Top MEE Rules

Question 1

Intestate succession with surviving spouse (18.5%)

Answer 1

Any property that does NOT pass by will upon the decedent’s death will be distributed according to the state’s applicable intestacy statutes, depending on who survives the descedent and whether the Uniform Probate Code (UPC) applies:

Spouse, NO Descendants: In most states, the surviving spouse will inherit the entire estate. However, some states provide that a certain portion of the estate will be given to the decedent’s parents and the parents’ descendants.

UPC: If there is also a surviving parent, the surviving spouse gets $300k and 75% of the remainder. If there is not a surviving parent, the surviving spouse gets 100%.

Spouse AND Descendants: In most states, the surviving spouse will inherit one-half or one-third of the decedent’s estate with the surviving descendants inheriting the rest.

UPC: Under the UPC, if all the decedent’s and the surviving spouse’s descendants are shared, the surviving spouse gets 100% of the estate; but if one spouse had descendants independently of the other, the spouse’s portion is reduced. If the decedent has no relatives except descendants who are also descendants of the surviving spouse, and the surviving spouse has no other descendants, the spouse gets 100% of the estate. If the spouse does have other descendants, the spouse gets $225k and 50% of the remainder. If the decedent has issue not related to the surviving spouse, then the surviving spouse receives $150,000 and 50% of the remainder of the estate.

Question 2

Intestate succession with no surviving spouse (18.5%)

Answer 2

Any property that does NOT pass by will upon the decedent’s death will be distributed according to the state’s applicable intestacy statutes, depending on who survives the decedent and whether the Uniform Probate Code (UPC) applies:

NO Spouse, Descendants: In most states, the decedent’s surviving descendants will inherit the entire estate equally.

NO Spouse, NO Descendants (“Ancestors and Remote Collaterals”): If no surviving spouse or issue exist, then the property may be distributed to the decedent’s ancestors (e.g., parents, grandparents, great-grandparents) and more remote collateral relatives (i.e., those related to the decedent through a common ancestor, such as siblings, cousins, aunts, and uncles).

In most states, the decedent’s surviving parents will inherit the entire estate equally. If there are NO surviving parents, the descendants of the decedent’s parents will inherit the estate (i.e., the decedent’s brothers/sisters, nieces/nephews, and their descendants down the line).

UPC: The estate passes in the following order to the individuals designated below who survive the decedent:

(1) Parents equally, or surviving parent
(2) Descendants of decedent’s parents
(3) Grandparents or their descendants
(4) Nearest maternal and paternal relative
(5) Escheats to the state

Question 3

Intestacy with decedents in younger generations (5.6%)

Answer 3

A complicated issue arises when a child predeceases a parent who later dies intestate. Three approaches address how to distribute an intestate estate under these circumstances:

Strict Per Stirpes/Common Law. The estate is divided by the number of members in the first generation of children who are either alive or survived by descendants. Each member who is alive takes their share, and the shares of the deceased members drop to the next generation. This process is repeated for the next generations until every share is taken.

Modern Per Stirpes/Per Capita With Representation. The modern per stirpes approach works exactly like the strict per stirpes approach, except that the estate only begins to be divided at the first generation that has a living taker, at which point it is divided equally among the living and deceased. (The shares of each nonliving member of that generation pass to the then-living issue of the nonliving member; if the nonliving member has no then-living issue, then the nonliving member does not receive a share.)

Per Capita at Each Generation/UPC. The estate is divided at the closest generation to the decedent in which one or more of the descendants are alive (similar to modern per stirpes). However, shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generation level (shares are dropped by “pooling” method).

Editorial Note: For purposes of the MEE, examinees should be prepared to discuss all three approaches to intestacy: per stirpes, per capita with representation, and per capita at each generation (UPC). Although per capita with representation is an emerging trend, there is still no definitive majority approach.

Question 4

Inheritance rights: adopted children (9.3%)

Answer 4

At common law, ONLY blood relatives inherited from an intestate decedent. Today, adopted children are entitled to receive the same share, under intestacy laws, as biological children.

(1) Equitable Adoption. In some states, a child may be informally adopted through adoption by estoppel when a person takes a child in and assumes parental responsibilities. If such a surviving child can establish an adoption by estoppel, equity holds that she can inherit from the decedent as if she were a legally adopted child. Courts consider several factors when determining whether a relationship constitutes an adoption by estoppel:
(a) The parent’s bestowal of love and affection on the child;
(b) The parent’s performance of parental duties toward the child;
(c) The child’s obedience and companionship toward the parent;
(d) The child’s reliance on the relationship; AND
(e) The parent’s holding out the child as their own.
(2) Generally, adoption in fact or by estoppel terminates the adopted child’s right to inherit from her biological parents. However, a child adopted by her stepparent may usually inherit from her biological parents as well.

Question 5

Inheritance rights: out-of-wedlock and half-blood children (9.3%)

Answer 5

Q: How can someone have a child that is only half their own blood??

Children Born Out-Of-Wedlock. At common law, a child born out-of-wedlock was prohibited from inheriting from an intestate decedent/father. In most jurisdictions today, non-marital children may inherit from either parent so long as the facts establish a legal parent-child relationship (non-marital children inheriting from a father must first establish paternity). This requires that:

 The father subsequently married the natural mother; or

 The father held the child out as his own and either received the child into his home or provided support; or

 Paternity was proven by clear and convincing evidence after the father’s death; or

 Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.

Half-Blood Children. At common law, ONLY full-blood children were entitled to inherit from an intestate decedent. Today, in almost every state, half-blood children (i.e., two people who share one parent, but not the other) are treated equally as whole-blood children. In a minority of jurisdictions, they are treated less favorably and sometimes excluded if whole-blood kin exist.

Question 6

Advancements (9.3%)

Answer 6

At common law, gifts to heirs during a testator’s lifetime were considered advancements on the heir’s intestate share of the estate, and were automatically deducted from the heir’s share of the estate.

Today, gifts to heirs during a testator’s lifetime are NOT considered advancements on the heir’s intestate share of the estate UNLESS:

(1) The decedent declared his intent to make the gift an advancement in a contemporaneous writing; OR
(2) The heir acknowledged the gift to be an advancement in writing.

Question 7

Execution of wills: governing law, consequences of improper execution (7.4%)

Answer 7

Generally, the law in the jurisdiction of the decedent’s domicile at death governs the disposition of his personal property, while the law in the jurisdiction in which the decedent’s real property is located governs the disposition of his real property. However, a decedent may select which state law governs in the terms of his will.

Under the common law, wills are invalid if they do not meet the specific requirements of the state; strict compliance with the formalities was required. However, some states will find a will is valid if the decedent substantially complied with the state’s requirements.

UPC/Harmless Error Rule. Under the UPC, a will that is NOT properly executed will still be valid if the party seeking to have it validated proves by clear and convincing evidence that the decedent intended the writing to be his will and substantially complied with the formalities.

Exam Tip 4: You should discuss “substantial compliance” if you determine that a will was not validly executed. Then, you should discuss the outcome if the will is treated as valid AND the outcome if the will is not treated as valid.

Question 8

Will execution requirements (11.1%)

Answer 8

Exam Tip 2: If the fact pattern states that there is a valid will, you do not have to discuss the execution of the will. However, if the facts do not state that there is a valid will, you must discuss whether the will was validly executed. If there are multiple wills or codicils in the fact pattern, discuss each one in the order presented.

Exam Tip 3: You should always discuss Capacity and Testamentary Intent when analyzing whether a will was validly executed.

A will is valid if the specific formalities provided by state law are met. Generally, these formalities require that the testator have:

(1) The capacity to execute a will; AND

The testator must be at least 18 years old and possess a sound mind. Old age, and even adjudication of incompetence, are NOT dispositive. The testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know the:

(i) Nature of the act;
(ii) Nature and character of his property;
(iii) Persons who are the natural objects of his bounty (i.e. immediate family); and
(iv) Plan of the attempted disposition.
(2) Testamentary intent, i.e., he must understand he is executing a will and intend for it to have testamentary effect, and must generally know and approve of its contents.

For a will to be valid, it must be:

(1) In writing;
(2) Signed by the testator; AND
(a) If the testator is incapable of signing his will, then he must have another sign his name in his presence and by his direction. Any mark intended to validate the will constitutes a valid signature.
(3) Signed by at least two witnesses (of sufficient mental capacity and maturity) in the testator’s presence within a reasonable amount of time after witnessing the signing of the will. (Under the UPC, a valid notary can satisfy the dual-witness requirement.)
(a) Two witnesses:

Majority: The witnesses must be jointly present.

UPC: The witnesses do not have to be present at the same time.

(b) Signed by T in the witnesses’s presence:

Majority: The will must be signed in the witnesses’ presence.

UPC: The T does NOT have to sign in their presence, as long as he acknowledges his signature to them before they sign and they sign within a reasonable time.

(c) Signed by witnesses in the testator’s presence:

Traditional view: A witness signs the will in the testator’s presence if she signs the will within the testator’s line of sight (e.g., cannot be in another room down the hall from the testator).

Modern view: A witness signs the will in the testator’s presence if she signs the will within the testator’s range of senses (e.g., may be in another room down the hall if the testator can still hear the witness).

Question 9

Interested witnesses (5.6%)

Answer 9

Under the common law, the signing of the will MUST be witnessed by two disinterested witnesses (individuals who do NOT receive any benefits under/have financial interests in the will). If the interested witness is a necessary witness, the will has not been validly executed.

However, virtually every state, as well as the UPC, has abolished this common law rule and allows interested witnesses to validly witness the signing of a will.

In a minority of states, the interested witness forfeits his inheritance UNLESS two additional disinterested witnesses serve as valid witnesses to the will.

Still, some states only allow interested witnesses to inherit their intestate share of the estate. (Many states invalidate the portion of the will that provides an excess portion to the interested witness, i.e., any amount in excess of what the witness would otherwise have received [via intestate succession].)

Question 10

Holographic wills (9.3%)

Answer 10

Exam Tip 5: If you determine that a document does not meet the requirements of an attested will, you should consider whether there is a valid holographic (handwritten) will.

A holographic will is a handwritten will that is NOT witnessed. Most states do NOT recognize holographic wills.

Signature. In states that do recognize holographic wills, the holographic will is only valid if the testator signs it personally (no proxy signatures are permitted).

Wording. No precise words are required to make a holographic will valid; however, the will must contain operative words legally sufficient to validly devise the property. Also, the T must handwrite the “material provisions” of a holographic will. “Material provisions” include the beneficiaries of the will and the items that they will receive. A preprinted will form can still be a valid holographic will, as long as the “material provisions” are handwritten.

Intent. It must be clear that T intended the document to be a will.

Question 11

Incorporation by reference (16.7%)

Answer 11

Incorporation by reference deals with the incorporation of extrinsic documents into the will (rather than pages or portions of the original will). In most states, a document or writing may be incorporated into a will by reference if:

(1) The testator intended to incorporate the document into the will;
(2) The document was in existence at the time the will was executed; AND
(3) The document is sufficiently described in the will.

Question 12

Codicils and republication (5.6%)

Answer 12

A codicil is a supplement or addition to a will that is made after a will is executed. A codicil can explain, modify, amend, or revoke provisions of an existing will. A codicil MUST satisfy the same formalities as a will in order to be valid (can be attested or holographic).

Exam Tip 6: Be sure to clearly explain how the codicil is changing the terms of the original will AND whether the codicil was executed properly.

Republication. At the time a person executes a codicil, the original will is treated as republished and is deemed to have been executed on the date the codicil is executed. A valid codicil executed after the original will may cures problems that existed at the execution of the will, such as an insufficient number of witnesses.

Studicata: Republication can cure defects in a will that might affect the validity of specific devises (e.g., in a jurisdiction that prohibits devises to interested witnesses, republication by a codicil that is properly witnessed could save the devise). However, most courts hold that a codicil CANNOT republish a will that is invalid as a whole. (???)

Question 13

Revocation by physical act (13%)

Answer 13

Three physical acts can revoke a will:

(1) Subsequent Written Instrument. A will can be revoked by either:
(a) A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR
(b) A subsequent will/codicil containing a revocation clause or provisions that are inconsistent with those of the prior will (only revokes to the extent it conflicts with the prior will).
(2) Cancellation. A will is revoked if the testator, or another person in his presence and at his direction, burns, tears, obliterates, or destroys the will WITH the intent to revoke the will. Under the common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will (e.g., words of cancellation are written over the original terms of the will). Under the UPC, words of cancellation need NOT touch any of the words of the will, but they must be somewhere on the will to validly revoke.
(3) Partial Revocation. In most states, when marks of cancellation (e.g., putting a line through terms in the will) are found on a will known to last have been in the testator’s possession, a presumption arises that such marks were made by the testator with the intent to revoke. The burden to overcome this presumption is on the party claiming that the devise has not been revoked. If a devise is revoked, it passes as part of the residuary estate. However, some states do NOT permit partial revocations.

Question 14

Dependent Relative Revocation (DRR) (9.3%)

Answer 14

Under DRR, the valid revocation of a will may be ignored if the will was revoked under the testator’s mistaken belief of law or fact that the testator could revive an earlier will, or modify his disposition of property by codicil or new will.

DRR ONLY applies when the court can determine that the testator would have preferred the disposition in the revoked will over the disposition resulting from a finding that the testator died intestate.

Question 15

Revival (5.6)

Answer 15

Under the common law, the revocation of a subsequent will automatically revives the prior will (i.e., no intent requirement).

Under the modern view, most states permit revival of a revoked will if:

(1) It is evident that the testator intended the revoked will to take effect as executed; OR
(2) The testator republishes the revoked will with a subsequent will or codicil that complies with the statutory formalities for execution.

???

Question 16

Lapsed legacies (13%)

Answer 16

If a beneficiary named in a will predeceases the testator, absent an alternate disposition of the devise specified by the testator, the devise lapses into the estate’s residue UNLESS the jurisdiction’s anti-lapse statute preserves the devise for the beneficiary’s descendants.

Under an anti-lapse statute, devises will vest in the descendants of the predeceased beneficiary if the predeceased beneficiary:

(1) Was a blood relative of the testator; AND
(2) Had descendant(s) who survive the testator.

Residue of a Residue. At common law, an invalidated residuary devise passed to the testator’s heirs through intestate succession. Under the modern view, if the residue is devised to two or more persons, an invalidated residuary devise will pass to the other residuary beneficiaries rather than the testator’s heirs. (???)

Question 17

Ademption and generic descriptions (11.1%)

Answer 17

Under the doctrine of ademption, if the subject matter of a specific devise is NOT in the estate at the time of the testator’s death, the devise to the beneficiary adeems or fails (e.g., the testator leaves her diamond ring to her daughter in her will; however, before the testator dies she sells the ring to a pawn shop – the specific devise to her daughter adeems upon the testator’s death). Note that the doctrine of ademption applies only to specific devises, NOT general devises (e.g. “my automobile”).

Common Law. At common law, the testator’s intentions were irrelevant. Under this approach, if the subject matter of a specific bequest is missing or destroyed, the beneficiary takes nothing, not even the equivalent in cash. If the specifically-bequeathed item is not a part of the estate at the testator’s death, it is adeemed.

UPC. However, The Uniform Probate Code created a mild presumption against ademption. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money related to the extinction, the outstanding balance.

In most jurisdictions today, a specific devise will adeem ONLY IF the testator intended the devise to fail. If the testator did not intend for a specific devise to fail, the beneficiary is entitled to:

(1) Any property in the testator’s estate, which the testator acquired as a replacement for the property that was specifically devised (e.g. selling a home and using the proceeds to buy a new one); OR
(2) A monetary devise equal to the value of the specific devise.

Generic Descriptions. Any property described in generic terms is interpreted under the circumstances existing at the time of the testator’s death, rather than when the will is executed (e.g., a devise of “my car” is interpreted as a devise of the testator’s car at the time of death, not the testator’s car at the time of will execution).

Question 18

Slayer statutes (7.4%)

Answer 18

A person who feloniously and intentionally kills the decedent is barred from claiming a share of the decedent’s estate as either an heir or a beneficiary under the decedent’s will. Generally, the decedent’s estate is distributed as if the killer had predeceased the decedent.

Question 19

Disclaimers (11.1%)

Answer 19

A beneficiary under a will can disclaim or renounce his interest under a testator’s will causing the disclaimed property to pass as if the disclaiming party predeceased the testator. A valid disclaimer must:

(1) Be in writing and signed by the person making the disclaimer;
(2) Sufficiently describe the interest being disclaimed; AND
(3) Be delivered or filed.

Timing. Under the common law, a disclaimer must be made within a reasonable amount of time. Some states require a disclaimer to be made within 9 months after the testator’s death. Under the UPC, a disclaimer may be made at any time.

Under disclaimer statutes, a disclaiming party is treated as if she had predeceased the decedent. When a disclaiming party is deemed to have predeceased the testator, the bequest passes to the next eligible taker. The typical anti-lapse statute provides for alternate disposition of lapsed bequests. Under the majority of state statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, the issue succeeds to the gift, unless the will expressly states to the contrary.

Question 20

Abatement (7.4%)

Answer 20

Beneficiaries under wills are entitled only to the net value of estate assets. The net value represents what remains of the decedent’s assets at death after the payments of debts, expenses, and taxes. If there are more claims against an estate from creditors than there are assets to cover all of the devises made under the will, the devises abate.

Creditors of the estate ALWAYS have priority to assets of the estate over beneficiaries. Absent provisions in the will, the testator’s property abates on a pro-rata basis in the following order to pay for debts, expenses, and taxes:

(1) Property not disposed of by will (passing by intestacy)
(2) Residuary devises (???)
(3) General devises (can be satisfied with any of the estate’s assets, e.g. devise of a specific dollar amount)
(4) Specific devises (specific personal or real property)

Question 21

Stock splits and dividends (5.6%)

Answer 21

Most publicly traded corporations issue quarterly dividends to shareholders through cash payments. Shareholders may participate in dividend reinvestment programs that automatically reinvest the quarterly dividends into buying more shares of the corporation’s stock. Consequently, a testator can accumulate a large amount of additional stock through dividends from the time of execution of the will until death.

Majority: Beneficiaries are entitled to additional shares owned by the testator that were acquired as a result of stock splits or dividends.

Minority/Common Law: A stock dividend constitutes a property interest that is separate from shares of stock received through a specific devise. Under this rule, the beneficiary of the underlying shares of stock does NOT receive the additional shares that were obtained through stock dividends.

Question 22

Devises to classes (14.8%)

Answer 22

A testator may devise property to a class of individuals (e.g., “I leave $20,000 to be divided equally among all my children.”). A class may increase or decrease in number until the testator’s death. If a member of the class predeceases the testator, her share is split evenly among the remaining members of the class (i.e., it does NOT lapse into the residue).

NOTE. If there is a devise to a group of individuals, and at least one of those individuals predeceases the testator, then you must determine whether the group constitutes a class. If the group constitutes a class, the predeceased member’s share is split evenly among the remaining members of the class. If the group does NOT constitute a class, the predeceased member’s share lapses into the residue.

For Example: Tom (the testator) leaves “$20,000 to be divided evenly among Ann, Beth, Chris, and Doug” under his will. Ann, Beth, Chris, and Doug are all Tom’s children. This provision can be interpreted as either:

(a) A devise to a class (Tom’s children); OR
(b) Four separate individual devises of $5,000.

BOTH interpretations have merit and should be discussed on an exam if any of the children predecease Tom. This finding will determine whether the predeceased beneficiary’s share is split among the remaining class members or lapses into the residue.

NOTE. A devise to a class member who qualifies under an anti-lapse statute would pass to her descendants.

Question 23

Devises to children and issue (distribution, disinheritance, pretermitted children) (7.4%)

Answer 23

Distribution. A testator may devise property to her “children” or “heirs” or “issue.” Under these circumstances, a court will likely look to the jurisdiction’s intestacy statutes to determine how the devise should be distributed (e.g., per stirpes, per capita, etc.).

Disinheritance. A child that is intentionally omitted from a will is NOT entitled to a share of the decedent’s estate.

The UPC allows an individual to disinherit an heir by properly executing a will expressing such intent, even if not all property is disposed of within the will. The barred heir is then treated as having predeceased the decedent.

Studicata: In most states, a general disinheritance clause is NOT sufficient to show intent to omit a child from the will. (???)

Pretermitted Children. A pretermitted child is a child who is unintentionally omitted from a will. This commonly occurs when a child is born or adopted after the execution of a will, or is thought to be dead but is later found alive. Pretermitted children are entitled to the share that they would have received had the testator died intestate so long as the testator did NOT intend to omit the child from his will (if the testator’s intent cannot be determined from his will, a court may evaluate extrinsic evidence to determine intent).

Question 24

Contractual wills (5.6%)

Answer 24

Valid contracts (i.e., mutual assent + consideration + no defenses to formation) to make wills are generally enforceable and may take numerous forms:

(1) A contract to execute mutual wills (separate wills of at least two people which contain similar or reciprocal provisions);
(2) A contract to execute a joint will (a single document executed by at least two people, usually spouses, which contain similar or reciprocal provisions); (???)
(3) A contract to make a certain devise by will;
(4) A contract not to revoke a will or a provision included in the will; OR
(5) A contract to refrain from executing a will.

Writing Requirement. In most states, contracts to make a will must be in writing. Jurisdictions that do not expressly address this matter in their probate codes usually come to the same conclusion by applying the Statute of Frauds.

Damages. If a party breaches a valid contract to make a will, the court will usually probate the new will and impose a constructive trust in favor of the original intended beneficiaries under the contractual agreement.

Question 25

Capacity of testator (5.6%)

Answer 25

A will is invalid if the testator lacked mental capacity when the will was executed. To prevail in a will contest for lack of capacity, the contestant must prove that the testator did NOT know or understand:

(1) The nature and extent of his property;
(2) The persons who are the natural objects of his bounty; OR
(3) The disposition he was making of his property.

Generally, there is a rebuttable presumption that the testator had mental capacity.

Question 26

Undue influence (7.4%)

Answer 26

A will is invalid if the testator executed the will while under undue influence. Undue influence occurs when a person exerts such control and influence over the mind of the testator as to overcome the testator’s free will. To prevail in a will contest for undue influence, the contestant must prove that:

(1) The testator was susceptible to undue influence (e.g., health, finances, etc.);
(2) The wrongdoer had the opportunity to exert undue influence over the testator;
(3) The wrongdoer actively participated in drafting the will; AND
(4) The will evidences a result that appears to be the effect of undue influence (e.g., an unnatural result occurred).

Generally, there is a rebuttable presumption of undue influence if a confidential relationship existed between the alleged wrongdoer and the testator such that the circumstances surrounding the drafting of the will were suspicious (e.g., a close relative, attorney, or caretaker was involved in drafting the testator’s will).

Question 27

Residuary legacy

Answer 27

A residual legacy is a legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.