Wills Flashcards
What types of wills does TN recognize?
- Formal Wills
- Holographic Wills
- Nuncupative (Oral) Wills
Who has standing to challenge a will?
Those who would take under intestate, or a prior will
What is the proper age to execute a will?
18
Who has the burden of proving incapacity?
The challenger
Test for mental capacity (4 parts)
(1) What property they have;
(2) the natural objects of his or her bounty (aka their descendants);
(3) the disposition of that property; and
(4) must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of his or her property.
Challenges to a will based on capacity (4)(MCUIFD)
- Testator lacked the necessary mental capacity
- Undue influence,
- Fraud
- Duress
Can lawyers draft wills for incompetent people?
NO
Define lucid interval?
a person who has lacks sufficient mental capacity generally but at the time of execution has a period of clarity thus rendering him or her competent
Can people experiencing lucid intervals execute a will?
Yes
Define insane delusion?
a person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected all or part of the will
Can someone experiencing an insane delusion execute will?
No, this will can be challenged and may be thrown out
If the insane delusion is supported by any evidence, what happens?
If there is any evidence supporting the delusion, it’s not insane
Will a court invalidate a will because of an insane delusion?
Yes. Unlike mistakes, courts will invalidate parts of a will if an insane delusion is proven
Elements needed to prove an insane delusion?
- The testator labored under the insane delusion and
2. the will or some product thereof was a product of the insane delusion
Can lawyers testify to the mental capacity of their client?
Yes, if it’s at issue in the case
3 things that will make a will void?
- undue influence
- fraud
- duress
Elements of undue influence (3)
- Influence was exerted on the testator
- Effect of the influence was to overpower the mind and free will of the testator, and
- The product of the influence was a will that would not have been executed but for the influence
How can you show undue influence existed?
By proving the existence of suspicious circumstances
Name a few suspicious circumstances
(1) secrecy concerning the will’s existence;
(2) the testator’s advanced age;
(3) the lack of independent advice in preparing the will;
(4) the testator’s illiteracy or blindness;
(5) the unjust or unnatural nature of the will’s terms;
(6) the testator being in an emotionally distraught state;
(7) discrepancies between the will and the testator’s expressed intentions; and
(8) fraud or duress directed toward the testator
In TN, when is there a presumption of undue influence?
- When a confidential relationship existed AND
2. the beneficiary had a role in procuring the will
3 examples of a confidential relationship?
- Attorney-Client
- Power of Attorney and Principal
- Healthcare worker and patient
Does the burden shift to the beneficiary when there is a confidential relationship and the beneficiary had a role in procuring the will?
Yuh
How can the presumption of undue influence be overcome?
By clear and convincing evidence of the validity of the will
What is a no contest clause?
Clauses that say anyone who unsuccessfully challenges a will forfeits their bequest under the challenged will
Does TN enforce no contest clauses?
Only if the unsuccessful contestant lacked probable cause to bring the challenge
Define duress
When the wrongdoer threatened to perform or did perform a wrongful act that coerced the testator into making a donative transfer that the testator would not have otherwise made
Elements of duress (2)
Wrongdoer performed wrongful act that:
(1) coerced the testator into making a will or bequest that the testator would not otherwise have made or
(2) prevented the testator from making a will or bequest that the testator otherwise would have made.
Definition of fraud
A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer he/she otherwise would not have made
2 types of fraud
- Fraud in the Execution
2. Fraud in the Inducement
What is fraud in the execution?
When a person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent
What is fraud in the inducement?
When a misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor
3 requirements to execute a formal will
- Writing
- Signed by the testator
- Attested by at least 2 witnesses
Evidence of integration?
- Fastening
- Page numbers
- Initials on pages
- Consistency
Can the testator sign by proxy?
Sure. But the testator has to ask them to do it, and it has to be in the testators presence
Line of sight test
The testator does not need to actually see the witnesses sign, he/she only needs to be capable of seeing the witnesses sign were he/she to look
Can witnesses with an interest in the will sign?
Yes, but all interested witnesses are purged of their benefit above what they would receive in intestacy IF 2 disinterested witnesses don’t also sign
What is an interested witness?
Those who receive a personal and beneficial interest from the will
What is an attestation clause? (not required)
Clause attesting that a will was properly executed
What is a self proving affidavit? (not required)
Substitutes for trial testimony in the event of a will contest (in TN must be 2 step affidavit)
What is the strict compliance rule?
A will must be executed in strict compliance with all the formal requirements of the applicable Wills Act
What happens when the will doesn’t strictly comply?
Will is invalid
Exceptions to strict compliance (4)
- Reformation
- Harmless Error
- Choice of law statutes
- Save as holographic will
Does TN recognize the harmless error doctrine?
No
What is necessary in TN to reform the will?
Clear and convincing evidence of fraud is necessary to reform a legal document
Do holographic wills need witnesses?
No, but the testator’s handwriting must be proven by 2 witnesses
What are the requirements for a valid holographic will?
The signature and all its material provisions must be in the handwriting of the testator. Also testamentary intent
What is testamentary intent
The proponent of the will must prove the testator intended the instrument to be his last will and testament
3 requirements for testamentary intent
- Gratuitous disposal of property
- That takes effect after death, AND
- The testator intended the instrument in question to accomplish the disposition
Do the conditions in a conditional will have to be met for the will to be probated?
No, TN considers these conditions to be an explanation of the motivating factors creating the will
When can a nuncupative will be made?
When the testator is in imminent peril of death, whether from illness or otherwise
When is a nuncupative will valid?
Only if the testator died as a result of the impending peril
How many witnesses are required for a nuncupative will?
2 disinterested witnesses
When must a nuncupative will be submitted for probate?
No longer than 6 months after the testator has passed
Are there limits to the $ disposed of in a nuncupative will?
Yes, can’t be more than $1,000
Does a nuncupative will change or revoke already existing wills?
No
4 ways a will can be revoked?
- A subsequent will or codicil
- Physical Act
- Operation of law
- Losing the will
Can revocation be complete or partial?
Yes, can be either
What if a codicil contains no express revocation clause?
The codicil’s terms must be so inconsistent with those of the will to exclude any inference other than the testator intended to revoke the previous will
Is an oral declaration enough to revoke a will?
No
What elements must be present to revoke a will by physical act?
- The intent to revoke,
- Physical act done by her or her proxy (in her presence by her direction),
- The physical act successfully destroyed the will
Can you revoke a will by writing on it?
Yes, but it must touch the material provisions of the will to be effective
Can someone else destroy the will thus revoking it?
Yes, but must be authorized by and in the presence of the testator
Does divorce revoke a will?
Yes, as to the provisions pertaining to the ex-spouse
Elements the Doctrine of Dependent Relative Revocation (3)
- the testator revokes his or her will (or part thereof)
- the testator had an alternative plan of disposition that failed because of a mistake of law or fact
- the revoked will reflects the testator’s true intent (i.e., alternative plan) better than intestacy (or other disposition)
Are former wills revived when later wills are revoked?
There is no automatic revival, but evidence of intent can revive the former will
What does ademption apply to?
Specific bequests
What is ademption?
Ademption is what happens to property when it is bequeathed in a will but no longer in the testator’s possession at the time of their death
What is the identity theory? (3 elements) (Ademption)
- Is this a specific bequest?
- If so, is the specifically devised property part of the testator’s probate estate? (i.e. does the testator own it?)
- If not, ademption applies and the beneficiary receives nothing
What is a demonstrative devise?
A general devise, payable from a specific source. These receive preferential treatment
Do changes in form lead to ademption?
No
When does satisfaction occur?
If there was direct evidence that the gift was intended to satisfy the bequest (no writing required)
How are satisfactions different from advancements?
If recipient of satisfaction predeceases the testator, that satisfaction bars his issue from taking too
What is exoneration?
The assumption that the estate pays all debts, so beneficiary takes the property debt-free
What kind of property does exoneration apply to?
To property passing by will but not to property passing by right of survivorship
When does abatement occur?
When the estate lacks sufficient assets to pay the decedent’s debts and devises
Default order of abatement
- Residuary devises are reduced first (personal property before real)
- General devises
- Specific and demonstrative devises
What are Accretions
These apply to stocks, the beneficiaries are entitled to the post-split amount owned by the testator
What kind of property system does TN have?
An optional community property state
Two systems of property
- Community-each spouse owns an undivided interest in all earnings of the spouses and property acquired from such earnings during marriage; at death, a spouse has testamentary power over only his or her one-half community share
- Separate- each spouse owns all of his or her earnings during the marriage; upon the death of one spouse, the surviving spouse has two option:
a. Take under the decedent spouse’s will (or intestate laws, if there is no will) or
b. Take an elective share
Elective Share formula
Surviving spouses share percentage times decedent spouses net estate minus property passing to surviving spouse
Statutory percentages under elective share formula
- Marriage less than 3 years = 10%
- Marriage lasts between 3 and 6 years = 20%
- Marriage lasts between 6 and 9 years = 30%
- Marriage longer than 9 years = 40%
Net estate is calculated how
Probate estate minus any debts for creditors or funeral
Can a spouses elective share be waived?
Yes by a pre or antenuptial agreement
When will an elective share be denied?
Denied to a surviving spouse who abandoned or refused to support the deceased spouse
Does TN protect disinherited children?
No way
Does TN provide protection for children born after the creation of the will?
Yes, these pretermitted children are entitled to what they would take in intestacy
