Wills Flashcards
Will formalities
attested will must be signed by T and 2 witnesses
sign in each others presence
testamentary capacity (ability to understand nature of act; extent of property; objects of bounty; effect of will Determined at time of execution)
holographic will
must be in T’s handwriting and signed by T
not holographic if attested
Codicil
Amends prior will and republishes it
document incorporated by reference if
(!) in existence when will executed (2) sufficiently describes writing and (3) will manifests intent to incorporate
UPC for personal property signed but does not have to be in existence at time.
slayer rule
one who feloniously and intentionally causes decedent’s death forfeits share
ademption
when specifically bequeathed property not in estate at death the gift is addeemed.
exception for sale by conservator
objective test - if gift not in estate at death fails
intent test B will take if can show T intended him to take substitute property.
UPC: specific devisee has right to real property acquired by T as replacement for the specifically devised property (bought with proceeds)
stock dividend
at CL specific bequest of stock included splits but not dividends. Most states and UPC include both.
Divorce
Divorce revokes all provisions in favor of former spouse ; under CL divorce does not revoke gift to anyone else.
UPC - divorce also revokes bequests to relatives of former spouses.
Intestate Succession
under typical scheme, property passes in order: spouse, descendants, parents and or siblings (And children of deceased siblings)
most states per capita by representation: split at first level with living takers; some states use per capita at each generational level which would have same result; some states a strict per stirpes; shares determined at first level even if no living takers.
lapse
if B dies in T’s lifetime, gift lapses - saves gift for B if B is related to T.
abate
when estate insufficient to pay all bequests claims, gifts abate. In following order: intestate property; residuary estate; general legacies; demonstrative legacies; specific devises.
Undue influence
contestant must prove = influence exerted; overpowered mind of T and product was will that would not have been executed but for influence.
Presumption arises when confidential relationship; B participated in procuring will and provisions unnatural and favor alleged influencer.
Testamentary intent
t must intend document to operate as will;
Revocation by subsequent instrument
must be present intent to revoke and instrument executed with testamentary formalities
intent to revoke plus physical act … must have actual effect on will or its language
Interested witness
at CL if attesting witness was beneficiary will could not be probated; no longer the rule.
