Wills Flashcards
What is ademption?
When specifically bequeathed property is not owned by the testator at death, the bequest is deemed (it fails).
What is the identity theory of ademption?
Applied in most states, ademption is an objective test that does not take into account the testator’s probable intent. If the property is not in the estate at the testator’s death, it is adeemed, and the reason it is not in the estate is immaterial.
Guardian or Conservator exception to the ademption doctrine?
Well-recognized exception: if a guardian or conservator is appointed for the testator after the will is executed and the bequeathed property is sold by the guardian, the beneficiary is entitled to the sale proceeds – to the extent they have no been expended to testator’s care.
What happens to a divorced spouse left in a will?
Revocation by operation of law: if a testator is divorced after making a will, all gifts to the former spouse are revoked and the will takes effect as though the former spouse predeceased the testator.
***NOTE: under the UPC, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.
What happens if gifts pass through intestacy where the decedent has no spouse nor children?
In most states, her property passes to her parents and then to her siblings and children of any deceased siblings.
What is per capita by representation (modern per stripes)?
This is the distribution method of most states: the property is divided at the first generational level at which there are living takers.
What is per capita at each generation (pooling method)?
UPC: the estate is divided at the closest generation to the decedent in which one or more of the descendants are alive (similar to modern per stripes). However, the shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the generation level.
What is strict per stripes?
Common law, a few states: the estate is divided by the number of members in the first generation of children. Each member who is alive takes their share, and the shares of the deceased members drop to the next generation. This process is repeated until every share is taken.
What is a codicil?
A later testamentary instrument that amends, alters, or modifies a previously executed will.
When is a will republished?
On the date of the last validly executed codicil.
How can a document be incorporated by reference into a will?
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 a document by reference: 1) the documents must be in existence at the time the will was executed, 2) the language of the will must sufficiently describe the writing to permit its identification, and 3) the will must manifest an intention to incorporate the document.
What effect does a slayer statute have on property?
If one feloniously and intentionally brings about the death of the decedent, they forfeit any interest in the decedent’s estate. The property passes as though the killer predeceased the decedent. Only applies when the slayer kills the decedent whose estate is at issue; thus, it does not apply if the killer killed another person – even if that person is the source of the decedent’s property.
Stock dividends 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.
Specific bequest = “my 400 shares of XYZ corp. stock.”
Stock dividends under the UPC
A specific bequest of stock includes stock dividends. Specific bequest = “my 400 shares of XYZ corp. stock.”
Will Revival (Common Law)
The revocation of a subsequent will automatically revives the prior will (no intent required).
Will Revival (UPC)
Most states permit revival of a revoked will if: 1) it is evident that the testator intended the revoked will to take effect as executed; OR 2) the testator republished the revoked will with a subsequent will or codicil that compiles with the statutory formalities for execution.
Disclaimer
A beneficiary under a will can disclaim or renounce his interest under a testator’s will causing the disclaimed property to pass as if the disclaiming party predeceased the testator.
Requirements for a valid disclaimer
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.
Timing for a disclaimer
Common law: within a reasonable time after T’s death
Some states: 9 months after T’s death
UPC: any time
Lapse
If a beneficiary named in a will predeceases the testator, the devise lapses into the estate’s residue UNLESS the jurisdiction has an anti-lapse statute
Anti-lapse statute
Under an anti-lapse statute, devises will vest in the descendants of the predeceased beneficiary if the predeceased beneficiary 1) is a blood relative of the testator AND 2) has descendants who survive the testator
Is an inter vivid gift made after the execution of a will made in satisfaction of the will?
Common law: yes if the testator intended the gift to be in satisfaction of the will
UPC: no, unless the testator specifically provides in his will or in a contemporaneous writing, or unless the devisee acknowledges in writing that the gift was one in satisfaction.
Defendant Relative Revocation (“DRR”)
Under DRR, 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 by codicil or new will.
DRR ONLY applies when the court can determine that the testator would have preferred the disposition in the revoked will over the disposition what would happen if the property is disposed of by intestacy.
