Wills Flashcards
Material Provisions
Words identifying the property or beneficiaries. This is all that needs to be in testator’s handwriting for a holographic will to be valid
Revocation by Physical Act
Requires intent to revoke and a physical act on the will. Writing “void” in the margins is enough!
Revocation by Proxy
Requires intent to revoke and destruction in testator’s presence.
Class Gift Rule
Surviving class members take when some class members predecease testator and lapse statute doesn’t apply (gift to non-family).
Anti-Lapse Statute
When a beneficiary predeceases testator, the gift lapses unless the beneficiary is testator’s grandparent or a lineal descendant of a grandparent who leaves issue who survive testator.
Ademption
Applies only to specific gifts, not demonstrative. Gift fails if not in possession of testator at death.
Example: T’s will says “I leave $5,000 to A to be paid from proceeds of sale of my Apple stock”. T no longer owns Apple stock at death. A still takes. Ademption does not apply because this was a demonstrative gift. However, if T’s will left 2010 Jeep to B, and T didn’t own a Jeep at death, B would take nothing because his gift adeemed.
Advancement (intestate) & Satisfaction (testate)
Common Law: gifts during life are presumed advancements.
UPC & Majority: no advancement or satisfaction unless there’s a contemporaneous writing by decedent or writing of acknowledgment by the heir, and if there’s a will, the will must provide for this.
Revocable Trust
Not part of probate estate. It passes according to the trust. However, it is part of the elective estate.
Elective Estate
Probate estate less exempt property, family allowance, funeral expenses, administrative expenses, and allowable creditor’s claims.
UPC: also includes (i) transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit (revocable trusts), (ii) transfers with retained right to possess or enjoy the income from the property (transfer with retained life estate), (iii) transfers held by decedent and another in right of survivorship form (JTWROS & joint bank accounts), and (iv) transfers within 2 years of death to extent any one donee in either year exceeded the gift tax annual exclusion ($15,000).
Elective Share
May be waived by written contract after full disclosure. To claim, surviving spouse must file election within set period of decedent’s death. Elective share is in addition to exempt property, family allowance, and homestead.
Common Law: a fraction (commonly 1/3) of the elective estate, but interests received by spouse which are included in the elective estate are treated as if in satisfaction of the elective share.
UPC: max increased to 1/2 depending on length of marriage. It vests at about 3%/year until it reaches 50% (after 15 years).
Undue Influence
To invalidate a will or portion of a will, there must be: (1) an existence and exertion of an influence; (2) the influence overpowered the mind (free will) of testator at the time the will was made; and (3) testator wouldn’t have executed it but for that influence.
Once elements are shown, burden shifts to proponent of will to prove it wasn’t induced by undue influence.
Specific Devise/Gift
Last to abate.
Incorporation by Reference
Must exist at the time the will is made and describe writing with sufficient particularity.
Presumption of Undue Influence
Occurs when: (1) there’s a confidential relationship between testator and beneficiary-influencer, (2) beneficiary participated in procuring or drafting will, and (3) provisions of will appear to be unnatural and favor person who allegedly exercised undue influence.
Common Law Strict Per Stirpes
One share passes to each child of decedant, regardless of whether there are any living takers at that level. If the child is deceased, that child’s share passes to his descendants by representation.
