Wills

Question 1

Strict Per Stirpes

Answer 1

The estate is divided by the number of members in the first generation of children who are either alive or survived by descendants. Each member is alive takes their share and the shares of the deceased members drop to the next generation.

T has children A, B, and C. A has two children GC1 and GC2. C has one child GC3. A and C predeceased T. T’s estate is divided as follows: B gets 1/3. GC1 and GC2 get 1/6 each, while GC3 gets 1/3.

Question 2

Per Capita at Each Generation

Answer 2

The estate is divided at the closest generation to the decedent in which one or more of the descendants are alive. However, shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generational level.

T has children A, B, and C. A has two children GC1 and GC2. C has one child GC3. A and C predeceased T. T’s estate is divided as follows: B gets 1/3. GC1, GC2, and GC3 each get 2/9.

Question 3

Modern Per Stirpes

Answer 3

Works exactly like strict per stirpes, except that the estate is divided equally among the living and deceased at the first generation that has a living taker.

T has children A, B, and C. A has two children GC1 and GC2. C has one child GC3. A and C predeceased T. T’s estate is divided as follows: B gets 1/3. GC1 and GC2 each get 1/6, while GC3 gets 1/3.

Question 4

Advancements

Answer 4

Gifts to heirs during at testator’s lifetime are not considered advancements on the heir’s intestate share of the estate unless: (1) the decedent declared his intent to make the gift an advancement in a contemporaneous writing; or (2) the heir acknowledged the gift to be an advancement in writing.

Question 5

Will Formalities

Answer 5

(1) In writing;
(2) Signed by the testator; and
(3) Signed by at least two witnesses.

Question 6

Integration of Documents

Answer 6

A document will be integrated into the will if: (1) the testator intended the document to be part of the will; and (2) the document was physically present at the time of the will’s execution.

Question 7

Incorporation by Reference

Answer 7

In most states, a document or writing may be incorporated into a will by reference if: (1) the testator intended to incorporate the document into the will; (2) the document was in existence at the time the will was executed; and (3) the document was sufficiently described in the will.

Question 8

Revocation by Physical Act

Answer 8

(1) Subsequent written instrument;
(2) Cancellation;
(3) Partial revocation.

Question 9

Dependent Relative Revocation (DRR)

Answer 9

The valid revocation of a will may be ignored if the will was revoked under the testator’s mistaken belief of law or fact that the testator could revive an earlier will or modify his disposition of property by codicil or new will.

ONLY applies when the court can determine that the testator would have preferred the disposition in the revoked will over the disposition resulting from a finding that the testator died intestate.

Question 10

Revival

Answer 10

Under common law, revocation of subsequent will AUTOMATICALLY revives the prior will.

Under modern view, revival if: (1) it is evident that the testator intended the revoked will to take effect as executed; or (2) the testator republishes the revoked will with a subsequent will or codicil that complies with the statutory formalities for execution.

Question 11

Disclaimers

Answer 11

A valid disclaimer must: (1) be in writing and signed by the person making the disclaimer; (2) describe the interest being disclaimed sufficiently; and (3) be delivered or filed.

Under CL, within a reasonable amount of time. Some states require within 9 months. Under UPC, at any time.

Question 12

Specific Devises

Answer 12

The subject matter of the devise is specific personal or real property.

EX: devise of diamond ring or parcel of land.

Question 13

General Devises

Answer 13

It can be satisfied with any of the estate’s assets.

EX: devise of $10,000.

Question 14

Demonstrative Devises

Answer 14

Testator makes a general devise and specifies a specific source that the general devise should come from.

EX: devise of $10,000 payable from a designated bank account.

Question 15

Stock Splits and Dividends

Answer 15

Under common law, stock dividend constitute a property interest that is SEPARATE from shares of stock received through a specific devise.

Under majority view, beneficiaries are entitled to additional stock shares acquired as a result of stock splits or dividends.

Question 16

Capacity

Answer 16

Contestant must prove that testator did not know or understand:

(1) nature and extent of his property;
(2) persons who are the natural objects of his bounty; or
(3) disposition he was making of his property.

Question 17

Undue Influence

Answer 17

Contestant must prove that:

(1) testator was susceptible to undue influence;
(2) wrongdoer had the opportunity to exert undue influence over the testator;
(3) the wrongdoer actively participated in drafting the will; and
(4) the will evidences a result that appears to be the effect of undue influence.

Question 18

Fraud

Answer 18

Contestant must prove:

(1) a misrepresentation of a material fact was made to the testator;
(2) the misrepresentation was made to induce reliance by the testator; and
(3) the testator relief on the misrepresentation in disposing of his property by will.

Question 19

Standing to Contest

Answer 19

Any person who: (1) Is a beneficiary of the will; (2) Should be a beneficiary of the will; or (3) Would benefit if the decedent died without a will.

Question 20

USDA

Answer 20

When disposition of property depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.

Question 21

If decedent is not survived by a spouse or descendants, how will his property be distributed?

Answer 21

(1) To his parents;
(2) To the descendants of his parents;
(3) To his grandparents;
(4) To more remote ancestors; and then
(5) to the state.