Wills

Question 1

Execution of Wills - Elements

Answer 1

• Testamentary Intent
• Testamentary Capacity
• Statutory Formalities Followed
  
  • specific requirements depend on the type of will

Question 2

Testamentary Intent

Answer 2

At the time of execution, Testator intends that this particular document be his will

Can be overcome by:

• Undue Influence
• Fraud
• Mistake

Question 3

Undue Influence

Answer 3

• Challenger must prove the wrongdoer exerted such influence over Testator that:
  
  • Overcame Testator’s free will, and
  • Caused Testator to make a transfer he wouldn’t have otherwise made
• Presumption of undue influence if:
  
  • The wrongdoer was in a confidential relationship with Testator, and
  • There was suspicious circumstances surrounding the preparation/execution of the will

Question 4

Presumption of Undue Influence if:

Answer 4

• The wrongdoer was in a confidential relationship with Testator, and
• There was suspicious circumstances surrounding the preparation/execution of the will

Question 5

Fraud in the execution

Answer 5

Fraud as to the nature of contents or the writing itself

Will is invalid

Question 6

Fraud in the inducement

Answer 6

Established by proof that a beneficiary made a knowingly false representation to Testator for the purpose of inducing Testator to execute a will in his favor, and Testator wouldn’t have made such devise in absence of the representation

If only part of will was product of such fraud → court can reject that part (falls into residue) and probate rest of the will

Question 7

Mistake in the execution

Answer 7

Mistake as to the nature of the document

Will is invalid

Question 8

Mistake in the inducement

Answer 8

Testator executes a will/clause because Testator is mistaken to the true facts

Does not effect testamentary intent → no relief granted

Question 9

Testamentary Capacity

Answer 9

Testator must be at least 18 years old and be of sound mind when the will is executed

Question 10

Sound Mind (Testamentary Capacity)

Answer 10

Testator has ability to understand the:

• Nature, condition, and extent of his property,
• Nature of the disposition that he is making of his property, and
• Names of, and relationship to, the natural objects of his bounty (i.e., the beneficiaries)

Question 11

Statutory Formalities

Answer 11

The requirements depend on the type of will:

1. attested will
2. holographic will
3. contract to make a will
4. joint/mutual will, or
5. a codicil to a will

Question 12

Attested Will

Answer 12

An attested will must be:

• In writing,
• Signed by Testator, and
  
  • Or by someone in Testator’s presence who Testator directs to do so
• Witnessed or attested
  
  • Attested = Acknowledged by the testator before a notary public
  • Witnessed = Signed by two people, each of whom signed within a reasonable time of witnessing Testator sign the will or hearing Testator acknowledge that the signature on the will is his §
    
    • Interested witnesses (i.e., beneficiaries under the will) are valid under the UPC

Question 13

Holographic Will

Answer 13

To be valid under UPC:

• Material portions in Testator’s handwriting, and
• Testator must sign the will

Question 14

Contract to Make a Will

Answer 14

• A contract to dispose of a person’s property (real or personal) by will is valid under UPC
• A contract to make or not revoke a will, or to die intestate is established by:
  
  • Provisions of Decedent’s will stating material provisions of the contract,
  • An express reference in Decedent’s will to a contract and extrinsic evidence proving the terms of the contract, or
  • A writing signed by Decedent that evidences the contract

Question 15

Joint/Mutual Will

Answer 15

• In many states, when two people execute a single document as their joint will → presumption that the parties had contracted not to revoke except with consent of both
• UPC → no presumption arises, revocable by either party

Question 16

Codicil

Answer 16

• An instrument executed after a will that refers to another document, by adding to, explaining, or deleting from a previous testamentary instrument
  
  • Must follow the same formalities as an attested will
• A codicil republishes the will to which it refers → the original will is treated as if it was written on the date the codicil was executed

Question 17

Methods of Revoking a Will

Answer 17

• Physical Act
  
  • Burning, tearing, canceling, obliterating, or destroying the entire will or any part of it
    
    • The physical act does NOT need to touch any of the words on the will but must be done with the intent to revoke the will
• Executing a Subsequent Will
  
  • If the subsequent will (W2) has an express clause of revocation → this revokes the prior will (W1) •
  • W2 can revoke W1 by implication if Testator intended W2 to replace (not supplement) W1 §
    
    • Look for W2 disposing of all or substantially all of the property disposed of in the W1
• Divorce
  
  • Upon divorce, provisions in favor of the ex-spouse are ineffective UNLESS Testator made clear that such provisions were intended to survive divorce

Question 18

Methods to Revive a Will

Answer 18

• A revoked will can be revived if it’s restated, re-executed, or republished, or there is other clear evidence of intent to revive
  
  • Republication = resign the original will and have two witnesses attest the will
  • A codicil made to a revoked will revives the revoked will as of the date of the codicil

Question 19

Lost Wills

Answer 19

If the will was in Testator’s possession prior to death and cannot be found after death → presumption that Testator destroyed the will with intent to revoke

Question 20

Contesting a Will

Answer 20

• Must have standing to contest the probate of a will
  
  • Standing = anyone with a beneficial interest if the challenge is successful (heirs always have standing)
• Grounds for contesting an executed will:
  
  • Lack of Testamentary Capacity
  • Undue Influence
  • Mistake
  • Fraud
  • Ambiguity
• In Terrorem (No-contest) clause

Question 21

Standing (Wills)

Answer 21

Anyone with a beneficial interest if the challenge is successful (heirs always have standing)

Question 22

In Terrorerem (No-Contest Clause)

Answer 22

• Attempts to disqualify anyone contesting the will from taking under it
• Most courts won’t apply the clause to disqualify a beneficiary if the challenge was based on reasonable cause

Question 23

Incorporation by Reference

Answer 23

An unattested document may be incorporated into the will if:

• The writing was in existence at the time of execution of the will
• The language of the will manifests this intent, and
• Describes the writing sufficiently to permit its identification

Question 24

Facts of Independent Significance

Answer 24

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after execution of the will

• Personal Property List
  
  • Under the UPC, Testator can write a list disposing of personal property (not $) if the writing describes the beneficiaries and property with reasonable certainty
    
    • The writing disposes of the property even if not properly attested
    • The writing can be created after the will is executed
• Dispositions to an Inter Vivos Trust
  
  • Testator can make a gift to a trust in existence at the time of his death, even if the trust was created after the will is executed

Question 25

Spouse’s Elective Share

Answer 25

A surviving spouse can decline to take under the will or pursuant to the intestacy statute, and instead to take an elective-share

• Election must be made within the later of:
  
  • 9 months after Decedent’s death, or
  • 6 months after the probate of Decedent’s will
• Amount of elective share
  
  • Up to 50% (depending on the length of the marriage) of the augmented estate

Question 26

Treatment of After-Born Child

Answer 26

If Testator does not provide for child born/adopted after making his will, the UPC protects from unintentional disinheritance unless it appears from will that failure was intentional (3 scenarios)

• If Testator had no child living when will was executed → after-born child receives an intestate share unless:
  
  • The will devised all/substantially all of the estate to the other parent of the omitted child; or
  • It appears from face of the will that testator intended to not provide for child under the will
• If Testator had one or more children living when the will was executed, and the will made a devise to a then-living children → after-born child is entitled to share equally in the portion of Testator’s estate devised to then-living children
• If Testator had living children at the time of the will’s execution but they receive nothing → after-born child will get nothing (like other children)

Question 27

Slayer Act

Answer 27

A person who participates in the felonious and intentional killing of another may not acquire property or receive any benefit as a result of that death

The slayer is deemed to have predeceased Decedent

Question 28

Simultaneous Death

Answer 28

• A person who cannot be established by clear and convincing evidence to have survived the decedent by 120 hours is deemed to have predeceased the decedent
  
  • If the time of death of the decedent or the heir cannot be determined to establish that the decedent survived the heir by 120 hours, each will be deemed to have failed to survive the other
  • Also applies to intestate succession

Question 29

Disclaimer of Property Interests

Answer 29

• A beneficiary may refuse to take a devise by filing a disclaimer that:
  
  • Is in writing and signed by the disclaiming party
  • Declares the disclaimer
  • Describes the interest or power being disclaimed, and
  • Is delivered or filed
• Disclaimer relates back to date of Decedent’s death
• The disclaiming party is treated as having predeceased Decedent

Question 30

Classifications of Testamentary Distributions

Answer 30

• Specific Bequest/Devise
• General Legacy
• Demonstrative Bequest/Devise

Question 31

Specific Bequest/Devise

Answer 31

A gift of a specific article, which is identified and distinguished from all other things of the same kind, and is satisfied only by delivery of the particular thing (e.g., “my gold watch”)

Question 32

General Legacy

Answer 32

A gift payable out of the general assets of the decedent’s estate and not in any way separated or distinguished from other things of like kind

Question 33

Demonstrative Bequest/Devise

Answer 33

A bequest of a certain sum to be paid out of a particular fund

• If the fund is not in existence at Testator’s death or if there are insufficient funds, the beneficiary is entitled to payment out of the general estate

Question 34

Ademption by Extinction

Answer 34

A gift fails because property specifically bequeathed is not in Testator’s estate at his death (not applicable with a general gift)

• “My 50 shares of XY stock to Jim” = specific disposition of the identified shares → if Testator owns none at her death, the bequest is adeemed
• “50 shares of XY stock to Jim” = general bequest → Jim is entitled to the value of 50 shares of XY stock at date of Testator’s death

Question 35

Ademption by Satisfaction

Answer 35

• A gift fails because Testator made an inter vivos gift to a beneficiary of a general or residuary disposition with the intent that the provision of the will be satisfied
• A gift testator gave in his lifetime to a person is treated as a satisfaction of a devise only if:
  
  • The will provides for deduction of the gift
  • Testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or
  • The beneficiary acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise

Question 36

Abatement

Answer 36

If the assets of Testator’s estate are insufficient to satisfy all the bequests or devises, the beneficiaries’ shares will abate (i.e., be reduced) in the following order:

1. Property that would pass via intestacy
2. Residuary bequests
3. General bequests
4. Demonstrative bequests
5. Specific bequests

Question 37

Lapse

Answer 37

At common law, a devise lapses (fails) if the beneficiary predeceases Testator

• Effect:
  
  • Lapse in the body of the will → falls into the residuary, or if no residuary, to intestacy
  • Total lapse in the residuary → falls to intestacy
  • Partial lapse in the residuary → falls to the other residuary takers

Question 38

Anti-Lapse Statute

Answer 38

A devise is saved if:

• The predeceasing beneficiary was closely related to Testator, AND
• The predeceasing beneficiary was survived by descendants who also survived Testator, THEN:
• Those descendants will take by anti-lapse unless the will clearly expresses a contrary intent

Question 39

Total Intestacy

Answer 39

Decedent dies without a properly executed will

Question 40

Partial Testacy

Answer 40

Decedent dies with a will that doesn’t dispose of all of Decedent’s property

Question 41

Intestate Distribution - Surviving Spouse

Answer 41

The portion of Decedent’s estate that SS takes depends on who survives Decedent:

• No surviving descendants or parents → SS takes entire intestate estate
• Surviving descendants are the children of both SS and Decedent (i.e., no step- children) → SS takes entire intestate estate
• No surviving descendants but Decedent’s parents survive → SS takes first $300,000 plus three-quarters of intestate estate
• Surviving descendants of Decedent and also surviving step-children of Decedent → SS takes first $225,000 plus one-half of the intestate estate
  
  • Remainder is split equally by Decedent’s descendants
• Surviving descendants of Decedent who are the step-children of SS → SS takes first $150,000 plus one half of the intestate estate

Question 42

Intestate Distribution - No Surviving Spouse or SS Not Entitled to Take

Answer 42

If there is no SS or the SS is not entitled to a share in the estate, the descendants take by:

• Pure/strict per stirpes
• Modern/modified per stirpes
• Per capita by representation at each generation (UPC approach)

Question 43

Adopted Children

Answer 43

• UPC follows a transplantation theory → an adopted child loses any relationship with natural parents and is treated as the natural-born child of the adoptive parents
• An adopted child has full rights to inherit from and through his adoptive parents (and their relatives)

Question 44

Advancement

Answer 44

• Inter vivos gifts from Decedent to an heir are treated as an advancement against the estate if:
  
  • Stated in a contemporaneous writing by Decedent, or
    
    • Contemporaneous with the giving of the gift
  • Acknowledged in a writing at any time by the heir as an advancement
• Property given as an advancement is reduced from the heir’s intestate share