W & M Rule Statements

Question 1

Requirements for a Holographic Will

Answer 1

A valid holographic will must be:
(1) entirely in the handwriting of the testator;
(2) signed by the testator; and
(3) evidence of testamentary intent.

The will must be proved by at least two disinterested witnesses familiar with the testator’s handwriting (but they do not need to be present when the testator signs the will.

Question 2

Two requirements for finding that a document is a testamentary instrument

Answer 2

Capacity

Testamentary Intent

Question 3

Capacity to Create a Valid Holographic Will

Answer 3

Testator must have the requisite testamentary intent and capacity (i.e., 18 years of age and of sound mind and must have knowledge of the document they are signing and the property they are disposing of).

Question 4

Testamentary Intent of a Valid Holographic Will

Answer 4

-Must be present intent; not a future intent to do something.
-Must be found on the face of the will; not from extrinsic evidence.

Question 5

Valid Will

Question 6

Testamentary Capacity Presumption

Answer 6

The proponent of a will is entitled to a presumption that testamentary capacity existed by proving compliance with all statutory requirements for valid execution of the will.

Once presumption exists, contestant bears the burden of going forward with evidence to overcome this presumption
*****burden of persuasion remains with the proponent.

Question 7

Burden of Proof – When the Presumption of Capacity is Rebutted

Answer 7

When the presumption of capacity is rebutted, the burden shifts to the proponent to prove the elements of capacity:
(1) name the nature of his property;
(2) the natural objects of his bounty;
(3) be capable of forming an orderly plan of disposition, and
(4) understand the disposition made by the will

Question 8

Transfer on Death Deed (TODD)

Answer 8

-allows a real property owner to designate a beneficiary to receive title to certain residential real property on the owner’s death without a probate proceeding or trust administration.

Question 9

What if there is a valid Will and TODD?

Answer 9

TODD will supersede the provision of a will related to the specific real property.

Question 10

Divorce after making the TODD

Answer 10

If after making the TODD, the transferor is divorced, the divorce revokes and transfer to a former spouse as designated beneficiary unless the TODD expressly provides otherwise.

Question 11

Revocation of a Will - Generally

Answer 11

A will may be revoked by the testator at any time before their death.

A prior will can be revoked in a number of ways, including by:
(1) the execution of a new will or
(2) writing in the manner in which a will is required to be executed, whether or not that document expressly revokes the prior will (i.e., implied or express revocation)

Question 12

Physical Revocation

Answer 12

If the testator, with the intent to revoke a will, cuts, tears, burns, obliterates, cancels, or destroys the will, such will is void and of no effect.

A person can act as a proxy for the testator and revoke the will by testator’s direction, but the proxy must do so in the testator’s presence

Question 13

Codicil

Answer 13

A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will.

A codicil must be executed with the same testamentary formalities as a will.

Question 14

Revival of a Will – Codicil

Answer 14

The valid execution of a codicil that makes reference to the revoked will would cause the will to be revived under the republication by codicil.

Question 15

Contract Not to Revoke or Amend Wills

Answer 15

Two persons can enter into a binding contract not to revoke or amend their wills, but the agreement must be explicit and will not be inferred simply from execution of reciprocal wills.

Proof of the contractual nature of this agreement between testators must be clear and satisfactory.

Question 16

Oral Contract about an Asset to a Beneficiary

Answer 16

A beneficiary of the residuary of a will may be able to enforce an oral contract between two persons and may have standing to enforce the oral contract as a third-party beneficiary to that contract.

Need to prove the elements of a contract—offer, acceptance, and consideration, as well as its essential terms, by clear and convincing evidence.

Rule - a valid will should be probated as written, and if it breaches a contract, the remedy lies with contract law - the third-party beneficiary may request that the court impose a constructive trust based on equity

Question 17

120 Rule of Survival

Answer 17

One must survive the decedent before they can inherit as an heir in intestacy or as a beneficiary under a will.

Survival must be by 120 hours and established by clear and convincing evidence.

The 120-hour rule applies to intestacy and in construing the terms of a will or nonprobate transfer, unless the governing instrument clearly provides for a different result (e.g., by shortening or lengthening the 120-hour period), or if it would result in an escheat to the Commonwealth

RESULT: if a spouse does not survive the testator, the testator’s estate will consist of his property and ½ of any joint property & the spouse’s (who did not survive the testator) estate will consist of her own property because the deceased did not survive her and ½ of any joint property

Question 18

Per Stirpes - Distribution

Answer 18

Issue take in equal portions the shares that their deceased ancestor would have taken if living. The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive the decedent.

Question 19

Omitted Child Statue

Answer 19

If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator’s will, or any descendant of his, who is neither provided for nor mentioned in the will is entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate

A child born after a will was drafted would not be left out if the language of the will is generic (i.e., referring to “all my children”).

Must interpret the will as of the date of the testator’s death.

Question 20

Omitted Child Before Reaching Majority

Answer 20

Where a minor child is subject to property of a will under the omitted property act, their death / failure to reach majority, will trigger the property of the will to be reverted back to who it would’ve been distributed to had the minor not existed or intestacy

Question 21

Disinheriting a Child

Answer 21

A parent may disinherit a child by expressly stating their intention to do so in their will. However, where there is partial intestacy, the disinherited child would inherit some of the estate under the laws of intestacy.

Question 22

Unclaimed Child

Answer 22

No claim of succession based upon the relationship between a child born out of wedlock and a deceased parent of such a child shall be recognized unless, within one year of the date of death of such parent:

(1) An affidavit by such child or by someone acting for such child alleging parenthood has been filed in the clerk’s office of the circuit court of the jurisdiction wherein the property affected by such a claim is located and

(2) An action seek adjudication of parenthood is filed in an appropriate circuit court

Paternity must be established by clear and convincing evidence.

A support agreement can be argued as an implicit admission.

Question 23

Anti-Lapse Statute

Answer 23

Generally, if a beneficiary of a Will dies before the testator, the gift lapses.

In the Commonwealth, such a gift could be saved under the anti-lapse statute so long as the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent.

If a decedent dies partially intestate and without a surviving spouse, the estate passes to the decedent’s descendants, who take per capita with representation.

Question 24

Per Capita with Representation

Answer 24

The property is divided into equal shares at the first generational level at which there are living takers.

Question 25

Does the Anti-Lapse Statute Apply to Friends?

Answer 25

NO

Question 26

What Happens if the Beneficiary is not Protected under the Anti-Lapse Statute

Answer 26

A non-residuary bequest made to that beneficiary will pass under the residuary clause.

If no residuary clause, then the gift will pass under intestacy.

Question 27

Life Insurance - Non Probate

Answer 27

Life insurance is a non-probate asset which shall be distributed to the contractual beneficiary (will not be part of an estate).

Question 28

Por-Over Will - Non-Probate

Answer 28

If a valid will states that all of a testator’s property is to be given to beneficiary, but if she is not of majority, the property will be held in trust by trustee until she reaches majority, the property will be held in trust until the condition is met

-The trustee will be obligated to hold the trust property, but beneficiary is entitled to such property

-Real Property:
Tenancy in common = the testator’s interest will pass through as determined by the terms of the trust which are set forth in the poor-over will.

Question 29

Gift Inter Vivos

Answer 29

For a gift to be valid, the donor must have:
(1) the mental capacity to make a gift,
(2) the donor must have a present intent to make a gift,
(3) the gift must be delivered to the donee or his agent, and
(4) the donee must accept the gift.

The burden is on the donee to establish the existence of these elements by clear and convincing evidence

-Constructive delivery - court may find handing over the key to a safe deposit box suffices
***An issue may be whether the key was given to the person in a fiduciary capacity - so the holder of the key was supposed to act as a trustee and not for their own benefit

Question 30

Surviving Spouse’s Shared Under Intestacy

Answer 30

If the decedent has no children from outside of the marriage - surviving spouse takes 100%

If there decedent has children from outside of the marriage - the SS takes 1/3 and the remaining 2/3 will be split between the children.

Question 31

What is surviving spouse entitled to?

Answer 31

-family allowance
-exempt personal property
-homestead allowance

Question 32

Elective Share - Surviving Spouse Rights Against Disinheritance

Answer 32

A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent’s will or (ii) the decedent dies intestate.

However, this is only available for a legal spouse of the testator.

Question 33

Admitting the Will

Answer 33

Any interested party, but typically the person named as personal representative would take the original of the will and a certified death certificate to the Clerk of the Circuit Court of proper jurisdiction for probate

-If the will is not self-proving: at least one of the two witnesses must appear before the Clerk to verify the decedent’s signature and validity of the execution