wills Flashcards
validity of a will- things that can negate
- failure to have formalities
*lack of capacity - insane delusion-irrational belief in facts that do not exist and the belief influences testator in making a disposition
- fraud in the inducement- testator induced to make a gift by misrepresentation as to facts that influence his motivation
- fraud in the execution- misrepresentation as to nature and contents of a document
- fraud in preventing T from revoking
*undue influence
*duress
mistaken revocation: circumstances where DRR applies
-revocation because testator mistakenly believed a later disposition would be effective
- revoked will by physical act and T then makes ineffective will intending to replace it
- revoked will by later document that is effective as will or codicil but doesn’t effectuate intent
court will look to see if treating the gift as revoked (i.e., giving more to residue or passing by intestacy) comes closer to testator’s intent in making the change, or if treating it as NOT revoked would come closer to similar testator’s intent
if there is a revoked will and then an invalid second one, court will be likely to ignore a revocation if the provisions are similar (as in testator just wanted this 1 change made)
Validity: formalities
- written
- signed by testator or person at his direction
- signed in presence of 2 competent witnesses (may be done at different times- can acknowledge prior signature to 1 witness)
*each witness must sign in T’s physical presence - if UPC jurisdiction a notary can be used instead of 2 witnesses
**states vary on whether testator has to tell the witnesses the document is his will
witness presence
scope of vision- minority of courts require witness to be close enough that they could see the testator signing had they looked
conscious presence- most courts require each party to be conscious of where the other parties were and what they were doing. when each signer signs, the other party has to be generally aware that the witness is signing. requires physical presence and not zoom or phone call.
Revocation
- physical act
- subsequent will complying with Wills Act
- operation of law
revocation by operation of law
if there is an annulment or final dissolution of marriage, or termination of a domestic partnership, in most states only gifts to the former spouse are revoked by operation of law.
*UPC and some states revoke gifts to former spouse relatives also
* legal separation does NOT revoke
* if the parties remarry, and the will is unchanged, it will be reinstated
attempts to increase a beneficiary’s gift by physical act
Cancellation cannot be used to increase a beneficiary’s gift in the will.
ex: A for life, remainder to B- crossing out for life, remainder to B doesnt give A a fee simple. It’s ineffective
revoking duplicate wills
duplicate wills = testator and witnesses physically sign on two copies of the will.
revoking one revokes the other as a matter of law.
presumption from mutilated will found at T’s death
presumed that T mutilated the will with intent to revoke it. The presumption is rebuttable.
effect revoking a codicil has on the will
revoking the codicil does not revoke the will, even if T intended to revoke the will. The act must be performed on the will itself.
presumed that testator wanted to reinstate the will provisions changed by the codicil.
effect of revoking a will on a codicil
both the will and codicil are revoked
determining components of a will
- integration
- incorporation by reference
- trusts- UTATA
- tangible property list
- facts of independent significance
- codicil
- valid? look to formalities of attested and holographic wills
interpreting a will and distribution
- ambiguities, mistake in description
- classifying gifts
- ademption issues
- abatement
general legacy
gift of general economic benefit, payable out of the general assets of T’s estate
stock: “100 shares of GM stock” is usually construed as general; “my 100 shares of GM stock” is usually seen as specific
residuary gift
gift of what remains of T’s property after paying debts, expenses, and taxes and the general, demonstrative and specific gifts.
demonstrative legacy
general legacy payable from particular property. courts pay it first from particular property and then out of the estate if that is insufficient.
ex: $1,000 from my Bank of America account. directs where to pay it from, but if not enough, rest of gift comes from other general assets.
recipient of satisfaction dies- what do issue or alternate takers take?
if the anti lapse statute applies, then the issue will take the rest of the gift (i.e. subject to the satisfaction)
if the anti lapse statutes don’t apply, the amt that the residuary taker or intestate heirs take is also calculated by reducing what the person took as satisfaction
abatement- definition and order
the process of reducing gifts to beneficiaries under a will because the estate is not sufficient to pay debts and gifts. reduced in the following order
- intestate property (not disposed of by will)
- residuary taker
- general legacies
- demonstrative legacies
- specific bequests and devises
order of abatement: satisfying omitted spouse and child’s share
for children, the UPC and some states will only abate gifts to other children and leave other gifts intact. the other states apply normal abatement rules
for spouse, apply normal abatement rules
joint and mutual wills- one spouse dies, the other takes and then rewrites will. beneficiary under mutual will wants to argue breach of an implied contract. result?
- joint and mutual wills are revocable
- no presumption that joint or mutual wills mean the wills were executed according to an oral K
- to prove there was an oral K, need to produce evidence
- then there may be estoppel, where the testator who changed his will can’t argue the contract to make a will violates SOF because he already took the benefits of a mutual /joint will
Remedies: damages, constructive trust on takers in spouse’s new will
omitted spouse or domestic partner
spouse who married testator after execution of ALL testamentary instruments, and is not provided for.
takes intestate share unless
- alternative disposition intended to provide for spouse
- intent not to take is clear from the will
- spouse waives her right to take under the will or in probate
beneficiaries who may not take
-slayers
- wills
- conviction of felonious and intentional murder is conclusive evidence
- finding by preponderance by ct. that D killed T unlawfully or intentionally
- joint tenancy- severed so that slayer has no survivorship right
- life insurance- slayer beneficiary doesn’t take
distribution: beneficiary predeceasing T
general rule: a gift to a beneficiary who predeceases the testator lapses (fails).
*anti lapse statutes may apply- descendants of close relative will take
* if anti lapse doesn’t apply, residuary takers take the gift
* intestate heirs take if no residue, or the residue is the gift that lapsed.
after acquired property
a will passes all property owned at testator’s death, including property acquired after the will was executed.
increase in value during T’s life
increases because of stock splits or dividends, it does not matter if it a specific or general gift.
increases in value of gift after T’s death
specific gifts: beneficiary takes the increases in stock dividends, stock splits, rents from land gifted to beneficiary.
general gifts:
- stock- general gift taker receives the increase.
- other than stock- general gifts do not receive increases. BUT they do get interest on pecuniary gifts not distributed 1 year after T’s death.
decedent has no surviving spouse
- issue (children, grandchildren)
- parents
- issue of parents (siblings, nieces, nephews)
- grandparents
- issue of grandparents (aunt, uncle)
6.next of kin
adopted child for intestacy purposes
treated the same way as a natural born child.
half siblings
- relatives of the half blood take the same way as relatives of whole blood
wills providing for distribution per stirpes
means that issue take by representation from the beneficiary.
i.e. distribute at level 1, if everyone is dead, go to level 2 and divide up their share among their children (ex: 3 beneficiaries, divide each 1/3 by the number of kids)
advancements
an inter vivos payment of the recipient’s intestate share of the decedent’s estate.
presumption is a gift during life is not advancement but can be rebutted by showing of intent in most states. in UPC states:
- writing by testator acknowledging
- writing by recipient acknowledging, even after death
- if recipient predeceases T, issue of the heir are NOT treated as taking a reduced gift b/c the recipient got an advancement
will definition
a writing that directs the disposition of a person’s property at their death
law for determining whether a will is valid
real property- the law of the state where the property is located
personal property- law of the person’s domicile at death
testamentary capacity
Measured at time of execution and presumed. Challenger bears burden of proof.
ability to understand: that testator is making a will; the nature and extent of their property; who their relatives are; and able to formulate an orderly scheme of disposition
in addition, insanity, addiction, or a testator’s memory problems do not automatically mean testator did not have testamentary capacity. have to look at state of mind when they signed the will to see if it was a lucid moment
testamentary intent
a testator’s intent that the document in question act as their will and intent to make the will immediately (not in future)
parol evidence is admissible to show the will was a sham or that testator did intend it to be their will
must show that the testator intended to dispose of property effective on their death and that the document at issue accomplish the disposition.
witness competence requirement
*witness competence = able to understand what they witnessed and testify in court about it
*interested witness in every state is still competent and does not invalidate the will
some states void the witness’s gift; UPC does not
UPC and will formalities: harmless error
if a will is missing a formality (like there is only one witness) the court can still probate the will if testamentary intent is shown by clear and convincing evidence
holographic will
a will in testator’s own writing with no witnesses.
some of it can be typed as long as it is not material parts (like who gets which property)
things that work as signatures
a rubber stamp
a mark
a symbol
initials
an actual signature
as long as the person intended it to be their signature (evidence can be frequent use)
attestation clause
recites that all the signing and witness requirements were met and is prima facie evidence
residue
balance of the estate after paying debts, expenses, taxes and specific, demonstrative, and general gifts
ademption
when property identified in a specific bequest or devise is no longer in the estate at death
specific gift
item of property that can be identified and is distinct from all other estate assets (ex: my Mercedes)
specific item missing from the estate at death- rule & exceptions
normally rule of ademption applies w/o regard to intent of testator. exceptions:
if the purchaser still owes part or all of the purchase price, some states allow the beneficiary to receive it
if a conservator is appointed and sells the item the recipient will take the sale proceeds
if testator sold an item and replaced it with something similar, the beneficiary in some states can receive the similar item
if a government agency condemned or bought the property under threat of condemnation before T’s death and payment was delayed until after death, some states allow the beneficiary to receive the proceeds
if a testator gives the recipient some or all of their gift during the testator’s life, what is the effect?
most states will treat this as a satisfaction if there is a separate writing acknowledging the lifetime gift is intended to be a satisfaction or instructions in the will
UPC states require either the testator or the recipient to acknowledge it was a satisfaction in writing. testator’s acknowledgment would need to be in the will or in a writing contemporaneous with the satisfaction
when a will makes a gift of stock, and the testator owns those shares at death, what is the recipient entitled to?
shares identified in the will and stock splits and stock dividends, but not new shares bought with reinvested dividends
if the property devised or bequeathed under a will has a lien on it, does the recipient take subject to it?
in most states and under the UPC, yes, because the lien is not paid off with estate funds (exonerated) unless the will says it must be.
in some states the lien must be paid off.
if a will requires a recipient to survive them, what happens to their gift if they die?
if there is an anti lapse statute it will not apply and the gift will just lapse (go to the residuary taker or pass by intestacy if the residuary gift is at issue).
the only way the gift will not lapse is if the testator included an alternate taker.
if there is more than one residuary beneficiary, and one of them dies, who takes that beneficiary’s gift?
first look to see if this is a relative or someone else protected by an anti lapse statute- if so, their descendants take.
otherwise, in most states the surviving residuary beneficiaries divide it equally
but in some states the gift will pass by intestacy
class gifts and anti lapse statutes
anti lapse statute will apply if one of the people in the class dies and is a close relative or other person protected by the statute.
most states treat “my surviving children” as expressing an intent for anti lapse not to apply
if a will makes a gift to someone who was dead when the will was signed, what happens?
the gift is void
in many states, anti lapse statutes apply to void gifts
rules of construction
interpret words with their ordinary meaning
read the will in a way that avoids intestacy because leaving a will suggests the testator did not want to die intestate
later will provisions (closer to the end) prevail over earlier ones
Construe the will as a whole
Try to give effect to all words included
ambiguity on the face of the will and extrinsic evidence
an obvious ambiguity on the face of the wall so that court does not understand what testator wants to do.
traditional law: no extrinsic evidence
modern view: extrinsic evidence is admissible to help explain.
ambiguity that is not apparent on the face of the will- whether extrinsic evidence can be used
the court will consider extrinsic evidence in all states. describes the situation when the court needs clarification to carry out the provision. (ex: my house in Oakland to A, when testator has 2 houses in Oakland; testator only intends 1 house to go to A and need clarification about which one; or mistake in a name or address so that there is no such person/place but there is someone/something that has a similar name or address)
note that gifts to “my children” or “my grandchildren” are not ambiguity problems
mistake in a will- extrinsic evidence
UPC states- when the will is clear but beneficiaries think the testator made a mistake. ex: 25,000 to x and rest to y; testator’s estate is 500k and maybe they omitted a zero
most states will require executor to carry it out exactly as written but UPC will allow extrinsic evidence and the mistake must be proven by clear and convincing evidence
acts of independent significance
a will can reference future events or unborn people in disposing of property
class gifts- my children
to x if they go to college
contents of the safe box (the contents can be changed throughout life)
conditional will
a will that is not effective unless a certain event happens or fact exists
typically construed as providing a motive for making the will unless the wording is “if I die of cancer I leave my radio to x”
codicil
a document that modifies a will. must have the same formalities or meet requirements of a holographic will
republication by codicil
the will is updated to the date of the last codicil
important for determining if a document incorporated existed or if a person was born at will execution
if the testator intended to make a will and did not have all the formalities, and later a document with all formalities modifies it, what is the effect?
the second document is a codicil and has validated the will
what happens to a gift in a will made to a trust if the trust is revoked?
the gift lapses. intestacy rules will apply to the property gifted unless the will expresses an alternate taker
integration
must show all pages present at signing are present at probate
can be issues if there is a page found with the will that isn’t 100% clear if it belongs with the will. have to look at things like font, pagination, sentences connecting across pages, staples
analysis of promises to leave something to someone in a will
if it has no consideration it’s not enforceable
if it has consideration, analyze it like a contract. extrinsic evidence at common law was admissible
majority rule now is that there needs to be a reference to it in the will or it must be in writing.
joint will vs reciprocal will
joint will is one document signed by 2 people; reciprocal will is 2 wills, each signed by 1 person, with substantially similar provisions
promises not to revoke a will- enforcement
have to show there is a written contract or reference in the will in most states
consideration is needed
to sue on it, one party has to comply, then die, and their estate must show that the breaching party revoked their will and tried to dispose of the property
if a will or writing allows a person to decide who will take property, what is it called and what are the types?
power of appointment.
can be a type that is exercisable during the holder’s life or in their will.
special power of appointment- cannot be exercised in favor of the holder of the power or their relatives or creditors
general power of appointment- can be exercised in favor of anyone including the holder of the power, their creditors, their relatives
if someone has a power of appointment can their creditors reach it during their life or death, or can their spouse reach it through an elective share at death?
no, not until the power is exercised. it does not have to be exercised in favor of the holder
if the person who granted it is also the holder then creditors can reach it
acts that exercise a power of appointment
person dying with a residuary clause- majority of states say not on its own; minority of states say it does unless the donor’s will requires it to be specifically stated that the holder is exercising it and the holder did not
disposing of the property as if it were the holder’s own property, unless the donor required the holder to specifically reference the power to exercise it
revocation
physical act
operation of law
later instrument
effect of divorce or later births of children or later marriage on a will
divorce revokes provisions in favor of an ex spouse including naming them as an executor. in most states gifts to the ex spouse’s relatives are not affected. UPC and some states also revoke provisions in favor of relatives
children born AFTER will execution- most states will abate other gifts to give them a share of the estate
marriage AFTER will- UPC and some states treat them as an omitted spouse unless there is evidence that the spouse was intentionally omitted, or the will was made in contemplation of the marriage
if a will is burned or torn, what is the effect on the will?
if testator was last to be seen with it or only one with access, it’s presumed revoked. if someone else had access or was seen with it no presumption.
extrinsic evidence admissible to show that the testator did not intend to revoke at the time that it was burned or torn, AND
that it was not burned or torn by the testator
if it was not burned/torn by the testator must show that the person was authorized to do it and did it in testator’s presence
what kind of instrument will revoke a will?
an instrument that has all the statutory formalities
either expressly says it revokes the earlier will (“this is my last will” is not clear enough to revoke earlier ones)
or
makes inconsistent provisions (like disposes all of the property or specific items in different ways than the first)
if it is only inconsistent as to specific items it partially revokes the first will as to those items
if a provision in a will is erased or crossed out, what is the effect?
crossing out is called interlineation or cancellation (so is writing void on top of words on the will or provision)
erasing or redacting is obliteration
most states treat it as a revocation if it crosses out a gift (but see flashcard about increasing gifts) or the testator signature. the court will then have to analyze whether the entire will was intended to be revoked or just that gift that was crossed out
if a will is found with a gift crossed out and text written in above it to increase the amount of the gift- effect?
most states will not give it effect because it will not be witnessed or signed by testator
initialing it might work as a signature**
crossing out gifts that have the effect of increasing the residue are ok
effect of later revocation of a will that stated it was revoking prior wills
UPC: if will 2 totally revoked will 1, will 1 is not revived unless there is evidence showing that is the intent. if will 2 partially revoked will 1, then will 1 is revived as to those provisions unless there is evidence showing that is not the intent.
some states: not revived, must have the earlier will re-signed and witnessed or republished by codicil
other states: automatically revive the prior will
if a will is lost and was last in testator’s possession or control
the court will presume it was revoked.
extrinsic evidence is admissible to overcome it. if presumption is overcome then must prove: valid execution, why it was destroyed or lost and testator didn’t intend to revoke, and contents of the will by testimony of 2 witnesses or a photocopy of the will
elective share
the surviving spouse in many states can choose to take their will gift or a statutory share of the estate. if they choose the elective share other gifts abate
majority rule is you look at the value of estate minus expenses and creditor claims; minority of states look at estate plus joint tenancy property held by husband and wife and bank accounts and life insurance policies that designate people other than the surviving spouse
majority rule for the amount of the share is 1/3 of estate (see above) if decedent has children surviving and 1/2 if not
UPC and some states it depends on how long the parties were married- 1/2 if married 15+ years
children born after a will is executed or believed to be dead
treated as omitted children and given an intestate share. not all states treat a child believed to be dead as omitted
exception if the other parent is living and all the property was left to the other parent of the omitted child, or if the omission was intentional, or if the testator gave that child a gift outside the will
can family members keep creditors from taking some of the estate to pay debts?
yes, the surviving spouse or children are able to set aside tangible personal property (household items, cars, or things with sentimental value).
some states also protect the family home.
a certain family allowance amount is also unreachable by creditors- intent is to provide support during probate administration
who must receive notice of a will contest?
intestate heirs
beneficiaries of prior wills
beneficiaries of the will
not creditors!
undue influence elements
the wrongdoer had influence over the testator
exerted the influence
the influence overpowered the free will of the testator
the testamentary disposition would not have been executed without the undue influence
when to use term executor vs administrator
executor is someone named in the will that accepts the responsibility to carry out estate administration
administrator is someone who was not named in the will but acts as personal representative
no contest clauses in wills
beneficiaries lose their gift if they lose a will contest
enforced unless the contester has probable cause to challenge it
survival for purposes of lapse
USDA (Uniform Simultaneous Death Act) - produce evidence that the person survived for any period of time, even minutes. if you can’t, then you treat it as if each person survived the other
RUSDA and UPC: the person must survive by 120 hours
states are evenly split on the approach.
when a person either does not make a will or all or part of it is invalid, what happens?
property passes through intestacy rules.
in deciding whether property is community or separate property, what is the relevant time frame?
when the property was acquired. you look to the law of the state the couple was domiciled in when they acquired it.
what does a surviving spouse take under intestacy?
if they have children with the decedent and those children survive, the spouse will take the whole estate in UPC states. in most states the spouse takes 1/2 or 1/3 of estate if there are surviving children or grandkids.
if decedent has no surviving kids or grandkids, surviving spouse takes all in most states. in UPC states the decedent’s parents also receive a share.
if all of the decedent’s children survive, what is the share that they receive?
they will receive equal shares of the estate after paying the surviving spouse
computing shares if one or more children predeceased decedent
per stripes method (divide shares at level beneath the testator- children generation, and then divide each child’s share among their descendants)
per capita representation method (divide at first generation with living takers and then if that level has some dead people, divide each dead person’s share among that person’s issue). this is what most states do.
per capita at each generation level (divide at first generation with living takers, and then combine the shares of the deceased in that generation and divide equally among next generation). This is UPC approach.
if a decedent dies unmarried or widowed and without kids, where does the property go under intestacy?
first to parents (some states give all to parents), then to surviving siblings (some states will give part of the estate to siblings if parents survive).
if no living parents or siblings, then grandparents, then issue of grandparents (aunts and uncles and cousins)
if no one can be found then it escheats to the state.
stepchildren under intestacy
they usually inherit nothing unless they were adopted during decedent’s life.
some states will assume the stepchild is adopted if the decedent had custody because they had promised to adopt the child and had not done it yet.
if a decedent has a child out of wedlock, can the child inherit?
yes if the decedent is the mother
if the decedent is the father it depends- must have
later married the other parent
been adjudicated to be the father by paternity suit
clear and convincing evidence produced during probate to prove fatherhood
prepayments during decedent’s life
satisfaction = prepayment of will gift
advancement = prepayment of an intestate share
what type of gift does ademption apply to?
specific devises/ bequests
does not apply to general or demonstrative legacies
Undue influence evidence
evidence of undue influence
wills that do not provide for close family, or revoke gifts to close family
opportunity and access to T
T’s ability to resist influence
A beneficiary’s involvement in drafting the will or execution
beneficiary has a confidential relationship with testator (PRESUMES UDI- ex: atty or other fiduciary)
What will a court do if a trust purpose is illegal?
Either will impose a resulting trust if the settlors wrongdoing was slight in comparison to the unjust enrichment the trustee would get if he kept the property, or will allow the trustee to keep title and the beneficial interest
Example of a case where the latter would result is defrauding creditors
If it’s not clear if something was intended to be a will what can the court do?
In addition to looking at language of the document the court can look at extrinsic evidence that might indicate the will was made to defraud someone or otherwise was not intended to be a will
Placement of will signature
some states require it to be at the end of the document
UPC and most states will allow a signature anywhere on the document
Can extrinsic evidence be used to fill in blanks in a will?
extrinsic evidence cannot fill in blanks left in a will.
anti lapse statute contrary intent
anti lapse statutes will not apply if the will shows that the testator did not intend for them to apply. for example:
-specifying an alternate taker in case a gift fails
-“surviving children” or gifts w/ words of survivorship in most states is construed as a contrary intention, so if a child predeceases, their descendants would not take.
- under UPC words of survivorship are not enough to express contrary intent
if a handwritten change is made to a holographic will, is that treated as a revocation?
most states would not treat it as a revocation and would give effect to crossing out and writing in a new beneficiary on a holographic will
remedy for breach of contract not to revoke a will
constructive trust
if the will would not be valid under the state’s law for the applicable property
most states will admit the will if it satisfies the requirements of: a) the state where the will is sought to be probated; b) state where will was signed; c) testator’s domicile when will was signed; or (d) domicile at death
ademption- identity rule
this is the rule followed by most states
the court simply asks whether the item is in the estate at death without looking for evidence of what the testator intent was. recipient does not take a substitute gift or the value of the gift
do anti lapse statutes apply to gifts to people who filed disclaimers?
the person who disclaimed will not take, but if they are closely related to the testator and fall within the anti lapse statute, their descendants can still take
for purposes of identifying property in a will
the will acts on circumstances that exist on death because the will does not become effective until death
if a testator leaves a gift of 200 shares of ABC Stock, but does not own any at death, what will the court most likely do?
treat it as a gift of the value of 200 shares of stock.
if a child was alive when the will was signed, and he is not included, what is the effect?
The child is disinherited. He does not get protection from the omitted child statutes
if the heirs think that the testator mistakenly omitted a child or a provision in a will, but there is no ambiguity, what is the rule?
courts conclusively presume testator read and understand the will and they will not accept oral testimony or other extrinsic evidence unless there is evidence of fraud or duress
how do you prove a will is integrated?
there is a presumption of integration when pages are physically connected (staples, clips), when provisions run from one page to the next, and when all pages read together set out an orderly plan of disposition
can also prove with extrinsic evidence that the same pages were present at time of signing and death, and that testator intended them to be part of the will
integration
combining many pieces of paper or documents into one will
can the issue of a person who kills the testator or deceased inherit the slayer’s gift or share?
yes, if the slayer was closely related to the testator/decedent and protected by an anti-lapse statute
