Wills

Question 1

Attested will

Answer 1

Writing
T’s sig - T or 3rd pty in T’s presence and at T’s direction
Wit’s sign during T’s lifetime - need not sign in each other’s presence nor in T’s presence
T’s sig or T’s acknowledgment of sig must occur in joint presence of at least 2 wit’s - something about the execution process must convey to the wit’s the info nec for them to understand that the doc being signed is T’s will

Question 2

Harmless error rule - CC∑

Answer 2

For T’s dying on or after 1/1/2009, if a will isn’t executed in compliance w/ wit req’s, will may be probated if the proponent of the will establishes by CC∑ that at the time T signed the will, he intended it to constitute his will

Question 3

Interested wit presumption

Answer 3

Will isn’t invalid
But unless there are 2 other disinterested wit’s, a presumption arises that wit-bene secured the gift by wrongdoing
- if rebutted, wit-bene takes gift
- if not rebutted, wit-bene takes amt as doesn’t exceed what he would be given by IS

Question 4

Holographic wills

Answer 4

T’s sig

Material provisions in T’s handwriting - gifts made and bene’s names

Question 5

Testamentary capacity

Answer 5

Easy to satisfy
At time of execution, T
- is over 18 yrs old
- understands extent of prop he owns
- understands natural objects of his bounty
- understands nature of execution of doc

Question 6

Negating capacity

Answer 6

Undue influence
Insane delusion
Fraud

Question 7

Undue influence - prima facie case

Answer 7

• susceptibility - T has a weakness such that he’s able to have his free will subjugated
• opportunity - wrongdoer has access to T
• disposition/motive/active participation - wrongdoer’s use of force, threat of force
• unnatural result - wrongdoer is taking a devise and this person ordinarily wouldn’t be expected to take a devise
  Consequences - only that part of the will affected is invalid, ct can give prop to residuary devisees, heirs by IS, or CT

Question 8

Undue influence - presumption based on confidential relationship

Answer 8

Confidential relationship
Disposition/motive/active participation - wrongdoer’s use of force, threat of force
Unnatural result - wrongdoer is taking a devise and this person ordinarily wouldn’t be expected to take a devise
Consequences - only that part of the will affected is invalid, ct can give prop to residuary devisees, heirs by IS, or CT

Question 9

Undue influence - statutory presumption

Answer 9

Provision of an instrument making a donative xfer to a person who drafted the instrument, person in a FD relationship w/ T, etc. is product of undue influence
Consequences - xferee is deemed to have predeceased T w/o spouse or issue, gift lapses and passes to residuary devisee or by IS

Question 10

Insane delusion

Answer 10

T had a false belief
False belief was product of a sick mind
No ∑ to support belief
Delusion must have affected T's will
Consequences - only that part of the will affected is invalid, that part goes to residuary devisee, or if none, by IS

Question 11

Fraud

Answer 11

Rep'n
Of material fact
Known to be false by wrongdoer
For purpose of inducing axn or inaxn and
In fact induces axn or inaxn desire

Question 12

Fraud in the execution

Answer 12

Doc is invalid bc execution itself is invalid

Consequences - entire will is invalid, prop passes via IS unless there’s a prior will that was validly executed

Question 13

Fraud in the inducement

Answer 13

Misrep’n that induces only part of the will to be executed

Consequences - only tainted part is invalid, ct can give prop to residuary devisees, heirs by IS, or CT

Question 14

Express revocation by subsequent instrument

Answer 14

T has present intent to revoke
W1 can be revoked by W2 if W2 expressly revokes W1
Must be valid

Question 15

Implied revocation by subsequent instrument

Answer 15

T has present intent to revoke
W2 revokes W1 by implication if W2 totally disposes of T’s estate
Must be valid

Question 16

Revocation by phys act

Answer 16

T has simultaneous intent to revoke
Cancelling - lining out or crossing out - cancellation to increase a gift is prohibited
Obliterating - erasing
Interlineation - writing betw the lines
Act must be done by either T or by someone in T’s presence and at T’s direction

Question 17

Dependent relative revocation

Answer 17

T revokes will on the mistaken belief that another will or codicil would be effective and but for the mistake T wouldn’t have revoke the first will
Prior will may be revived

Question 18

Revival

Answer 18

Revoked will may be probated

W1 must still be in existence, T must have intent for W1 to have and W2 was revoked by phys act

Question 19

Integration

Answer 19

T must have intended for papers to be part of the will and

Papers must have been actually of phys present at time of execution

Question 20

Incorporation by reference

Answer 20

Writing
In existence when will was executed
Will shows intent to incorporate doc
Writing suff described in will

Question 21

Acts of independent significance

Answer 21

Act or doc must have significance apart from T’s motive/will itself
Ask - even w/o will, would this fact have existed?
Look for a list referred to by T

Question 22

Republication by codicil

Answer 22

Codicil republishes a will - causes will to speak from date codicil is executed
Scenarios
- pour over wills and IBR
- omitted spouse/children prob’s

Question 23

Specific gifts

Answer 23

Particular item, something unique
“my,” “mine”
Only specific gifts can adeem by extinction

Question 24

General gifts

Answer 24

Can be paid out of general assets, nothing unique
Don’t adeem by extinction
Typically only general gifts adeem by satisfaction

Question 25

Demonstrative gifts

Answer 25

Hybrid betw general and specific gifts

Question 26

Residuary gifts

Answer 26

All other prop not expressly disposed of in the will

Question 27

Abatement

Answer 27

Process by which certain gifts are decrease

Priority whereby gifts to bene’s have to be cut back to come up stat share for omitted spouse/child

Question 28

Ademption

Answer 28

A specific gift that’s mentioned in the will isn’t part of T’s estate at his death

Question 29

Ademption by extinction

Answer 29

Specific gift fails bc T didn’t own it at his death

Classify gift as specific, or in the alternative, as general

Question 30

Ademption by satisfaction

Answer 30

T gives bene an inter vivos down payment on a devise

1. will itself provides for a deduction of the inter vivos gift
2. T declares in a contemporaneous writing that the gift is a satisfaction
3. bene acknowledges in a writing (at any time) the satisfaction
4. prop given in satisfaction is same prop that is the subject of a specific gift to bene

Question 31

Advancements

Answer 31

Inter vivos down payment made by an intestate to an heir apparent

1. intestate declares in a contemporaneous writing that the gift is an advancement
2. heir acknowledges in a writing (at any time) that gift is an advancement

Question 32

CL lapse

Answer 32

If devisee doesn’t survive T, gift lapses and goes to residuary

Question 33

Stat anti-lapse

Answer 33

If devisee doesn’t survive T, so long as devisee is kindred of T or kindred of T’s surviving, deceased or former spouse, and has left issue, takes by rt of rep’n

Question 34

IS - per capita w/ rt of rep’n

Answer 34

Issue of same degree take per capita/equally and in their own rt
Issue of more remote degree take per capita w/ rt of rep’n

Question 35

Simultaneous death

Answer 35

If the devolution of prop is dependent on 1 person surviving another and it can’t be determined by CC∑ who survived whom, then it’s deemed the 1 person didn’t survive the other

Question 36

Omitted spouse

Answer 36

SS who married T after execution of all testamentary instruments and isn’t provided for in any testamentary instrument
Rec’s intestate share, that is, CP + up to 1/2 of SP, unless
- omission was intentional as shown in the will
- spouse provided xfers outside the will or
- spouse made a valid agmt waiving rt to share in T’s estate

Question 37

Omitted children

Answer 37

Child born after all testamentary instruments are executed and not provided for in any testamentary instrument
Rec’s intestate share unless
- omission was intentional as shown in the will
- T had other children and left estate to parent of omitted child or
- T provided fro child by xfers outside the will

Question 38

Bars to succession

Answer 38

Homicide - person who feloniously and intentionally kills D isn’t entitled to any benefit from D’s estate by will, trust, intestacy, life ins, JT or otherwise
Elder abuse - person found liable by CC∑ will be treated as if he predeceased T - possible xover w/ PR
No contest clause - will be enforced unless bene. w/ reas cause, brings contest on grounds of forgery, rvcxn, or invalid xfer to person who drafted instrument