Wills

Question 1

What is required to create a valid will?

Answer 1

(1) 18 years old
(2) Written
(3) Testamentary intent
(4) Signed
(5) Two attesting witnesses who witness T’s signing - “Conscience presene test “ - Conscious of where each other is and what the other is doing - less stringent than traditional scope of vision test.

UNDER THE UPC - A court can validate a defecitively excuted will if proponent can show by clear and convincing evidence that the testator intented the document to be his will. Moreover, a will signed by testator and a notary is valid without need for any witnesses.

Question 2

What happens when a portion of the will follows the testator’s signature?

Answer 2

(1) Clause present at time of exceution - Some states, matter above the signature is good; anything below is bad
(2) UPC and majority - No problem; will including clause is valid.

After execution - will is valid, addition is not.

Question 3

What is a holographic will? What is the common law and UPC rule?

Answer 3

A handwritten will.

(1) half of sates - holographic will not allowed - not entitled to probate unless two attesting witnesses
(2) UPC - Valid if the mateiral provisions are in T’s handwriting and the will is signed by her. - Material means identity of property and benefificaries.

Question 4

T is a domicillary of Penns and owns real estate in X. While on vacition in florida, T executes will that meets the requirements of a valid will in pennsylvania but not in X. Later, T dies after having changed his domicile to New York. is the will valid for purposes of the property in X?

Answer 4

Yes if , - (1) Place of execution (Florida) OR

(2) Domicile at death (New York) OR
(3) Domicile at execution (Pennsylvania)

Question 5

What is the interested witness rule for wills?

Answer 5

Majority Rule - Intrested witness situation does not result in denial of probate of will, but beneficiary - witness loses legacy unless (1) there were two disintrested attesting witnesses OR (2) Witness beneficiary would be an heir if there were no will, in which case she takes lesser of (i) amount given in will or (ii) intestate share.

UPC and modern trend - abolished.

Question 6

What is a self proved will ?

Answer 6

At time will is signed by T and attesting witnesses, T and witnesses sign self proving affidavit under oath before notary pubilc - this creates conclusive presumtion that the formailities of execution occured.

Question 7

To revoke a will, what are the ways to do so and what is required?

What are the two presumptions?

What happens when a will is lost or destroyed?

Can attorneys be sued in negliegence for fucking up will?

Answer 7

Physcial - (a) intent to revoke (b) Physcial act - most states say that revocation must “touch the language” of the will while UPC says any act of cancellation will suffice.

(1) Will in possesion of T from time of execution to death and found in mutilated condition - T dud mutiliating with intent to revoke
(2) will last see in T’s posession and control not found after T’s death - Reason it cant be found is that T destroyed it.

Revocation by proxy - (1) At T’s direction and (2) In T’s conscious presence.

Proponents have burden of proving contents of will. (1) Copy and one witness or (2) clear and convincing evidence.

Yes - Lucas V. Hamm.

Revocation by inconsistency - Where codocil makes no reference to will but contains slightly inconsistent provisions, to the extent possible, the will and codicil are read together. But to extent of any inconconsistent provisions, the later document controls and thereby revokes by inconistency the prior will. (Same rule applies when there are two wills and the second does not in terms revoke the first). (a) if the second will has no residuary clause, it is presumptively a codicil. (B) If the second will has a residuary clause, Second will presumptively revoke the first and you only go with the terms of the second will.

Revocation by divorce - Divorce following will revokes all provisions in favor of the ex -spouse - construe the will as if they are dead. - mere seperation does not work unless there is a clear property settlement.

Question 8

What are the rules concerning interlineation and changes after execution of a will?

HYPO - T’y typewritten will made a bequest of 10,000 to my friend X. Subseqent to the wills execution, T drew a line through the figure 10,000 and wrote above it 15,000. T then signed his name in the margin. What happened?

What is Depenedent Relative Revocation?

Answer 8

10,000 dollars has been cancelled.

The interlineation is not given effect unless (1) the will is re-executed or (2) republished by codicil.

DRR allows us to disregard revocation which is based on on a mistake of law or fact if the court is satisfied that but for the mistake, T would never have made the revocation.

Question 9

HYPO - T executes will- 1 which devises his residuary estate “ in trust to pay the income to my granson untill he attains the age of 30, at which time to distribute the principle to G. In 2013, T executes a new will, WILL - 2, hereby revoking all wills heretofore made by me”. Will - 2 devises his residuary estate to G outright. However, T does not destroy Will - 1. In 2015, T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper “ you know, I think the property should be held in trust for G after all. With this, he destorys will - 2 with the intent of reviving will - 1. T dies in 2017. He is survived by G and by his daughter, S, whom he hates. Who takes what?

Hint - what is the revival rule under the MPC?

Answer 9

Will 1 was revoked in 2013 by the execution of Will - 2.

Will 2 was revoked by the physical act in 2015.

Under the UPC, Will - 1 is revived only if it still exists; T wanted it revived; and Will - 2 was revoked by a physical act. In other states that dont follow the MPC, to get will- 1 back, it must either be re-exeucted or republished by codicil.

However, in states where will - 1 is not revived, you can try and use DRR.

Question 10

What is the incorporation by reference rule?

Answer 10

(1) writing must be in existence at time will was executed (2) the will must manifest an intent to incorporate the document and (3) the will must describe the writing sufficicently to permits its identification.

Tangible personal property exception in the UPC allows for a post execution writing if the written statement or list is signed by T and describes the property with reasonable certainity.

Question 11

What is the acts of independent signifance rule? (Wills)

Answer 11

Acts having an independent lifetime motive may impact on will as well. (exhanging the volkswagon to a cadillac) after execution- son still gets the cadillac.

Question 12

What is the lapse rule? (wills)

Answer 12

When a benficiary named in the will dies before (or in UPC states, within 120 hours of the testator), the gift lapses UNLESS it is saved by an antilapse statute.

For the antilapse statute to apply, the predecesing benficiary must be either T’s grandparent or a lineal descendant of a grandparent who leaves issue who survive T.

Question 13

What is the class gift rule (Wills)

Answer 13

When there is a gift by will to a group of persons generically described as a class, and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.

Question 14

What is abatement and what is the order in which you you use the property?

What is ademption? What are the modern exceptions?

Answer 14

Abatement is when gifts are satisfied to pay expenses when an estate is insolvent.

(1) Intestate property (2) Residuary Bequest (3)General legacy (4) demonstrative legacy - “i give the sum of 5k to be paid from the proceeds of my acme stock (5) specific devise or beqeust.

When a speific devise or bequest is no longer available, the devisee gets nothing. However, this does not apply to demonstrative gifts.

(a) Will executed before T declared incompetent : if conservator sells the property, or if condemnation award ot insurance proceeds related to the property are paid to the conservator, the specific devisee has a right to (1) general legacy equat to the net sale price (2)condemnation award or insurance proceeds, unless testator’s disablity has been adjudicated to have ceased and testator survives the adjudication by a year. - Must be unpaid at death.

Question 15

What is the stock rule ? (Wills)

Answer 15

Stock splits - devisee gets all the shares

Stock dividends - Devisee only gets the orignial 100 shares.

Under the UPC - they get both - “ devisee gets any addiitional or other securities of the same entity owned by the testator because of action initiated by the entity”.

SPECIAL RULE FOR BEQUETH OF SECURITY - “ i bequeth 200 share of my stock” - this is specific and is thus adeemed.

Question 16

exoneration of lien rule (wills)

Answer 16

Common law - yes

UPC- No, specific devisee of encumbered property is not entitled to have encumberance paid for unless the will shows such intent. General direction to pay debts does not show such intent.

Question 17

When can extrinsic evidence be used to interpret a will?

Answer 17

Latent ambiguity - extrinsic evidence can be used.

Mistake - No. Plain meaning rule; cant disturb plain meaning of will with extrinsic evidence. - However, under the UPC, a court will reform terms of the will, even if unambigous, if intent is proved by clear and convincing evidence.

Question 18

What are the common intestacy rules?

Answer 18

1. if survived by spouse but not by issue or parent, entire estate
2. If survived by spouse and issue all of whom are also issue of spouse - entire estate
3. If survived by spouse and issue at least one of whom is not issue of spouse, spouse is commonly given a fixed amount off the top and a fraction of any excess.

Question 19

What are the way in which issues take shares intestate?

Intestacy statutes only apply to what?

Answer 19

1. Issue take per capita if all are of same degree of relationship; otherwise, they take by representation.

A B C and C - would all get 1/4

A B but C and D are dead

A and B get one fourth while the children of C and D split 1/4. - common law

Under the UPC, A and B would get 1/4 while the kids split per capita.

If all are dead - each child gets per capita

Probate estate - this is the estate that could have been controlled by a will had T executed one.

Question 20

What is the nonmarried children rule?

What is the rule on adopted children?

Answer 20

No intestate inheritance from father unless father marries mother or adjudication of paternity before or after the death of the father.

If adopted, you are cut off from original family members.

However, under the UPC, if you are adopted by stepparent, you can still inherit from orinigial parent or if you are an orphan.

Question 21

What is the simeltaneous death rule?

Answer 21

If there is any evidence that heir survived, they take. if not, they are deemed to have predisceased.

Under the UPC, a person is deemed to have predeceased the decedent unless the person survives 5 days. (however, if will says otherwise, like two days, then it is straight).

Question 22

What is the rule on advancement (wills)?

What is the rule of satisfacation?

Answer 22

Common law (minority rule) - any lifetime gift to a child or decendants presumed to be an advancement of his intestate share, to be taken into account in distrubution of the intestate’s estate.

UPC ( majority rule) - No advancament unless (1) declared as such in a contemporanoues writing by the decedent or (2) acknowledged as such in writing by the heir.

When dealing with a testate estate, a lifetime gift is not a prepayment of any interest in the will unless (i) the will provides for this treatment (ii) the testator declares in a comtemporanaoues writing that the gift is to be deducted from the devise of is in satisfcation of the devisee or (iii) the devisee acknowledges in writing that the gift is in satisfaction.

Question 23

What is the analysis of a surviving spouse question?

Answer 23

(1) Discuss spouse right to homestead, exempt property and family allowance.

(i) homestead - right to live in the home for as long as the spouse chooses, or under UPC, 15,000).
(ii) exempt property - Household furniture, automobile, furnishings, applicance, personal effects
(iii) family allowance - reasonable allowance in money out of estate for maintance of family during adminstration. - TYPICALLY, these are available in both testate and intestate estates. They are in addition to intestate share byt are are chargable against share passing under will. - Can be waived by written agreement after full disclosure.

(2) Was the will written before the marriage? (pretermitted spouse).

In most state, marriage after a will has no effect on the will. However, under the UPC, the effect of marriage following execution is that the pretermitted spouse gets an intestate share unless (1) it appears from the will that the omission was intentional or (2) T made other provision for spouse by transfer outside the will.

(3) Should spouse claim elective share of the elective estate?

The elective estate includes the net testamentary estate, which is the probate estate less exempt property, family allowance, and funeral expenses etc. Elective share is a fraction of the elective estate (1/3) but interests recieved by the spouse which are invluded in the elective estate are treated as if in satisfcation of the elective share. UPC - it is 1/2 and goes up 3% a year of marriage.

Question 24

What is the rule on pretermitted children?

What happens when a will is created when a child is thought to be dead?

Answer 24

A child born or adopted after the will was executed is entitled to take an intestate share UNLESS

it appears that omission was intentional

The testator left the other parent of the pretermitted child substantially all of his estate or

Testator provided for child by transfer outside will and intented transfer to be in lieu of provision in will.

NOTE - if if there is a codicil, you dont have a pretermitted child situation.

Common law - no relief for mistake

UPC - child is treated as pretermitted so gets intestate share.

Question 25

What is the slayer rule? (wills)

Answer 25

if person feloniously and intentionally kills decdent, he is not entitled any beneift and the property is passed as if killer predeceased decedent( remember antilapse statute here). Jointly held property with right of survivorship, he still gets his share. (Aquittal for criminal trial is not controlling).

Question 26

What is the analysis for a will contest issue?

Answer 26

1. standing? any person who would take more as heir if there were no will or as beneficiary under prior a prior will.
2. Lack of capacity? burden of proof on the contestants.
   (1) Did T understand the nature of the act he was doing?
   (2) Did T know the nature and character of his property?
   (3) Did T know the natural objects of his bounty?
   (4) Did T understand the dispostion he wished to make?

When looking at these facts, the more distant in time from the wills execution a particular fact may be, the less significant. Old age, sickness, failing memory are not on its own conclusive if T met the test.

If T had been adjudicated incompetent, this is evidence of lack of capacity, but it does not raise a conclusive presumption.

2(a) was this an insane delusion? - no basis in fact or reason, which T adheres to against all reason and evidence.

(3) Undue influence? -

Test - (a) Existence and exertion of the influence (b) effect is to overpower mind and will (c) result is will that would not have been executed absent the influence.

Influence is not undue unless the free agency of the testator was destroyed and the will produces the intent of the influencer not the testator.

(3)a - there is a presumption of undue influenece when there is a showing that a beneficiary under the wholl stands in a confidential relationship to the testator and helps draw or procure the will.

Question 27

Intestate succession rule - MEE

Answer 27

ANy property that does not pass by will upon the decedents death will be distrubuted according to the state applicable intestacy statute. In omst state, if the decendednt is survived ONLY by a spouse, the suviving spouse will inheret the entire estate. Moreover, if D is survived by a spouse AND descendants, the suriviving spouse will inherit one half or one third of the decedent estate. Under the UPC, the suriving spouse will inherit the entire estate IF ALL of the descendants are descendents of the suriving spouse.

Question 28

What occurs when a child predeceases an intestate parent?

Answer 28

(1) Strict per stripes - common law approach, estate is divided by the number of members in the first generation of children who are either alive or surivved by descendants. Each member who is alive takes their share, and the shares of the decesased members drop to the next generation.
(2) UPC approach - per capita at each generation approach - prevents people from being punished for having bigger familes.

Question 29

What are the intestate rights of children?

Answer 29

Adopted children - at common law, only blood relatives inherted from an intestate estate. TOday, are adopted children are entitled to recive the shame share.

However, even if a child is not legally adopted, adoption by estoppel can be established. COurts will look at - parents love for child, parental duties, childs obedience and compansionship, childs reliance on relationship, parent holding child out as their own. Adoption usually cuts off right to natural parents, unless adopted by a stepparent.

Question 30

What is the advancement rule?

Answer 30

At common law, gifts to heirs during a testator’s lifetime were considered advancements on the heirs intestate share of the estate, and were automically deducted. Now, they are not considered advancements unless - decedent delcared his intent in a contemporanoues writing OR heir acknowledged the gift to be advancement in writing.

Question 31

What is the incorporation by reference rule?

Answer 31

Extrintisic documents may be incoprarated into a will if (1) t intended to incorporate (2) document existed at time will was executed AND (3) Document is suffiicnetly defined in the will.

Question 32

What is the ademption rule?

Answer 32

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, testator’s intent was irreleveant. However, in most jurisidctions, a specifice devise will adeem only if the testator intended the devise to fail. If they did not, the beneficiary is entitled to any property in the estate that was bought as a replacement or a monetary devise equal to the value of the specific devise.

Question 33

What is the devises to class rule? ***

What is the pretermitted child rule?

Answer 33

A testator may devise property to a class of individuals. If a member of the class predeceases the testator, her share is split evenly among the remainding members of the class (does not lapse into the residue).

NOTE - you should analyze interpetation both as class and as not a class because if it is class of children, wont lapse into residue. If it is just his specific children, it will lapse.

Will be entitled unless omission was intentional.