UBE Wills

Question 1

what happens when person dies without a will

Answer 1

estate passes through intestate succession

Question 2

what happens if decedent’s spouse and parents do not survive testator

Answer 2

estate distributed either (1) per capita at each generation or (2) per capita with representation

Question 3

per capita at each generation

Answer 3

find 1st gen where family member is living, then give a share for each person in that generation living or dead, those who are dead, distribute evenly to next generation

Question 4

per capita with representation

Answer 4

same but goes to deceased children

Question 5

req for valid will

Answer 5

in writing
signed by testator (any mark w/ intent)
witnessed by 2 witnesses

Question 6

holographic wills

Answer 6

unwitnessed wills that are valid if
signed
material portions in testator’s handwriting

Question 7

dispensing power

Answer 7

where a court can validate a will so long as clear and convincing evidence that decedent intended the doc to be her will

Question 8

incorporation by reference

Answer 8

invalid doc/will which references an earlier will that shows intent to incorporate writing and will is identified with reasonable certainty

writing must exist at the time will is executed

Question 9

ways to revoke a will

Answer 9

revocation by physical act
dependent relative revocation
divorce

Question 10

revocation by physical act

Answer 10

must be intent to revoke
must be in conscious presence
ex: drafting new will, etc.

Question 11

dependent relative revocation

Answer 11

1st will isn’t revoked if a later will is found invalid

if T revokes a will based on mistake of law or fact, revocation is ineffective if it appears they wouldn’t have done so if they had accurate info

Question 12

divorce/revocation

Answer 12

divorce revokes gifts in favor of spouse

must be actual divorce decree, not simply filing

Question 13

when gift fails because beneficiary predeceases T

Answer 13

gift will lapse or fail unless antilapse statute: if B dies before and was related by blood, has issue who survived, the gift is saved and B’s issue takes

Question 14

slayer statute

Answer 14

individuals who feloniously and intentionally kill decedent or convicted of abuse, neglect, or exploitation of D forfeits rights to estate

if accidental, not barred

Question 15

when a gift fails because the property no longer exists

Answer 15

called ademption
some states, gift fails
other states, if B can show T’s intent to substitute, then it passes
others say it automatically passes

Question 16

disclaimed property (property B doesn’t want)

Answer 16

it will pass as if they predeceased T

but anti-lapse statute may apply

Question 17

abatement

Answer 17

when assets of estate are insufficient to satisfy all gifts in will, then gifts are reduced (abated) in the following order:
intestate property
residuary gifts
general gifts
specific gifts

Question 18

Mental capacity of T burden of proof and requirements

Answer 18

req for valid will
burden of proof that T lacks mental capacity rests on contester, capacity found where:
1. T knew nature and extent of his property
2. T knew the family/Bs
3. know the nature of the will he signed
4. knew what was written in will

Question 19

undue influence

Answer 19

when wrongdoer exerts such influence as to interfere with T’s free will and causes T to make a gift he otherwise wouldn’t have made

Question 20

undue influence BOP and requirements

Answer 20

BOP undue influence rests on contester; must show SODA

1. T was SUSCEPTIBLE to undue influence
2. wrongdoer had OPPORTUNITY
3. wrongdoer had DISPOSITION to do this and
4. will appears to be the PRODUCT of undue influence