Wills Flashcards

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1
Q

Specific Bequests

A

Generally, when specifically bequeathed property is not owned by the testator at death, the bequest is adeemed (it fails).

Under the identity theory applied in most states, the ademption doctrine 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’sdeath, it is adeemed, and the reason it is not in the estate is immaterial.

However, under a well-recognized exception to the ademption doctrine, if a guardian or conser- vator 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—at least to the extent they have not been expended for the testator’s care.

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2
Q

If a testator is divorced after making a will, …

A

all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator.

Revoked by operation of law, and the residue will pass under the law of intestacy.

UPC: a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.

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3
Q

Intestate succession

A

the statutory method of distributing assets that are not disposed of by
will.

If a decedent’s will is denied probate (e.g., due to a successful will contest), his entire estate passes by intestacy. If there is no surviving spouse, the entire estate passes to the decedent’s children and descendants of deceased children.

In most states, if a decedent is not survived by a spouse or descendants, her intestate property passes to her parents and/or siblings (and children of deceased siblings)

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4
Q

Per capita with representation distribution (most states)

A

The property is divided at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

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5
Q

strict per stirpes

A

one share passes to each child of the decedent, regardless of whether there are any living takers at that level. If the child is deceased, that child’s share passes to his descendants by representation.

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6
Q

undue influence

A
A will (or a gift in a will)
is invalid if it is obtained through the exercise of undue influence. 

To establish undue influence, the contestants, who have the burden of proof, must establish that:

(i) influence was exerted on the testator,
(ii) the effect of the influence was to overpower the mind and free will of the testator, and
(iii) the product of the influence was a will that would not have been executed but for the influence.

A presumption of undue influence arises when:

(i) a confidential relationship existed between the testator and the beneficiary who was alleged to have exercised undue influence,
(ii) the beneficiary participated in procuring or drafting the will, and
(iii) the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence.

Once these elements appear, the burden shifts to the proponent of the will to prove that it was not induced by her undue influence.

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7
Q

whether the will is wholly or partially invalid

A

A will is void if its execution is procured by undue influence. If only a part of the will was so procured, only that part is void, and the remainder of the will is given effect.

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8
Q

distribution of a lapsed residuary gift

A

At common law and in some states, if a testator’s residuary estate (i.e., the portion of the estate that has not otherwise been particularly devised or bequeathed) is bequeathed to two or more beneficiaries and one of the beneficiaries’ shares lapses (i.e., fails), that share does not pass to the remaining beneficiaries, but instead “falls out of the will” and passes by intestacy. However, most states have replaced this rule by statute, under which the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue.

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9
Q

Statutory formalities

A

(1) T over 18
(2) written
(3) w/ testamentary intent
(4) T must sign
(5) 2 attesting witnesses who witness T’s signing

UPC:

  • court can validate a defectively executed will if will proponent established by clear & convincing evidence the testator intended document to be his will
  • will signed by testator & notary is valid w/o need for any witnesses
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10
Q

Signature placement

A

(a) clause present at time of execution
- some states: matter above signature is good, but anything below is bad
- UPC & majority: No problem; will including clause is valid
(b) clause added after execution: Will is valid, but addition isn’t

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11
Q

Holographic wills

A

UPC & some states:
valid if the material provisions are in T’s handwriting & will is signed by her
material provisions - ID property & beneficiaries who are to receive it

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12
Q

Presence requirement

A

Scope of vision test (minority) - T & witnesses are in each other’s presence only if they could see each other sign were they to look

Conscious presence test (UPC, majority) - in each other’s presence if they are conscious of where each other is & what each other is doing

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13
Q

Conflict of laws issues

A

UPC & majority valid in:

  • place of execution,
  • domicile at death, or
  • domicile at execution
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14
Q

Interested witness

A

Older (majority) rule: beneficiary-witness loses legacy unless:

(1) there were 2 disinterested attesting witnesses, OR
(2) witness-beneficiary would be an hair if there were no will —> takes lesser of (1) amt given in will, or (2) intestate share

UPC & modern trend: Interested witness rule abolished
Note - frequently raises undue influence issue

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15
Q

Self-proved wills

A

At the time will is signed by T & attesting witnesses, T & witnesses sign a self-proving affidavit under oath before a notary public.

Formalities of execution –> conclusively presumed

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16
Q

Life insurance proceeds

A

Life insurance proceeds are a nonprobate asset and pass to the beneficiary outside of the estate. A life insurance policy is a contract, and the disposition of the proceeds is governed by the terms of the contract. Most life insurance policies provide that a change in beneficiaries can be made only by notifying the company during the owner’s lifetime. A will cannot change
the beneficiary designation unless the terms of the contract permit it.

17
Q

Incorporation by reference - Separate memorandum to dispose of property

A

In most states, a document that is not present when the will is executed may be incorporated into the will by reference and considered part of the will if:

(1) it was in existence at the time the will was executed,
(2) the will sufficiently describes the document, and
(3) the will manifests an intent to incorporate the document.

In addition, for the disposition of items of personal property, many states and the Uniform Probate Code (“UPC”) dispense with the requirement that the document be
in existence at the time the will is executed if the writing is signed by the testator and the items and devisees are described with reasonable certainty.

18
Q

Abatement

A

When an estate’s assets are not sufficient to pay all claims and satisfy all bequests and devises, gifts abate. Abatement is the process of reducing gifts. Unless the testator specifies an order of abatement, gifts abate in the following order:

  • intestate property,
  • the residuary estate,
  • general legacies, and
  • specific devises and bequests.