Wills Flashcards
“How should X’s property be distributed? “
Elements of a Valid will** [tested feb 2021]
All valid wills require that the testator be at least 18 & have sufficient mental capacity.
It is in writing, it is signed by the testator, or by a proxy signer in the testator’s conscious presence & direction and it is signed by at least two people within a reasonable time after they witnessed 1) the signing of the will or 2) the testator’s acknowledgement of that signature or will.
The witnesses can be minors, interested parties, or the proxy signor
A will amendment is also subject to the formality requirements of a valid will, holographic will, catch all
Holographic will*[tested Feb 2021] & catch all
A holographic will must be dated, signed by the testator and the material portions must be handwritten
Even if requirements of formal will or holographic will aren’t met, if the proponent of the will shows by CLEAR & CONVINCING EVIDENCE that the testator intended the document to be their will, it will be enforced.
Testementary Capacity (in detail)* - Issue if poor health emphasized in fact pattern
Undue Influence
An individual 18+ & of sufficient mental capacity may make a will. This is assessed at the time the individual executes the will, to see whether the individual can
1) Understand they are providing for the disposition of their property after death.
2) Know the nature & extent of their property
3) Know the natural objects of their Bounty
4) Has the ability to understand reasonably, the general nature & effect of their act of signing the will
Undue influence ( if will given to rando): presumption of undue influence if
1) confidential fiduciary relationship between grantor & fiduciary
2) fiduciary benefits from transaction
3) fiduciary had opportunity to influence grantor’s decision
- presumption rebutted by showing document was a product of testator’s own free will.
BURDEN OF PROOF on contestant to show that undue influence was exerted which caused testator to make a gift he otherwise would not make
Revocation of a will ** [Feb 2021]
Revocation of a will can occur by an execution of a subsequent will that revokes the previous will or part of the will expressly or by inconsistency. A will may also be revoked by performing a physical act with the intent & purpose of revoking the will. Another person can also perform the physical act by testator’s direction in their conscious presence.
Divorce also revokes will.
If testator only made 1 will & it’s revoked, they die intestate.
Ademption* [tested feb 2021]
Ademption occurs when there is specifically bequeathed property in the will that is no longer a part of estate at time of testator’s death.
Presumption of nonademption, so when a statue doesn’t compensate the beneficiary, the devisee is entitled to 1 of the following unless facts show ademption was intended by testator:
- Insurance proceeds for injury to the specifically devised property unpaid @the death of testator.
- Replacement for specifically devised property
- Cash value of property (if 1 & 2 not met) at time of disposition
Beneficiary Predecease Testator** [tested feb 2021]
An individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent, unless the will says otherwise or application of rule would result in the property escheating to the state.*
If a beneficiary predeceases the testator, the gift lapses & becomes part of the residuary estate because a will cannot distribute property to dead person.
Anti-lapse statute states that if a devisee fails to survive the testator &that person is a grandparent, gp’s descendant or a step –child of the testator, the gift will pass to the descendants of the beneficiary as long as they live 5 days after testator’s death.
The statute names the take of the gift, not the beneficiary’s will.
The surviving descendants take by representation, the property which the devisee would have taken had they survived the testator.
The antilapse statute also provides that the devisee is entitled to any proceeds unpaid at death for injury to the property (including insurance proceeds).
Mortgages and exoneration
A property passes subject to any mortgage or other security interest existing on the date of death w/o right of exoneration, regardless of a general directive in the will to “pay all my debts.”
If spouse is purposely omitted? Or doesn’t like what she’s given in will?*
Option 1: take under will (usually gets nothing)
Option 2: Elect against the will under the elective share state*
½(intestate share) – ½ (value of all property received from decedent outside will) + HEF
^ jointly held property, insurance proceeds, transfers/gifts made within 2 years before decent’s death
HEF ( all adjusted annually for inflation) =
Homestead allowance of I5K
Exempt property allowance of 10K
Reasonable family allowance of 18K
Divorced spouse under will? [Feb 2021]
&
Wife/husband made will b4 marriage to spouse
A divorce revokes a revocable disposition/ appointment of property made by a divorced person to their former spouse in a governing instrument, such as a will. The will be read as if the former spouse disclaimed/ predeceased the testator.
A separation doesn’t count!!
Also revokes revocable disposition of property to their former spouse’s relatives (i.e. his/her kids)
spouse made will b4 marriage to spouse
- Pretermitted spouse
Optional 1: Elective share + HEF
Optional 2: omitted share
^ intestate share – property left to noncommon children + HEF
Intestacy** [likely to be tested]
- Dies w/spouse +common children
Spouse: is 150k + ½ remainder of estate + HEF
-Remainder to descendants by rep. - Dies w/spouse + no common children.
Spouse: 100k + ½ remainder of estate + HEF
**3. Dies w/descendants but w/o spouse
Goes to decendant’s descendants by representation
A descendant is all of the testator’s descendants of all generations w/the relationship of parent and child.
Child is NOT foster/stepchild, daughter in laws/son-in laws
Child = unborn baby who survives for 120 hours after his birth ,adopted child, child born out of wedlock ,and adoption by estoppel→ parent promises to adopt but doesn’t. “ I should try to adopt you” + meeting w/ lawyer to discuss possibility is NOT adoption by estoppel
- Dies w/o spouse ,descendants or parents who qualify
1) Siblings (half &whole) &if they are deceased then sibling’s descendant’s OR
2) Grandparents ( ½ paternal, ½ maternal) & their descendants if they aren’t alive (ie aunts/uncles
Representation
1) Look to see first generation where anyone is alive
2) 1 share for each person alive, and 1 share each person who although dead still has surviving children.
3) Combine shares of dead people ÷ by # of children.
What happens if child is born after will?
- If child is born after will but there were other children alive when will was written?
- Child receives same share as other children. - Child born after will written & no other child when will was executed?
- Child receives intestate share unless the will devised all/almost all of the property to the other parent of child.
Contesting Will
Only interested persons, not creditors can contest will. A no contest clause generally disinherits anyone who contests a will, however no contest clauses will not be enforced if probable cause exists to contest the will. This is evidence that would lead a reasonable person to conclude there is a substantial likelihood that the challenge would be successful.
Non probate assets
A life insurance policy & death benefits are non-probate property and are governed by K law. As set forth in the agreement, named beneficiaries are entitled to the proceeds of the policy.
