Wills Flashcards
specific bequest
gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described
stock
common law- specific bequest includes any additional shares produced by a stock split NOT stock dividends
UPC and some states: specific bequest of stock also includes shares of stock split and stock dividends
doctrine of ademption
when specifically bequeathed property is not in the testators estate at death the bequest is adeemed (fails)
test of ademption
objective test- whether the specifically bequeathed property is part of testator’s estate NOT intent
some courts- adopt a more lenient intent test- beneficiary entitled to substitute property owned by testor IF beneficiary can prove testator intended beneficiary to take substituted property
UPC for replacement property
specific devisee has the right to any real property owned by the testator at death that was acquired as a replacement for the specifically devised property
“a will speaks at the time of death”
will operates upon circumstances and properties as they exist at the time of the testor’s death
disclaim
may disclaim any interest and the interest passes as though the disclaimant predeceased the decedent
anti-lapse statutes-
saves a give from failing for predeceased or disclaimed person
typical: provides that surviving descendants take by substitution only when the predeceasing beneficiary is a descendant of the testator
- few allow for any beneficiary’s or any relative of testator
residuary estate
balance of the testor’s property after all expenses claims and bequests have been
will requirements
i. acknowledged by the testator
ii. signed by testator in the presence of two witnesses
holographic
handwritten and UNATTESTED
Life insurance proceeds
nonprobate asset and pass to beneficiary outside of the estate
0 it is a contract
Can a separate memorandom dispose of property
document may be incorporated by reference if:
I. it was in existence at the time the will was executed
ii. will sufficiently describes the document, and
iii. will manifests an intent to incorporate the document
for personal property- UPC and most states do not require that document is in existence at time will was executed if signed and dated by testator and items and devisees are described .
anti lapse with predeceasing spouse
most required predeceasing beneficiary be related and do not save a gift to a predeceasing spouse even if he left descendants
abatement occurs:
when an estates assets are not sufficient to pay all claims and satisfy all bequests and devises
unless testator provides order gifts abate: intestate property residuary estate general legacies specific devises and bequests
valid will
testator must intend that the particular intstrument operate a his will
language such as this is my last will raises a presumption of testatmentary intent - rebuttable
Extrinsic evidence to prove validity of will
admissible to show testamentary intent or lack of testamentary intent
revoke will by written instrument requires
present intent to revoek
and instrument msut be executed with the same formalities as are required for execution
Physical revocation
act of burning, tearing, obliterating, or cancelling material portion
act must be shown to have had an actual effect on the will or its language
witnesses with interest
common law: if one of the two witnesses had an interest the will could not be probated
NOW: most states have purging statutes- eliminate the interest rather than render the will invalid
Contract to make a gift by will
common law- need not be in writing unless land
- some states require all contracts to make a gift by will to be in writing
UPC: established by (1) provisions in the will stating the material provisions of the contract, (2) an express reference in a will to the contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract
quantum merit
reasonable expectation among the parties to be compensated
cy pres
applies to gifts as well needs:
general charitable intent and impossible or impractical to use gift for purpose indicated.
a will is effective upon
the testators death
effective will and revocation
at common law if testator writes a will and
revokes it by a subsequent instrument and
revoking instrument is revoked before the testtoar death,
the first instrument remains in effect and operative
revival of revoked will (some jurisdictions)
(1) reexecuted with the proper testamentary formalities or acknowledged by the testator OR
2. republished by a validly executed codicil
reovked will and revival (UPC and majority)
second will immediately revokes the first will, but first may be revived if that was the testator’s intent when he revoked the second will.
inter vivos gift made subsequent to a will execution
generally deemed to be in satisfaction of the gift in the will if the testator intended gift to be in satisfaction
UPC- testator has to provide intent in will or in a contemporaneous writing or devisee acknowledges writing
dependent relative revocation
allows a court to disregard revocation of will when it appears that testator revoked the will because of a mistake of law and belief that another disposition of his property was effective OR will apply intestate if will come closer to what testator was attempting in revokation
i.e. revoked second so that first could rule but first wasn’t good- will bring back the second
UPC and interested witnesses
a bequest to an itnerest witness will not be purged
abatement and demonstrative legacys
treated as a specific legacy up to the value of the particular asset and general legacy as to the rest
demonstrative legacy
gift of a general amount to be funded from a specific source
witness is interested - purge exceptions
(1) witness is a supernumerary witness (extra with requisite disinterested witnesses)
OR
2. interest witness would have taken under intestacy or an earlier will
testamentary power of appointment
properly exercised by donees validly executed will
- if specifically refers that appointment must be exercised by specifically referring to the power- direction must be complied with
property with liens
commone law and some states: sepcifially devised property subject to lien- beneficiary entitled to have lien exonerated.
UPC and most states: liens on specifically devised property are not exonerated unless will secpficially directs exoneration
identiy theory
admpetion decided soley on basis of objective test: whether the specifically bequeathed property is a part of the estate at the testators death
Softened ademption law: some states allow beneficiary entitled to casualty insurance proceeds resulting from loss of property
durable healthcare power effective:
when principal becomes incapacitated and extends t all healthcare decisions including withdrawal
must act in best interest and is not subject to liability
durable healthcare form requiremetns
some states- do not require witnesses some require witnesses
Testamentary capacity
presumed to be of sound mind unless proven otherwise
measured at time of will execution and exists if: I. understood nature of act ii. knew nature and extent of property iii. knew objects of her bounty, and 4. knew nature of disposition
codicil
later testamentary instrument that amends, alters or modifies a previously executed will- same formalities
may also republish a prior valid will, revive a previously revoked will and validate prior invalid will
who can contest a will
an interested party - anyone who would be adversely affected by the will’s admission to probate
contractual will established by:
i. provision in the will state material provisions of contract
ii. express reference in the will to the contract
iii. a writing signed by decedent evidencing contract
joint will
will of two or more persons executed on the same piece of paper and intended to serve as the will of each
maj rule that there is no presumption that will is contractual
contractual will revokable
yes by either party but becomes irrevocable upon the first party’s death
undue influence definition
free will of testator is destroyed and resulting testamentary disposition reflects the desires of party exerting undue influence
BOP of undue influence factors
i. influence exerted
ii. effect of influence was to overpower
iii. product wouldn’t have been executed but for
fraud in a will
showing testator has been willfully deceived as to the character or content of an instrument
fraud in execution- misrepresentation as to nature of content
fraud in inducement- testor intends to make a will but fraud induced into making will by misrepresentation as to facts which influence his motivation
statutory order of preference for appointment of a personal representative is:
i. person named
ii. suriving spouse, if beneficiary
iii. any will beneficiary
iv. surviving spouse;
v. heirs
vi. creditor
pretermitted child (one born after will executed) may:
get an intestate share UNLESS
i. omission was intention
ii. had other children and devised estate to parent of omitted child or
iii. provided by transfer outside the will
integration (necessary when pages arent attached)
process of embodying several sheets of paper or documents into a single entire will
must show pages present when will executed
extrinsic evidence is admissible
