Wills Flashcards
Will
An instrument executed with certain formalities, which is “testamentary in character.”
Executed
Means signed: When you “execute” a contract, a will, or another legal document, it means that you finalize the signing process. Execution does NOT mean performance.
When is a will revocable and operative?
Revocable: During life
Operative: Upon death
Age of testator
18 or over
Does a will have to be written?
Yes
Signature Requirements
Testator must sign will at the end in the presence of two witnesses (can be minors!)
Signature can be an “X” if the signature so intended.
The witnesses must sign in the testator’s physical presence and in the physical presence of each other.
The testator can sign in front of witnesses, or alone without witnesses, if she acknowledges her signature later to the witnesses.
If the testator is unable to sign, someone else can sign in her name for her. This must be done at the testator’s direction and in her presence.
–If the other person also signs her own name, she counts as one of the two necessary witnesses.
When is a notary required?
Ordinarily, wills do not require the presence or a signature of a notary. However, a notary signature is required in some specific circumstances such as a self-proving will or an electronic will.
Is there a publication requirement to the two witnesses?
No–the witnesses do not need to know that the document is a will.
Order of signing
It is immaterial if attestation ceremony is all part of one continuous, contemporaneous transaction.
What happens if a portion of the will follows the testator’s signature?
- Clause present at the execution: Will invalid. T’s signature must follow immediately after the final dispositive provision of the will.
- Clause added after execution: Will valid. Clause is not.
Interested Witnesses
An interested witness can still inherit under the will.
Oral Will
An oral testamentary statement. Florida does not recognize oral wills under any circumstances.
Holographic will
A hand-written testamentary instrument, signed by the testator, with no witnesses. Florida does not recognize holographic will any under circumstances.
However, a hand-written will that complies with all other formalities (signed and witnessed) is acceptable! There is just no “loosened” standard for handwritten wills.
Scope of Vision Test
Conspicuous Presence Test
SV (minority, 2 DCA’s imply that FL uses this) A will is only validly executed if witnesses and testator are in each other’s presence and could see each sign were they to look.
CP (majority): A will is validly executed if they were conscious of where the other is and what they are doing.
Incorporation by Reference
An extrinsic document can be incorporated by reference into a will if:
(1) it exists at the time of execution;
(2) it is sufficiently described in the will; AND
(3) the will manifests intent to incorporate the document
EXCEPTION: The testator may produce a list of specific tangible personal property to be distributed to specific persons. The testator may incorporate this list into his will, and thereafter create or modify this list at ANY TIME (doesn’t have to exist at the time of execution).
- -Doesn’t apply to cash.
- -Testator must sign and it must describe the property with reasonable certainty.
Self-Proving Affidavit
Removes the need to bring witnesses to court to authenticate the signatures at probate.
Testator and the attesting witnesses sign the will, and then sign a sworn affidavit before a notary public reciting that the testator declared to the witnesses that the instrument was her will, and that the testator and the witnesses all signed in the presence of each other, present at the same time.
The affidavit can be executed at any time subsequent to the will’s execution.
If the will is lost or destroyed, we may still need witnesses to testify as to the contents of the will.
The witness signatures on the self-proving affidavit serve as the signature to the will itself.
The notary’s signature can also serve as one of the signatures, if the notary was otherwise qualified to serve as a witness.
Codicils
Modify previously executed wills. They require the same formalities as a will.
Doctrine of republication
A will is deemed effective as the date of the last codicil.
This date can be very important for determining whether a spouse or a child is pretermitted.
Revocation by Written Instrument
The testator may revoke all or part of a will by codicil or new will.
If by codicil, it must be executed with the same formalities as a will.
If the codicil/will does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistencies.
Revocation by physical act
A will or codicil may be revoked by burning, tearing, canceling, defacing, or otherwise destroying it with the INTENT to revoke.
The intent must be SIMULTANEOUS with the act.
The physical act may be performed by another, if done at the testator’s direction and at his presence. Even HEARING the sound over the phone of destruction is not sufficient.
If the physical act is defacing of the language, the defacing act must cross out actual words, not just blank areas.
Partial Revocation by a Physical Act
Not allowed in Florida. If a testator strikes out a clause of the will, it has no effect.
Revocation by Marriage
In Florida, a pretermitted spouse (someone who marry’s after a will was executed) takes an intestate share, and the remainder (if anything) is disposed of by will.
This right can be waived by a pre/post nup.
Protection of Pretermitted Children
If a testator has a child after executing his will, the child is entitled to a share of the testator’s estate.
The omitted child is entitled to an intestate share of the estate (per stirpes).
Gifts to the other person are abated to make this gift.
However, the pretermitted child does not inherit under the will if:
(1) the decedent has one or more children when the will was executed; and
(2) Substantially all of the decedent’s estate was given to the other parent of the pretermitted child.
Revocation by Divorce
Divorce revokes any portions of the will pertaining to the ex-spouse.
Revoking a “copy” of a will
If the will has ben executed in duplicate, an act of revocation performed upon either duplicate of the will constitutes revocation of both duplicates.
However, an act of revocation on an unexecuted copy of the will or a photocopy is not revocation.
BUT a court may impose a constructive trust upon the estate, if the testator BELIEVED that his action was a revocation.
Reinstatement. of a Revoked Will
If a will has been revoked, or if it is invalid for some other reason, it may be republished and made valid again by:
–Re-execution of the will according to proper formalities OR
-Execution of a codicil republishing it, according to proper will formalities.
Once revoked, a will is _____.
Completley dead.
Lost or Destroyed Wills
If a will cannot be found at the time of death, there is a presumption that it was revoked by destruction.
However, that presumption can be overcome, and the will can still be offered for probate. The contents of the will must be proved by:
- Testimony of two disinterested witnesses; OR
- One disinterested witness and a correct copy
Lapsed Gifts
When a beneficiary dies before the testator, the gift has lapsed. A lapsed gift passes to the residue of the estate and is divided among the beneficiaries entitled to the residue.
SEE ANTI-LAPSE
Anti-Lapse Statute
The gift does not lapse if:
(1) the will says what happens if the beneficiary is deceased.
(2) the beneficiary is a grandparent or a descendant of a grandparent. The gift automatically passes to the estate of the dead beneficiary.
HOWEVER: specific language in the instrument always overrides the anti-lapse statute.
Ademption
When a gift is no longer in the testator’s estate at the time of death.
This only applies to SPECIFIC gifts of property. Gifts of money cannot be adeemed. Also, ademption does not apply to demonstrative gifts (money from a stock, e.g.).
If the item was sold, destroyed, or condemned, the beneficiary may be entitled to the proceeds of the sale or insurance.
Conflict of Laws Issues
If a will involves Florida real estate but was executed in a different jurisdiction, ancillary administration is necessary to deal with the Florida realty.
The will is recognized in FL if it complies with the requirements for a valid will in the JX where the testator was domiciled at the time of execution and it is not an unattested holograph.
Electronic Wills
- Electronic signature allowed.
- Remote witnessing allowed–must be supervised by an online notary and signatures must happen during the conference. – DO NOT apply if the testator is a vulnerable adult.
- Session must be recorded.
- Testator must answer several questions, indicating their age, mental status, location, and the presence of others in the room.
Self-Proved Electronic Wills
Affidavit must be made a part of or be attached to or logically associated with the electronic record of the will and the will must designate a qualified custodian to control the will until it is offered for probate or is revoked by the testator.,
Qualified Custodian
A person who consistently employs a system for maintaining custody of electronic records. Must be a resident domiciliary of Florida or be incorporated or organized in Florida.
Proof of Wills
Oath of any one attesting witness taken before a circuit judge or court clerk. If witness cannot be located or are incompetent or dead, then the personal representative that he believe the writing to be the decedent’s last will.
Attorney Liability
An attorney can be sued in negligence for messing up their clients’ wills.
Effect of Revocation on Codicils
Revocation of a will revokes all codicils. BUT revocation of a codicil to a will does not automatically revoke the will. It is presumed that testator intended his will as originally executed.
Effect of Re-Marriage on Wills
Florida Cases: Provisions for Sheila in T’s will remain revoked.
Probate Code: Provisions for Sheila in T’s nonprobate transfers other than in a revocable trust (joint bank accounts, POD and TOD accounts, life insurance policies) are REVIVED
Provisions for Sheila in T’s revocable trust: Unsettled.
Dependent Relative Revocation
Allows us to disregard a revocation which is based on, induced by, or premised on the mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation. Depends on:
(1) Disregard a revocation (the tearing of a will).
(2) Because it was based on a mistake of law (that a previous will would survive).
(3) provided that the court thinks T would not have revoked the will BUT FOR the mistake
Certificates of Title
They do not pass along as a “content of the house.”
Specific Devise or Bequest
I devise Blackacre to my son John.
MY car
MY bank accounts
Demonstrative Legacy
I give the sum of 5K, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah.
General Legacy
I give the sum of 10K to my daughter Donna.
Residuary Bequest
I give all the rest, residue, and remainder of my property to my wife, Agnes.
Intestate Property
When there is a partial intestacy for some reason.
Will executed before T declared Incompetent
If specifically devised property is sold by the guardian, or if condemnation award or insurance proceeds relating to the property are paid to the guardian, the specific devisee has a right to a general legacy to the net sale price, condemnation award, or insurance proceeds unless the testator’s disability has been adjudicated to have ceased and testator survives the adjudication by ONE year.
Increases to Property After Will Execution
Specific devisees take any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options. (same for revocable trusts)
They also take securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.
Exoneration of Liens
A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. A general direction in the will to pay debts does not show such an intent.
Elective Share
If decedent leaves a will, and a spouse is not pretermitted, and the gift to the surviving spouse is small or nothing, a surviving spouse does not need to accept the gift.
Instead, she can choose to take an elective share equal to 30% of the spouse’s elective estate.
The elective estate is equal to 30% of the spouse’s elective estate–comprised of probate estate and non-probate assets, such as life insurance, and accounts with other people named as beneficiaries.
Family Allowance
The surviving spouse and lineal heirs are entitled to an allowance of $18,000 during probate administration, to cover living expenses.
Exempt Personal Property Set-Aside
The surviving spouse or surviving minor children are entitled to up to $20,000 of household furnishings, two of the decedent’s personal motor vehicles, and all qualified tuition programs.
Revocation of Electronic Will or Codicil
Must be proven by clear and convincing evidence.
