Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar > Wills > Flashcards

Wills Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Capacity

A

AT END
Age (18)
Testamentary plan

nature and Extent of property
Natural objects of bounty
Disposition

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Elements for a valid will

A 
S-Signed
W-in Writing
E-signature must be at End (some exceptions)
P-Published that it is a will
T- at least two witnesses must sign
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Abatement hierarchy

A

“I Really Got Stiffed”

  • Intestate property
  • Residuary gift
  • General gifts
  • Specific gifts
  • Demonstrative legacies are treated as specific legacies for abatement purposes to the extent that they can be satisfied, and otherwise as general legacies
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

How to revoke a will prior to T’s death

A

SAD OP

1) Subsequent instrument
2) Alteration
3) Destruction with intent to revoke
4) Operation of Law
5) Partial revocation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

When does SS take entire estate?

A 
o All of decedent’s descendants are also descendants of SS, and SS has no other descendants, or
o Decedent (D) has SS, but no descendants or parents
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

SS takes $300,000 and 75% of the remainder of the estate

A

No descendant of D survives D, but D has a surviving parent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

SS takes $225,000 and 50% of the remainder of the estate

A

All of D’s issue are also issue of SS, and SS has other issue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

SS takes $150,000 and 50% of the remainder of the estate

A

D has issue not related to SS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Issue

A

Issue refers to lineal descendants of the testator, including children, grandchildren, and great-grandchildren.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Per capita with representation

A

o Property is divided equally among the first generation with at least one living member
o The share of a non-living member of that generation passes to the living issue of that member
o Non-living member with no living issue—no property is allocated to the non-living member

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Per stirpes

A

o Issue equally share the portion that the deceased ancestor would have taken if living
o The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Per capita at each generation

A

Property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living
issue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Witness requirement

A

No. - at least two; some states require three

Sufficient maturity/capacity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Signing requirements for witnesses

A

o Majority view: The will must be signed in the joint presence of and attested to by two witnesses.
o UPC: The witnesses do not have to be present at the same time. Also, the T does not have to sign in their presence, as long as he acknowledges his signature to them before they sign and they sign within a reasonable time.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What constitutes presence for witness attestation under maj view?

A
  • Line-of-sight (traditional) test—T and Ws see (or have the opportunity to see) each other sign the will
     
  • Conscious-presence (modern) test—T and W must be aware through any sense that each is signing the will
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Interested witness doctrine - three types

A

o Common law—an interested W is not competent as a W; the will is invalid unless there are at least two disinterested Ws
o Purge theory—a gift to W is denied to the extent of the amount in excess of W’s intestate rights
o UPC—interested W doctrine is abolished

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

If a will was not validly executed, substantial compliance. What is substantial compliance?

A

Under the UPC, a will that is not executed in compliance with the law will treated as if it were valid if there is clear and convincing evidence that the testator intended for the document to serve as his will and he has substantially complied with the required formalities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What are the requirements for a holographic will?

A

DISH

  1. Date - required by some states
  2. testamentary Intent
  3. Signed by T—proxy not permitted
  4. Handwritten document
    • Some states—entire will must be in T’s handwriting
    • Other states (UPC)—only the material provisions must be in T’s handwriting (e.g., a filled-in printed form)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is a codicil?

A

changes or additions to a will

  1. Execution—the same formalities as for a will must be observed
  2. Effect—republishes the will as of the date the codicil was executed
    • May validate an invalid will
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

will substitutes/non-probate transfers

A

RIP JD

Revocable trust;
Inter vivos transfer thru POD contract (or Totten)
Pour-over will;

Joint tenancy;
Deed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Revocation by instrument

A

an oral revocation of a will is not valid. Can be partial or complete, express or implied.
• Revocation can be express or implied by the terms of a subsequent instrument
• Inconsistency—the later document controls and revokes prior inconsistencies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Revocation by destruction

A

• Destruction—burning, canceling, tearing, obliterating, or destroying a material portion of the will
—- Most states—requires defacement of some language of the will
—– Some states (UPC)—the destructive act need only affect some part of will
• Rebuttable presumption of revocation—when a will once known to exist cannot be found
—– Inapplicable if a duplicate original is found
• Destruction of executed will—presumptively revokes all other duplicate originals
• Third party can revoke for T if done at T’s direction and in T’s conscious presence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Revocation by operation of law

A

Divorce:

o Most states (UPC)—revokes will provisions for the former spouse unless contrary to T’s intent
o Some states—revokes will provisions for the former spouse if there is a property settlement agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Rules for alteration

A

cannot increase a gift by canceling words in the will, but can decrease a gift as long as the alteration is made to the existing language rather than through the addition of new language to the will

25
Q

What happens if a codicil is revoked?

A

revives the will

26
Q

Implied republication under CL

A

automatic revival of the original will upon revocation of a subsequent will; followed in just a few states

27
Q

Implied republication under UPC

A

Revocation of a later will or codicil that revokes the original will revives the original will if there is proof that the testator intended to revive the original will. If the later will or codicil is revoked by physical act, extrinsic evidence of testator’s intent to revive the original will is admissible.

28
Q

What is dependent relative revocation?

A

T’s revocation of the will is disregarded if it was based on a mistake of law or fact and would not have been done but for that mistake

29
Q

Classification system of gifts

A

Smart Girls Do Ritalin

  1. Specific—property distinguished with reasonable accuracy from T’s other property
  2. General—property to be satisfied from general estate assets
  3. Demonstrative—property to come from a particular source
  4. Residuary—property remaining after all specific, general, and demonstrative gifts are made
30
Q

What RAP applies to

A

CEO, President, Vice President of the Company

C Contingent remainders
E Executory interest
O Option to purchase land not incident to lease
P Power of appointment
V Vested remainder subject to open
P Power of first refusal
C Class gift
31
Q

What belongs to the will under the doctrine of integration?

A

the will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown by physical connection of the pages (stapled or paper clipped together) or by the ongoing nature of the language of the will (pages are not attached, but page numbers indicate that the pages follow each other).

32
Q

Incorporation by reference—another writing not executed with testamentary formalities may dictate the distribution of T’s property if it:

A
  • Existed at time of execution of the will,
  • Is intended to be incorporated, and
  • Is described in the will with sufficient certainty to permit identification

UPC: The writing need not exist at the time the will was executed if it only disposes of the T’s personal property

33
Q

What are acts of independent significance?

A

A will can provide for designation of a beneficiary or amount of a disposition by reference to some unattested act or event occurring before or after execution of the will or the T’s death, if the act or event has some significance apart from the will.

34
Q

abatement

A

reduction or elimination of gifts

35
Q

Ademption

A

the denial of a gift to a beneficiary because the property is no longer in T’s estate - applies to specific bequests

36
Q

Ademption by extinction - UPC approach

A

The testator’s intent at the time he disposed of the subject matter of the devise or bequest is examined.

37
Q

Ademption by extinction - traditional approach

A

if the subject matter of a specific gift is missing, destroyed, or there is a substantial change in the form of the gift, the beneficiary takes nothing.
o The beneficiary is entitled to whatever is left of the specifically devised property or balance of the purchase price owing from the purchaser of the property.

38
Q

What is a lapse?

A

Under CL - if the beneficiary dies before T, the gift lapses and passes to the residuary beneficiary, or if none, via intestacy

39
Q

What is an anti lapse statute?

A

BS

1) gift was made to a beneficiary that is related by Blood to T w/in a certain degree of relationship;
2) beneficiary is Survived by issue
• Applies to class gifts
• UPC/Modern trend—also apply to non-probate transfers

40
Q

How are ambiguities in the will solved?

A

can be resolved by extrinsic evidence

41
Q

How are mistakes in the will resolved?

A

Extrinsic evidence

*not allowed if the mistake involves the reasons behind the testator making the will or a particular gift

42
Q

What is an elected share?

A

SS can elect to take a share of T’s augmented estate rather than the gifts left to SS in the will
o The right may be waived by a signed writing after fair disclosure before or during the marriage

43
Q

An omitted spouse is entitled to an intestate share unless

A

o The omission was intentional;
o The spouse was given property outside of the will in lieu of a disposition in the will; or
o The spouse is party to a valid contract (prenuptial agreement) waiving her right to a share in the estate.

44
Q

Who is an omitted spouse?

A

a spouse who married T after T’s will was executed and who is not a beneficiary in the will

45
Q

Who is an omitted child?

A

a child born after T’s will is executed

46
Q

Presumption that child was omitted by mistake, unless:

A

(i) intentional omission;
(ii) T had other children when will executed, left estate to other parent of omitted child;
(iii) T otherwise provided for the child

47
Q

Ways to contest will

A

TIED

T-lack of T’s testamentary capacity
I-undue Influence
E-improper Execution (defectively SWEPT)
D - insane Delusion

48
Q

What is adequate to prove insane delusion?

A
  1. Rational person test—a rational person in T’s situation could not have reached the same belief
  2. “But for” causation—the delusion was the sole cause of the testamentary disposition
49
Q

What is insane delusion?

A

a belief for which there is no factual or reasonable basis, but to which T adheres despite all reason and evidence to the contrary

50
Q

What are the elements of undue influence?

A

o Susceptibility: The testator was susceptible to being influenced.
o Motive: The influencer has reason to benefit.
o Opportunity: The influencer had opportunity to influence.
o Causation: The influencer caused an unnatural result.

51
Q

What is fraud?

A

a misrepresentation made by the beneficiary when the will was executed with the intent to deceive T and with the purpose of influencing the disposition, resulting in a will that would not have been executed but for the fraud

52
Q

What are the two types of fraud?

A

Fraud in the Inducement: A misrepresentation that causes the testator to make a different will that he otherwise would have made. It must be shown that the testator would not have made the gift if he had known the truth.

Fraud in the Execution: A misrepresentation as to the will itself or its contents (testator does
not know he is creating a will or is not told the true content of the will).

53
Q

How do courts construe acts of independent significance?

A
  • will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument
  • will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will
  • considers factors such as
    i. where the will was stored after the purported “condition” lapsed,
    ii. whether setting the will aside would result in intestacy, and
    iii. whether effectuating the will would result in an inequitable distribution.
54
Q

What is a power of attorney?

A

An authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent.

55
Q

What is a healthcare POA?

A

A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions. In most states, a healthcare POA, unlike a typical POA, is durable; that is, the agent’s power to act on the principal’s behalf is not terminated by the incapacity of the principal.

56
Q

Durable POA shield

A

The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith.

*can be held liable for intentional misconduct

57
Q

Slayer statute

A

In general, a party cannot take property from a decedent when the party was responsible for the decedent’s death. The killing must have been intentional and felonious to bar the killer from taking.

58
Q

dependent relative revocation doct

A

The doctrine applies when T revokes an otherwise valid gift in the belief that a subsequent different gift is valid. T’s intention is for the beneficiary to get a gift but this fails due to a mistake of law in T’s mind (i.e. that the subsequent gift will be effective).

Bar (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions