Will Validity Flashcards
What is the only way to avoid intestacy applying to your estate?
Leave a VALID WILL disposing of ALL property
What is a will?
An instrument
Executed with certain formalities
Directing the disposition of a person’s property at death
What is a codicil?
A supplement to a will that modifies it.
In order for a will to be valid, what level of compliance with the rules do the courts require?
Usually strict compliance.
However, Uniform Probate Code does permit the court to excuse minor errors
What is the effective of a Saving Statute?
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
A Savings Statute only applies to which part of the process?
Determining whether the will is admissible to probate.
After that, local law governs construction and application of its provisions
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?
If the instrument is valid
In order to make a valid will, what do you need?
- Legal capacity
- Testamentary capacity
- Testamentary intent
- Comply with formalities
What does it mean to have legal capacity to make a will?
Person must be over 18 (military or marriage exception in some states)
What are the requirements of testamentary capacity to make a valid will?
- 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
Is testamentary capacity a lower or higher standard than the capacity required to form a contract?
Lower standard
Can sane people lack capacity and mentally incapacitated people have capacity at times (sufficient enough to form the capacity for a will)?
Yes
What does adjudication of incapacity do?
Creates a rebuttable presumption of a lack of testamentary capacity
What does testamentary intent require?
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)
An attested or formal will requires what formalities?
- In writing
- Signed by testator of their proxy
- Attested by two witnesses
For an attested/formal will be meet the signing requirements, does it need to be signed in a particular place on the document?
UPC rule = sign anywhere on the document
Minority rule = anything after the signature is void
For an attested/formal will be meet the signing requirements, what type of signature is acceptable?
Initials, rubber stamp, illegible signature etc.
If a witness has an interest in the will, does that invalidate its contents?
In many states, it will either partially or totally void gifts to interested witnesses.
When might an interested beneficiary still inherit where they’ve witnessed the will?
- they are 1 of 3 witnesses and the other two are disinterested
OR
- they would have been an heir if the decedent died intestate
What is the big difference in the formalities for a holographic will?
It doesn’t need to be witnessed
Will handwritten changes to a holographic will be valid after the Will is created?
Generally, yes
What is a nuncupative will and when are they recognised?
An oral will recognised by a few states. Usually valid if made by a terminally sick testator or a military person
If a witness attests the will via the telephone or computer, will this count as being in the conscious presence of the testator?
No, need physical presence (although not sight)
After you have addressed any issues to do with will validity, what is the next thing you need to consider?
Has there been any change in circumstances (either to persons or property) between execution and testator’s death
What are the types of property that can be left under a will?
- 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
If a demonstrative legacy has insufficient funds to make the gift, will the beneficiary receive the remaining funds or will it fail?
Yes, it can be funded from other parts of the estate
To which types of gifts does ademption apply?
Specific devises and bequests
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?
Beneficiary does not take a substitute gift OR the value of the gift. No tracing (even if possible)
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?
A specific devisee can obtain replacement property
For jurisdictions that follow the intent theory for ademption, what will the result be for a gift that’s no longer in the estate?
Courts look at what T wanted/intended to provide for the beneficiary
What are some of the exceptions to the rules of ademption?
- balance of purchase price if T sold property and purchaser still owes mines
- proceeds of condemnation
- proceeds from sale by guardian
If B receives money before T’s death, will the be a satisfaction of ademption?
No. Most states require proof in writing before gift is deemed a satisfaction.
Generally, increases in value, dividend payouts etc. will form part of the estate/specific gift. What is the exception?
Newly purchased securities are not part of B’s gift
If the estate assets are insufficient to pay off all debts and satisfy all gifts, the estate does what?
It abates in the following order (assuming will is silent):
- intestate property
- residuary estate
- general legacies
- specific bequests and devises
Can a beneficiary of a will disclaim?
Yes
How are lapsed gifts distributed?
- 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
What is the cy pres doctrine?
It allows courts to substitute charitable gifts for an equivalent charitable intent if the original gift can no longer be made
