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Wills, Trusts, and Estates > Wills > Flashcards

Wills Flashcards

1
Q

What is required to make a will?

A

A writing, signature, attestation, testamentary intent, and testamentary capacity

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2
Q

What are the functions of the will formalities?

A
  1. ritual
  2. evidentiary
  3. channelling
  4. protective
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3
Q

How must a testator satisfy the will formalities?

A

A testator must have the will in writing, signed by the testator and two witnesses. All of the witnesses must be in each other’s presence and the testator’s presence when they sign the writing

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4
Q

What happens if the testator does not comply with the Wills Act formalities?

A
  • Majority rule: strict compliance
  • UPC: Dispensing power/harmless error
  • Minority rule: substantial compliance
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5
Q

What is the strict compliance rule for will formalities?

A

If one of the formalities is missing, the will is invalid

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6
Q

What is the substantial compliance rule for the will formalities?

A

This rule allows a court to overlook formal defects of a will if the testator can show: (1) the document expresses the testator’s testamentary intent and (2) the form sufficiently approximated the statutory formality and enables a court to conclude that the document serves the purposes of the Wills Act

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7
Q

What is the UPC harmless error rule for the will formalities?

A

This rule dispenses with the formalities when there is clear and convincing evidence that the testator intended the document as his will

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8
Q

What are the two tests to determine the presence of witnesses?

A
  1. Line of sight test: the witness must have been in a position to see the signature occur
  2. Conscious presence test: the witness must have been in a position to comprehend that the signature was occurring
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9
Q

What is a permissible signature on a will?

A

Any mark that is intended by a testator to authenticate a document. A testator can direct someone to sign the will for them, but an individual CANNOT guide the testator’s hand while they sign

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10
Q

What happens if a testator makes additions to the will after the will has been signed?

A
  1. If the addition after the signature was there when the testator signed the will, the entire will is likely invalid
  2. If the addition after the signature is added later, after the will execution, that one line of the will is likely invalid
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11
Q

What happens if there is an interested witness’s signature on the will?

A
  1. The UPC doesn’t care about interested witnesses
  2. Purging statutes:
    - first generation: eliminates the gift to the interested witness(es)
    - second generation: only purges the interested witness’s gift to the extent that it exceeds what the interested witness would get under intestacy
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12
Q

What are the requirements for a holographic will?

A
  1. Handwritten by the testator
  2. Testator’s signature
  3. Testamentary intent
  4. Testamentary capacity
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13
Q

Are notarized wills allowed under the UPC?

A

Yes

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14
Q

What if the testator fills out a will form, so some of the will is printed and some of the will is handwritten?

A
  1. UPC: material portions of the will must be handwritten (courts can consider the printed portions as extrinsic evidence to determine intent)
  2. First generation statutes: everything the testator intended to be part of the will must be handwritten
  3. Second generation statutes: material provisions of the will must be handwritten (if we just look at the handwriting and ignore the printed material, can we make a will?)
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15
Q

What are the requirements to revoke a will?

A
  1. An act or affirmative step
    - subsequent writing executed in compliance with the Wills Act
    - physical act by the testator or in the testator’s presence and under the testator’s direction
  2. Intent to revoke the will
  3. Capacity to revoke the will
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16
Q

What happens if a testator gets a divorce, but gives a gift to their ex-spouse in their will pre-divorce? What if the will also gives gifts to the ex-spouse’s relatives?

A

In most states, statutes provide that a divorce automatically and instantly revokes any provision in the testator’s will that leaves property to the divorced spouse. The UPC also prevents ex-spouses from taking non-probate assets. The UPC revokes gifts to a divorced spouse’s relatives.

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17
Q

What is the doctrine of integration of wills?

A

All papers present at the time of the will execution ceremony and that are intended to be a part of the will are integrated into the will and treated as the will

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18
Q

What if the testator adds to the will later in a separate document that complies with the formalities?

A

This is republication by codicil; we pretend the original will was executed on the date of the codicil, when it is intent-furthering

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19
Q

How do we make any documents not present at the execution of the will part of the will in a majority jurisdiction?

A
  1. The referenced documents must be in existence at the time the will was executed and cannot have been altered after the will execution
  2. The will must manifest intent to incorporate the documents
  3. The documents must be sufficiently identified/described by the will (sufficient certainty)
20
Q

How do we make any documents not present at the will execution part of the will in a UPC jurisdiction?

A
  1. The referenced documents must be signed by the testator
  2. The will must manifest intent to incorporate the documents
  3. The documents must be sufficiently identified/described by the will (sufficient certainty)
  4. This only applies to documents regarding tangible personal property
21
Q

What happens when something happens outside the testator’s control that changes the testator’s testamentary scheme? Is there a portion of the will where there is an ambiguity in who gets something or what the gift is?

A

A will provision that is affected by outside acts or events is valid if, and only if, those acts or events have a motive, purpose, or significance separate and apart from their effect on the will (objective test)

22
Q

What is required for testamentary capacity?

A
  1. Legal capacity

2. Mental capacity

23
Q

What is legal capacity?

A

The testator must be an adult (not a minor)

24
Q

What is the test for mental capacity?

A

The testator must be capable of knowing the nature and extent of his property, the natural objects of his bounty, the disposition that he is making of his property, and creating an orderly desire regarding the disposition of the property

25
Q

What is an insane delusion?

A

A false conception of reality; when the testator holds a belief that goes against reason and evidence to the contrary

26
Q

How do you prove that a testator is suffering from an insane delusion?

A
  1. Majority rule: the contestant must show that the testator had no basis for the belief and that the insane delusion materially affects the distribution under the will
  2. Minority rule: could a rational person in the testator’s situation draw the same conclusion? If not, the testator has an insane delusion
27
Q

What is undue influence?

A

An outside actor uses mental or moral exertion to remove a testator’s free agency

28
Q

What is the legal test for undue influence?

A
  1. Testator must be susceptible to undue influence
  2. Wrongdoer must have had the disposition (motive) to unduly influence the testator
  3. Wrongdoer must have had the opportunity to unduly influence the testator
  4. There must have been a change in the testator’s estate plan/material effect on the will
29
Q

How do we prove undue influence?

A

The contestant must show by clear and convincing evidence that there was (1) a confidential relationship between the testator and wrongdoer and (2) suspicious circumstances

30
Q

How do we deal with ambiguities in wills?

A

Courts can bring in extrinsic evidence about what words mean when they are ambiguities

31
Q

How do we deal with mistakes in wills?

A

The no-reformation rule states that courts won’t fix mistakes in wills and won’t allow any extrinsic evidence in to clarify mistakes. However, there is a modern trend to stretch this rule to allow extrinsic evidence in to clarify identities of people named in a will

32
Q

What happens when a beneficiary in the will predeceases the testator?

A

The default rule is that this gift will usually fall into the residuary clause; if there is no residuary clause, the gift will pass by intestacy

33
Q

What happens if the beneficiary of the residue clause is dead or unable to take?

A
  1. Majority rule: if there is more than one residuary taker, the other takers under the residue split the lapsed gift; if there was only one residue taker, the gift passes by intestacy
  2. Minority rule/no-residue-of-a-residue rule: if a lapse occurs in the residue clause and there is more than one residuary taker, the lapsed gift passes by intestacy
34
Q

What effect does an antilapse statute have on a lapsed gift?

A

If a testator makes a gift to a close blood relative and that relative predeceases the testator, the antilapse statute gives that gift to the predeceased beneficiary’s children/descendants. The UPC applies these statutes to gifts made to grandparents and descendants of grandparents, but NOT spouses or step-children

35
Q

What if the testator writes “to A, if she survives me”?

A

In a UPC jurisdiction, that is NOT specific enough to contract around the antilapse statute

36
Q

What if a member of a class predeceases the testator and the gift is a class gift?

A

If the gift partially lapses, that share is split evenly among the other members of the class. Antilapse statutes may also apply

37
Q

What is a class gift?

A
  1. Majority rule: a class gift requires a class label and dynamic and fluctuating shares
  2. Minority rule: if the testator seems to be group-minded, that is probably a class gift
38
Q

What happens if a specifically devised item of property is not a part of the testator’s estate at the testator’s death?

A
  1. C/L rule: the gift has adeemed, so the beneficiary gets nothing
  2. UPC Involuntary transfer rule: if the gift involuntarily left the testator’s estate, the beneficiary is entitled to the monetary value of the object
  3. UPC Replacement Theory: if the testator has replaced a specific devise with new property, the beneficiary gets the new property
  4. UPC Broad General Intent Theory: if the specific devise is not within the testator’s estate, the beneficiary can get the monetary value of the devise if the beneficiary can show ademption would violate the testator’s intent by clear and convincing evidence
39
Q

What are the exceptions to the C/L identity theory for adeemed gifts?

A
  1. Insurance: if the item is gone from the testator’s estate and it has insurance money, the beneficiary gets the insurance money
  2. The beneficiary could argue that the gift was a general devise, not a specific devise
  3. If the property changes in form, but not in substance
  4. If the testator is incompetent
40
Q

What happens if there is not enough money left in the testator’s estate to pay out all of the bequests in the will?

A

The default order is:

  1. specific devises
  2. general devises
    - if there is not enough money to pay out the general devises, then every beneficiaries’ share is reduced equally
  3. residuary clause
  4. demonstrative devises: if there is not enough money to pay the beneficiary from the fund the money is supposed to come from, then the rest of the money is considered a general devise
    * the UPC allows courts to flip the order if the default order would violate the testator’s intent
41
Q

What are the bars to succession/inheritance?

A
  1. Slayer rule: the person who murders/kills the testator does not get to take
  2. Disclaimer: when a beneficiary declines to take property through a will, intestacy, trust, etc.
42
Q

What are a spouse’s rights when the testator dies?

A
  1. Social security
  2. Pension plans must provide survivorship rights for a spouse
  3. Homestead exception: the surviving spouse gets to stay in the family home (or some monetary equivalent)
  4. Personal property set aside
  5. Dower
  6. Elective share: a testator cannot completely disinherit his spouse
43
Q

To what property does a spouse’s elective share apply?

A

Under the UPC, it applies to all probate assets, revocable trusts, joint tenancies, and gifts made in the last two years before the decedent’s death

44
Q

Can a testator contract around the elective share?

A
  1. Parties can waive the elective share

2. Spouses can enter into a prenuptial agreement

45
Q

What are the requirements for a valid prenup?

A
  1. Disclosure (NOT mandatory under the UPC if the parties waive that right)
  2. Voluntariness
  3. Prenup can’t be unconscionable
  4. Independent counsel not required, but is preferred
46
Q

What if a spouse is omitted from a premarital will?

A
  1. Majority rule: the spouse gets the intestate share
  2. UPC: if the will leaves stuff to premarital children, this stands first; then the spouse gets an intestate share; then we do what the will says

Wills, Trusts, and Estates (6 decks)

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