Wills

Question 1

Will executed as the result of undue influence

Answer 1

A will is invalid if it was executed as the result of undue influence. Undue influence occurs when the “wrongdoer exerted such influence over the [testator] that it overcame the [testator’s] free will and caused the [testator] to make a donative transfer that the [testator] would not otherwise have made.

The burden of establishing undue influence is on the will contestant, who must show that (1) the testator was susceptible to undue influence, (2) the alleged influencer had the opportunity to exert undue influence upon the testator, (3) the alleged influencer had a disposition to exert undue influence, and (4) the will appears to be the product of undue influence.

An entire will or just specific parts can be invalidated.

Question 2

Will executed by fraud

Answer 2

A will or provision in a will procured by fraud is invalid. Fraud occurs when a testator is deceived by a misrepresentation and is thereby led to execute a will that the testator would not otherwise have made. Most courts additionally require a finding that the misrepresentation was made with the intent to deceive the testator and for the purpose of influencing the testamentary disposition.

An entire will or just specific parts can be invalidated.

Question 3

Fraud in the inducement

Answer 3

Fraud in the inducement occurs when a person misrepresents facts—for example, whether a proposed beneficiary is alive.

Question 4

Fraud in the Execution

Answer 4

Fraud in the execution occurs when a person misrepresents the character or contents of the instrument signed by the testator.

Question 5

Exercising the General Power of Appointment

Answer 5

Whether a power is effectively exercised depends on the donee’s intent and any formalities mandated by the donor.

Under the majority approach, also followed by the Restatement of Property, a residuary article in a donee’s will that makes no reference to a power of appointment is not an effective exercise of a general power.

Under the minority view, a general residuary clause does effectively exercise a power of appointment.

Question 6

Intestate Rules Regarding Spouse

Answer 6

If no will and you have a spouse, the entire estate would be distributed to the spouse.

Question 7

Parentelic Method of Determining Heirship

Answer 7

Under the so-called parentelic method of determining heirship employed in the Uniform Probate Code and most state intestacy rules, the issue of an intestate’s parents take to the exclusion of any issue of the intestate’s grandparents.

Question 8

Consanguinity Method of Determining Intestate Distrivution

Answer 8

Under the civil law consanguinity method employed in a minority of jurisdictions, Niece and Uncle would share equally because both of them are in the third degree of consanguinity to Testator.

Question 9

Which Jurisdiction controls the disposition of real property in a will or intestate?

Answer 9

The law of the state where the real property is located governs the disposition of real property. i.e. where the real property is

Question 10

Which Jurisdiction controls the disposition of personal property in a will or intestate?

Answer 10

The law of the state in which the decedent was domiciled at his death governs the disposition of personal property. Regardless of where the personal property is located.

Question 11

Nonmarital Children’s right to inherit from parents

Answer 11

Under the common law, a nonmarital child could not inherit from either parent. Today, all states grant nonmarital children the right to inherit from their mothers and to inherit from their fathers when at least one statutorily defined method of establishing paternity has been satisfied.

The Supreme Court has held that a statute disallowing inheritance by a nonmarital child from her father when the father’s paternity has been adjudicated during his lifetime is unconstitutional

Question 12

Power of Attorney Power

Answer 12

Gives the designated agent the power to act on behalf of the principal, and must do so in good faith in the best interest of the principal.

A POA must be created when the principal is competent and free from fraud or undue influence.

Question 13

Slayer Statute

Answer 13

Those who cause the death of a decedent (will maker) are not permitted to receive estate or trust benefits.

Question 14

Holographic Will

Answer 14

In order for a will to be properly executed, a testator must have present intent to execute a will, must have testamentary capacity, and must comply with the required formalities. A testator has present intent to create a will if they execute a will with the intent to present execute the document, not to create the will in the future. A holographic will is generally defined as a will in which the material portions are written in the Testator’s own handwriting and which is signed.

Question 15

Accidental Disinheritance

Answer 15

The UPC and most courts attempt to limit the possibility of an accidental disinheritance by allowing for a child who is born after the execution of a will to take in equal share to the other children included in the will. However, if a child was born before the execution of the will, the probate court should assume follow the face of the will and omit the children from distribution unless it is clear that the omission was accidental

Question 16

Ambiguous Will

Answer 16

When interpreting a will, a court is only permitted to consider extrinsic evidence when the terms of a will are ambiguous. Upon a finding of ambiguity, a court may consider both direct and circumstantial evidence in an effort to best determine the intent of the Testator.

Question 17

Anti-Lapse Statutes

Answer 17

When a beneficiary to a will predeceases the testator, the beneficiary’s devise will lapse into the residuary of the will or, in the absence of a residuary, into the intestate estate. As an exception to the harshness of this general rule, most states have enacted Anti-Lapse
statutes, which permit a beneficiary’s heirs to take the beneficiary’s share of the estate.

Question 18

Mentally Competent to Execute a Will

Answer 18

In order for a will to be validly executed the Testator must have sufficient mental capacity at the time of execution. In order to be deemed mentally competent the testator must understand who the intended beneficiaries of her will are, what her property is and what the beneficiaries will be receiving, why she is entering into the will and distributing assets/money to the beneficiaries, and how she is doing so

Question 19

Invalidating a will based on Mistaken Fact

Answer 19

If a testator decides to distribute or withhold property from a beneficiary based on a mistaken fact, a court may sometimes choose not to give the will or the provision effect. In order to invalidate a will or provision for mistake of fact the interested party must show
that but for the mistake, the change or provision would not have occurred.

The mistake of fact must also be the only factor that changed the will, not one of many.

Burden rests on the moving party.

Question 20

Valid Codicil/Will

Answer 20

To be a valid a codicil must meet the same elements as a will: it must be written, it must be executed with testamentary intent, and it must be signed by
the testator in the presence of two witnesses.

Question 21

Doctrine of Incorporation

Answer 21

Under the doctrine of incorporation, a separate document may be incorporated into a will if it: (a) existed at the time of execution; and (b) was described with sufficient certainty such that it could be identified.

Question 22

Attached document to a will

Answer 22

If the otherwise invalid attached document/codicil is referred to by a later valid codicil it could be given validity.