Wills

Question 1

How much does the spouse get if someone dies without a will (if they also have descendants)? If no descendants?

Answer 1

The spouse gets 1/2 or 1/3. If no descendants, whole estate.

Question 2

Special cases involving kids: Adoption, step/foster children, children born after parent’s death, nonmarital children

Answer 2

Adoption: Adopts from adopted parents. Not from original unless original marries adopted.
Step/foster: Doesn’t receive, unless there was an unfulfilled promise to adopt (adoption by estoppel)
Children born after parents death: Only if they were descendants
Nonmarital: Always inherits from mother, inherits from dad if parents married, paternity was decided, or paternity proven after death

Question 3

Disinheritance

Answer 3

Common law: have to dispose of all property in will to disinherit
UPC: Express exclusion of an individual means they can’t receive even by intestate (passes as though they disclaimed it)

Question 4

Simultaneous death: USDA v. UPC

Answer 4

USDA: If survived even by minutes, they get the estate and passes to their heirs
UPC: says 120 hour rule–have to survive by 120 hours

Question 5

Disclaiming interest

Answer 5

Beneficiary writes that they disclaim their interest. Can’t do after benefits have been accepted. Can disclaim creditors claims to their interest (“Disclaimant has no interest that can be reached by creditors”).

Question 6

What happens when descendant kills decedent?

Answer 6

Property passes through them as though they were dead. The only thing they can keep is their share of JTWROS. Killing must have been found by preponderance of the E.

Question 7

Lifetime advancement

Answer 7

Used to be that if you got a large advance, that was counted against what you got when decedent died (also counted against your children if you predeceased the decdent) Now it’s the opposite: Presumptively not an advancement unless intent is shown.

Question 8

Is being written into a will but executor hasn’t died a property interest?

Answer 8

No, it’s an expectancy. Doesn’t become a property interest until death.

Question 9

Testamentary intent of a will

Answer 9

Testator must have PRESENT INTENT that instrument operate as his will.

Question 10

Condition precedent to will going into effect

Answer 10

Must be in the will itself. Can’t use parol E to show.

Question 11

What age and capacity do you have to have to make a will

Answer 11

Must be at least 18 years old and of sound mind.

Question 12

Requirements of creating a will:

Answer 12

1. Signed by testator (some places require at bottom)
2. Two attesting witnesses
3. Signature or acknowledgment of previous signature in witnesses’ presence
4. Witnesses sign in testator’s presence (some places require that the witnesses be together)

Question 13

What counts as a signature on a will?

Answer 13

Any mark of testator w/ intent that it operate as signature. Another person can sign if in testator’s presence/at testator’s direction.

Question 14

How do courts determine who was “present”

Answer 14

Conscious presence test: Each party conscious of where the other parties were and what they were doing

Question 15

Do phone calls count as presence?

Answer 15

No.

Question 16

How do we determine witness competency

Answer 16

Must be competent enough that could testify at court. Beneficiaries cannot be competent witnesses (can be there, but there must be two competent witnesses in addition to the beneficiary). Creditors, trustees and attorneys are not interested.

Question 17

Attestation clause

Answer 17

Describes how everything played out and is E of that in case a witness forgets/misremembers

Question 18

Self-proving affidavit

Answer 18

Recites that all elements of due execution were performed, and sworn to by testator/witnesses before a notary. Signatures on the affidavit can count as signatures on the will itself.

Question 19

How does UPC deal with harmless errors (I.e. only one witness)

Answer 19

Gives courts authority to ignore them if proponent establishes by clear and convincing E that testator intended doc to be his will.

Question 20

Holographic will

Answer 20

Will entirely in testators handwriting, signed (marked) somewhere by testator.

Question 21

Handwritten changes added to a holographic will?

Answer 21

Most courts give theses effect

Question 22

Handwritten changes to an attested will?

Answer 22

Usually not given effect and may work a revocation. BUT if in a jdx that recognizes holographic wills, courts may find that handwritten additions are a holographic codicil.

Question 23

Validity of oral wills?

Answer 23

Most states/UPC don’t recognize as valid

Question 24

Who can sue the attorney for negligence with execution of will?

Answer 24

Testator and beneficiaries. SOL begins to run on date of decedent’s death (not date will was executed).

Question 25

How is a codicil properly executed?

Answer 25

Same way as a will. Date of will changes to date of execution of codicil. Can validate a previously defective will.

Question 26

How are additions, modifications, alternations, deletions, etc. to the face of a validly executed will treated?

Answer 26

Invalid unless will is reexecuted with proper formalities or state recognizes a holographic codicil.

Question 27

How is a document incorporated into a will by reference? (3)

Answer 27

1. Document in existence at time of execution
2. Sufficiently described in the will
3. Will manifests intent to incorporate the document

Question 28

Acts of independent significance

Answer 28

Proper disposal of property by reference to acts even if they are in the future and unattested (“I give X my car; I give $1,000 to each of my employees at time of death”)

Question 29

Pour-over gift to inter vivos trust

Answer 29

Allows bequests into trusts even though trust may be revoked or amended after will is attested.

Question 30

Power of appointment

Answer 30

Giving someone (donee) power to decide who gets what property

Question 31

General power of appointment vs. special

Answer 31

Donee distributes property in favor of himself, his estate, or creditors. Special = donee distributes property to class of other people not including themselves.

Question 32

Revocation of will: ways to do it

Answer 32

Operation of law, subsequent instrument, or physical act. A person can revoke his will at any time before death, even if they said they wouldn’t (but that case might give beneficiaries breach of contract claim)

Question 33

Revocation by operation of law (3)

Answer 33

1. Marriage following execution does not revoke will, but in some states/UPC new spouse gets an intestate share unless shown testator didn’t want that
2. Divorce/annulment revokes provisions in favor of former spouse + former spouse’s relatives
3. Pretermitted children (children born/adopted after will executed) get intestate share

Question 34

Revocation by written instrument

Answer 34

A new document executed as a will can revoke earlier will. If doesn’t expressly revoke earlier will, they’re read together and new doc revokes inconsistent provisions

Question 35

Revocation by physical act (4)

Answer 35

1. Partial revocation is valid. Can use extrinsic E to prove whether partial or total revocation.
2. Presumed revocation: will last seen under testator’s control can’t be found or is found mutilated. If third person or a person adversely affected by content had access, no revocation
3. Revocation of will revokes codicils but not the other way around. Revoking a copy of the will revokes the will.
4. If a will lost or destroyed and presumption of revocation overcome, must prove valid execution, cause of nonproduction, and contents (provable by witnesses)

*ACCIDENTAL DESTRUCTION DOES NOT REVOKE–intent to revoke must be present at time of physical act

Question 36

Reviving a revoked will

Answer 36

Testator’s intent to revive must be evident.

Question 37

Dependent relative revocation

Answer 37

Only applies if testator thought another disposition of property would be effective, but it’s not.

Question 38

What is a lapsed gift?

Answer 38

If the beneficiary predeceases the testator. Usually left to the descendants of the beneficiary unless will states otherwise.

Question 39

What if the beneficiary was dead at the time the will was executed?

Answer 39

Provision is void.

Question 40

If it’s a class gift, what happens when a member of the class dies?

Answer 40

Doesn’t go to that class members descendants. Class members divide.

Question 41

Ademption definition

Answer 41

Failure of a gift because the property is no longer in the testator’s estate at the time of death. Applies only to specific devises and bequests

Question 42

Partial ademption

Answer 42

Testator devises large tract of land and then conveys part of that tract during life. Beneficiary gets the rest.

Question 43

Accessions definition

Answer 43

Increase to property after execution of a will. Stock splits are included but not stock dividends.

Question 44

Grounds for challenging a will

Answer 44

1. Defective execution
2. Revocation
3. Lack of testamentary capacity
4. Lack of testamentary intent
5. Undue influence
6. Fraud
7. Mistake

Question 45

What is a lack of testamentary capacity?

Answer 45

1. Under age 18 always
2. Capacity must be at time will was executed, doesn’t matter if lost later
3. Physical ailments/addiction doesn’t disrupt capacity
   4.

Question 46

What constitutes undue influence?

Answer 46

1. Circumstantial opportunity to influence not enough
2. Presumption arises when beneficiary was in deep confidences with testator + beneficiary active in getting the will executed. Presumption doesn’t exist btw spouses unless spouse took away free will of testator

Question 47

What constitutes fraud?

Answer 47

Willfully deceiving the testator that the will was executed successfully. Courts take away benefits from intestates and give to will’s intended beneficiaries.

Question 48

When is extrinsic E able to help with a mistake?

Answer 48

1. Mistake in execution (didn’t know it was a will) - Yes
2. Mistake re: reasons made the will the way he did (except children though to be dead) - No
3. Mistake as to contents - No (apply plain meaning)
4. Ambiguity - Yes