILLS
Attestation Clause
1) What is an attestation clause? Where does it appear?
2) Is the Clause Mandatory?
3) Is inclusion of this clause Prima Facie Evidence of something?
Attestation Clause
1) Next, the Attestation Clause is a clause that appears at the end of a will and describes what just happened.
2) This clause is not mandatory but optional in Texas.
3) The clause is prima facie evidence of the facts recited, and it is useful when a witness has bad memory is a hostile witness who
says the testator was not in room when witness signed
EXECUTION OF WILLS
Codicil
1) What is a codicil?
2) What are the formal requirements?
3) What kind of codicil does Texas allow?
Codicil
1) Moving on, a Codicil is a later AMENDMENT or supplement to a will.
2) It must be executed with the same formalities as a will.
3) Furthermore, Texas allows a holographic codicil to an attested will or an attested codicil to a holographic will.
EXECUTION OF WILLS
Proving Will in Probate
1) How to Prove a will in Probate? Exceptions (3)?
2) Where is venue? Exceptions (2)?
Proving Will in Probate
1) To Prove a Will in Probate, the execution of a will can be proven by the testimony of 1 attesting witness in open court.
If a witness resides outside the county, it can be proven by a deposition or interrogatory.
It can also be proven by a self-proving affidavit.
And if all witnesses are dead or cannot be located, it can be proven by testimony of 2 persons who are familiar with the testator’s signature or signature of either attesting witness.
2) The venue is usually the county where the decedent resided.
However, if the decedent was a nonresident, then the venue should be the county where the principal property is located or the county where he died.
Nonresident Example: Decedent having no domicile or residence in Texas.
EXECUTION OF WILLS
Proving Will in Probate
1) What about contents of a safe deposit box? Requirements?
2) If will is found in safe deposit box, who should it be delivered to?
3) Whats a self-proving affidavit?
—-What function does it serve?
4) How can a party validate a will that does not contain signatures of attesting witnesses? Requirement?
5) What’s a privity bar?
6) If Atty makes a mistake, who and what can be done?
7) Who can’t sue the atty?
8) Can atty keeps secrets? From who and under what circumstances?
1) Now, contents of a safe deposit box may be examined, without a court order, in the presence of a bank official by the decedent’s spouse, his child over 18, or the person named as the executor in the will.
2) A will found in safe deposit box may be delivered to the executor named in will or the probate court.
3) The self proving affidavit is a notarized statement of what just happened.
—-It serves the same function as deposition and interrogatory and acts as a substitute for the attesting witness’s testimony in court.
4) If the will does not contain signatures of attesting witnesses, BUT SELF PROVING AFFIDAVIT DOES, a party can use those signatures to validate the will. In this case, the will is not self proved and HAS TO CALL ONE WITNESS to testify.
5) In a PRIVITY BAR, an attorney is not liable to anyone but the client, who is usually the decedent.
6) If the attorney made a mistake, estate can sue the attorney.
7) Beneficiaries, on the other hand, cannot sue the attorney.
8) When the attorney represents the executor, all attorney-client communications are privileged and cannot be discovered by
beneficiaries.
EXECUTION OF WILLS
Interested Witness
1) What’s an Interested Witness case? Is the will still valid? When is will still valid (2)?
2) If the interested witness would be an heir and there is no valid will?
Interested Witness
1) Lastly, in cases of an Interested Witness, which is an ATTESTING WITNESS who is ALSO a BENEFICIARY under the will, the will is still valid but the gift to the witness is VOID UNLESS EITHER:
a) The WILL can be PROVED WITHOUT the interested witness’ TESTIMONY,
b) Or the interested witness’s testimony is CORROBORATED by the testimony of a disinterested and credible person, such as a
person who was present at the will execution.
2) If the interested witness would be an heir and there is no valid will, then he takes the lesser of the legacy under will or the intestate share.
Example:
If the testator leaves a will with a bequest of $20,000 to his nephew Nathan, then Nathan is an interested witness to the will.
If a will were found to be invalid, Nathan would receive $9,000 as an heir.
Nathan gets $9,000 unless 1 disinterested and credible person corroborates his will, then he can get $20,000.
OTHER WILLS
Holographic Will
1) Whats a holographic will?
2) Can a holographic will valid?
3) Three Requirements of a Holographic Will (3)?
4) What evidence is admissible if will is ambiguous?
5) How do you prove a holographic will (2)?
Holographic Will
1) The first is a Holographic Will, which is a handwritten will without witnesses.
2) Holographic will can be valid in Texas even if it was not valid in the state the testator lived in when he wrote it.
For Example, the holographic will is still valid if a client moved and was domiciled in Texas when he died.
3) There are three requirements of a holographic will:
a) It must be ENTIRELY HANDWRITTEN BY TESTATOR. If any part is mechanically produced, it is not wholly in handwriting
and is not a will unless it is mere extra printed words that are not necessary to complete the will.
b) It must be SIGNED BY TESTATOR. Where the quote “I, John smith” is good enough as signature, the word “I” without a name
is not enough.
c) HANDWRITTEN PORTIONS MUST SHOW TESTAMENTARY INTENT.
An issue arises when the will does not have the statement “this is my will”.
On Exam: LOOK FOR WORDS that SHOW there was INTENT to dispose of property.
For Example, “I, John Smith, leave my property to” sounds like a will.
4) Extrinsic evidence is admissible if the will is ambiguous.
Also, the testator must be intended to take effect at the testator’s death.
5) To prove a holographic will, there has to be at least TWO PEOPLE TESTIFY that it is WHOLLY in the TESTATOR’S HANDWRITING.
There can be a holographic codicil (AMENDMENT) to a typewritten, witnessed Will.
OTHER WILLS
Nuncupative Will
1) WTF is that?
2) Are they valid? Since when (now/before)?
3) What kind of property is applicable to this will?
4) $ amount? If met, what is needed?
Nuncupative Will
1) Next, a Nuncupative Will is an ORAL WILL.
2) In Texas, nuncupative wills made on or after September 1, 2007 are NOT VALID. However, you need to learn about it because oral wills made before September 1, 2007 are still valid.
Oral will is made during the testator’s last illness at his home or if he is sick away from home and dies before returning.
3) It is for personal property only.
4) And if an oral will disposes of more than $30, it MUST HAVE THREE WITNESSES to be valid.
LAPSE
Intestate Rules Application
1) What if beneficiary dies before Testator? Exception?
2) What’s the Anti-lapse Statute?
—-What does it apply to?
—-When will anti-lapse not apply?
3) What happens if no one qualifies to take by anti-lapse?
—-What’s the consequence of this?
Lapse
Intestate Rules Application
1) In general, if a will is executed and the beneficiary dies before the testator or within 120 hours of testator’s death, the gift to the beneficiary lapses.
2) However, an anti-lapse statue will substitute another beneficiary for the dead one.
—-The anti-lapse statute only applies to gifts under a will.
—-Also, anti-lapse will not apply if there is an express requirement of survivorship.
No Substitute Beneficiaries Example: “If he survives me”.
3) If no one qualifies to take by anti-lapse, the gift lapses and goes into RESIDUE.
—-As the consequence, the predeceasing beneficiary must be a descendant of the testator’s parents, such as the testator’s children, grandchildren, siblings, or nieces, and the predeceasing beneficiary must leave descendants who survive the testator by 120 hours.
Examples:
If the testator leaves something to his brother and his brother dies before the testator, the brother’s children can take place of brother.
If the testator leaves something to his child and his child dies before the testator, child’s children can take place of that child.
LAPSE
Intestate Rules Application
1) What’s the Surviving Residuary Beneficiaries Rule?
2) Between the Anti-lapse statute and Surviving Beneficiaries Rule, who wins?
1) For the Lapse in Residuary Estate, under the surviving residuary beneficiaries rule, when the residuary estate is devised to 2 or more persons and the gift to one of them lapses, the remaining beneficiaries take the residuary estate in proportion to their interests.
Example:
If the testator’s will devises that “all the rest and residue of my estate in equal shares to my good friend Alan, my brother Bill and my sister Clara”, and Alan dies before the testator, leaving a child, Andy, who survives the testator by 120 hours.
Also, Bill and Clara survive Testator.
Since Alan is a friend, not a descendant of the testator’s
parents, ANTI-LAPSE STATUTE DOES NOT APPLY.
Bill and Clara, on the other hand, can take half each as
surviving residuary beneficiaries.
2) Furthermore, the anti-lapse statute TRUMPS surviving residuary beneficiaries rules.
Example: With the same facts as the last example, if Clara
predeceases the testator, leaving a child, Carl, who survives the testator by 120 hours, and Alan and Bill also survive Testator, then Carl gets Clara’s 1/3 share of residuary estate under anti-lapse statute because Clara was a sister of the testator and anti-lapse statute trumps the surviving residuary beneficiary rule.
Under the lapse rule, if there is a class gift and a member dies before the testator, the gift does not lapse, rather, the class members who are alive at the testator’s death divide the total gift.
Example:
The testator leaves Blackacre to the children of his friend Joe and the residuary to his wife.
At the time the will was executed, Joe had 2 children, Al and Bill, but after the will is executed and before the testator’s death, Carl is born to Joe.
Al dies but is survived by a son, Al, Jr. And then the testator dies.
18 months later, Joe has a child, Donna.
Results:
Bill and Carl take half each as surviving members.
Under the rule of convenience, a class closes at the testator’s death. Therefore, Donna is excluded from sharing in the gift.
Subject to the gestation principle, to be included in a class, a child has to be conceived for at least 300 days at the time of the testator’s death.
And under the anti-lapse rule, if the class member that died was also a descendant of the testator’s parents who left children, his gift should not pass to other class members but rather it should pass to the issue of the dead class member.
With the same facts as above, if the will specifies that it is
the gift to “children of his brother, Joe”, since Al was a
descendant of the testator’s parents, anti-lapse statute applies and Al, Jr. would take the gift.
LAPSE
Intestate Rules Application
3 Methods for Distribution?
3 Methods for Distribution:
(1) Based on per capita, there should be one share for each descendant.
The language that makes per capita is “to my descendant per capita.”
On Exam: To find out the distribution, count the number of people alive and divide by that number.
(2) Based on per stirpes, there would be one share for each family line.
The language that creates per stirpes is “to my descendants per stirpes.”
Under the per stirpes distribution, the descendants of a
deceased person take by representation the share that the deceased person would have taken had he survived to be an heir.
(3) when there is per capita with representation, heirs
take equally at the first generational level with a living heir.
INTESTATE SUCCESSION
When do intestate rules apply?
Intestate Succession
1) Application
Intestate rules apply when:
a) The decedent leaves no will
b) His will is not valid,
c) The will does not make a complete d) disposition of the estate,
d) Or his heir successfully contests the will and the will is denied probate.
INTESTATE SUCCESSION
Married Persons
1) How can property be categorized for married persons without a will?
2) If all children belong to both the dead and surviving spouse?(C/P)
3) If there are mixed children (C/P)
4) If there are no children left (C/P)
5) What happens with Separate PERSONAL Property when spouse and children?
6) What happens with Separate REAL Property when spouse and children?
7) If they do not have children? (S/P/P)
8) What happens to Separate REAL Property when spouse and children?
Married Persons
1) In cases of intestate succession for Married Persons, property can be categorized into COMMUNITY or SEPARATE property.
2) If ALL CHILDREN belong to both the dead and surviving spouse, then ALL COMMUNITY PROPERTY goes to SURVIVING SPOUSE.
3) If there are mixed children, then the SURVIVING SPOUSE gets HALF of the COMMUNITY PROPERTY, and the dead spouse’s CHILDREN, BOTH MIXED AND WHOLE, SHARE his (other) HALF of the COMMUNITY PROPERTY.
4) If there are no children left, then all COMMUNITY PROPERTY goes to the SURVIVING SPOUSE.
5) On the other hand, ONE THIRD of SEPARATE PERSONAL PROPERTY will be given to SPOUSE and TWO THIRDS to the CHILDREN OR THEIR DESCENDANTS.
6) For SEPARATE REAL PROPERTY, ONE THIRD LIFE ESTATE goes to the SURVIVING SPOUSE and TWO THIRDS REMAINDER to their CHILDREN or Descendants.
7) If they do not have children, the SPOUSE gets ALL of the SEPARATE PERSONAL PROPERTY that belongs to him.
8) And for SEPARATE REAL PROPERTY, the SPOUSE gets HALF in FEE SIMPLE, and the DECEDENT’s PARENTS OR their DESCENDANTS, such as the dead spouse’s brothers and sisters, get HALF in FEE SIMPLE.
However, if there are NO SURVIVING PARENTS OR DESCENDANTS, then the SPOUSE gets ALL.
**On Exam: After discussing distribution among the spouse and children or descendants, mention homestead, exempt personal property set-aside, and family allowance.
INTESTATE SUCCESSION
Intestate Law for Single Decedent
1) Who takes is decedent is single?
2) If no descendants… six situations:
Intestate Law for Single Decedent
1) The Intestate Law for a Single Decedent is that his descendants take all.
2) Nevertheless, if he has no descendants, there are different situations.
a) If both of his parents are alive, each of his parents gets half of his estate.
b) If only 1 parent is alive, that parent receives half while the other half goes to his brothers and sisters or their descendants.
If there are no brothers or sisters, then all of it goes to the surviving parent.
c) If no parents are alive, then estate passes to his brothers and sisters or their descendants.
d) If the decedent has no surviving parents, brothers or sisters, or the brothers and sisters’ descendants, half of his estate goes to his maternal grandparents and the other half to his paternal grandparents.
And of course, if one side has all died out, then all estate
passes to the surviving side.
INTESTATE SUCCESSION
Shares of Ancestors & Collaterals
1) What are Laughing heirs? Are they curt off?
2) What about half-blood collateral kin v. full blood?
—-explain it.
Shares of Ancestors & Collaterals
1) Laughing heirs are persons so remotely related to the decedent that they suffer no sadness at the decedent’s death.
In Texas, laughing heirs are not cut off.
2) Moreover, a half-blood collateral kin gets only half as much as a full blood.
—-In detail, if a person dies and the estate is going to pass to their siblings, a half sibling will only inherit half as much as a full blood sibling. This means that full bloods are treated as 2 people when dividing shares.
INTESTATE SUCCESSION
A) Children Born Out of Wedlock
B) Can they inherit from natural father? Exceptions (4 BIG ONES)?
IMPORTANT–REVISIT
Children Born Out of Wedlock
A) They CANNOT inherit from their natural fathers.
B) There are THREE EXCEPTIONS to this rule, where children born out of wedlock can inherit from their natural father if:
(1) There is a presumption of paternity under Family Code.
This presumption exists if the child was born during or within 300 days after marriage. A child born within 300 days after his father has died is presumed to be the child of the dead father and can inherit.
This presumption also exists if the parties married after child’s birth and the man voluntarily asserted his paternity in one of 3 ways:
a) In a record filed with Bureau of Vital Statistics,
b) By consenting to be named father on birth certificate,
c) Or by promising in a record to support the child.
And the presumption also exists if during the first 2 years of a child’s life, a man resided with him, and the man represented to others that he was the father.
(2) Children born out of wedlock can inherit from their natural father if the natural father signed a sworn statement acknowledging paternity,
(3) Paternity was established in a paternity suit,
(4) Paternity is established in probate proceedings by clear and convincing evidence
Additionally, for good cause, Court may order a genetic testing.
Now, step or foster children cannot inherit from their stepparents or foster parents except in cases of equitable adoption, where a child can inherit from a step or foster parent but cannot inherit from their relatives.
The rule requires that step or foster parents take custody of a child under a valid agreement with the legal custodian that they
will adopt the child.
INTESTATE SUCCESSION
Inheritance Rights of Adopted Children
1) Who can Adopted child inherit from?
2) Who can inherit from an Adopted Child?
3) Is adult adoption allowed?
Inheritance Rights of Adopted Children
1) Adopted child can inherit from adoptive parent and their relatives.
Adopted child can also inherit from biological parents and their relatives UNLESS parental rights have been TERMINATED.
2) Adoptive parents can inherit from adopted child.
However, BIOLOGICAL parents CANNOT inherit from adopted child.
3) Also, adult adoption is allowed.
BARS TO INHERITANCE
120 Hour Rule
1) What is the 120 hour rule?
2) What happens if heir fails to survive?
3) Where does it NOT apply?
Bars to Inheritance
120 Hour Rule
1) Under the 120 hour rule, an heir has to survive the decedent by 120 hours or 5 days in order to take.
2) If the heir fails to survive by 120 hours, then he is deemed to have PREDECEASED the decedent.
Also, the anti-lapse statute applies in wills.
This rule applies in intestacy and wills.
When it applies to community property, each spouse is treated as if they survived the other, and the disposal of community property applies.
The 120 hour rule also applies to joint tenancies with right of survivorship and life insurance policies.
3) It does not apply IF A DIFFERENT PROVISION HAS BEEN MADE IN THE WILL, deed, etc. which provides for longer or shorter survival times.
For Example, “if she survives me” means survival by an instant of time.
BARS TO INHERITANCE
Disclaimer
1) Which parties can make a disclaimer? Which cannot?
2) Requirements for a valid disclaimer (3)?
3) What happens when disclaimer is in effect?
4) Seven general rules?
5) Why disclaim? Reasons (2)?
Disclaimer
1) Parties who can make a disclaimer include intestate heirs and testate heirs.
Also, an executor or guardian can make a disclaimer on behalf of a deceased, incapacitated person, or heir.
On the other hand, parents CANNOT disclaim on behalf of their children, only a personal representative may.
2) A valid disclaimer must be:
a) Written, signed and acknowledge.
b) Filed within 9 months after decedent’s death.
c) And filed with the probate court with a copy to personal representative.
3) When disclaimer is in effect, the disclaimant is treated as if they predeceased the decedent.
Again, when a person is dealing with a will, anti-lapse statute applies.
4) Let me summarize the seven general rules:
a) Disclaimer can be partial.
b) Disclaimer is irrevocable.
c) Intestate heirs can disclaim.
d) The executor or guardian can disclaim on behalf of a minor child.
e) A parent, acting as a parent, cannot disclaim on behalf of a minor child.
f) A child can disclaim within 9 months of turning 21.
g) And the charitable beneficiary can disclaim within 9 months of receiving notice of the gift.
5) Reasons to disclaim are to avoid gift taxes and creditor’s claims.
GIFTS MADE DURING LIFETIME
1) ADVANCEMENT
a) What is Advancement?
b) What is an advancements value?
c) When does advancement apply?
d) When is a lifetime gift to a descendant treated as an advancement (2)?
2) SATISFACTION
a) When is a lifetime gift to a will beneficiary a partial satisfaction of a gift made in an earlier will?
1) Advancement
a) Advancement is a gift made by the testator, while he was alive, to his heir.
b) The value of an advancement is what is intended to be deducted from the heir’s eventual share in the estate after the
testator’s death.
c) It only applies to intestacy.
d) A lifetime gift to a descendant is not treated as an advancement UNLESS:
- —There is a contemporaneous writing by the donor stating that the gift was meant as an advancement,
- —Or the donee acknowledges such in writing.
2) Satisfaction
a) A lifetime gift to a will beneficiary is not a partial satisfaction of a gift made in an earlier will UNLESS there is a contemporaneous writing by the donor stating that the gift was
meant as a satisfaction, or the writing has to accompany the gift.
CHANGES AFTER WILL EXECUTED
Marriage
1) Whats the effect of marriage? What does it mean?
2) Who must update the will to include spouse?
Marriage
1) First, there is no effect of a marriage.
This means that if a testator marries after a will is executed, the marriage has no effect on will. The marriage does not protect pretermitted or omitted spouse.
And it is up to the testator to update his will and include spouse.
CHANGES AFTER WILL EXECUTED
Omitted Spouse
1) What can omitted claim (3)?
2) How much can omitted spouse get?
Omitted Spouse
1) However, an omitted spouse can claim homestead.
Personal property set aside, and family allowance.
2) Breaking these claims down, the omitted spouse can get:
—-$15,000 allowance in place of homestead if do not own homestead.
—-$5,000 in place of other exempt property.
And money amount for support for one year.
CHANGES AFTER WILL EXECUTED
Divorce
1) What effect does divorce have?
2) What does Ex-spouse get? Unless?
Divorce
1) Divorce or annulment of a marriage revokes all gifts in a will that were in favor of the ex-spouse and any fiduciary appointments.
The ex-spouse gets nothing UNLESS they remarry each other.
CHANGES AFTER WILL EXECUTED
Pretermitted Child
1) When does pretermitted child occur?
2) What if there are no other children?
3) What if there are other children but they are not provided for?
4) What if there are other children, and the children provided for were devised different amounts?
5) Does pretermitted child statute apply to children born out of wedlock?
6) When does pretermitted child NOT apply (2)?
Pretermitted Child
1) It occurs when a child is omitted from the will because the will was executed before the child was born or adopted.
2) If there are no other children when the will is executed, the child takes intestate share of all property not bequeathed to the other parent.
3) On the other hand, if there are other children but they are not provided for, the omitted child takes intestate share of all
property not bequeathed to the other parent.
If there are other children who are provided for, then the child’s share is limited to the gifts to such other children.
Nobody else’s gift is reduced.
4) If there are other children, and the children provided for were devised different amounts, then give the pretermitted child
their fair share of each gift.
5) Now, the pretermitted statute also applies to children born out of wedlock.
6) However, a pretermitted child statute does not apply if:
a) The child is provided for or mentioned in the will,
b) Or if the child is provided for by a nonprobate transfer that takes effect at the testator’s death.
In addition, if a nonprobate transfer reflects that the testator-parent was mindful of the child, the child has no rights under the statute.
REVOCATION OF WILLS
Revoke Methods
1) How can will be revoked (2 methods)?
2) Subsequent Writing method (6)?
3) Physical Act method (2 things)?
—-Examples of both parts?
Revoke Methods
1) Wills can be revoked by SUBSEQUENT WRITING or by PHYSICAL ACT.
Let’s look at these two methods in detail.
2) Regarding the subsequent writing:
a) Holographic will can revoke a typewritten attested will and vice versa as long as they are valid.
b) A will is expressly revoked if the subsequent instrument states that it replaces the old will.
c) A will can be impliedly revoked partially or totally when the subsequent instrument is inconsistent.
d) If a testator executes a second will that does not expressly revoke an earlier will, courts, if at all possible, try to reconcile the wills and read them together as one will by treating the second will as a codicil.
e) If the second will is totally inconsistent with the first will, however, Court cannot reconcile and the second will revokes first will.
f) And revoking a codicil does not revoke the entire will: Part of the will that was modified or revoked by codicil takes effect again.
3) In contrast, to revoke a will by PHYSICAL ACT, there needs to be a physical act AND INTENT TO REVOKE.
—-PHYSICAL ACT includes tearing, burning, cutting, and canceling a will.
This physical act has to be done by the testator, or caused by the testator to be done by someone else in the testator’s
presence and at his direction.
—-As for the INTENT, the physical act cannot be an accident.
REVOCATION OF WILLS
Presumptions (2)
1) If the testator was the last one to have possession of the will, and the will cannot be found?
2) If the testator was last seen with the will and it is found destroyed?
3) When do these presumptions NOT arise?
Presumptions
1) If the testator was the last one to have possession of the will, and the will cannot be found, the presumption is that the testator destroyed and revoked the will.
2) If the testator was last seen with the will and it is found destroyed, there is a presumption that he has revoked his
will and all copies even if a copy exists which is not in his possession.
3) Nevertheless, these presumptions do not arise if the will was last seen in possession of someone who was adversely affected by
its contents, and the presumptions can be rebutted.
REVOCATION OF WILLS
Probating Lost Wills
1) What elements need to be satisfied (3)?
Probating Lost Wills
1) The following elements need to be satisfied:
a) Due execution must be proved by witnesses,
b) The cause of will’s non-production must be proved,
c) And the content of the will must be substantially proved by a person who has read the will or heard it read.
REVOCATION OF WILLS
Changes on Face of Executed Will
1) What happens if words are added to will after execution?
a) What’s an Attested Codicil?
2) What if words are crossed out on ATTESTED will after execution?
3) What if words are crossed out in a HOLOGRAPHIC will after it has been executed
Changes on Face of Executed Will
1) First, words added to a will after it has been executed are disregarded UNLESS it is a valid attested or holographic codicil.
a) Attested codicil is a codicil that is witnessed and signed and means something on its own, and a holographic codicil is a handwritten and signed codicil that means something on its own.
2) Second, words crossed out in an attested will after it has been executed are not valid.
Here, a partial revocation by physical act, such as lines through portions of a will, is not allowed. If the testator wants to change the will, he has to write a new one or make a
codicil to existing one.
3) And third, words crossed out in a holographic will after it has been executed are valid if at least 2 persons testify that it is
wholly in the testator’s handwriting.
REVOCATION OF WILLS
Will Revival
1) What’s the dependent relative revocation doctrine? Requirements?
I dont understand this
Will Revival
1) The dependent relative revocation doctrine can revive a provision of a former will that has been revoked where:
a) The new will or codicil is void by operation of law.
b) The former provision was revoked at the same time the new provision was created.
c) The testator believed the new provision was valid,
d) And but-for the testator’s belief that the new will was valid, he would not have revoked the former provision.
If the testator crosses something out, thinking it is valid to do so, then the cross-out is undo.
If the testator destroys the first will after the second will turns out to be defectively executed, it will reinstate the first will.
And if the testator writes on the back of the first will stating “Will-1 is revoked because I have made a new will”, the revocation is set aside because the mistake is regarding the
revocation.
Example:
Will-1 is executed,
Will-2 is executed and revokes Will-1,
And the testator destroys Will-2 and wants to bring back Will-1,
Both wills would have been revoked, and the revocation of Will-2 will only bring back Will-1 if:
a) Will-1 still exists.
b) The testator wanted Will-1 back.
c) And Will-2 is revoked by physical act.
BARS TO TESTAMENTARY GIFTS SUCCESSION
Testamentary Gifts
What are the Five types of Testamentary Gifts?
Testamentary Gifts
There are 5 types of testamentary gifts:
(1) Specific device or bequest refers to a particular item specified in the will.
Example: “I devise Blackacre to my son John”.
(2) General legacy refers to money not from a particular asset.
Example: “I give $10,000 to my nephew John”.
(3) Demonstrative legacy refers to money from a particular account.
Example: “$10,000 to be paid from the sale of my GM stock”.
(4) Residuary gift refers to everything else that is not specified.
Residuary Gift Example: “I give all the rest, residue and remainder of my estate to Bob.”
(5) Intestate property, which is property passing under partial intestacy because a will was poorly drafted and does not contain a residuary clause.
