Wills

Question 1

will governing law

Answer 1

The law in the jurisdiction of the decent’s domicile at death governs the disposition of his personal property, while the law in the jurisdiction in which the decedent’s real property is located governs the disposition of his real property. However, a decedent may select which state law governs in the terms if his will.

Question 2

harmless error rule

Answer 2

under the UPC, a will that is NOT properly executed will still be valid if the party seeking to have it validated proves by clear and convincing evidence that the decedent intended the writing to be his will.

Question 3

will execution requirement

Answer 3

A will is valid if the specific formalities provided by state law are met. Generally, these formalities require a valid will to be:

(1) in writing
(2) signed by the testator; AND
(3) signed by at least two witnesses.

Question 4

Interested witnesses

Answer 4

Under the common law, the signing of the will MUST be witness by two disinterested witnesses (individuals who do NOT receive any benefits under the will).
However, virtually every state has abolished this common law rule and allow interested witnesses to validly witness the signing of will.

Question 5

Holographic will

Answer 5

A holographic will is a handwritten will that is NOT witnessed. Most states do not recognize holographic wills. However in states that do recognize holographic wills, the holographic will is only valid if the testator signs it personally. (No proxy signatures are permitted). No precise words are required to make a holographic will valid; however, the will must contain operative words legally sufficient to validly devise the property

Question 6

Integration of documents

Answer 6

Integration of documents usually arises when pages or portion of a will become separated. 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 wills execution

Question 7

Incorporation by reference

Answer 7

Incorporation by reference deals with the incorporation of extrinsic documents into the will (rather than pages or portions s of original will). 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 be executed; AND
(3) The document is sufficiently described in the will.

Question 8

codicil

Answer 8

A codicil is a supplement or addition to a will that is made after a will is executed. A codicil can explain, modify, amend or revoke provisions of an existing will. A codicil MUST satisfy the same formalities as a will in order to be valid.

At the time a person executes a codicil, the original will is treated as republished and is deemed to have been executed on the date the codicil is executed. Republication can cure defects in a will might affect the validity of specific devises. However, most courts hold that a codicil CANNOT republish an invalid will as a whole.

Question 9

Holographic Codicils

Answer 9

in states that recognize holographic wills, a valid holographic codicil (i.e, handwritten will and not witnessed) can validate a will that was not originally valid because it failed to meet statutory requirements.

A valid holographic codicil revokes any earlier valid will to the extent it conflicts with the holographic codicil.

Question 10

Revocation by Physical Act

Answer 10

Three physical acts can revoke a will:

(1) Subsequent Written Instrument. A will can be revoked by either
- A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR
- A subsequent will/codicil containing a revocation clause or provisions that inconsistent with those of the prior will (only revokes to the extent it conflicts with the poor will).

(2) Cancellation: A will is revoked if the testator, or another person in his presence and at his direction burns, tears, obliterates, or destroys the will WITH the intent to revoke the will. Under the common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will (e.g words of cancellation are written over the original terms of the will).
(3) Partial Revocation. In the most states, when marks of cancellation (e.g, putting a line through terms in will) are found on a will known to last have been in the testator’s possession, a presumption arises that such marks were made by the testator with the intent to revoke. The burden to overcome this presumption is on the party claiming that the devise has not been revoked.

Question 11

Revocation by Divorce

Answer 11

In certain circumstances, dispositions made under a will are revoked by operation of law. At common law, divorce did NOT revoke a testator’s devise to a former spouse by operation of law.

Today, a divorce revokes provisions in a will the devise property to the testator’s former spouse (usually also includes relatives of the former spouse) by operation of law UNLESS the will or court expressly provides otherwise. However, the devise may be revived if the spouses remarry.

if a provision in favor of the former spouse is revoked by operation of law, the devise passes as if the former spouses predeceased the testator.

Question 12

Defendant Relative Revocation (DRR)

Answer 12

Under DRR, the valid revocation of a will may be ignored if the will was revoked under the testator’s mistaken belief of the law or fact that the testator could revive an earlier will, or modify his disposition of property 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 resulting from a finding that the testator died intestate.

Question 13

Revival

Answer 13

Under the common law, the revocation of a subsequent will automatically revives the prior will
Under the modern view, 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 republishes the revokes will with a subsequent will or codicil that complies with the statutory formalities for execution

Question 14

lapsed legacies

Answer 14

if a beneficiary named in the will predeceases the testator, absent an alternate disposition of the devisee specified by the testator, the devise lapses into the estate residue UNLESS the jurisdiction anti-lapse statue preserves the devise for the beneficiary descendants

Question 15

Anti-lapse statue

Answer 15

Under an anti lapse statue, 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 descendant(s) who survive the testator

Question 16

Residue or a residuary clause

Answer 16

At common law, an invalidated residuary devise passed to the testator’s heirs through intestate succession. Under the modern view, if the residue is devised to two or more persons, an invalidated residuary devise will pass to the other residuary beneficiaries rather than testator’s heirs

Question 17

Ademption

Answer 17

Under the doctrine of ademption, if the subject matter of a specific devise is NOT in the estate at the time of the testator’s death, the devise to the beneficiary adeems or fails

At common law, the testator’s intentions were irrelevant. However, in most jurisdictions today, a specific devise will adeem ONLY IF the testator intended the devise to fail. If the testator did not intend for a specific devise to fail, the beneficiary is entitled to:

(1) Any property in testator’s estate, which the testator acquired as a replacement for a specific devise; OR
(2) A monetary devise equal to the value of the specific devise

Question 18

Generic descriptions

Answer 18

Any property described in generic terms is interpreted under the circustmances existing at the time of the testator’s death, rather than when the will is executed

Question 19

Slayer statues

Answer 19

A person who feloniously and intentionally kills the decedent is barred from claiming a share share of the decent’s estate as either an heir or a beneficiary under the decent’s will. Generally, the decedent’s estate is disturbed as if the killer had predeceased the decedent.

Question 20

disclaimers

Answer 20

A beneficiary under a will can disclaim or renounce his interest under a testator’s will causing the disclaimed property to pass if the disclaiming party predeceased the testator. 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 the common law, a disclaimer must be made within a reasonable amount of time. some states require a disclaimer to be made within 9 months after the testator’s death. Under the UPC, a disclaimer may be made at any time.

Question 21

Specific devises

Answer 21

A devise is specific if the subject matter of the devise is specific personal or real property

Question 22

General Devises

Answer 22

A devise is general if it can be ratified with any of the estate’s assets (e.g devise of a specific dollar amount is general, because it can be funded with cash or other property of equal value)

Question 23

Demonstrative Devises

Answer 23

A devise is demonstrative if the testator makes a general devise AND specifies a specific source specific course the general devise should come from (e.g a devise of a specific dollar amount that is payable from a designated bank account)

Question 24

Abatement

Answer 24

beneficiaries under wills entitled only to the net value of estate assets. The net value represents what remains of the decedent’s assets at death after the payments of debts, expenses and taxes. If there are more claims against an estate from creditors than there are assets to cover all of the devises made under the will, the devises abate.

Question 25

In what order does property abate?

Answer 25

Creditors of the estate ALWAYS have priority to assets of the estate over beneficiaries

Absent provisions in the will, the testator’s property abates on a pro-rata basis in the following order to pay for debts, expenses, and taxes:

(1) Property not disposed of by will
(2) Residuary devises
(3) General devises
(4) specific devises

Question 26

Devises to classes

Answer 26

A testator may devise property to a class of individuals. A class may increase or decrease in number until the testator’s death. If a member of the class predeceases the testator, her share is split evenly among the remaining members of the class

if the group does NOT constitute a class, the predeceased member’s share lapses unto the residue.

Question 27

Disinhertiance

Answer 27

A child that is intentionally committed from a will is NOT entitled to a share of the decedent’s estate. In most states, a general disinheritance clause is NOT sufficient to show intent to opt the child from the will.

Question 28

Capacity

Answer 28

A will is invalid if the testator lacked mental capacity when the will was executed. To prevail in a will contest for lack of capacity, the contestant must prove that the testator did NOT know or understand

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

Question 29

Undue influence

Answer 29

A will is invalid if the testator executed the will while under undue influence. Undue influence occurs when a person exerts such control and influence over the mind of the testator as to overcome the testator’s free will. To prevail in a will contest for undue influence, the contestant must prove that:

(1) the testator was susceptible to undue influence
(2) The 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

generally, there is a reputable presumption of undue influence if a confidential relationship existed between the alleged wrongdoer and the testator such that the circumstances surrounding the drafting of the will were suspsious

Question 30

Mistake and ambiguity

Answer 30

most courts will permit modification of a will to conform to the testator’s intent if there is a clear and convincing evidence of mistake.

if the will is ambiguous, courts will allow extrinsic evidence to resolve the ambiguity

Question 31

standing to contest

Answer 31

Generally, only those who have a pecuniary interest in an estate have standing to contest it. This includes 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 32

Life insurance

Answer 32

life insurance is a contract made between the policyholder and an insurance company. Usually, life insurance contracts prohibit the change of a beneficiary under the policy by execution of a will. Most courts uphold such limitations that are set out in the insurance contract, however, some courts permit a policyholder to change a beneficiary by will if his insurance company does not object

Question 33

Stock Dividends

Answer 33

Under the common law, a stock dividend constitutes a property interest that is separate from shares of stock received through a specific devise. Under this rule, the beneficiary of the underlying shares of stock does NOT receive the additional shares that were obtained through stock dividends

Under the majority view, beneficiaries are entitles to additional shares owned by the testator that were acquired as a result of stock spilts of dividends

Question 34

pretermitted children

Answer 34

a pretermitted child is a child who is unintentionally omitted from a will. This commonly occurs when a child is born or adopted after the execution of a will, or is thought to be dead but later found alive. Pretermitted children are entitled to the share they would have received had the testator died intestate so long as the testator did NOT intend to omit the child from his will.

Question 35

Valid contract

Answer 35

1) contract to execute a mutual or joint will
- mutual wills are separate wills of at least two people which contain similar or reciprocal provisions.
- A joint will is a single document executed by at least two people (usually spouses) which contain similar or reciprocal provisions

2) A contract to make a certain devise by will
3) A contract not to revoke a will or a provision included in the will; OR
4) A contract to refrain from executing a will

Question 36

living will

Answer 36

A living will is a document in which one specified which life-prolonging measures one does, and does not want to be taken if one becomes incapacitated.

Question 37

Durable power of attorney

Answer 37

A durable health care power of attorney is a document that enables an individual to designate an agent to act on his behalf in the event that the individual becomes incapacitated. Generally, the agent is immunized from civil liability for health care decisions made in good faith

Question 38

Family content laws

Answer 38

Family consent laws permit close relatives, typically in the order listed by statue to act as a surrogate decision maker for an incapacitated patient if there is no authorized agent under the durable power of attorney

priority:

(1) spouses (unless legally separated)
2) Adult child
3) Parent
4) adult brother/sister

Question 39

Fraud

Answer 39

a will is invalid if the will reflects the testator’s belief in false information arising from another person’s fraudulent misrepresentation. To prevail in a will contest for fraud, the contestant must prove:

(1) A misrepresentation of material fact was made to the testator
(2) The misrepresentation was made to induce reliance by the testator; AND
(3) The testator relied on the misrepresentation in disposing of his property by will

Question 40

Fraud in inducement v Fraud in execution

Answer 40

Fraud in inducement occurs when a person misrepresents a fact related to the instrument (usually regarding property or beneficiaries).

Fraud in the execution occurs when a person misrepresents the contents or nature of the instrument executed by the testator