Wills

Question 1

Rule for Holographic Will?

Answer 1

A holographic will is one that is ENTIRELY IN TESTATOR’S HANDWRITING and HAS NO ATTESTING WITNESSES. It must contain the testator’s signature, but need not be at the end of the will.

Question 2

Can holographic codicils be valid?

Answer 2

Yes. If the codicil meets the requirements of a holographic will, the codicil will be a valid holographic codicil.

Question 3

What is an Attestation Clause and are they required for a valid will?

Answer 3

Attestation Clause recites the elements of due execution and is prima facie evidence of those elements. It is useful if the witness forgets or misremembers the facts surrounding the execution.

Attestation clauses are not required for valid wills.

Question 4

Can the UPC give effect to an invalid will?

Answer 4

Under the Uniform Probate Code (UPC), even though a will is not executed in accordance with the required statutory formalities, the UPC gives the court the authority to ignore harmless error.

The defectively executed will will be given the effect of a valid will if the proponent establishes by Clear and Convincing evidence that the testator intended the document to be his will.

Question 5

Rule for requirements of a valid will

Answer 5

To be valid and admissible under probate, most states require:
1) the will or codicil to be signed by the testator;
2) two attesting witnesses;
3) testator sign in the presence of the witnesses;
4) witnesses sign in the presence of the testator.
Some states require the testator to sign at the end and to publish the will.

The UPC allows the will to be signed by two attesting witnesses OR signed by a notary.

Question 6

Rule for republishing a will or codicil to cure a defect

Answer 6

A valid partial will or codicil that refers to an earlier will is said to republish that will. Republication can cure defects, however, republication of an earlier, invalid will cannot be accomplished by codicil.

Question 7

Rule for incorporating a writing by reference into a will

Answer 7

A writing that is not valid as a will, but is in existence when a will is executed, may be incorporated by reference into the will if the writing to be incorporated is identified with reasonable certainty.

Question 8

Rule for remaining assets not disposed of by will

Answer 8

Assets that were not disposed of by a Testator’s valid will pass under intestate succession statutes of the jurisdiction.

Question 9

Rule for slayer statute involving a will

Answer 9

Under the Slayer statute, an individual who feloniously and intentionally kills the decedent forfeits all benefits and entitlements to the decedent’s estate. If the decedent dies intestate, the estate passes as if the killer disclaimed her intestate share.

Question 10

General Rule for intestate succession

Answer 10

Any property not passing by a valid will or by operation of law will be governed by a state’s intestate statute.

Question 11

Rule for intestate succession when decedent leaves only a surviving spouse and no descendants

Answer 11

In most state, if the decedent leaves only a spouse and no descendants, the entire estate passes to the surviving spouse.

Question 12

Rule for intestate succession when decedent leaves a surviving spouse AND descendants

Answer 12

If the decedent leaves a surviving spouse and descendants, the surviving spouse will receive a certain portion of the estate and descendants will take a certain percentage. Under the UPC, the surviving spouse will take the entire estate if the descendants are from the surviving spouse.

Question 13

Rule for interested witnesses signing a will

Answer 13

Under the common law, the signing of the will must be witnessed by two disinterested witnesses. Most states allow exceptions for:

• if the interested witness is an heir (gift reduced to an intestate share); OR
• if another disinterested witness was present so there were still two disinterested witnesses

Question 14

General rule for a codicil

Answer 14

A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. To be valid, a codicil must satisfy the same formalities as a will.

Question 15

Rule for revocation of a will by physical act

Answer 15

A will is revoked by physical act if the testator intended to revoke the will and the will is burned, torn or destroyed by the testator or at his direction and in his presence.

Question 16

Rule for revocation of a will by subsequent will or codicil

Answer 16

A testator may revoke a will by executing a subsequent valid will or codicil. Unless the new will expressly revokes the previous will in its entirety, the revocation is only to the extent the that the wills conflict.

Question 17

Rule for when a testator would not have revoked his original will bur for the mistake belief that another will he prepared would be valid

Answer 17

The Dependent Relative Revocation Doctrine (DRR) cancels a previous revocation that was made under a mistaken belief of law or fact by the testator. Courts compare and decide which is closer to the testator’s intent.

Question 18

Rule for when a will takes effect

Answer 18

Assets are distributed according to the terms of a will. A will takes effect at the time of the testator’s death, and is treated as if it was executed immediately before the death.

Question 19

Rule for an advancement and satisfaction of an heir’s estate

Answer 19

Under the modern view and UPC, gifts to heirs during the testator’s lifetime are not deemed advancements unless the will provides for the deduction or it was indicated in writing that the property was in satisfaction of a devise. (Some states do not require a writing.)

Question 20

Rule for anti-lapse statutes in a will

Answer 20

A gift to a deceased beneficiary is deemed to fail in the absence of an anti-lapse statute. The anti-lapse statute provides that when a beneficiary is related by blood and predeceases the testator, the gift will vest in beneficiary’s issue, if any are alive. (Thus, a husband cannot be saved by an anti-lapse statute.)

Question 21

Rule for ademption of a specific gift in a will

Answer 21

Under the doctrine of ademption, a specific gift that is not in the estate at the time of death will fail, unless the testator did not intent the gift to fail. In that case, the beneficiary is entitled to any real or personal property acquired as a replacement for the specific gift or a monetary devise equal to the value of the specific gift. (includes unpaid insurance recovery)

Question 22

Rule for stock splits and dividends in a will

Answer 22

A person who was gifted shares of stock in a will is entitled to dividends and additional shares acquired from a stock split.

Question 23

Rule for revoking testamentary bequests by divorce

Answer 23

A final divorce decree revokes any provisions to a former spouse made in a prior will.

Question 24

General Rule for class gifts in a will

Answer 24

A class gift is a gift to a group of persons described collectively, commonly by familial relationship. Generally, a class closes at the death of the testator.

Question 25

Rule for gift in a will to deceased class member

Answer 25

A gift to a deceased class member depends on whether the class was to a group or specifically named members. If the class is specifically named, the gift will lapse and fall into the residuary. If named as a group, the predeceased member’s share id divided among the other members.

Question 26

Rule for adopted child inheriting

Answer 26

An adopted child inherits the same as a natural child when the adopted child is not the relative of the adopting parent.

Adoption normally severs the parent-child relationship with the biological parent, but may inherit only if expressly by will.

Question 27

Rule for undue influence in a will

Answer 27

A will is invalid to the extent it was executed under undue influence. Undue influence occurs when a person exerts influence and overcomes a testator’s free will and judgment.

Question 28

Rule for pretermitted child in a will

Answer 28

A pretermitted child is a child born after the execution of a will.

Question 29

Rule for disclaimers in a will

Answer 29

A beneficiary under a will can disclaim his interest causing the disclaimed property to pass as if the disclaiming party predeceased the testator. A valid disclaimer must be in writing and signed by the disclaimer, describe the interest being disclaimed and be delivered or filed.

Under common law, a disclaimer must be made within a reasonable time (although some states within 9 months). Under the UPC, disclaimer may be made at any time.