Will Validity

Question 1

What is the only way to avoid intestacy applying to your estate?

Answer 1

Leave a VALID WILL disposing of ALL property

Question 2

What is a will?

Answer 2

An instrument

Executed with certain formalities

Directing the disposition of a person’s property at death

Question 3

What is a codicil?

Answer 3

A supplement to a will that modifies it.

Question 4

In order for a will to be valid, what level of compliance with the rules do the courts require?

Answer 4

Usually strict compliance.

However, Uniform Probate Code does permit the court to excuse minor errors

Question 5

What is the effective of a Saving Statute?

Answer 5

Most states will consider a will valid if it complies with:

• local law
• law where executed
• law of deceased’s domicile at death or when the will was executed

Question 6

A Savings Statute only applies to which part of the process?

Answer 6

Determining whether the will is admissible to probate.

After that, local law governs construction and application of its provisions

Question 7

On the exam, unless the fact pattern indicates otherwise, if you see a will or a codicil mentioned, what is the first thing you need to determine?

Answer 7

If the instrument is valid

Question 8

In order to make a valid will, what do you need?

Answer 8

1. Legal capacity
2. Testamentary capacity
3. Testamentary intent
4. Comply with formalities

Question 9

What does it mean to have legal capacity to make a will?

Answer 9

Person must be over 18 (military or marriage exception in some states)

Question 10

What are the requirements of testamentary capacity to make a valid will?

Answer 10

• Testator understands they are making a will
• Understand the effect of their actions
• Understand the general nature and extend of their property
• Recognise the natural objects of your bounty (who will benefit)
• Be able to do all of these simultaneously

Question 11

Is testamentary capacity a lower or higher standard than the capacity required to form a contract?

Answer 11

Lower standard

Question 12

Can sane people lack capacity and mentally incapacitated people have capacity at times (sufficient enough to form the capacity for a will)?

Answer 12

Yes

Question 13

What does adjudication of incapacity do?

Answer 13

Creates a rebuttable presumption of a lack of testamentary capacity

Question 14

What does testamentary intent require?

Answer 14

Testator must have present intent to create the instrument executed as a will (i.e. “I am going to write a will to give my house to X” is not a will)

Question 15

An attested or formal will requires what formalities?

Answer 15

1. In writing
2. Signed by testator of their proxy
3. Attested by two witnesses

Question 16

For an attested/formal will be meet the signing requirements, does it need to be signed in a particular place on the document?

Answer 16

UPC rule = sign anywhere on the document

Minority rule = anything after the signature is void

Question 17

For an attested/formal will be meet the signing requirements, what type of signature is acceptable?

Answer 17

Initials, rubber stamp, illegible signature etc.

Question 18

If a witness has an interest in the will, does that invalidate its contents?

Answer 18

In many states, it will either partially or totally void gifts to interested witnesses.

Question 19

When might an interested beneficiary still inherit where they’ve witnessed the will?

Answer 19

• they are 1 of 3 witnesses and the other two are disinterested

OR

• they would have been an heir if the decedent died intestate

Question 20

What is the big difference in the formalities for a holographic will?

Answer 20

It doesn’t need to be witnessed

Question 21

Will handwritten changes to a holographic will be valid after the Will is created?

Answer 21

Generally, yes

Question 22

What is a nuncupative will and when are they recognised?

Answer 22

An oral will recognised by a few states. Usually valid if made by a terminally sick testator or a military person

Question 23

If a witness attests the will via the telephone or computer, will this count as being in the conscious presence of the testator?

Answer 23

No, need physical presence (although not sight)

Question 24

After you have addressed any issues to do with will validity, what is the next thing you need to consider?

Answer 24

Has there been any change in circumstances (either to persons or property) between execution and testator’s death

Question 25

What are the types of property that can be left under a will?

Answer 25

• a devise (personal property)
• a bequest (1. specific—distinguishable or 2. Specific bequest of a general nature— you won’t know until T dies)
• a legacy (personal property not sufficiently described)
  (A) general (often cash)
  (B) demonstrative (sum paid from designated fund)
• residual

Question 26

If a demonstrative legacy has insufficient funds to make the gift, will the beneficiary receive the remaining funds or will it fail?

Answer 26

Yes, it can be funded from other parts of the estate

Question 27

To which types of gifts does ademption apply?

Answer 27

Specific devises and bequests

Question 28

If a specifically gifted item is no longer part of the estate (because it was sold, for example), what is the common law rule regarding ademption?

Answer 28

Beneficiary does not take a substitute gift OR the value of the gift. No tracing (even if possible)

Question 29

If a specifically gifted item is no longer part of the estate (because it was sold, for example), what is the UPC rule regarding ademption?

Answer 29

A specific devisee can obtain replacement property

Question 30

For jurisdictions that follow the intent theory for ademption, what will the result be for a gift that’s no longer in the estate?

Answer 30

Courts look at what T wanted/intended to provide for the beneficiary

Question 31

What are some of the exceptions to the rules of ademption?

Answer 31

• balance of purchase price if T sold property and purchaser still owes mines
• proceeds of condemnation
• proceeds from sale by guardian

Question 32

If B receives money before T’s death, will the be a satisfaction of ademption?

Answer 32

No. Most states require proof in writing before gift is deemed a satisfaction.

Question 33

Generally, increases in value, dividend payouts etc. will form part of the estate/specific gift. What is the exception?

Answer 33

Newly purchased securities are not part of B’s gift

Question 34

If the estate assets are insufficient to pay off all debts and satisfy all gifts, the estate does what?

Answer 34

It abates in the following order (assuming will is silent):

• intestate property
• residuary estate
• general legacies
• specific bequests and devises

Question 35

Can a beneficiary of a will disclaim?

Answer 35

Yes

Question 36

How are lapsed gifts distributed?

Answer 36

• look at express terms of the will first
• are any gifts saves by rule of law (e.g. anti lapse statutes or cy pres)
• residuary clause
• via intestacy

Question 37

What is the cy pres doctrine?

Answer 37

It allows courts to substitute charitable gifts for an equivalent charitable intent if the original gift can no longer be made