Wills Flashcards
- Gift
a. Donor has mental capacity and intent to make gift
b. Gift delivered to donee or agent
i. Provides clear manifestation of donors intent to divest himself of title and possession
ii. EX. donor clearly expresses written intent to give gift, describes gift, signs document and passes writing out of his control with intent it reaches donee
c. Donee accepts gift - presumed
- Establishing parentage
a. Must file affidavit with circuit court within 1 year of decedents passing to contest parentage
b. Must be established by clear and convincing evidence
c. VA allows evidence such as
i. Father openly cohabited with mother for 10 months prior to childs birth
ii. Father allowed child to use his last name
iii. Father claimed child on government documents
iv. Evidence conclusively established parentage
v. Voluntarily admitted child was his in writing under oath
- Division of Estate
a. Expenses and costs from administering estate
b. Claims for family allowance ($24k lump/$2k month), personal property exemption ($20k), AND homestead allowance ($20k for surviving spouse)
c. ESTATE DISTRIBUTION
i. 1/3 of remaining estate to surviving spouse (no children/descendants of surviving spouse
ii. 2/3 to children or descendants of intestate by representation
iii. OTHERWISE
iv. Surviving spouse entitled to 100% estate
- When is spouse not entitled to distribution of intestates estate
a. When surviving spouse elects for homestead allowance
i. Surviving spouse may choose an elective share of intestates augmented estate (married for at least 15 years gets ½ augmented estate) entitled to homestead allowance in addt
Properly Executed Will - Attested
attested will must be in writing and signed by testator (or proxy at testator direction and in testators presence)
Signature Reqs for Attested Will
Testator must sign or attest to her signature in presence of at least 2 competent witnesses
Testamentary Capacity
VA exists if at the time will was executed, testator was of sound mind and at leas 18 y/o
Sound Mind
sound mind if at time will was executed he is
- capable of recollecting his property and nature of his bounty
- knew business he was engaged in and how he wanted to dispose of it
proponents of will burden of proving mental competence
preponderance of the evidence
factors not inc in determining sound mind
not on its own dispositive
- testator in guardianship
- testator sickess or impaired intellect at other times
ii. SOF PREVENTS ENFORCEMENT OF PAROL K TO CONVEY LAND BY WILL IN AN ACTION AT LAW
b. Action based on express K likely will not prevail because even though the service could have been performed within one year because SOF prevents conveyance of land without adhering to SOF
enforcing land sales k not in writing
a. can impose constructive trust on the property for Nancy and compel Annies children to surrender title to house to her
b. VA three part test for enforcing land sales k not in writing
i. Agreement in certain and definite terms
ii. Party seeking enforcement, performed pursuant to the agreement
iii. Failure to enforce agreement would amount to fraud
- Claim to collect value of services rendered
ASSUMPSIT FOR QUANTIM MERUIT
ASSUMPSIT FOR QUANTIM MERUIT
a. When one party confers benefit for another and has reasonable expectation of compensation, allowing benefitted party to receive benefit without any costs would be unjust
ELEMENTS OF ASSUMPSIT FOR QUANTIM MERUIT
i. P conferred measurable benefit
ii. P acted without gratuitous intent
iii. Unfair to let D retain the benefit because D had opportunity to decline benefit but knowingly accepted it or P had reasonable excuse
