Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Wills and Estates > W&E > Flashcards

W&E Flashcards

1
Q

Formal requisites of wills

A
  1. must be 18
  2. testamentary in character
  3. revocable during T’s lifetime
  4. operative at T’s death
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Holographic wills requirements

A
  1. in the T’s handwriting and signed by him

2. have testamentary intent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Holographic will surplusage rule

A

extraneous printed words (words not necessary to complete the will) do not invalidate the holo will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Oral holographic wills

A

not valid on or after September 1, 2007

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Holographic wills in general

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Non-probate assets that cannot be disposed by will

A
  1. property passing by contract (life insurance proceeds, employee benefits)
  2. property passing by right of survivorship
  3. property held in trust
  4. bonds, mortgages, promissory notes, securities accounts, etc.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Revocation of will be operation of law

A
  • dissolution of marriage revokes testamentary gifts
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Revocation of will by subsequent writing

A
  1. must be executed with testamentary formalities
  2. holo writing can revoke typewritten, attested will & vice versa
  3. if a later will makes a complete disposition of the T’s property, it revokes all prior wills by implication
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

When ademption does not apply

A
  1. 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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Class gift rule

A
  1. only class members alive at the T’s death take
  2. gives way to the anti-lapse statute when the class is w/in the degree of relationship covered by the statute
  3. must be found that the grantor intended to designate as grantees the persons fitting a description rather than specific individuals
  4. issue is whether the grantor intended to benefit a group or individual
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Interested parties who may contest a will

A
  1. decedent’s heirs
  2. legatees named in prior will that was revoked by the will being offered for probate
  3. spouses
  4. creditors
  5. assignees of any of the foregoing
  6. any other person having a pecuniary interest that would be affected by the probate or defeat of the will
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Necessary parties

A
  1. legatees named in the will

2. heirs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Grounds for contesting a will

A
  1. will was not properly executed
  2. lack of testamentary capacity
  3. undue influence
  4. fraud
  5. mistake
  6. T did not know the contents of the will
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Requisites of testamentary capacity

A
  1. understand the nature of the act he was doing
  2. know the nature and character of his property
  3. know the objects of his bounty
  4. understand the disposition he was making
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Revocation by physical act

A
  1. requires physical act and intent to revoke
  2. must be by the T or by someone in his presence and at his direction
  3. must be on the will, not another document
  4. no partial revocation of attested will by physical act
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Accidental destruction of will

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Community property if survived by descendants, some of whom are not spouse’s descendants

A

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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

community property if survived by descendants, all of whom are spouses’s descendants

A

if D is survived by descendants, all of whom are descendants of the surviving spouse, the surviving spouse takes all community property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

community property if not survived by descendants

A

surviving spouse takes all of the community property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When parents cannot inherit

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Community property if survived by descendants, some of whom are not spouse’s descendants

A

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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

community property if survived by descendants, all of whom are spouses’s descendants

A

if D is survived by descendants, all of whom are descendants of the surviving spouse, the surviving spouse takes all community property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

community property if not survived by descendants

A

surviving spouse takes all of the community property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

When parents cannot inherit

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

separate property not survived by spouse - no descendants or parents

A

estate passes to brothers and sisters or their descendants

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

separate property not survived by spouse - survived by descendants

A

entire estate passes to children and their descendants

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

separate property not survived by spouse - no descendants but parents survive

A

1/2 passes to parents and the other 1/2 passes to brothers and sisters or their descendants

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

separate property not survived by spouse - no parents or descendants of parents

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

republication by codicil

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

constructive trust - slater rule in TX

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

disclaimer v. renouncement

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

does TX allow republication by codicil

A

YES - to cure defects in the original will such as mental capacity and will formalities

33
Q

how to revive a will in TX

A

by using the underlying, formally revoked will and executing a codicil or fresh amendment to it, then it is valid again

34
Q

revocation by operation of law in TX - married and execute a will for spouse as ben & then get divorced

A

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

35
Q

does TX recognize an omitted spouse or pretermitted spouse?

A

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)

36
Q

incorporation by reference in TX

A
  1. document has to be in existence at the time the will is executed
  2. document must be clearly IDed in the will
  3. will must express T’s intent to incorporate the writing in the will
37
Q

mistaken or ambiguous language in TX

A

plain meaning rule & no reformation for mistake

38
Q

plain meaning rule

A

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

39
Q

no reformation for mistake

A

court will not allow extrinsic evidence in to correct a mistake that the T has made

40
Q

if there is ambiguity in the language of the will…

A

there is no limited amount of extrinsic evidnece

41
Q

patent ambiguity

A

ambiguity on the face of the document… obvious mistake i.e. part of a sentence is left out
- PERMITTED IN TX

42
Q

latent ambiguity

A

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

43
Q

personal usage exception

A

when you call someone something other than their legal name in an idiosyncratic manner

44
Q

lapsed device

A

devise fails because ben dies after the will is executed but before T dies

45
Q

void devise

A

ben is dead before T executes the will or a pet is named as a ben

46
Q

reinstatement of a validly revoked will in TX

A

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

47
Q

does TX allow strike throughs in holo wills?

A

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

48
Q

does TX allow partial revocation of wills?

A

no - TX courts would ignore the strike through and admit the will to probate as originally executed
- should execute a new document instead

49
Q

In TX no will in writing and no clause thereof shall be revoked except by…

A
  1. a subsequent will, codicil, or
  2. 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
50
Q

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

A

the last person in possession of the will is adversely affected by the will or that person had access to it

51
Q

TX says a lost will is presumed to be revoked… but you can prove up a lost will by

A
  1. 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

52
Q

legal significance

A

must show that the document was intended to have legal significance and was not intended merely as a draft note

53
Q

TX rule for pre-printed will forms

A

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
54
Q

conditional wills… what happens when the T does not die because of the circumstances listed in the document?

A
  • 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
55
Q

holo will elements in TX

A
  1. in writing
  2. signed by T
  3. wholly in T’s handwriting
  4. does not need W
  5. can be self-proved at any time by T
56
Q

holo wills MUST have

A
  1. testamentary disposition &
  2. testamentary intent… must show intent that the requests included in the document are intended to serve as a testamentary purpose upon his death
57
Q

attestation clause v. self proving affidavit

A

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

58
Q

process for self proving affidavit

A
  1. sign and attest the will

2. draft, sign, notarize and file the self proving affidavit

59
Q

where can a signature be on a will in TX?

A

ANYWHERE on the document… may raise questions/proof problems that the words after the signature were added later though

60
Q

conscious presence test

A

saw the person sign, through hearing or through general consciousness of events, the W can understand that the person is signing

61
Q

TX specific conscious presence test

A

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

62
Q

attestation clause burden of proof

A
  • 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
63
Q

oral wills in TX

A

NOT ALLOWED

64
Q

publication of wills in TX

A

NOT required

- where T must declare “this is my last will and testament” in front of witnesses

65
Q

notarization of wills in TX

A

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

66
Q

TX requirements for an attested will

A
  1. in writing
  2. signed by T or another person for him by his direction and in his conscious presence
  3. 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
67
Q

functions of formal will requirements

A
  1. ritual function
  2. evidentiary function
  3. protective function
  4. channeling function
68
Q

elements for tortious interference in TX

A

tort claim against someone who acted in a way that intentionally interfered w/ your expectancy… not a challenge to a will

  1. expectancy
  2. intentional tort interference (fraud, duress, undue influence, coercion)
  3. causation
  4. damages
69
Q

duress/coercion

A

undue influence to the extreme

- constructive trust remedy can be used in these situations when it was kids/family who are accused of duress

70
Q

fraud by inducement

A

false statements are purposely made to T to induce them to make a will that includes someone or leaves someone out

71
Q

fraud by compulsion

A

false documents, getting them to sign a piece of paper they do not know is a will

72
Q

fraudulent misrepresentation elements in TX

A
  1. material representation
  2. representation was false
  3. speaker knew statement was false or showed reckless disregard for the truth
  4. speaker made representation w/ intent that it should be acted upon by the party
  5. party acted in reliance upon the representation
  6. party thereby suffered injury
73
Q

undue influence test

A
  1. T must be susceptible to the influence… usually someone in a weakened mental or physical state
  2. 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
  3. influencer overcomes the will (not document) of T and will is product of that influence… THIS IS THE HARD ELEMENT TO PROVE
74
Q

insane delusion test must show…

A
  1. there is an insane delusion

2. the insane delusion caused the disposition made in the will

75
Q

insane delusion definition

A

false conception of reality

76
Q

insane delusion rule in TX

A
  • 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
77
Q

capacity to write a will in TX

A
  1. must be 18 years of age, or married, or member of US armed forces
  2. must be of sound mind
78
Q

sound mind means being capable of knowing and understanding in a general way…

A
  1. the business he was engaged in… understand that you are making a will
  2. the nature and extent of his property… don’t have to know every detail just the nature of it
  3. the natural objects of his bounty… the people he wants to give stuff to
  4. disposition that he is making of that property… what he is bequeathing
  5. must be able to relate these elements to one another and form an orderly desire regarding the disposition of the property

Wills and Estates (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions