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Virginia Bar Exam > Virginia Wills > Flashcards

Virginia Wills Flashcards

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1
Q

When do intestate succession rules apply? (3 situations)

A

when:

(1) the decedent left no will,

(2) the decedent’s will is denied probate, or

(3) the decedent left a will but the will does not make a complete disposition of the estate (resulting in a “partial intestacy”).

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2
Q

What is the surviving spouse’s intestate share when there are no descendants?

A

All

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3
Q

What is the surviving spouse’s intestate share when decedent is survived by descendants, all of whom are descendants of the surviving spouse?

A

All

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4
Q

What is the surviving spouse’s intestate share when there are at least one descendant not sharing common parents?

A

The spouse inherits one-third of the estate, and the other two-thirds passes to the decedent’s descendants.

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5
Q

What is the surviving spouse’s intestate share when they willfully desert or abandon the other spouse and the desertion continues until abandoned spouse’s death?

A

None

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6
Q

What is the order for intestate shares of the five categories of heirs?

A
  1. Descendants (children or grandchildren, each equal share)
  2. Parents
  3. Brothers/sister
  4. Grandparents and descendants of grandparents
  5. Heirs of deceased spouse
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7
Q

What is Virginia’s “No Laughing Heir” statute?

A

Cuts of inheritance rights of more remote relatives.

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8
Q

When does estate escheat to commonwealth?

A

only if there are no heirs of the decedent or their spouse.

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9
Q

How to disinherit an heir?

A

Testator must make a complete disposition of their estate by will. Any portion passing by instestacy is governed by intestacy statute, not testator’s will. E.g. a will provision such as “I do not want my son to take anything” will not prevent him from taking intestate property.

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10
Q

What is per capita with representation and how does it work in Virginia? (3 steps)

A

In Virginia, descendants take per capita with representation.

Step 1. Decedent’s property is divided into equal shares at first generational level with living takers.

Step 2: Each living person and each predeceasing descendant who left living issue gets a share.

Step 3. Shares of predeceasing descendants then pass to their sisue by right of representation.

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11
Q

When does adopting a child not cut off inheritance rights from natural parents?

A

Adoption by the spouse of a biological parent, which has no effect b/w/ the child and either biological parents.

Court order that involuntarily terminates parental rights.

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12
Q

What are inheritance rights for stepchildren and foster children?

A

None if not adopted

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13
Q

What is a nonmarital child’s inheritance rights from their mother?

A

Full inheritance rights from mother and mother’s kin (and vice versa).

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14
Q

What is a nonmarital child’s inheritance rights from their father and how to establish?

A

Natural child only parent of nonmarital child if:

  1. Father married the mother before or after the child’s birth (even if attempted marriage is void or voidable)

OR

  1. Clear evidence that

(1) Man openly cohabited with mother during entire pregnancy;

(2) Man consented to be named on child’s birth certificate

(3) Man allowed child to use his surname;

(4) The man claimed the child as his on a tax return or other government document;

(5) The man was adjudged the father in a paternity suit and ordered to pay child support;

(6) The man admitted paternity in court or in writing under oath; or

(7) Genetic tests or other medical or anthropological evidence establish that the man is the child’s father.

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15
Q

If conception is before death, for inheritance purposes, who is the parent of a child conceived by artificial reproductive technology?

A

is the child of a person who consented to being a parent in writing before the conception, provided the child is born within that person’s lifetime or within 10 months of that person’s death

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16
Q

How does a child of a decedent inherit when the decedent died after conception

A

A child or other relative of the decedent who is conceived and in gestation before the decedent’s death and born thereafter takes as if born during the decedent’s lifetime.

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17
Q

How much do half-blood siblings take from decedent sibling?

A

Half as much as kindred of the whole blood

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18
Q

How much does a person related to a decedent inherit with two lines of relationships to the decedent?

A

The larger of the two shares

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19
Q

What is an inter vivos gift?

A

When a person decides to give gifts to children or other loved ones throughout the course of their life.

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20
Q

How do inter vivos gifts affect intestate share?

A

Presumptively an advancement to be taken into account in making an intestate distribution

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21
Q

What is an advancement?

A

An advance payment

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22
Q

What evidence overcomes presumption that inter vivos gift is an advancement?

A

Affirmative proof the gift was not intended to be an advancement. Statements of the grantor are competent evidence to show the grantor’s intention.

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23
Q

How does computation work upon determination that an advancement was made? (3 steps)

A

Step 1: Add the amount of the advancement back into the estate.

Step 2: Calculate the share of each heir.

Step 3: Deduct the amount of the advancement from the share of the recipient.

If there is a deficit, and the amount of the recipient’s share is larger than the intestate share to which they are entitled, they are not responsible for returning the excess. The other heirs will divide the deficit pro rata.

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24
Q

A person must survive an intestate decedent by ___ hours to take as an heir

A

120

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25
Q

What happens if person survives intestate decedent by less than the prescribed time?

A

Results in party being treated as having predeceased decedent.

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26
Q

What is the standard of evidence to prove heir survived decedent by prescribed time?

A

Clear and convincing evidence of survival for the 120 hour period.

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27
Q

What is a disclaimer?

A

A beneficiary or heir may disclaim an interest that otherwise would pass to them from the decedent’s estate.

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28
Q

What is the effect of a disclaimed interest?

A

Passes as though the disclaiming party died immediately before the decedent

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29
Q

How does a surviving joint tenant or tenant by the entirety disclaim interest?

A

May disclaim any interest passing by right of survivorship. If the survivorship estate was created by the decedent or if the survivor did not furnish any consideration in creating the estate, the survivor may disclaim the entire interest. A spendthrift provision has no effect on the right to disclaim.

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29
Q

How does the property pass if party disclaims a lifetime gift?

A

As though the disclaimant had died before the transfer was made.

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29
Q

What are the five requirements to create a valid disclaimer?

A
  1. Be in writing or other record;
  2. Declare the disclaimer
  3. Describe the interest being disclaimed
  4. Be signed by the disclaiming party; and
  5. Be delivered
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30
Q

Who does a disclaiming person deliver to if interest created under a will or intestacy laws?

A

Personal representative of the estate

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31
Q

Who does a disclaiming person deliver to if interest created under a trust?

A

Trustee

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32
Q

Where to disclaim real property?

A

A copy of disclaimer must be recorded in the county where land is located.

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33
Q

What is the time limit on making a disclaimer?

A

None, but right to disclaim barred if beneficiary or heir accepts the property or any of its benefits, enters into a contract for the property’s sale, or assigns or mortgages the interest

34
Q

What does Virginia’s Slayer Statute say?

A

A person convicted of (or determined by a preponderance of the evidence to have committed) murder or voluntary manslaughter forfeits all interests in the victim’s estate. The estate or interest is distributed as though the slayer predeceased the victim.

35
Q

If one joint owner in a joint tenancy kills the other, how does this affect right to survivorship?

A

Loses right to survivorship. Estate converted into tenancy in common, and murdered decedent’s interest passes under their will or by intestacy.

36
Q

What persons claiming through slayer are NOT barred?

A

Bona fide purchaser.

37
Q

What is a will?

A

A will is an instrument executed in accordance with applicable state formalities that may direct the disposition of a decedent’s property at death and/or set forth instructions pertaining to the management of the persons or assets.

38
Q

When does will have legal effect?

A

When testator dies

39
Q

What is a codicil?

A

A testamentary instrument that amends, supplements, or revokes a will.

40
Q

What are the general requirements to form a valid will? (3 requirements)

A
  1. Must be 18 years old and of sound mind.
  2. Testator must have present testamentary intent
  3. Testator must have mental capacity
41
Q

What are the 3 requirements of present testamentary intent?

A

Testator must

(1) intend to dispose of property, (2) intend for that disposition to happen at the time of death, and (3) intend that this instrument accomplish that purpose

42
Q

Where must testamentary intent be ascertained from?

A

The face of the will.

43
Q

To determine capacity, what four things must testator have the ability to understand?

A
  1. The nature and extent of their property.
  2. The persons who are the natural object of their bounty;
  3. The nature of the act that they are performing; and
  4. The way in which all the foregoing concepts interact, such that they formulate a cohesive plan and orderly scheme of disposition.
44
Q

For a will or codicil to be valid and admissible to probate, it must meet Virginia’s formal requirements of due execution. What are the 5 requirements?

A
  1. The will or codicil be in writing (in very limited circumstances, oral wills are allowed)
  2. The will or codicil is signed by the testator or by another in the testator’s presence and at their direction.
  3. There be two attesting witnesses.
  4. The testator must sign the will (or acknowledge their previous signature on the will) in the witnesses’ joint presence.
  5. The witness must sign in the testator’s presence, but not necessarily in the presence of one another
45
Q

Can formal requirements be dispensed of if will is not in writing? If so, when?

A

No

46
Q

What is Virginia’s dispensing power statute

A

Allows court to dispense with formal requirements in certain cases.

47
Q

What evidence is required to use the dispensing power statute?

A

Clear and convincing evidence that decedent intended the document to constitute her will.

48
Q

Can formal requirements be dispensed of if will is not signed by testator? If so, when?

A

No, except when

  1. There is a “switched will” case, and two persons mistakenly sign each other’s will or
  2. The testator signs the self-proving affidavit, but not the will itself
49
Q

Can formal requirements be dispensed in the case of defective witnesses? If so, when?

A

Yes. A court may dispense with the requirement that there be two witnesses if there is clear and convincing evidence that the decedent intended a document to be their will.

50
Q

When does Virginia recognize holographic wills and codicils?

A
  1. Meet the requirements for testamentary capacity (18 years old and of sound mind) and present testamentary intent.
  2. Are wholly in the testator’s handwriting; and
  3. Are signed by the testator.
51
Q

How does the presence of typewritten text affect the validity of a holographic will?

A

Does not if the typewritten portion may be disregarded without violating the testator’s intent. However, if handwritten portions are interwoven with or may be understood by reference to the typewritten material, it is not a valid holographic will.

52
Q

When are oral wills admissible?

A

For solders in active military service and mariners and sailors at see.

53
Q

For holographic wills, what is the Finality of the Instrument requirement?

A

Testator need not sign holographic will at the end, but ther e must be some formal closing statement to show the finality of the instrument and indicate that the testator’s name, written elsewhere in the document, is intended to be their signature.

54
Q

What three ways to revoke a will?

A
  1. Operation of law
  2. Subsequent written instrument, or
  3. Physical act
55
Q

Who can revoke a will?

A

Person who has testamentary capacity may revoke their will at any time prior to their death.

56
Q

What ways is a will revoked by operation of law?

A
  1. Marriage following execution of will
  2. Divorce or annulment
  3. Pretermitted child
57
Q

How does marriage following execution of will affect that will?

A

Spouse takes intestate share of testator’s estate unless it appears from the will or a prenup that omission was intentional. Inter vivos gifts and nonprobate transfers that benefit the spouse have no effect on omitted spouse’s right to an intestate share.

58
Q

How does pretermitted child affect a will when no other children when the will was executed

A

Takes an intestate share

59
Q

How does pretermitted child affect a will when there were other children when the will was executed

A

Takes the lesser of

  1. An amount equal to the largest bequest made to any of the testator’s other children, or
  2. An intestate share.
60
Q

When does pretermitted child take nothing?

A

When testator made no gifts to children alive when the will was executed

61
Q

How to revoke by written instrument?

A
  1. Subsequent instrument executed with same formalities as are required for execution of a will. (Dispensing power applies) Either
  2. Express or
  3. implied by inconsistency
62
Q

How is a will revoked by implication of subsequent instrument?

A

If the testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will, to the extent possible, the two instruments are read together. However, the second instrument revokes the first to the extent of any inconsistent provisions

63
Q

What are the 3 requirements to revoke a will or codicil by physical act?

A
  1. A sufficient act
  2. With intent to revoke that is simultaneous with the act
  3. Performed by the testator, or a proxy
64
Q

What is 5 sufficient physical acts to revoke a will?

A
  1. Burning
  2. Tearing
  3. Cutting
  4. Obliterating
  5. Destroying

with present intent to revoke

65
Q

When cam will be revoked by physical act by another person?

A

Revocation is at the testator’s direction, and in the testator’s presence.

66
Q

When is a will presumed revoke?

A

If it cannot be found after testator’s death and was last seen in their possession or control.

67
Q

How to rebut presumption that will was revoked?

A

Clear and convincing evidence:

  1. That the will was properly executed
  2. That the will was lost or destroyed; and
  3. The will’s content
68
Q

Does revocation of a will revoke all codicils?

A

Yes

69
Q

Does the revocation of a codicil revoke the original will?

A

No

70
Q

Is an act of revocation performed by the testator of one of multiple copies valid?

A

Yes

71
Q

Is the destruction of an unexecuted copy of the will effective?

A

No, even if present intent to revoke.

72
Q

When are alterations, additions, or interlineation made after the will has been signed and attested effective to change the will?

A

The dispensing power statute applies to such interlineations so that an addition or alteration of the will is given effect when there is clear and convincing evidence that the testator intended to modify the will by their additions or alterations

73
Q

Can a revoke will be revived by destroying second instrument?

A

No

74
Q

How to restore a revoked will to full effectiveness

A

Must be reexecuted with full testamentary formalities.

75
Q

How can dispensing power statute be used for a revoked will?

A

If there is clear and convincing evidence that the decedent intended a subsequent document or writing to be a revival of a formerly revoked will or portion of a will.

76
Q

What is the the Doctrine of Dependent Relative Revocation

A

Applies when testator revokes their will based on a mistake of law or fact as to the validity of another testamentary instrument, and but for this mistake, the testator would not have revoked the will.

If the more recent disposition is deemed ineffective, the revocation accompanying the attempted disposition also fails, and the previous will remains in force. For DRR to be applied, the disposition that results from disregarding the revocation must come closer to effectuating what the testator tried (but failed) to do than would occur if the revocation is given effect.

77
Q

What is integration and how does it work

A

If an integration question is raised, the will proponent must show that the pages were present when the will was executed and intended by the testator to be part of the will. Integration is presumed when the pages are physically attached or there is an internal coherence by provisions running from one page to the next. The testimony of witnesses or other extrinsic evidence can also establish integration.

78
Q

What is the doctrine of republication by codicil?

A

A will is treated as having been executed on the date of the last validly executed codicil hereto.

79
Q

What is incorporation by reference and what are the three requirements?

A

Allows testator to incorporate an extraneous document into their will. The effect is that the content of the extraneous document is treated as though it was written into the will itself, even if the document was not witnessed or it was informally written in handwriting.

Requirements
1. The document must be in existence at the time the will was executed.

  1. The will must refer to the document as being in existence; and
  2. The will must identify and describe the document with reasonable certainty.
80
Q

What is the exception for list disposing of items of tangible personal property?

A

A will may refer to a written statement or list that disposes of items of tangible personal property not specifically bequeathed by the will itself. The writing may be referred to as one in existence at the time of the testator’s death. It may be prepared before or after the will’s execution, and it may be altered by the testator at any time. Although it does not need to be witnessed, the writing must be signed by the testator and describe the items and beneficiaries with reasonable certainty.

81
Q

What is the exception for instructions to fiduciary as to exercise of discretionary powers?

A

If a will, trust, or power of attorney gives a fiduciary the power to make discretionary distributions to beneficiaries, or gives them the power to make health care decisions for the maker, a letter to the fiduciary as to how the discretionary power should be interpreted can be incorporated by reference into the will, trust, or power of attorney. The letter can be written before or after execution of the will, trust, or power of attorney, but it must be signed and notarized.

82
Q

What are acts of independent significance?

A

A will may dispose of property by reference to acts and events that have significance apart from their effect on the dispositions made by the will. The act must have some other lifetime significance or motive aside from providing for the testamentary gift. The future act may relate to the identification of the beneficiaries or identification of the property that is to be the subject matter of a bequest.

83
Q

What does “personal property” mean in a bequest for personal property

A

Tangible (furniture, jewelry, art) AND intangible (stocks, bonds, etc.).

84
Q
A

Virginia Bar Exam (3 decks)

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