Wills

Question 1

Incorporation by reference

Answer 1

In most states, a document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will. To incorporate by reference: (i) the document must be in existence at the time the will was executed, (ii) the language of the will must sufficiently describe the writing to permit its identification, and (iii) the will must manifest an intention to incorporate the document

Question 2

Slayer statute:

Answer 2

One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the decedent. These slayer statutes apply only when the heir kills the decedent whose estate is at issue. They do not apply to bar someone form taking a share of an estate because she killed another person–even if that person is the source of the decedent’s property.

Question 3

Ademption

Answer 3

Under the doctrine of ademption, when specifically bequeathed property is not in the T’s estate at death, the bequest fails. Most courts apply the identity theory of ademption, which uses an objective test; the T’s intent is irrelevant. Under that view, if the T no longer owns the property the gift is adeemed

Question 4

Stocks

Answer 4

Under the common law, a specific bequest of stock includes any additional shares produced by a stock split, but not those produced by a stock dividend. Under the UPC and the statutes of nearly all states, a specific bequest of stock includes stock dividends.

Question 5

Undue Influence

Answer 5

contestants have burden to prove:
influence was exerted over T, effect of the influence was to overpower the mind and free will of T, and the product of the influence was a will that would not have been executed but for the influence.
presumption of UI and burden on proponent:
confidential relationship between T and B alleged to have exerted influence, and the B participated in some way in procuring or drafting the will or in some other significant activity relating to the execution of the will

Question 6

Personal rep

Answer 6

any person who has capacity to contract may serve as PR (thus not someone incompetent or a minor).
if executor named in will, he will be appointed unless subject to disqualification. if not named in will, court will appoint a PR.
Order of preference: person named in will, SS if a will B, any will B, the SS, any other heir, and, after 45 days, a creditor.