Wills Flashcards
What explains how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition)?
Intestate Succession
If the decedent’s spouse and parents do not survive the testator, what are the two available schemes to divide property among the decedent’s children?
Per capita at each generation: all cousins treated alike—find generation where there are issue living; give one share for each living issue and one share for each person in that generation who is dead but has issue surviving; combine the shares belonging to the dead people and distribute them equally at the next generational level.
Per capita with representation (per stirpes): child takes parent’s share. Same as above except instead of combining and dividing equally, simply pass each deceased person’s share on to her issues.
Decedent dies without a will but gave a child a gift during her lifetime. Should the gift be deducted from what the child would inherit under the laws of intestate succession? (Advancements)
CL: lifetime transfer to an heir was treated as a down payment on the heir’s intestate share and was taken into account when computing the heir’s intestate share.
Majority: lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless evidence shows the decedent intended it to be an advancement.
Decedent dies with a will but gave a child a gift during her lifetime. Should the gift be deducted from what the child would inherit under the laws of intestate succession?
(Ademption by satisfaction)
A lifetime gift is not a prepayment unless: (1) the will says so, (2) testator declares in a contemporaneous writing that the gift is to be deducted from the will, or (3) the devisee acknowledges in writing that the gift is satisfaction of the bequest.
General rule to execute a valid will
In writing, signed by the testator, and witnessed by two witnesses.
Also that the testator is 18+ and intended that the document is his will.
Note: generally, any mark made with intent to adopt the will counts as a signature.
Holographic wills.
Unwitnessed wills.
Majority: Valid if signed and in the testator’s handwriting.
Some states say holographic wills are not allowed.
UPC Dispensing Power
A court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.
Incorporation by reference
A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an (1) intent to incorporate the writing and the writing is (2) identified with reasonable certainty. This writing must exist at (3) the time the will is executed.
UPC: testator can dispose of tangible personal property by a signed memorandum.
Revocation of a will by physical act—execution of a new will or cancellation/other writings on the will.
Must be done with the intent to revoke the will. Testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.
Dependent relative revocation.
Under this doctrine, a first will isn’t revoked if a later will is found invalid.
If a testator revokes a will/bequest based on a mistaken assumption of law/fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.
Divorce—revocation of a will.
Revokes gifts in favor of a spouse.
There actually needs to be a divorce/annulment, not just a filing of divorce.
When a gift fails because the beneficiary is not alive:
If a beneficiary does not survive the testator, the gift will LAPSE or fail and fall into the residuary.
Anti-lapse statutes: if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.
Slayer Statute.
An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate.
Voluntary manslaughter is a form of a felonious and intentional killing.
If a beneficiary accidentally kills the decedent, the slayer rule does not bar a gift, nor does it bar a gift if the slayer murdered someone other than the decedent.
When a gift fails because the property no longer exists.
If specifically devised property is not in the testator’s estate when the testator dies, the bequest adeems—the gift fails.
Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property.
Disclaimers.
Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. An anti-lapse statute may apply; otherwise the gift will fall into the residuary.
Abatement
When the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts.
Mental capacity to execute a will
A testator must have capacity to execute a will.
The burden of proving the testator lacks mental capacity rests on the contestant. A testator meets this requirement if the testator knows (1) the nature and extent of his property, (2) the persons who are the natural objects of the testator’s bounty, (3) the nature of the instrument that the testator is signing, and (4) the disposition that is being made in the will.
Undue influence.
Present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made.
The burden of establishing undue influence generally is on the will contestant who must show: (1) the testator was Susceptible to undue influence, (2) the alleged influencer had the Opportunity to exert undue influence (3) the alleged influencer had a Disposition to exert undue influence and (4) the will Appears to be a product of undue influence. (SODA)
Most courts only invalidate portions that are infected by undue influence.
What if a portion of the will follows the testator’s signature?
If the clause is present at the time the will is executed: some states say anything below the signature is bad; most states say the will, including the clause, is valid.
If the clause is added after execution: will is still valid, but the addition is not.
Presence Requirement for Witnesses
Scope of Vision Test (minority): T and witnesses are in each other’s presence only if they could see each other sign were they to look.
Conscious Presence Test (majority): T and witnesses are in each other’s presence if they are conscious of where each other is and what each other is doing.
Interested Witnesses
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 or witness-beneficiary would be an heir if there were no will (she takes lesser of given amount in will or intestate share).
UPC and modern trend: a will is not invalid because the will is signed by an interested witness.
Note: frequently raises undue influence issue.
In most states, cancellations must:
Touch the language of the will.
“VOID” on the back of the will is insufficient revocation by physical act.
In the UPC: this will cancel the will.
Note: must be on the will itself, not a copy.
What is the presumption if the will is in T’s possession from time of execution until death and found in mutilated condition after T’s death?
T did mutilating with intent to revoke.
What is the presumption if the will was last seen in T’s possession and control not found after T’s death?
Reason it can’t be found is that T destroyed with intent to revoke.
Revocation of a will by another person must be:
(1) at T’s direction and (2) in T’s conscious presence.
Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are _____. But to the extent of any inconsistent provisions, ______.
Read together
The later document controls and thereby revokes by inconsistency the prior will.
Note: the same rule can apply when there are two wills and the second does not in terms revoke the first. If the second has no residuary clause, it is presumptively a codicil to the first. There is an implied revocation only for inconsistencies. If the second has a residuary clause it presumptively revokes the first in its entirety.