VA Wills & Trusts

Question 1

4 requirements for an attested will

Answer 1

1- in writing
2- signed by testator (or proxy at testator’s direction and in testator’s presence)
3- Two competent witnesses, present at the same time, in front of whom testator signs or acknowledges will
4- witnesses sign the will in testator’s presence

Question 2

What is the difference between an attested will and a holographic will?

Answer 2

An attested will is signed and witnessed. A holographic will is in testator’s handwriting but is not witnessed.

Question 3

Can a witness have an interest in the will or estate?

Answer 3

Yes, that’s fine. But the witness must be competent.

Question 4

What are the requirements for a codicil to an attested will?

Answer 4

Same as an attested will: in writing, signed, witnessed, and subscribed (witnesses sign in presence of testator)

Question 5

How can a previous will be revived?

Answer 5

• A codicil can revive a revoked will.
• If a second will that does not contradict the first will is revoked, the first will is revived.

Question 6

Three requirements for incorporation by reference (wills):

Answer 6

(1) document exists at time of will execution (EXCEPT for memo disposing of tangible personal property)
(2) will indicates that document exists at time of execution
(3) will IDs and describes document with reasonable certainty

Question 7

Three requirements for holographic will:

Answer 7

[Holographic will: not formally executed]
(1) entirely in HANDWRITING of the testator (courts are flexible on this)
(2) two disinterested WITNESSES ID testator’s handwriting
(3) Testator signs (or has proxy sign in testator’s PRESENCE and at testator’s DIRECTION)

Question 8

How can a proponent prove the HARMLESS-ERROR doctrine applies?

Answer 8

If testator does not satisfy one of the requirements for executed a valid attested or valid holographic will, the will can still be treated as valid:

The proponent must show by CLEAR and CONVINCING EVIDENCE that the testator intended the document to be his will

(note: signature is still required, unless self-proving affidavit signed, or two people mistakenly sign each others’ wills)

Question 9

Under what three requirements will a VA court enforce an oral contract for the devise of real property?

Answer 9

(1) Agreement is CERTAIN and DEFINITE in its terms
(2) Party seeking enforcement PERFORMS under contract
(3) Failure to enforce the contract would work a FRAUD on the party seeking enforcement

Question 10

What two elements are required to revoke a will by PHYSICAL ACT?

Answer 10

(1) physical ACT of destruction AND
(may be partial, burned, shredded, crossed out)
(must be some act that touches the words of the will)
(2) INTENT to revoke

Question 11

What are the two ways a testator may REVOKE a will?

Answer 11

(1) physical act + intent to revoke
(2) a NEW writing (codicil or attested/holographic will)
– can revoke IMPLICITLY, via an inconsistency between older and newer wills
– can EXPRESSLY revoke earlier will (includes codicils to prev. will)

Question 12

What happens if the court finds a testator revoked all or part of a will in anticipation of a new will but never actually made a new will?

Answer 12

Under DEPENDENT RELATIVE REVOCATION, the court may cancel the revocation.

Question 13

What effect does divorce or annulment have on a will?

Answer 13

Former spouse is treated as if s/he PREDECEASED the testator, and will not take anything under the will. (If testator and former spouse remarry, the provisions for the former-now-current spouse are revised.)

Question 14

What happens if you revoke a second will?

Answer 14

(1) If the second will EXPRESSLY revoked the first will, then revocation of the second will does NOT revive the first will. [Note: testator can still revive the first will by re-executing it OR executing a codicil to the first will.]
(2) If the second will IMPLICITLY revoked the first will, then revocation of the second will DOES revive the first will.

Question 15

What if a will is lost?

Answer 15

– rebuttable presumption that decedent destroyed will w/intent to revoke
– if will cannot be found, burden of proof is on person arguing in favor of the will to prove that the will existed
– a DUPLICATE original will CAN be admitted into probate (attorney’s copy of will is valid evidence of existence and terms of will; photocopy of original CANNOT be admitted into probate but CAN be admitted as evidence of the testator’s intent, if all originals are lost)

Question 16

A will is generally interpreted as though it were executed ________________

Answer 16

immediately before decedent’s DEATH
(note: if there’s ambiguity, this means property references are to property at time of death)

Question 17

VA’s anti-lapse statute rescues what gifts that would otherwise lapse?

Answer 17

– dead beneficiary is testator’s grandparent or grandparent’s descendant (includes cousins) (gets distributed per stirpes)
– can apply to a class gift (and a residuary gift is treated as a class gift for purposes of anti-lapse)

If none of these apply: lapsed gift becomes part of the residue. If it was already part of residue, it passes by intestacy.

Question 18

What is cy pres?

Answer 18

How the court can rescue a gift to a charity that would otherwise lapse. If original purpose or charitable recipient has changed so to make the gift lapse, the court can look at testator’s intention to find a new charitable recipient.

Question 19

What is ademption?

Answer 19

When a specific gift (personal or real property) is not in testator’s estate at time of death.

EXCEPTIONS: (1) securities that have merged, been consolidated, split, etc. (2) unpaid insurance proceeds from real property that has been destroyed, i.e. burned down, (3) personal or real property sold on behalf of testator while they were disabled or legally incapacitated

Question 20

What is ademption by satisfaction?

Answer 20

When testator transfers property to beneficiary during beneficiary’s lifetime if:
– will provides for DEDUCTION of transfer
– testator declares in contemporaneous WRITING that transfer is satisfaction
–beneficiary acknowledges satisfaction in WRITING

Question 21

Does the beneficiary who receives property also take the property’s liens/mortgages/debts? Why or why not?

Answer 21

Yes, because VA has abolished the exoneration of liens. EXCEPTION: clear statement in the will says otherwise

Question 22

What is abated first in an estate with creditors, personal property or real property?

Answer 22

Personal property, then real property. (Abatement: estate does not have assets sufficient to pay creditors and all the devises and bequests in the will, so the creditors are paid first and the devises and bequests are cut back)

Question 23

What is the order of abatement?

Answer 23

(1) any property that would pass as intestacy
(2) residue
(3) general bequests
(4) demonstrative bequests (i.e. a gift of a specific amount of money to be paid out of a specific item of property)
(5) specific bequests

Question 24

If an estate is insolvent, in what order are creditors paid?

Answer 24

(1) costs and expenses of administration (gotta pay those lawyers);
(2) family allowance, exempt property, and homestead allowance;
(3) $4,000 funeral expenses;
(4) $2,150 per hospital/nursing home (of $425/individual) for medical bills for decedent’s final illness
(5) Commonwealth of VA debts and taxes;
(6) fiduciary debts;
(7) outstanding child support;
(8) other state and local taxes and debts
(9) all other claims (i.e. Visa, Netflix)

Question 25

What kinds of extrinsic evidence is admissible to help court interpret ambiguous term in a will?

Answer 25

– state of testator’s property
– testator’s relationships
– testator’s opinions
– testator’s habits of thought and language

Question 26

Can a court look at extrinsic evidence to interpret a term of the will that applies to 2+ people or things?

Answer 26

Yes–this is equivocation. i.e. testator leaves $10k to alma mater, but went to two different schools

Question 27

What kind of evidence is needed for a court to reform a will affected by mistake of fact or mistake of law?

Answer 27

CLEAR and CONVINCING evidence. Court can reform a will affected by mistake even if the terms are explicit or specific.

Question 28

What does a court do when a will conveys a life estate in property and also gives the life tenant absolute power to consume, assign, or dispose of the property?

Answer 28

The court converts it to fee simple absolute, under the REPUGNANCY doctrine.

Question 29

Who has legal standing to contest a will?

Answer 29

An INTERESTED PERSON (has a legally pecuniary interest that will be affected by whether the will probated or set aside: spouse, heir, beneficiary under a prior will)

Question 30

How do you show mental capacity to make a will?

Answer 30

– not a minor
– preponderance of the evidence (proven by proponent)
– at time of execution, could recollect property, knew property, wished to dispose of property, and knew the business about which testator was engaged
– did not have insane delusion about the will

Valid attested will creates presumption in favor of capacity. Trial court’s determination of capacity stands unless clearly wrong. Guardianship not sufficient evidence.

Question 31

How do you show undue influence?

Answer 31

– weakness of mind
– depended on or had relationship of confidence with beneficiary
– previously expressed intention to make contrary disposition of her property

Influence that DESTROYS testator’s free well; set of conditions that testator cannot resist, controls testator’s volition, and induces testator to do something they normally would not do.

Question 32

How do you prove fraud in a will, and what is the remedy?

Answer 32

Presumption of fraud if drafter of will is also a major beneficiary.

Must show: (1) wrongdoer misrepresented a material fact to the testator AND (2) INTENDED to deceive testator in order to influence property disposition testator would otherwise not have made.

Remedy: court can invalidate will or codicil procured through fraud.

Question 33

For what public policy reasons may a court strike down terms of a will?

Answer 33

– infringe on religious belief
– unreasonably limit marriage (note: not enough to prohibit marrying one specific person)

Question 34

What court has jurisdiction over probate and intestacy matters?

Answer 34

The circuit court. Look first to place of decedent’s house or residence, then where decedent owns real property, then where decedent dies.

Question 35

What evidence can the proponent present to show the validity of a will?

Answer 35

–self-proving affidavit
– witnesses (authenticity of their signatures, other attestation requirements, testator’s mental capacity and intent)

If holographic will: proponent must produce TWO disinterested witnesses who testify will entirely in testator’s handwriting

Question 36

An attestation clause provides prima facie evidence of what?

Answer 36

that the will was properly executed. (note, though, that the proponent still must authenticate the signatures)

Question 37

What is a self-proving affidavit?

Answer 37

– notarized
– signed at the same time as the will and related to the will
– signed by testator and witnesses

Creates presumption that will is authentic and should be probated

Question 38

What does a fiduciary owe a beneficiary?

Answer 38

Scrupulous good faith, candor, and care in management of beneficiary’s interests

Question 39

What is a CONSTRUCTIVE TRUST?

Answer 39

It’s not a real trust, but an equitable remedy that returns property to the rightful owner to prevent fraud

Question 40

Under the VA Uniform Trust Code (UTC), what common law principles allow removal of a trustee?

Answer 40

UTC recognizes common law principles that hold a trustee can be removed for:
1) breach of trust
2) inability to cooperate with co-trustees
3) lack of fitness
4) persistent failure to administer the trust effectively

Question 41

What are the statutory grounds for removing a trustee?

Answer 41

1) substantial CHANGE in CIRCUMSTANCES, or removal is requested by ALL qualified beneficiaries;
2) removal best serves the INTERESTS of all beneficiaries;
3) removal is not inconsistent with a MATERIAL PURPOSE of the trust; and
4) a suitable co-trustee or successor trustee is available.

Question 42

What happens if a trustee engages in self-dealing?

Answer 42

A transaction may be voidable, unless trustee can show it was authorized by the trust, a court order, or ALL the beneficiaries’ approval.

Question 43

When is a trustee’s transaction presumed to be a conflict of interest?

Answer 43

When it is between the trustee and:
1) immediate family member;
2) trustee’s lawyer or agent; or
3) corporation or other person or enterprise in which trustee has an interest that might have affected trustee’s judgment

Question 44

How does the Dead Man’s Statute work in VA?

Answer 44

At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication with a person whose estate is a party to the case. Virginia’s Dead Man statute allows the testimony of an interested witness only if the witness’s testimony is corroborated.

Question 45

How does the doctrine of cy pres work in VA?

Answer 45

Typically, the doctrine of cy pres does not apply when a conditional gift is directed to a specific charitable purpose and that purpose can no longer be achieved. However, Virginia permits cy pres to override a condition in a trust that requires the termination of the trust and distribution of the trust assets to a noncharitable beneficiary when (i) the beneficiary is not the settlor, and (ii) more than 21 years have passed since the creation of the trust.

Question 46

What happens if you give a $1,000 check on your deathbed to a friend “to remember me by” and then the friend dies the next day before you?

Answer 46

Your estate gets the money back. The gift of $1,000 was a gift causa mortis, a gift in contemplation of death. The gift was completed when the friend cashed the check at the bank. However, as a gift causa mortis, the gift is revoked if the donee dies before the donor.

Question 47

Can a trust in VA provide for not only your dog, but also your dog’s descendants?

Answer 47

No. While a trust for the care of an animal can include more than one animal, the animals must be alive during the settlor’s lifetime. Virginia does not permit a trust for the care of unborn animals.

Question 48

What happens in VA if a trust for a pet has way too much money?

Answer 48

a settlor does not have the power to place excessive amounts in trust for the benefit of an animal, when a settlor does so, the trust is not invalidated. Instead, the excess is distributed in accord with the terms of the trust, or if the trust is silent, in accord with the statute.

Question 49

If you make a trust where you are the only beneficiary, can creditors reach the trust?

Answer 49

YES. In general, a self-settled irrevocable trust is not protected from claims against the settlor. A creditor of the settlor may reach the maximum amount that can be distributed to the settlor or for the settlor’s benefit.

(may be exceptions if you’re not the sole beneficiary during your lifetime)

Question 50

Ok in VA CC rules on divorce and notes there still needs to be an equitable division of marital property. Husband files motion 22 days later to reopen to equitably divide. Can the same CC reopen?

Answer 50

NO.

Since the circuit court failed to either specifically retain jurisdiction in the matter or modify its final decree within 21 days of the entry of that decree, the circuit court lacked the authority to modify the divorce decree. In order to retain jurisdiction, the circuit court must specifically do so.

While a court with equitable powers has the right to enforce its equitable decision, a court generally may only modify a final decree, whether is it is equitable or legal in nature, within 21 days of the entry of the decree.

Question 51

In VA, the trustee of what kind of trust must qualfiy with the court?

Answer 51

In Virginia, the trustee of a testamentary trust must qualify with the clerk of the circuit court or the court in order to serve as trustee. In this regard the trustee is treated in the same manner as an executor or administrator of a will.

Question 52

In VA, what’s the intestacy distribution?

Answer 52

Per capita with representation. (kids split, dead kids share gets split between their kids)

NOT strict per capita (split equally among living kids and dead kids’ living kids)

NOT per stirpes (divided equally among dead kids)

Question 53

In VA, is a trust that is not designated specifically as revocable irrevocable or revocable?

Answer 53

Revocable. Gotta specify if you want it to be irrevocable.

Question 54

In a revocable trust, may a trustee follow the settlor’s directions despite the directions violating terms of the trust?

Answer 54

YES. While a trust is revocable, a trustee may follow the directions of the settlor, even if those directions would violate the trust terms.

Question 55

How does a pour-over trust work?

Answer 55

A “pour-over” devise, in which the distribution of a decedent’s assets upon her death is effectively determined by the terms of a trust rather than a will, is permissible if the trust is sufficiently identified in the will, and if the terms of the trust are set forth in a written instrument other than the will.