Wills

Question 1

what are the statutory formalities for a will?

Answer 1

T must be 18 or over

Will must be written
- anything that is a oral is NOT a will

have testamentary intent

T must sign the will

Two attested witnesses who witness T’s signing

Question 2

will an X serve as signature on a will?

Answer 2

yes!

signature may be another person at T’s direction, in T’s presence

Question 3

what is the special uniform probate code (UPC) provision?

Answer 3

a court can validate a defectively executed will if the will proponent establishes by clear and convincing evidence that the testator intended the document to be his will.

A will that is signed by the testator and a notary is valid without the need for any witnesses.

Question 4

what is a notarial will?

Answer 4

the testator either dictates its provisions to the notary or hands him an instrument declaring that it contains his will.

Question 5

what happens if a portion of the will follows the testator’s signature?

a clause present at the time of execution

Answer 5

some states– wills must be signed “at the end” of

UPC and the majority: the will including that clause is valid

everything above = good
everything below= bad

Question 6

what happens if a portion of the will follows the testator’s signature?

a clause added after execution

Answer 6

uniform- will valid but addition is NOT valid

Question 7

EXAMPLE:

T writes a document in her own handwriting that reads “this is my last will. I revoke all earlier wills. i leave everything to the YMCA.”

T signs the instrument. Is it admissible to probate?

Answer 7

1/2 of states: holographic will not allowed. Not entitled to probate unless 2 attesting witnesses.

UPC and some other states is valid if material provisions in own handwriting and signed by them.

Question 8

what are material provisions?

Answer 8

ID property

beneficiaries

Question 9

what is a holographic will?

Answer 9

a will written in the testator’s handwriting

Question 10

EXAMPLE:

T in hospital bed with contagious disease when will executed. Two witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind screen “this is my will. it loos ok; where do I sign?” After T signs, will brought out to hall. witnesses sign in hall. has will been validly executed?

Answer 10

Minority rule- scope of vision test: (line of sight) witness only if to see T sign; if they were too look

Majority rule- conscious presence test: witness if they are conscious of where T is and what they are doing.

Question 11

EXAMPLE:

T is a domiciliary of Pennsylvania and owns some real estate in state x. while on vacation in Florida, T executed a will that meets the requirements for valid will in Pennsylvania but not in State X. later T dies after having changed his domicile to New York. Is the will valid for purposes of disposition of the state X real estate?

Answer 11

Common law and a few remaining states:
NO, no control over real estate unless comply with their law.

UPC and majority:
Yes, will be given affect in an ancillary proceeding if meets tests

Place of execution
Domicile at death
Domicile at execution

PRIM: administration is where T died and was domiciled

ANCILLARY= every state real property

Question 12

“I give to my faithful nurse Nell the sum of $30K” Nell is one of two attesting witnesses to the will. Is the will admissible to probate?

Answer 12

OLDER (MAJORITY) RULE: interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless:
- there were two disinterested attesting witnesses (supernumerary rule);
OR
- witness- beneficiary would be an heir if there were no will, in which case she takes lesser of (1) amount given in will OR (2) intestate share

NELL LOSES!

UPC AND MODERN TREND: interested witness rule abolished. “ a will or any provision thereof is not invalid because the will is signed by an interested witness”

NELL WINS!

interested witness situation frequently raises undue influence issue.

Question 13

what is self-proved wills?

Answer 13

at time will is signed by T and attesting witnesses (or some time thereafter, in T’s lifetime), T and witnesses sign self-proving affidavit under path before notary public.

affidavit recites all elements of due execution.

Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed.

Question 14

EXAMPLE:

in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document. Will revoked?

Answer 14

YES!

Cancelled– must have both act + intent

Question 15

what does revocation by physical act require?

Answer 15

intent to revoke
Physical act

typical statute refers to: burned, torn, cancelled, obliterated or destroyed

Question 16

EXAMPLE:

in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document.

what if VOID was written on the back of the will?

what if VOID was written on the face of a copy of the will?

Answer 16

VOID was written on the back of the will:
helpful to clarify intent BUT not critical

MOST STATES: must cross some of the language off the will- any language doesnt count
UPC: is cancelled because can appear

VOID was written on the face of a copy of the will:
not good in any state- must cross language that appears on the will.

Question 17

EXAMPLE:

in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document.

what would be the presumption if:
Will in T’s possession from time of execution until deasth and found in mutilated condition after T’s death

Answer 17

T did mutilating with intent to revoke

Question 18

EXAMPLE:

in 2014, T properly executed a will in duplicate giving all property to her kids. In 2016 she wrote “VOID” on one of the copies of 2014 will and drew many vertical lines across front of the one-page document.

what would be the presumption if:
Will last seen in T’s possession and control not found after T’s death.

Answer 18

T destroyed it with intent to revoke

Question 19

EXAMPLE:
t calls her attorney, the place where the will is located, and orders her attorney to destory T’s will. The other is never carried out.

will revoked?

Answer 19

No!

Question 20

EXAMPLE:
t calls her attorney, the place where the will is located, and orders her attorney to destory T’s will. The other is never carried out.

what if the attorney had revoked the will according to T would the will have been effectivley revoked?

Answer 20

NO

Question 21

what is needed when revoking a will by another person?

Answer 21

must be:
at T’s direction

and in T’s presence

Question 22

EXAMPLE:
t calls her attorney, the place where the will is located, and orders her attorney to destory T’s will. The other is never carried out.

if will was not revoked, how could it be probated, given that it was destroyed?

Answer 22

by satisfying the lost wills statute

Question 23

Lost will statute?

Answer 23

in UPC and most states:

lost will requires formal proceeding where proponents have burden or proving the contents of the lost will.

copy and one witness or other “clear and convincing proof”

Question 24

T’s 2010 will leaves blackacre to X, her diamond ring to Y and reside to Z. T’s 2013 codicil leaves $5K to Y and her diamond ring to M. Codicil does not expressly revoke earlier will.

who takes what?

Answer 24

M: the ring
Y: $5K no ring
X: Blackacre
Z: residue

REMEMBER: attorney can be sued in negligence or messing up the will.

Question 25

what is a codicil?

Answer 25

amendment to will

Question 26

what happens when a codicil does not make reference to the will and contains inconsistent provisions?

Answer 26

to the extent possible the will and codicil are read together.

but to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.

Question 27

what happens if there are 2 wills and the second does not revoke the first?

Answer 27

if the second will has no residuary clause, it is presumptively a codicil to the first. there is an implied revocation only to the extent of the inconsistency.

if the second will has a residuary clause: revokes the 1st will in its entirety by inconsistency

Question 28

what is the UPC rule when it comes to revocation by 2nd will or codicil?

Answer 28

revocation of a will revokes all codicils thereto BUT revocation of a codicil to a wills does not revoke the will

Question 29

T’s will devises entire estate “to my wife, sheila, if she survives me; if she does not survive me, in trust for my children” the will names Sheila as executor “ if she is able”; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.

who takes what? who serves as executor?

Answer 29

UPC and most states: divorce following a will revokes all provisions in favor of the ex-spouse; construe as if she were dead.

Question 30

T’s will devises entire estate “to my wife, sheila, if she survives me; if she does not survive me, in trust for my children” the will names Sheila as executor “ if she is able”; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.

T and Sheila marry each other again?

Answer 30

Sheila comes back into the will

Question 31

T’s will devises entire estate “to my wife, sheila, if she survives me; if she does not survive me, in trust for my children” the will names Sheila as executor “ if she is able”; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.

T and Sheila separate without a divorce?

Answer 31

mere separation does not affect the will

Question 32

T’s will devises entire estate “to my wife, sheila, if she survives me; if she does not survive me, in trust for my children” the will names Sheila as executor “ if she is able”; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.

what if they separate without a divorce BUT they have a separation agreement?

Answer 32

then the agreement will be considered a waiver by her of the her rights; construe as if she is dead.

Question 33

T’s will devises entire estate “to my wife, sheila, if she survives me; if she does not survive me, in trust for my children” the will names Sheila as executor “ if she is able”; otherwise X is to serve as executor. Two years later Sheila divorces T/ T dies 2 years after that without having revoked or modified his will. T is survived by Shiela, by 2 children and by X.

will their divorce revoke a provision for Sheila in T’s revocable inter vivos trust?

Answer 33

Yes, write her out of both the will and the trust

Question 34

T’s typewritten will made a bequest of $10K to my friend X. subsequent to the wills execution, T drew a line through the figure $10K and wrote in above it $15K. T then signed his name in the margin opposite the change.

has the 10k bequest to X been revoked?

Answer 34

Yes, revoked by physical act- can revoke the entire will or only part of it.

Question 35

T’s typewritten will made a bequest of $10K to my friend X. subsequent to the wills execution, T drew a line through the figure $10K and wrote in above it $15K. T then signed his name in the margin opposite the change.

can the interlineation be given effect?

Answer 35

No unless:

after change T either re-executed (signed again with a witness)
OR

T re-publishes by codicil (makes changes to will by codicil)

Question 36

what is the dependent relative revocation?

Answer 36

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

Question 37

in 2008, T executes will-1 which devise his residuary estate “in trust to pay the income to my grandson G until he attains the age of 30, at which time to distribute the principal 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. importation part of the story: 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 housekeepper, “you know, i think the property should be held in trust for G after all”. with this he destroys 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 detests.

who takes what?

has Will-1 been revoked?

has will-2 been been revoked?

Answer 37

Will-1 been revoked:

yes in 2013 at the executrion of will 2; if will 2 expresses revocation of #1 then earlier wills are revoked

will-2 been been revoked:

yes by physical act

Question 38

in 2008, T executes will-1 which devise his residuary estate “in trust to pay the income to my grandson G until he attains the age of 30, at which time to distribute the principal 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. importation part of the story: 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 housekeepper, “you know, i think the property should be held in trust for G after all”. with this he destroys 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 detests.

did revocation of will-2 revive will-1?

Answer 38

some states:

No, only way to set #1 will be to re-execute or republish by codicil

UPC and some other states: Not automatically, is revived if 3 tests are met:

1. it still exists
2. T wanted it revived
3. will 2 must have been revoked by physical act

Question 39

in 2008, T executes will-1 which devise his residuary estate “in trust to pay the income to my grandson G until he attains the age of 30, at which time to distribute the principal 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. importation part of the story: 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 housekeepper, “you know, i think the property should be held in trust for G after all”. with this he destroys 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 detests.

in states, where Will-1 is not revived. what other issue is raised by these facts?

Answer 39

can we get will 2 back using DRR?

Question 40

T’s will after making several specific bequests, devised Blackare “as designated in a mem, that I plan to write and that will be found attached to this will”

after T’s death, her will and a signed but unwitnessed typewritten note were found in an envelope maked “my will”. the accompanying note read: I give blackacre to the american cancer society. The note was dated 2 months after the date of the will.

T’s sole heir was a distant cousin whom she was not fond and from whom she had not heard for many years. Who takes blackare?

Answer 40

No American Cancer society because that memo was not given affect.

Question 41

to incorporate an extrinsic document by reference what needs to happen?

Answer 41

writing must be in existence at time will was executed

will must manifest an intent to incorporate the document

will must describe the writing sufficiently to permit its identification.

Question 42

can holographs incorporate non-handwritten material by reference?

Answer 42

YES!

Question 43

T’s will after making several specific bequests, devised Blackare “as designated in a mem, that I plan to write and that will be found attached to this will”

after T’s death, her will and a signed but unwitnessed typewritten note were found in an envelope maked “my will”. the accompanying note read: I give blackacre to the american cancer society. The note was dated 2 months after the date of the will.

T’s sole heir was a distant cousin whom she was not fond and from whom she had not heard for many years.

what if the facts above were the same BUT that the reference was to a memo “that i have written” and the typewritten note was dated 2 months before the will was executed?

Answer 43

close but still maybe NOT

the issue is the 3rd requirement does not describe the writing

Question 44

T’s will after making several specific bequests, devised Blackare “as designated in a memo, that I plan to write and that will be found attached to this will”

after T’s death, her will and a signed but unwitnessed typewritten note were found in an envelope marked “my will”. the accompanying note read: I give blackacre to the american cancer society. The note was dated 2 months after the date of the will.

T’s sole heir was a distant cousin whom she was not fond and from whom she had not heard for many years.

what if the will made reference to “a memo that i plan to write that makes disposition of various items in my home that are dear to me”

the accompanying note, written 2 months after the will was executed, lists various items of furniture and personal effects and names a beneficiary for each item.

Answer 44

EXCEPTION FOUND IN THE UPC AND MOST STATES:

will may refer to written statement or list that disposes of tangible personal property (other than money) not specifically disposed of by the will.

the written list must be signed by T and must describe the property with reasonable certainty.

May be written before or after the will executed; may be altered at any time.

PROPERTY CAN NOT BE:
money
real estate
stocks/bonds

Question 45

I devise the automobile that I own at death to my nephew, Ned. I give the sum of $1K to each person who is in my employee at death.

3 months after the will was executed T trades his volkswagen in on a new cadillac; the effect is to increase the value of the gift to Ned from $1K to $9k. 6 months after that T fires 2 longtime employees and hires 3 new ones.

Then T dies.

what is the effect of these events on T’s will?

Answer 45

he modified the will by his acts

acts having ID lifetime motive may impact on the will as well

as long as can find a life time motive, then is okay!

Question 46

T executes will in 2009, it provides (inter alia) I give the sum of $5K to my sister, Paula. Paula dies in 2010; she is survived by her husband H an 2 children. Paula has a will which leaves all of her estate to H. T dies in 2015. who takes the $5K?

Answer 46

Paula’s 2 kids split the $15K

Question 47

when does the UPC lapse statute apply?

Answer 47

when the predeceasing beneficiary is T’s grandparent or a lineal decedent of grandparent who lives (issue who survives T)

THIS RESTRICTS APPLICATION OF THE ANTI-LAPSE STATUTE

DOES NOT APPLY TO GIFT TO NON-RELATIVE including Spouse

Question 48

what happens when a beneficiary named in the will dies before T?

Answer 48

when beneficiary named in the will dies before (or (UPC) within 120 hours of) the testator, the gift lapses and falls to the residue and passes as part of the residuary estate

UNLESS it is saved by the state’s anti-lapse statute

Question 49

T executes will in 2009, it provides (inter alia) I give the sum of $5K to my sister, Paula. Paula dies in 2010; she is survived by her husband H an 2 children. Paula has a will which leaves all of her estate to H. T dies in 2015.

what of the fact that Paula left a will devising all her property to H?

Answer 49

doesnt matter because anti-lapse goes to decedents- H will get Paula’s property; kids get money

Question 50

I devise Blueacre to the children of my good freind, john. I leave the residue of my estate to X.

At the time T executes his will, John has 3 kids (A, B, C)

thereafter, during T’s lifetime, John has another kid (D) and his son A dies leaving a child A jr.

Then T dies, he is survived by John, John’s three kids B, C, D, John’s kid, A, Jr. and by X.

who takes blueacre?

Answer 50

B,C, and D split Blueacre equally

this is based on John’s kids at death

Question 51

what is the class gift rule?

Answer 51

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

Question 52

I devise Blueacre to the children of my good freind, john. I leave the residue of my estate to X.

At the time T executes his will, John has 3 kids (A, B, C)

thereafter, during T’s lifetime, John has another kid (D) and his son A dies leaving a child A jr.

Then T dies, he is survived by John, John’s three kids B, C, D, John’s kid, A, Jr. and by X.

what if the gift were to the children of my bother John?

Answer 52

back under the anti- lapse statute

goes to B,C, D and A jr share in BA.

anti-lapse statute saves A’s share for A Jr.

Question 53

I devise all the rest, residue and remainder of my estate in equal shares to my good friend, alan andrews, my business partner Betty Bates and my sister Carla.

Alan andrews predeceases T, leaving a child (alan Jr) who survives T. T, widower, is also survived by betty, by carter, and by an only child stephen.

who takes the residuary estate?

Answer 53

1/2 betty
1/2 carla
they are the surviving residuary beneficiaries

Question 54

what is the UPC majority rule about when a residuary estate is devised to 2 or more people and the gift to one fails?

Answer 54

the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue.

Question 55

I devise all the rest, residue and remainder of my estate in equal shares to my good friend, alan andrews, my business partner Betty Bates and my sister Carla.

Alan andrews predeceases T, leaving a child (alan Jr) who survives T. T, widower, is also survived by betty, by carter, and by an only child stephen.

what if Carla predeceased T leaving a child Carla Jr. who survived T? Andrews and Bates also survived T.

Answer 55

Back under the anti-lapse

1/3 each to andrews, 1/3 to bates. 1/3 to carla jr.

Question 56

abatement

in what order are the gifts sacrificed to satisfy funeral expenes, expenses of administration, creditors claims?

Answer 56

RULE: start at the bottom and work up the list

use intestate property to pay off expenses

Question 57

what is this an example of?

i devise blackare to my son john

Answer 57

specific devise or bequest

Question 58

what is this an example of?

i give the sum of $5k to be paid out of the proceeds of sale of my acme stock, to my sister sarah

Answer 58

demonstrative legacy

Question 59

what is this an example of?

i give the sum of 10k to my daughter donna

Answer 59

general legacy

Question 60

what is this an example of?

i give all the rest, residue, and remainder of my property to my wife, agnes

Answer 60

residuary bequest

Question 61

what happens when there is a partial intestate property?

Answer 61

“all of the residuary beneficiaries predecease T, and the case is not covered by the anti-lapse statute

Question 62

i devise blackare to my son john

BUT

what if years before her death T sold blackacre, which was specifically deviesed to John.

what is the effect on the devise to John?

Answer 62

adeemed

will says take BA if there is NO BA then takes nothing.

restricted to specific gifts

Question 63

i give the sum of $5k to be paid out of the proceeds of sale of my acme stock, to my sister sarah

WHAT IF: T sold her acme sotkc and did not own any such stock at her death.

does ademption apply to the gift to sarah?

Answer 63

no ademption does not apply to demonstrative gifts . will fund gifts with other gifts will has

Question 64

what is the doctrine of ademption?

how is it applied under common law?

how is it applied under the UPC?

Answer 64

where the property specifically devised was not the estate for any reason what is to happen next

common law: T’s intent is deemed to be immateral

UPC: T’s intent is material BUT several statutory provisions apply to avoid ademption

Question 65

UPC statutory provision applied to avoid ademption:

will executed before T declared incompetent:
if specifically devised property is sold by conservator, or if the condemnation award or insurance proceeds relation to the property are paid to the conservator then what does the specific devisee have?

Answer 65

a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds

unless

T’s disability has been adjudicated to have ceased and T survives the adjudication by one year.

Question 66

UPC statutory provision applied to avoid ademption:

will executed before T declared incompetent

what does the specific devisee have the right to?

Answer 66

to the remaining specifically devised property and

any balance of purchase price owing from purchase when contract is still executory at T’s death.

COMMON LAW: equitable conversion would apply, and T would no longer own real property, but merely a claim to the remaining purchase price.

any amount of condemnation award for taking of the property to the extent unpaid at T’s death

any amount of fire or casualty insurance proceeds unpaid at death

any real or tangible personal property acquired as a replacement for other similar property.

property acquired as a result of a foreclosure of a security interest on specially devised note.

Question 67

I give and bequeth my painting to my daughter dora. the painting was incinerated in 2017. The painting was insured and the inraunce compamny duly paid its full value of $150K to T. Subsequently T dies.

Is dora entiteld to the insurance proceeds?

Answer 67

No dora is adeemed

there was no indication that T was incompetent

if insurance policy is unpaid then she would be able to get back T rec’d the funds before.

Question 68

T’s will leaves his “Buick” to his son, james. subsequently T sells the Buick for $5K and purchases a new BMW convertible for $40K case. is james entitled to the BMW at T’s death?

Answer 68

Common law: NO

UPC: Yes, example of real/tangible property as replacement

Question 69

I bequeth my 100 shares of stock in Tax Shelters to my son, Simon. At his deasth T owned 200 shares of stock in Tax Shelters consisting of the 100 shares he woned when he executed the will, plus 100 shars distributed to T by the corproation 6 months after the will was excuted.

How many shares does Simon take?

Answer 69

COMMON LAW: 2 approaches– stock split and Stock dividends

Stock splits: simon gets all 200 shares

stock dividends: simon is limited to only 100 shares

UPC: all 200 shares! a specific devisee takes “any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.

Question 70

what is the UPC rule for shares distributed by will?

Answer 70

a specific devisee takes “any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.

Question 71

what is the common law approach for shares distributed by will?

Answer 71

stock splits and stock dividends

stock splits– they would get all that the stock associated with the account that was promised to them.

Question 72

I bequeath my 100 shares of stock in Tax Shelters to my son, Simon. At his death T owned 200 shares of stock in Tax Shelters consisting of the 100 shares he owned when he executed the will, plus 100 shares distributed to T by the corporation 6 months after the will was executed.

what if instead, Tax shelters was acquired by Ling-Temco-Vought and was a part of the merger each shareholder was given one share of LTV for every 2 shares of Tax Shelters, Inc. At T/s death he owned 50 shares of LTV stock.

Does Simon get the LTV stock?

Answer 72

common law: no adeemed

UPC: YES! a specific devisee is entitled to securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.

Question 73

I bequeth my 100 shares of Coronado common stock to A; bequeth 200 shares of baker company stock to B. Thereafter T sells all of her coronado stock and all of her Baker stock.

what are A’s rights?

what are B’s rights?

Answer 73

A= adeemed

B= the prevailing construction is not specific then gift of value of 200 shares to be paid in kind.

REMEMBER: general items= specific= adeemed;
not specific= not adeemed

Question 74

I devise Gatoracre to my son. I devise my residuary estate to my wife.

At T’s death Gatoracre is subject to a mortgage that is a security for anote on which T was personally liable.

T’s osn demands that the executor pay off the indebtedness so that Gatoracre will pass to him free and clear of the encumbrance.

is he entitled?

Answer 74

Common law: Yes

UPC: No!

Son takes the land subject to the indebtedness

Question 75

a specifick devisee of encumbered property is _________ entitled to have the encrumbrance paid out of the residuary estate unless the will shows such intent.

a general direction in the will to pay debts does not show such intent

Answer 75

NOT

Question 76

I give $5K to my nephew, John Paul Jones. At the time t executed the will he had 2 nephews whose names were James and Paul. T never met nor corresponded with either nephew and no nephew named John Paul Jones ever existed. Who takes the money?

Answer 76

in the absence of evidence. the gift will fall to the residuary.

Question 77

I give $5K to my nephew, John Paul Jones. At the time t executed the will he had 2 nephews whose names were James and Paul. T never met nor corresponded with either nephew and no nephew named John Paul Jones ever existed.

suppose T had a nephew named John Paul Jones who he hadnt seen for 10 years. After T’s death, Paul comes in and says “ theres been a mistake, T told me this was for me in the will. The stenographer says “i made a mistake it was to say Paul’s name”

is this evidence admissible?

Answer 77

MOST STATES: no because evidence violates the plain meaning rule. does not disturb the plain meaning of the an ambiguous will with evidence.

UPC: YES

Question 78

under the UPC what happens when a will was drafted incorrectly and names the wrong person to receive the distribution?

Answer 78

A court may reform the terms ofa will, even if unambigous to conform the terms to the testator’s intent if it is provided by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law.

in determining the testator’s original intent, the court may consider extrinsic evidence even though the evidence contradicts an apparent plain meaning of the will.

Question 79

common intestacy rules:

if survived by spouse but not issue or by parent who does the estate go to?

Answer 79

entire estate to the spouse

Question 80

common intestacy rules:

if survived by spouse and issue all of whom are also issue of spouse who does it go to?

Answer 80

the entire estate to the spouse

Question 81

common intestacy rules:

if survived by the spouse and issue at least one of whom is not issue of the spouse who does it go to?

Answer 81

the spouse is commonly given a fixed amount off the top and a fraction of any excess.

UNDER UPC:
the spouse takes the first $100K and one half of any excess

Question 82

common intestacy rules:

share not going to spouse or all of the estate if no spouse

all to issue if any– who is that?

Answer 82

children or grandkids

Question 83

common intestacy rules:

share not going to spouse or all of the estate if no spouse

if no issue then to who?

Answer 83

parents or survivor

Question 84

common intestacy rules:

share not going to spouse or all of the estate if no spouse

if no issue or parents?

Answer 84

brothers, sisters, decedents of them

Question 85

common intestacy rules:

share not going to spouse or all of the estate if no spouse

what is the majority rule for how the issue take?

Answer 85

they take per capita (equally) if all are of the same degree of relationship otherwise they take by representation.

Question 86

what is a probate estate?

Answer 86

an estate that could have been controlled by a will had T executed one.

it does not include life insurance, property held in trust, right of survivorship property, securities or bank accounts registered in payable on death (POD) or transfer on death (TOD) form or property T id not own at death.

Question 87

Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.

If Maude dies intestate, can Chld inherit from Maude?

Answer 87

yes because her kid

Question 88

Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.

If Frank dies intestate. Can Child inherit from Frank?

Answer 88

No unless frank marries Maude
OR
Adjudication of paternity or after Frank’s death

Question 89

Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.

If steve dies intestate. Can child inherit from steve?

Answer 89

no unless adoption by estoppel– unperformed agreement to adopt

Question 90

Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.

shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.

If Mr or Mrs. Anderson die intestate, can Cliff inherit?

Answer 90

Yes

Question 91

Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.

shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.

If cliff dies intestate, can Mr. or Mrs. Anderson inherit from him?

Answer 91

Yes

Question 92

Frank gets Maude pregnant. After child is born, Frank and Maud go their separate ways. Thereafter Maude marries Steve, Steve does not adopt Cliff.

shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.

if maude dies intestate, can cliff inherit from her?

Answer 92

No gives him rights to adoptive family and sever his rights with his bio family.

Question 93

Stepparent adoption:

If W marries H1 and has a child C. H1 dies and W married H2 who adopts C.

can C inherit from H1’s family?

Answer 93

Yes bc his relationship with his bio dad was never severed

Question 94

Orphan adoption:

both natural parents die and C is adopted by close family member. who does C inherit from?

Answer 94

C continues to inherit from other family members.

Question 95

do class gifts to “ all of my issue” does that also include adopted children?

Answer 95

yes

Question 96

rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.

rancher died intestate. Is wife an heir for purposes of intestate distribution?

Answer 96

Original Simultaneous Death Act: Yes

Revised Simultaneous Death Act: No

Question 97

Original Simultaneous Death Act:

Answer 97

if H and W die simultaneously, then H’s estate would be distributed as if W predeceased him.

But if there is evidence that W survived H (even for a few minutes) then W takes as H’s heir.

Question 98

Revised Simultaneous Death Act ( UPC)

Answer 98

when passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120 hours (5 days)

Question 99

rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.

rancher died intestate.

NOW: Rancher left will that states “ all my estate to wife” if the jurisdiction has the revised simultaneous death act, does wife take under the will?

Answer 99

No has to survive by 5 days

Question 100

rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.

rancher died intestate.

NOW: Rancher left will that states “ all my estate to wife if she survives me by 2 days. “ if the jurisdiction has the revised simultaneous death act, does wife take under the will.

Answer 100

then would be allowed to take

Question 101

rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.

rancher died intestate.

NOW: wife is named as beneficiary on ranchers’ life insurance policy.

Answer 101

no has to survive by 5 days.

Question 102

rancher and wife, involved in car crash in which rancher died immediately. the wife survived for 3 days then died.

rancher died intestate.

NOW: wife and rancher owned Redacre as joint tenants.

Answer 102

no survivor so will distribute 1/2 to wife estate and 1/2 to rancher estate

Question 103

H, a widower, gives his daughter A land worth 12K on A’s birthday and tells his other kids (B and C) that they will receive similar gifts when they reach 25. H dies before the other gifts are made. H dies intestate leaving an estate worth 78K. At H’s death A’s land is worth 15K.

how should H’s estate be distributed?

Answer 103

IF IT WERE AN ADVANCEMENT:
78K + 12k= 90K

brought into the hotchpot

the 90K would be divided equally 3 ways of which A deemed to have already received 12K of her share.

Result: A gets 18K B takes 30K and C takes 30K

Question 104

what are the common law and UPC approaches to a lifetime gift given as an advancement of the estate?

Answer 104

COMMON LAW (minority): any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate’s estate.

UPC (majority): no advancement unless:
1. the will provides for this treatment

2. declared as such in a contemporaneous writing by the decedent that the gift is to be deducted by the devise or is in satisfaction of the devise

OR

3. acknowledged as such in writing that the gift is in satisfaction

Question 105

what does the doctrine of advancement apply to?

Answer 105

intestate estates

Question 106

what does the satisfaction doctrine apply to?

Answer 106

testate estates

Question 107

what is the surviving spouses’ right to homestead?

Answer 107

the right to live in the home for as long as the spouse chooses.

UPC: the spouse gets a cash allowance in lieu of homestead

Question 108

what is the surviving spouses’ right to exempt property

Answer 108

household furniture, car, furnishings, appliances, personal affects, in a fixed amount

Question 109

what is the surviving spouses’ right to family allowance

Answer 109

reasonable allowance in money out of estate for maintenance of family during administration

Question 110

Rights of surviving spouse

was will written before marriage?

what are the spouses’ rights?

Answer 110

MOST STATES: marriage after a will has no effect on the will.

UPC: the effect of marriage following execution of will is that the pretermitted spouse is entitled to an intestate share (what would have taken if not dead)

UNLESS:
it appears from the will that omission was intentional

T made other provision for spouse by transfer outside will and the intent that the transfer be in lieu of provision in the will is shown by statements of the testator, the amount of the transfer or other evidence.

Question 111

what is an elective estate (common law)

Answer 111

includes the net testamentary estate

the probate estate - exempt property- family allowance- funeral expenses, expenses of administration and allowable creditor’s claims.

Question 112

what is an elective estate (UPC)

Answer 112

elective estate includes:

transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit.

Question 113

what is an elective estate (UPC)

Answer 113

elective estate includes:
transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit.

transfers with retained right to possess or enjoy the income from the property

transfers held by decedent and another in right of survivorship form

transfers within 2 years of death to extent aggregate transfers to any one donee in either year exceeded the gift tax annual exclusion

Question 114

what is the elective share a fraction of (common law)?

Answer 114

of the elective estate by interests received by spouse which are included in the elective estate are treated as if in satisfaction of the elective share.

IDEA keep spouse from double dipping

Question 115

what is the elective share a fraction of (UPC)?

Answer 115

the max elective share is increased to one-half but the share a spouse actually gets depends on the duration of the marriage.

in effect, the elective share vests at a rate of 3% a year until it reaches a max of 50% after 15 years.

Question 116

elective share is in addition to….

Answer 116

exempt property, family allowance, and homestead

Question 117

an elective share may be waived by….

Answer 117

written contract after full disclosure

Question 118

to claim an elective share a surviving spouse must…

Answer 118

file election within a set period of T’s death

Question 119

H and W were married in 1998. Later that same year, H executed a will leaving all of his property to W if she survived him, otherwise to M, his mother. in 2004, H and W had a child, A. W died in childbirth. in 2017 H died in a car crash accident. He had never revoked or modified his 1998 will.

what are A’s rights to share in H’s estate?

Answer 119

A is protected; A will get entire estate

Question 120

a pretermitted child is….

Answer 120

a child or adopted after will is executed

UPC: child is entitled to take an intestate share

Question 121

H and W were married in 1998. Later that same year, H executed a will leaving all of his property to W if she survived him, otherwise to M, his mother. in 2004, H and W had a child, A. W died in childbirth. in 2017 H died in a car crash accident. He had never revoked or modified his 1998 will.

what if– H had executed a codicil after A’s birth. In the codicil he named Smith instead of B as executor; in all other respects he reaffirmed and ratified the previous will.

Do we have a pretermitted child situation?

Answer 121

No bc of the doctrine of re-publication by codicil.

Question 122

believing child (doughboy) to be dead, T executed will leaving all of her estate to her spouse if spouse survives her, otherwise to John and Jane in equal shares.

John and Jane were T’s other 2 kids.

T’s spouse predeceased her and T died survived only by John, jane and Doughboy who as it turns out, was not dead.

what are doughboy’s rights?

Answer 122

here would be 1/3 each

Question 123

what is the UPC approach to child though to be dead?

Answer 123

if at the time of execution of will, T fails to provide in her will for living child solely because she believes child is dead, child is treated as pretermitted.

Question 124

what is the UPC approach to child though to be dead?

Answer 124

if at the time of execution of will, T fails to provide in her will for living child solely because she believes child is dead, child is treated as pretermitted.

Question 125

what is conduct barring a party from sharing in the estate?

Answer 125

a person who kills and intentionally kills the T is NOT entitled to any benefit from T’s estate by will or by intestacy or under life insurance.

Property passes as if the killer predeceased T.

Jointly held property with right of survivorship passes 1/2 to killer and 1/2 as if killer predeceased T

Question 126

Renunciation

when does this take place and what is the result?

Answer 126

before acceptance, an heir, devisee or appointee of a power of appointment may renounce his interest in writing in whole or in part within 9 months after the death of decedent.

results in property passing as if renouncing party predeceased decedent unless will provides otherwise.

Question 127

what is a living will?

Answer 127

a living will is a statement of an adult individual’s desires with respect to life sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment when the individual becomes terminally ill or is in a persistent vegetative state

Question 128

how must a living will be executed?

Answer 128

in writing
signed by an adult testator
or
by another at his direction

Uniform healthcare decisions act does not require witnesses, most states do.

the usual requirement is that there by 2 adult witnesses

Question 129

how must a living will be revoked?

Answer 129

by any manifestation of intent to revoke (including physical act) at any time before death without regard to the principal’s mental or physical condition

Question 130

what is a durable healthcare provider?

Answer 130

used by one person to appoint an agent to make healthcare decisions for the principal such as giving consent to medical treatment, accessing principals medical records, and admitting or discharging principal from a healthcare facility.

the instrument does not become operative until the principal loses capacity

Question 131

who is eligible to serve as an agent for a durable healthcare provider?

Answer 131

any person except an unrelated person who is associated with the principals healthcare facility

Question 132

how must a durable healthcare provider executed?

Answer 132

in writing
signed by an adult testator 
or 
by another at his direction 
the usual requirement is that there by 2 adult witnesses

Question 133

how must a durable healthcare provider be revoked?

Answer 133

unless otherwise stated in the power, by written or oral notice of revocation to either the agent or the principals’ healthcare provider.

A durable healthcare power is automatically revoked by the execution of a later durable healthcare power.

Question 134

who is liable under a durable healthcare provider?

Answer 134

an agent under a durable healthcare provider is not civilly or criminally liable or subject to discipline for unprofessional conduct for healthcare decisions made in good faith.

Question 135

probate of will

Answer 135

a will is not effective unless it is admitted to probate.

in most states impose civil liability on anyone who fails to deliver a decedents will to the court

Question 136

appointment of personal representative

Answer 136

the person who administers the estate is called a personal representative

some states refer to this person as an executor if the decedent nominated the person in his or her will and an administrator if the decedent died intestate

Question 137

priority of appointment

Answer 137

if there is a will, priority goes first to the person nominated in the will then typically to the surviving spouse unless disinherited in the will, then to other will beneficiaries

Question 138

bond requirement

Answer 138

unless waived in the decedent’s will, a PR must post bond

Question 139

power to sell property

Answer 139

in the absence of an explicit authority by will, a PR must usually get a court order to sell real property

Question 140

inventory requirement

Answer 140

the pR must file an inventory of all assets of the estate

the inventory must include the value of the property

Question 141

publication of notice to creditors

Answer 141

PR must publish notice of administration in the legal notices section of the newspaper.

the PR must send actual notice of administration to all known or reasonably discoverable creditors.

this starts a short statute of limitations.

exception for secured creditors.

Question 142

who can contest a will?

Answer 142

any person who would take more as heir if there were no will or as beneficiary under a prior will

Question 143

will contests

what if there is lack of testamentary capacity?

Answer 143

burden of proof is on the contestants

the test:
Did T understand the nature of the act he was doing?

Did T know the nature and character of his property?

Did T know the natural objects of his bounty?

did T understand the disposition he wished to make?

Question 144

will contests

what if there was an insane delusion?

Answer 144

a distinctive form of testamentary incapacity: where T is otherwise sane by the will is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, where the will is the product of the insane delusion

Question 145

will contests

undue influence?

Answer 145

burden of proof is on the contestants, who must show:

existence and exertion of the influence

effect is to overpower the mind and will of the testator

the result is a will that would not have been executed but for the influence

Question 146

will contests

influence undue?

Answer 146

unless the the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator but of the one exerting the influence.

may be shown as the entire will or as to one gift in the will.