WILL - Challenges and Other Impt Rules Flashcards
When will provision incoporating document by reference document be valid?
(1) in existence when will was executed
(2) language of incorporation shows intent
(3) Document is descibed sufficiently to permit identification
What will court do with separate writing identifying devises of personal property?
- must be tangible property - can’t be stocks/bonds or real property
- Written statement or list - referred in D’s will
- writing must be signed and describes the property sufficiently
- list can change after execution without affecting the will
What happens to will if there is fraud, duress, mistake or undue influence?
- Will is void if execution procured by fraud, duress, mistake, undue influence
- Will **partly voided ** if only some provisions were procured fraudulently
- revocation also void if procured fraudulently
What is the undue influence rule?
Whether such control was exercised over mind of D so as to overcome his fee agency and free will to substitute the will of another
* causing D to do what he wouldn’t have otherwise done
When is undue influence presumed?
Where there is:
(1) substantial beneficiary
(2) who has a confidential relationship with D
(3) who was actively involved in procuring the will
– then burden shifts to beneficiary to prove a reasonable explanation
What if there isn’t a relationship between D and beneficiary?
It’s ok that D prefers a stranger over blood - but undue relationship could be found where there are suspicious circumstances like an “unnatural” gift
What should you know about Fraud in Factum and Fraud in the inducement?
Fraud in factum - renders will void
* ex: A tells D to sign K for sale, hiding that it’s a will
Fraud in the inducement - fraud as to why D should sign usually still be valid and enforceable
What if there’s mistake?
Mistake of Fact - D left P out because they thought P was dead - usually not voided unless the mistake is readily clear on its face
Mistake about NATURE of will - thought the will was a mortgage - VOID
What about mixed up signature on reciprocal wills? Traditionally voided b/c of no intent, but now allowed when it’s clear and the court will reform the wills
What is the Penalty Clause for Contesting a will?
Any will provision that tries to penalize a beneficiary for challenging the will or other proceedings is UNENFORCEABLE
- called intorrerum clause
When can a person contests a will?
Only after the death of D
- will doesn’t go into effect until after death b/c you can always revoke a will before death
What do you need to know about Electronic Wills?
(1) signature can be electronic
(2) witnesses can sign in the presence of one another through audio/video technology
(3) can be authenticated/notorized as part of online notary session
(4) witness hears signer make statement about signing it and then signs it will comply with requirements
Simultaneous Death Law
When it appears that spouses (or two people die with reciprocal wills) died simultaneously - property is disposed of as if that person survived
How does simultaneous death law work with 2+ beneficiaries designated to take by survivorship?
the property is disposed of in parts to be distributed to those who would have taken if each designated beneficiary had survived
Simultaneous Death Act where joint tenants or tenants by entirety is involved
distributed 1/2 to each person’s estate as though each had survived
What if it’s proven one spouse dies minutes after other spouse?
FL does not have 120 hour rule -
Any amount of time is enought for D1 to inherit as though he survived
- Caveat* - if will has provision that if they die resulting from a common disaster, property should be divided a certain way, then court will give effect to that provision
What is a lapsed gift?
Gift lapses when beneficiary dies before D (but was alive at the time of execution)
lapses = gift fails and goes into residue
FL Anti-Lapse Statute - who does it apply to?
beneficiaries who are a grandparent, a descendant of a grandparent, or an adopted child of the testator.
- ex. D devises gift to nephew but nephew predeceases D. Nephew qualifies as a descendant of a grandparent, he would fall under anti-lapse statute.
Anti-lapse Statute - What happens when a qualifying beneficiary predeceases D OR dies before execution of D’s will?
the deceased beneficiary’s interest passes strict per stirpes to their lineal descendants.
This means the distribution follows generational line, ensuring equal shares for descendants at the same generational level.
Ex. D devises gift to nephew. but nephew pre-deceases D. Nephew qualifies. He has 4 children - each would get equal shares.
Compare anti-lapse statute for wills and for trusts
Wills - applies only to beneficiaries who are grandparents, descendants of grandparents, or stepchildren of the testator.
Trusts - ANY beneficiary with surviving descendants, unless the trust document indicates a contrary intent.
- broader application of anti-lapse statutes to trusts compared to wills
Anti-lapse - Devises to multigenerational classes -
IF the class qualifies under the anti-lapse statute: How does it work where a D devises something “to Grandchildren” and one predeceases D but has children that survive.
the anti-lapse statute ensures that the deceased member’s share passes to their descendants strict per stirpes—meaning it’s divided equally among the branches of the family
- so dead grandchild’s share goes to his children instead
Anti-lapse - devises to classes:
What if the class is without family descendants and one member of the class predeceases D?
The remainder of the class absorbs the share of the predeceased
Anti-lapse - devises to classes
What if the class contains both descendants and friends?
If a class contains both family descendants (e.g., “my grandchildren”) and non-family members (e.g., “my friends”), the anti-lapse statute will only protect the shares of the family members who predecease the testator. The shares of non-family members who predecease the testator will lapse unless the will specifies otherwise.
Reformation to Correct Mistakes - when will a court reform terms of a will?
The court may reform terms of a will, even if unambiguous, to conform with D’s intent AND terms were mistake of fact or law, whether expression or inducement
Reformation - how does court determine the D’s OG intent?
court can consider evidence relevant to D’s intent even if it directly contradicts apparent plain meaning of the will
- must be proved by clear and convincing evidence
What are contractual wills?
wills that are created based on a legally binding agreement between two or more parties, often promising not to revoke or change the will without the other party’s consent. These agreements are typically made to ensure that certain terms—like leaving property to a specific person—are honored, even after one party passes away.
- MUST BE IN WRITING
- Execution of a joint will or mutual will does not create a presumption of a K Will
What estate rights can a spouse waive?
- intestate, elective or pretermitted share
- homestead protection
- family allowance OR
- right to be given preference when selecting personal representative
When can a spouse waive their rights?
can be waived wholly or partly before or after marriage with a written K - must observe all formalities
What kind of disclosure of assets is required for prenup waiver vs postnup waiver?
No disclosure required for prenup but fair disclosure required for post-nup
What happens if death of D is caused by her spouse or someone in the will ?
If surviving spouse/other person INTENTIONALLY kills another or procures their death - they are not entitled to benefits under D’s will/probate code
Slayer statute - What happens to the property devised to the killer?
- property passes as though killer predeceased D
- joint tenancy - killer has no rights by survivorship
- forfeits all benefits he would have had
Slayer statute - how do you prove person killed D?
Conviction is conclusive proof
If no conviction, preponderance of the evidence whether killing was intentional/felonious
What happens to property if spousal rights were procured by fraud, duress, undue influence?
Death bed spouse is
* not entitled to any rights or benefits inured solely b/c of the marriage
* unless - D and surviving spouse voluntarily co-habitated as HW with full knowledge of fraud, duress, etc.
* not entitled to rights and benefits under FL probate code (elective share, homestead, pretermitted spouse)
- BUT - if life insurance, or K arrangement? Ok if spouse is specifically listed
- allows heirs to contest marriages
How do costs and attorney fees work in probate?
(1) costs for chancery actions,
(2) personal representative can be remunerated - paid for services
(3) atty who rendered services gets reasonable compensation from estate
What happens when a will is lost or destroyed?
presumption it’s been revoked
* any interested person may establish the full/precise ters of lost/destroyed will and offer for probate
* contest must be proved by testimony of 2 disinterested witness or if correct copy provided - 1 disinterested witness
How to creditors get notice of Estate?
Personal Representative
* publishes notice to creditors
* gives notice to ascertained creditors
* notice to creditors like places he’s getting bills from, hospital where he died, etc
How long do they have to make claim?
* 90 DAYS to make claim published
* 30 days if personally served
Who gets to be the Personal Representative
(1) person named in the will
(2) person selected by the majority in interest
(3) any devisee who applies - if more than 1 court chooses
Who is PR if no will?
(1) the surviving spouse
(2) majority of heirs select PR
(3) heir in nearest degree - court chooses if more than one applies
What if you’re a Non-resident, can you be PR?
Yes if - child/parent of D
- blood related
- Spouse
- spouse of person of anyone in this section
What are the powers of PR?
Steps into shoes of D -
* right to take possession of property and transfer it directly to presumptive beneficiary
* pays devises famly allowances, taxes claims and charges
* Fiduciary duty - same as duty of express trust
– personally liable for damages/injuries/atty fees for breach of this duty
What are the PR’s rights to sell Real property?
PR may sell, lease or otherwise dispose of real property without court authorization if will says so
- can sell with court approval if will doesn’t say so
What is the order of payment of expenses?
- costs, expenses of administration, compensation to PR, atty fees
- funeral expenses
- debts and taxes
- reasonable medical expenses of last 60 days
- family allowance
- arrearage of child support
- debts acquired after death from continuation of his business
- all other claims from judgments and decrees
What is a summary administration?
(1) testate estate
(2) D doesn’t say it has to go through formal estate.
SO long as -
* value doesn’t exceed 75K
* decedent not dead for more than 2 years
***look for all the ways things aren’t included as probate estate
