W&E Flashcards
Formal requisites of wills
- must be 18
- testamentary in character
- revocable during T’s lifetime
- operative at T’s death
Holographic wills requirements
- in the T’s handwriting and signed by him
2. have testamentary intent
Holographic will surplusage rule
extraneous printed words (words not necessary to complete the will) do not invalidate the holo will
Oral holographic wills
not valid on or after September 1, 2007
Holographic wills in general
- signature can appear anywhere
- need not be dated
- can be written on anything
- surplusage rule
- may be proved in probate by the testimony of 2 Ws to the T’s handwriting
- self proved by the T making an affidavit before a notary
Non-probate assets that cannot be disposed by will
- property passing by contract (life insurance proceeds, employee benefits)
- property passing by right of survivorship
- property held in trust
- bonds, mortgages, promissory notes, securities accounts, etc.
Revocation of will be operation of law
- dissolution of marriage revokes testamentary gifts
Revocation of will by subsequent writing
- must be executed with testamentary formalities
- holo writing can revoke typewritten, attested will & vice versa
- if a later will makes a complete disposition of the T’s property, it revokes all prior wills by implication
When ademption does not apply
- MAY NOT apply when there is a sale by the T’s guardian
2. DOES NOT apply to a general legacy or demonstrative legacy or where the gift consists of traceable sale proceeds
Class gift rule
- only class members alive at the T’s death take
- gives way to the anti-lapse statute when the class is w/in the degree of relationship covered by the statute
- must be found that the grantor intended to designate as grantees the persons fitting a description rather than specific individuals
- issue is whether the grantor intended to benefit a group or individual
Interested parties who may contest a will
- decedent’s heirs
- legatees named in prior will that was revoked by the will being offered for probate
- spouses
- creditors
- assignees of any of the foregoing
- any other person having a pecuniary interest that would be affected by the probate or defeat of the will
Necessary parties
- legatees named in the will
2. heirs
Grounds for contesting a will
- will was not properly executed
- lack of testamentary capacity
- undue influence
- fraud
- mistake
- T did not know the contents of the will
Requisites of testamentary capacity
- understand the nature of the act he was doing
- know the nature and character of his property
- know the objects of his bounty
- understand the disposition he was making
Revocation by physical act
- requires physical act and intent to revoke
- must be by the T or by someone in his presence and at his direction
- must be on the will, not another document
- no partial revocation of attested will by physical act
Accidental destruction of will
- does not revoke it
- even if T later decides he wants to revoke it
- intent to revoke must be present at the time of physical act of destruction
Community property if survived by descendants, some of whom are not spouse’s descendants
if D is survived by descendants at least 1 of whom is not the surviving spouse’s descendant, the D’s 1/2 community interest passes to his descendants (take per capita w/ representation)
community property if survived by descendants, all of whom are spouses’s descendants
if D is survived by descendants, all of whom are descendants of the surviving spouse, the surviving spouse takes all community property
community property if not survived by descendants
surviving spouse takes all of the community property
When parents cannot inherit
clear and convincing evidence
a) abandoned and failed to support the child
b) knowingly abandoned and failed to support the child’s mother during her pregnancy OR
c) was criminally responsible for the death or serious injury of child
Community property if survived by descendants, some of whom are not spouse’s descendants
if D is survived by descendants at least 1 of whom is not the surviving spouse’s descendant, the D’s 1/2 community interest passes to his descendants (take per capita w/ representation)
community property if survived by descendants, all of whom are spouses’s descendants
if D is survived by descendants, all of whom are descendants of the surviving spouse, the surviving spouse takes all community property
community property if not survived by descendants
surviving spouse takes all of the community property
When parents cannot inherit
clear and convincing evidence
a) abandoned and failed to support the child
b) knowingly abandoned and failed to support the child’s mother during her pregnancy OR
c) was criminally responsible for the death or serious injury of child
separate property not survived by spouse - no descendants or parents
estate passes to brothers and sisters or their descendants
separate property not survived by spouse - survived by descendants
entire estate passes to children and their descendants
separate property not survived by spouse - no descendants but parents survive
1/2 passes to parents and the other 1/2 passes to brothers and sisters or their descendants
separate property not survived by spouse - no parents or descendants of parents
1/2 of estate passes to the maternal gps or their descendants of parents, 1/2 of estate passes to paternal gps or their descendants
republication by codicil
- involves a validly executed will and then a codicil executed at a later date… will is then treated as being re-executed as of the date of the codicil
constructive trust - slater rule in TX
legal title passes to the slayer but equity holds him to be a constructive trustee for the next heirs or next of kin
- policy: should not be allowed to benefit from the crime but the other heirs (kids) should not be punished as well
- must be pled in timely manner
disclaimer v. renouncement
disclaimer: will context in which you can decide not to take the inheritance so that it passes to the next heir
renouncement: disclaimer but in intestate context
- DO THIS FOR TAX PURPOSES
does TX allow republication by codicil
YES - to cure defects in the original will such as mental capacity and will formalities
how to revive a will in TX
by using the underlying, formally revoked will and executing a codicil or fresh amendment to it, then it is valid again
revocation by operation of law in TX - married and execute a will for spouse as ben & then get divorced
all provisions in the will shall be read as if the former spouse & all relatives of the former spouse that are not relatives of the T predeceased the T… they don’t get anything once the marriage is over
does TX recognize an omitted spouse or pretermitted spouse?
NO - marriage following the execution of a will DOES NOT AFFECT the will
- policy: community property rules protect the spouse’s property even once widowed (she would still at least get her 1/2 of the CP)
incorporation by reference in TX
- document has to be in existence at the time the will is executed
- document must be clearly IDed in the will
- will must express T’s intent to incorporate the writing in the will
mistaken or ambiguous language in TX
plain meaning rule & no reformation for mistake
plain meaning rule
whatever is written on the paper is what’s admitted to probate, regardless of the fact that there is extrinsic evidence that 100% shows that language was a mistake
no reformation for mistake
court will not allow extrinsic evidence in to correct a mistake that the T has made
if there is ambiguity in the language of the will…
there is no limited amount of extrinsic evidnece
patent ambiguity
ambiguity on the face of the document… obvious mistake i.e. part of a sentence is left out
- PERMITTED IN TX
latent ambiguity
not evident on the face of the document and usually found once you start distributing property i.e. to my neighbor Bob and you have 2 neighbors named Bob
- PERMITTED IN TX
personal usage exception
when you call someone something other than their legal name in an idiosyncratic manner
lapsed device
devise fails because ben dies after the will is executed but before T dies
void devise
ben is dead before T executes the will or a pet is named as a ben
reinstatement of a validly revoked will in TX
no revival of revoked wills unless you have re-execution of the first will, republication by codicil, or create a new will with same terms (minority rule)
- you have to do something more than just revoke the new will to get the old one back even if it’s T’s intent
does TX allow strike throughs in holo wills?
so long as it can be proven that the T’s handwriting caused it
- also recognize additions so long as they are in the T’s handwriting and signed
does TX allow partial revocation of wills?
no - TX courts would ignore the strike through and admit the will to probate as originally executed
- should execute a new document instead
In TX no will in writing and no clause thereof shall be revoked except by…
- a subsequent will, codicil, or
- declaration in writing, executed w/ the like formalities or by the T destroying or canceling the same or causing it to be done in his presence
ORAL REVOCATION IN TX IS NOT ENOUGH
in TX if you can’t find the will then there is a presumption that it has been revoked… but this presumption can be rebutted if
the last person in possession of the will is adversely affected by the will or that person had access to it
TX says a lost will is presumed to be revoked… but you can prove up a lost will by
- give a substantial reason why you don’t have the will
2. prove the contents by a credible witness who has read the will, heard the will, or can ID a copy of the will
legal significance
must show that the document was intended to have legal significance and was not intended merely as a draft note
TX rule for pre-printed will forms
ignore pre-printed words
- when we say the will must be solely in the T’s writing we mean it
- you can have pre-printed words on the will but you can only admit the handwritten words to probate
- if looking solely at the handwritten words doesn’t make any sense there is no will
conditional wills… what happens when the T does not die because of the circumstances listed in the document?
- some courts say that this is a condition so unless the condition is met then it is not valid intent to transfer
- majority says that the event listed is the reasoning behind getting the person’s affairs in order and use it to show the motivation for writing the will & say the will is valid
- TX is split on the issue so look to the language of the document and the intent of the T when written
holo will elements in TX
- in writing
- signed by T
- wholly in T’s handwriting
- does not need W
- can be self-proved at any time by T
holo wills MUST have
- testamentary disposition &
- testamentary intent… must show intent that the requests included in the document are intended to serve as a testamentary purpose upon his death
attestation clause v. self proving affidavit
attestation clause: says that the W saw the T sign
self proving affidavit: says that the W saw the signature, had testamentary capacity, etc…. says everything the W would attest to in court
process for self proving affidavit
- sign and attest the will
2. draft, sign, notarize and file the self proving affidavit
where can a signature be on a will in TX?
ANYWHERE on the document… may raise questions/proof problems that the words after the signature were added later though
conscious presence test
saw the person sign, through hearing or through general consciousness of events, the W can understand that the person is signing
TX specific conscious presence test
if they could see w/ a slight physical exertion then it would be satisfied but signing in an adjoining conference room is not satisfactory as a slight physical exertion
attestation clause burden of proof
- w/out attestation clause W must prove they attested the will
- w/ attestation clause burden of proof shifts to contestor to show that the will is invalid or proper formalities were not followed
oral wills in TX
NOT ALLOWED
publication of wills in TX
NOT required
- where T must declare “this is my last will and testament” in front of witnesses
notarization of wills in TX
does NOT satisfy the requirement in lieu of 2 witnesses… notary may serve as one of the witnesses but still need 1 more to attest
TX requirements for an attested will
- in writing
- signed by T or another person for him by his direction and in his conscious presence
- signed/attested by 2 witnesses above age of 14 who sign in the T’s presence
- Ws not required to sign in the presence of each other
- W must either be present when T signs or when he attests his signature to them at a later date, so long as it its done before he dies
functions of formal will requirements
- ritual function
- evidentiary function
- protective function
- channeling function
elements for tortious interference in TX
tort claim against someone who acted in a way that intentionally interfered w/ your expectancy… not a challenge to a will
- expectancy
- intentional tort interference (fraud, duress, undue influence, coercion)
- causation
- damages
duress/coercion
undue influence to the extreme
- constructive trust remedy can be used in these situations when it was kids/family who are accused of duress
fraud by inducement
false statements are purposely made to T to induce them to make a will that includes someone or leaves someone out
fraud by compulsion
false documents, getting them to sign a piece of paper they do not know is a will
fraudulent misrepresentation elements in TX
- material representation
- representation was false
- speaker knew statement was false or showed reckless disregard for the truth
- speaker made representation w/ intent that it should be acted upon by the party
- party acted in reliance upon the representation
- party thereby suffered injury
undue influence test
- T must be susceptible to the influence… usually someone in a weakened mental or physical state
- influencer has opportunity and motive to exert the influence over T… someone who has access to them everyday and who further alienates them from family
- influencer overcomes the will (not document) of T and will is product of that influence… THIS IS THE HARD ELEMENT TO PROVE
insane delusion test must show…
- there is an insane delusion
2. the insane delusion caused the disposition made in the will
insane delusion definition
false conception of reality
insane delusion rule in TX
- no insane delusion if there is ANY factual basis for the belief
- insane delusion ACTUALLY CAUSES the disposition… direct link between the 2 can be established
capacity to write a will in TX
- must be 18 years of age, or married, or member of US armed forces
- must be of sound mind
sound mind means being capable of knowing and understanding in a general way…
- the business he was engaged in… understand that you are making a will
- the nature and extent of his property… don’t have to know every detail just the nature of it
- the natural objects of his bounty… the people he wants to give stuff to
- disposition that he is making of that property… what he is bequeathing
- must be able to relate these elements to one another and form an orderly desire regarding the disposition of the property
