Wills Flashcards
1
Q
What are some ways to avoid probate altogether?
A
Pass the property outside of the probate process such as by:
intervivos trust/gift,
future interests (e.g. remainder intersts, executory interests),
survivorship rights (e.g. joint tenants),
life insurance,
Totten Trusts (just deposit accounts funded for another’s benefit)
Joint or survivor bank accounts (usually)
Payable on death designations
Deeds conditional on death that have been delivered or placed in escrow
Contracts with death benefits (e.g. life insurance, retirement accounts, etc)
These items are distributed and removed from the estate before the will/intestacy is considered
2
Q
What rules apply to joint or survivor bank accounts with respect to creditors?
A
A bank account in the name of two or more persons “with right of survivorship” usually gives the survivor the $ outside of the probate process
BUT there are nuances…
Under UPC, creditors can reach the $ in the account to the extent the decedent deposited $ into the account if other estate assets are insufficent to satisfy the debts.
Under common law, creditors can reach the joint account if it was set up merely for convience and no survivorship feature was intended.
3
Q
When does property pass by intestacy?
A
When either:
- Total Intestacy: Person dies without a will
- Partial Intestacy: decedent’s will did not dispose of all the decedant’s property (probably because no residuary clause or because all residual designees predeceased)
4
Q
Does a living person have any heirs?
A
No - only dead people have heirs
Living people have heirs apparent
5
Q
Does decedent’s intent matter if the decedent dies intestate?
A
No, regardless if evidence shows that the decedent would have preferred a different distribution
6
Q
What law applies to property owned by a married couple?
What are the two regimes adopted by different states?
A
The law of the couple’s domicile at the time the property was acquired.
Accordingly marital rights don’t change as the couple moves from one state to another
2 Regimes include:
Common law marital property system
Community property system
7
Q
Which state’s intestacy law applies?
A
For personal property, the law of the decedent’s domicile at death applies
For real property, the law of the situs of the property applies
8
Q
What is the old common law rule for how much a surviving spouse took intestate?
A
Spouses were not heirs, but they got certain perks…
Widows took “dower” (life estate in 1/3 of real property owned by the husband at any time during the marriage, regardless if it was owned by the husband at death)
Widowers took “curtesy” (life estate in all of wife’s real property provided a child was born to the marriage)
Eliminated now
9
Q
What is a synonym of descendant?
A
Issue
10
Q
Under modern law, how much does a surviving spouse take if there are surviving descendants? (3 Rules)
A
~ Majority rule says spouse takes 1/2 to 1/3
~ Some states give the spouse a fixed dollar amount plus 1/2 to 1/3
~ UPC says that spouse takes all if all surviving descendants are the surviving spouse’s descendants
11
Q
Under modern law, how much does a surviving spouse take if there are NO surviving descendants?
A
Majority Rule: Surviving spouse takes all
UPC States: Suviving spouse takes all only If the decedent is not survived by descendants or parents
12
Q
If there are no descendants, who is next in line?
A
0) The property passing outside of probate is distributed
1) Debts of the estate
2) Surviving spouse’s share
3) Descendants
~Ancestors and collaterals
4) to parents
5) if no parents, to descendants of parents (and their descendants)
6) if no descendants of parents, to grandparents or their descendants (split between maternal and paternal)
7) If no grandparent descendants, divide into maternal and paternal shares and pass to nearest kin
8) If no relative capable of taking, escheat to the state
13
Q
What shares do the children take if all of a decedent’s children survive the decedent?
A
All children take equal shares
14
Q
What shares do the children take if all of a decedent’s children either survive the decedent or predecease the decedent and leave no decendants of their own that survive the decedent?
A
All surviving children take equal shares
15
Q
If at least one descendant predeceased the decedent and is survived by a descendant of their own, what is the distribution under a classic/strict per stirpes?
A
This is the minority common law rule
The property is divided at the first generational level regardless if there are living takers. One share is created for each surviving child and each dead child that has at least one surviving descendant.
Divides into shares at the child level even if no child survives the decedant
Younger generations cannot take if their parent is still alive
16
Q
If at least one descendant predeceased the decedent and is survived by a descendant of their own, what is the distribution under per capita with representation?
A
This is the majority rule
The property is divided at the first generational level at which there are living takers. Each living person at that level takes their share and each deceased person who has suviving descendants is allocated a share which passes to their descendants by right of representation.
So if grandparent dies and all of the children are dead, the grandchildren take in equal portions,but if grandparent dies and not all children are dead, grandchildren can take in different shares.
17
Q
If at least one descendant predeceased the decedent and is survived by a descendant of their own, what is the distribution under per capita at each generational level?
A
This is the modern trend + UPC
The property is divided at the first generational level at which there are living takers, but the shares of the deceased persons at that level are combined and divided equally among the takers at the next generational level.
That way persons of the same degree of kinship always take in equal shares. It is also possible for grandchildren to take even though their parents are still living.
18
Q
How are adopted children treated by intestacy?
A
Adopted children are treated as the biological children of the adopting parents - age generally does not matter.
- This means that parents inherit from and through their children and children inherit from and through their parents
Adopted children do not inherit from/through their biological parents unless the child is adopted by a close relative
19
Q
How are step and foster children treated by intestacy?
A
No inheritance rights unless adopted or the doctrine of “adoption by estoppel” applies.
Adoption by estoppel allows a child to inherit from/through a step/foster parent when legal custody of the child is gained under an unfulfilled agreement to adopt them. (But if the child dies, the step/foster parents cannot take from the child)
20
Q
How are nonmarital children treated by intestacy?
A
Always inherit from/through their mother.
Inherit from father if:
(1) father married mother after child’s birth
(2) man adjudicated to be the father in a paternity suit
(3) after his death and during probate proceedings, man proved by clear and convincing evidence to be the father
21
Q
How are half-bloods treated by intestacy?
A
Half bloods of an intestate are brothers/sisters who have only one parent in common with the intestate. This only matters if brothers/sisters of the intestate are inheriting from the intestate
Most states draw no distinction
22
Q
What is a posthumous child?
How are posthumous children treated?
A
Posthumous children are children born after the death of their parent.
Most states allow posthumous children to be treated as heirs (ie treat as if born at time of decedant’s death)
23
Q
What is a disinheritance clause?
What is the effect of a disinheritance clause in a will on property passed via intestacy?
A
A disinheritance clause is a will provision expressly disinheriting an heir
Most states say that disinheritance claues are ineffective as to any property passing by intestacy, but minority rule and UPC honor the clause and act as if the disinherited person disclaimed their share.
24
Q
What is an advancement?
When is an advancement presumed? (Common law, modern law, UPC)
A
A lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor (future decedant)’s estate. This is an intestacy concept
At common law: an advancement IS presumed when a substantial intervivos gift is given to one of the decedant’s children
Modern law: An intervivios gift is presumed NOT to be an advancement unless it is shown that it was intended as an advancement
UPC: An advancement exists only if it is declared to be an advancement by the donor in a writing contemporaneous with the gift or acknowledged as an advacement by the heir in writing (does not have to be contemporaneous)
25
What is the procedure for adjusting shares when an advancement is found?
What if the person receiving the advancement has predeceased the intestate?
(1) PErson receiving the advancement gives the value they received to "hotchpot" (but can't go below 0 or be forced to write a check)
(2) Value of the estate and hotchpot is distributed (partially coming back to them)
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Majority rule: advancement is binding on those who succeed to the advancee's estate
UPC: Advancement is not binding on those who succeed to the advancee's estate unless the writing contemporaneous with the gift or acknowledgment says it is
26
What is the concept analogous to advancement in the context of wills?
Satisfaction
27
Why are there rules regarding simultaneous death?
One person can ony take as an heir or will beneficiary if they survive the decedant, and sometimes it is not clear who survived whom
28
What are the two approaches to simultaneous death?
Uniform Simultaneous Death Act: When disposition of property depends on sequence of death and the sequence cannot be established, the property is treated as if each decedant survived the other. Applies to all cases where order matters (e.g. joint tenants, wills, intestacy) but only applies when it is not clear who died first
120 Hour Rule (+ UPC): A person must survive decedant by 120 hours to take any distribution of the decedant's property
^Neither of the above applies if the decedant's will provides otherwise
29
What is disclaimer?
Disclaimer is when a will beneficiary or an heir disclaims an interest (ie refuses to accept it)
30
Why would an heir or beneficiary disclaim a gift?
1) Burdensome/negative value (e.g. environmental liability, back taxes)
2) Taxes (disclaimed property is not treated as a gift from the disclaimant to the ultimate recipient)
3) Escape creditors (disclaimed prperty often cannot be reached by the disclaimant's creditors)
31
What are the requirements of disclaimer?
Must be written, signed by the disclaimant, acknowledged before a notory, and filed with the appropriate court within 9 months of death
32
How can a disclaimer be made on behalf of an infant, incompetent, or decedant
A disclaimer may be made by a guardian on behalf of an infant or incompetent or a personal representative of a decedant if the court finds it is in the best interests of the beneficiary/their estate
33
Can you accept some of the benefits of the property and then disclaim it?
No, if a beneficiary/heir has accepted any of the benefits, estoppel operates to prevent disclaimer
34
What is the effect of disclaimer?
The disclaimed property passes as if the disclaimant had predeceased the decedant (disclaimant cannot choose who the property goes to)
Disclaimer of a life estate causes the remainderman to take
35
What is the effect if the decedant's death is caused by heir or beneficiary?
What is the burden of proof for a finding that decedant's death was caused by an heir?
If intentionally and feloniously caused the death of decedant , that person forfeits any interest they had in the decedant's estate (including insurance, right of survivorship, etc) and the property passes as though the killer predeceased the victim
Must find killing by preponderance of the evidence (so any criminal conviction is dispositive)
36
What is a will?
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What is a codicil?
An instrument executed with certin formalities that directs the disposition of a person's property at death, revokes an earlier will, or simply appoints a personal representative
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a supplement to a will that modifies it
37
How forgiving are courts of compliance with the requirements of a will?
Most states require exact compliance to create a vali will, but the UPC allows minor errors if there is "substantial compliance" (substantial compliance satisfied if there is clear and convincing evidence that testator meant the document to be their will
38
What is a beneficiary called before the testator dies?
The beneficiary is called an "expectancy"
39
What is a savings statute?
A savings statute allows a will to be admissible to probate if the will has been executed in compliance with...
- the law of that jurisdiction,
- the law of the jurisdiction where the will was executed,
- the law of the testator's domicile when the will was made, or
- the law of the testator's domicile at time of death
Savings statutes function only to get the will into probate - once a will is in, local rules (domicile at death for personal property, situs for real property) determine how it is construed/applied
40
What are the requirements of all wills?
Legal and testamentary capacity and intent and a signed writing
~ Testator is age 18 (legal capacity) and of sound mind (testamentary capacity)
~ Testamentary intent - presumed intent to make a will
~ Writing
~ Signature of the testator
41
What is required to have testamentary capacity?
The bar is no higher (probably lower) than for contract law purposes. Testator must have the capacity to understand:
- nature of the act of excuting a will
- nature/extent of their property
- the person who are the natural objects of their bounty (can recognize your family)
- be able to formulate an orderly scheme of disposition
42
When is testimentary capacity judged as of?
Judged as of the time when the will is executed
43
Which of the following indicate a lack of testamentary capacity:
- mental ailments (including failing memory)
- physical ailments
- drug addition
- appointment of a guardian
- adjudication of insanity
None - even if the person lacks capacity at certain times, they can have testimentary capacity at other times
Appointment of a guardian or adjudication of insanity is presumptive evidence but is not dispositive
44
What is testamentary intent? How can it be proven?
Testator must have present intent that the instrument operate as their will. 3 elements:
- intent to dispose of property
- intent that the dispoition is to occur only at death
- intent that the instrument accomplish the disposition
Parol evidence is admissible to show a lack of testamentary intent
45
What is required for the signature component of a will?
| Can anyone else sign for you?
Any mark made by the testator with intent that it operate as their signature (including initials/symbols)
A proxy signature can be made by another person at the testator's direction and in their presence - Can get a witness to make a proxy signature
Signatures must be in a single contemporaneous transaction
46
What are the requirements of formal attested wills?
All common requirements of a will...
(Legal and Testamentary capacity and intent and a signed writing)
~ Testator is age 18 and of sound mind (testamentary capacity)
~ Testamentary intent - presumed intent to make a will
~ Writing
~ Signature of the testator
PLUS [varies by state]
(nod or sign, pass two pens to two present)
- two competent attesting witnesses (or signed by a notary under UPC)
- testator must acknowledge will or sign in witness's presence
- witnesses must sign in testator's presence
- If witness is also a beneficiary, will is valid but gift to interested witness is purged unless
(A) witness is supernumerary (above the required #)
(B) witness would take without the will (or would take less)
(C) UPC minority rule applies
47
Do the witnesses to a formal attested will have to know the contents of the will?
No, but some states require that the testator "publish" the will by telling the witnesses that this is their wil
48
Are lawyes, creditors, or fiduciaries considered to be "interested" for purposes of witnessing a will?
No, so accordingly, they are not disqualifed from collecting debt or serving the estate
49
What is required for a witness to be "in the testator's presence"?
Most courts use the "conscious presence test" where the witness and the testator must both know that the other is present and must know what the other is doing - the signing must be within the general awareness and cognizance of the other party.
[KEY POINT] Telephone or computer contact does not satisfy "presence"
50
What is the UPC rule for the consequences of a failed formal attested will?
Defectively executedwil can be given effect if clear and convincing evidence that testator intended it to be his will
51
What is the term for: language in a will that recites the elements of due execution and is prima facie evidence that those elements were satisfied (but is not required)
attestation clause
52
What is a self-proving affidavit? Why make one?
Recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary.
Functions like a deposition and eliminates the need to produce witnesses in court later (very common for convenience reasons)
53
Does a signature on a self-proving affidavit count as a signature on a will?
Most jurisdictions say yes
54
What are the requirements for holographic wills?
All common requirements of a will...
~ Testator is age 18 and of sound mind (testamentary capacity)
~ Testamentary intent - presumed intent to make a will
~ Writing
~ Signature of the testator
PLUS
- must be mostly/completely in testator's handwriting (important parts should be in testator's handwriting)
- witnesses not needed
55
Can a holographic will be amended by handwritten change after its creation?
Yes
56
Can a holographic codicil amend an attested will?
Yes, if the jurisdiction recognizes holographic wills
57
Can handwritten changes to an attested will after it is made be effective?
Yes, if the jurisdiction recognizes holographic wlls, the changes might be considered a holographic codicil and be effective
58
Are oral wills effective?
No, these are called "nuncupative wills" and are rarely recognized.
Some jurisdictions to recognize them but only for personal property and only if made by a soldier/sailor or a person contemplating imminent death
59
To whom is an attorney liable for negligence in drafting a will?
What are the potential COAs
Liable to the client and to the intended beneficiaries of the will.
Can sue the atty as a third party beneficiary of the atty-client contract. SoL begins to run on date of death, not on the date when the will was executed
Can also sue for malpractice (but many states still require privity to sue for malpractice, so intended beneficiaries would lack standing
60
What are the key terms for how property left to someone in a will?
A devise is a gift of real property and recipient is a devisee
A bequest is a gift of personal property and recipient is a beneficiary
A legacy is a (usually cash) gift of personal property in a will and the recipient is a legatee
(But these terms are often used imprecisely)
61
What are the classifications of gift for purposes of ademption, satisfaction, and abatement?
Specific devise/legacy (a gift of a particular item distinct from all other property in the estate)
General legacy - a gift of general economic benefit payable out of the general assets of the estate without requiring any particular source of payment (or gifts of particular property if the testator never owned them and intended the executor to go out and buy them)
Demonstrative legacy - gift of a general amount to be paid from a particular source or fund (treated as a specific legacy to the extent the fund source is available and a general legacy to the extent of any shortfall)
Residuary Estate - gift of the balance of property after paying debts, expenses, taxes and specific, general, and demonstrative gifts
62
What is ademption by extinction?
Failure of a gift because property is no longer in the testator's estate at the time of their death (so it only applies to specific devises and bequests).
The would be recipient of the specific bequest/devise gets nothing and there is no inquiry into testator's intent (beyond any provision in the will, which would control)
There can also be partial ademption (where the testator has gotten rid of part of the property subject to the specific devise/bequest). The devisee would get what ever is left
63
Can general or demonstrative legacies be adeemed by extinction?
No, the gift can be satisfied by selling other property and giving cash as replacement or giving other assets.
64
What are a couple of ways a court might try to avoid ademption?
1) Construe the language as a general or demonstrative legacy (can do so if there is no "my" language which makes it a specific devise/legacy)
2) Look to a statutory exception to the ademption doctrine
65
What are some statutory exceptions to the ademption doctrine?
1) Replacement property: allows the beneficiary to receive replacement property that is similar to the property that would be adeemed
2) Balance of the purchase Price: if the testator sold the item and is still owed the purchase price from the buyer, the beneficiary can take the purchase price from the buyer
3) Proceeds of Condemnation Award or Insurance (if the property was destroyed and the comp was paid after testator's death, beneficiary can take the proceeds)
4) Proceeds from sale by guardian/conservator: beneficiary can take a general pecuniary legacy equal to the amt of the proceeds
66
What is ademption by satisfaction?
When does it occur?
It is the will version of an advancement - a testamentary gift is satisfied in whole/part by an intervivos transfer from the testator to the beneficiary after the execution of the will if the testator intends it to have that effect
Most states require a writing or specific instructions to deem an intervivos transfer an ademption by satisfaction. UPC requires a writing contemporaneous with the gift or an acknowledgement in writing (doesnt have to be contemporaneous) by the recipient.
BUT if specific property is given, there is both a satisfaction of the legacy and an ademption
67
What happens to accessions (increases in value) of property between the time when the will is made and the testator dies?
What happens to changes in value of specific gifts after the testator's death?
Income on property goes to the general estate
Improvements on real property go to the specific devisee
Changes in value of specific gifts are irrelevant
Changes in value after the testator's death pass to the specific beneficiary because the specific beneficiary is deemed to own from the time of the testator's death.
68
What is the effect of a stock split/dividend on a specific bequest?
Common law gives the specific bequest the benefit of splits but not stock dividends
Modern law (widely folowed) gives the specific bequest the benefit of splits and dividends
69
What is exoneration of liens?
At common law, specifically devised property would have all of its liens paid off by the estate (ie its liens would be exonerated), but the modern view is that a specific gift will not be exonerated unless the will so provides
70
What is abatement?
Abatement is the process of reducing testamentary gifts in cases where the estate doesn't have enough money to satisfy all claims/bequests/devises
Unless the wil specifies otherwise, the following order of abatement applies:
1) property passing by intestacy
2) residuary estate
3) general legacies
4) demonstrative legacies
5) specific bequests and devises
* For abatement purposes to the extent a demonstrative legacy can be satisfied from a specific source, they are treated as specific legacies and any shortfall is treated as a general legacy
* within each class, abatement is pro rata
71
When does a gift lapse? What happens when a gift lapses?
A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the teestator (e.g. simultaneous death OR DISCLAIM)
Who receives a lapsed gift is controlled by:
- the express terms of the will
- rule of law (anti-lapse statute)
- residuary clause
- intestacy
72
What does an anti-lapse statute do?
It saves the gift if the predeceasing beneficiary was of a certain relationship to the testator such that it goes to the beneficiary's decendants (if any).
Contrary term of the will trumps an anti-lapse statute. A survivorship term is considered contrary at common law (and so trumps antlapse statute) but UPC says survivorship term is not contrary so antilapse statute operates
73
What happens if there is a lapse in a residuary gift that is left to more than one beneficiary?
If the anti-lapse statute applies, apply it as normal, if not...
Under common law: The deceased beneficiary's share passes by intestacy
Under majority modern law: the remaining residual beneficiaries can divide the deceased beneficiary's share among themselves
74
If a testator makes a gift to a class and a class member dies before the testator, do their decendant's get their share?
Only surviving class members get a share unless the will or an anti-lapse statute applies but anti lapse statutes often apply
75
What is the result if a beneficiary is dead when the will is executed?
The gift is void, but most states that have anti-lapse statutes also apply to void gifts
76
Who can raise interpretation issues?
1) the personal representative who wants to do the right thing and avoid liability for improper administration
2) beneficiaries or heirs who would take under differing interpretations
77
What is the first thing that guides interpretaation questions?
Evidence of the testator's intent
78
What are some common rules of constrution for wills?
1) The fact of leaving a will (esp. if it has a residuary clause) raises a presumption to avoid intestacy
2) If two or more provisions contradict, then the last in time (or last in document) prevails
3) construe as a whole
4) words are given ordinary meaning unless it is clear the testator intended a different meaning
5) Technical words are given technical meaning unless it is clear testator intended a different meaning
6) Attempt to give effect to all words in the will
79
What are the types of ambiguity and how are they dealt with?
1) Patent Ambiguity: ambiguity apparent on its face. Modern view looks to extrensic evidence but cannot be used to fill in blank spaces or provide omitted gifts. Traditional view is no extrensic evidence
2) Latent Ambiguity: ambiguity that is not apparent on its face but cannot be carried out without further explanation. Extrensic evidence is considered
3) No apparent ambiguity - Mistake: If the will can be carried out on its face but someone thinks a mistake has been made, there are 2 approaches...(a) Plain Meaning Rule - no extrensic evidence (b) Modern Rule - extrensic evidence admitted
80
What is the effect of incorporating a document into the will by reference?
The incorporated material is treated as if it was actually written into the will - it makes no difference if it lacked witnesses, was not signed or was written while drunk/undue influence/insanity
81
What is required to incorporate document into a will by reference?
1) The will manifests an INTENT TO INCORPORATE the document
2) The document is IN EXISTANCE at the time the will is executed
3) The document is sufficiently DESCRIBED in the will such that it can be identified
82
Can a testator incorporate a document by reference that is not in existence at the time the will is executed?
No - generally the document must be in existence at the time the will was executed, but some states have carved out an exception for a list specifying tangible personal property not otherwise disposed of by the will "Tangible personal property document"
83
What is an act or fact of independent significance and what can it be used for for purposes of interpreation?
An act/fact of independent significance is something outside of the will which has a purpose other than disposing of property at death. Can be the act of a third person or act of the testator. The court can go outside of the will to figure out the meaning of these.
A will may dispose of property by referece to an act/event of independent signifiance even if the event is future and unattested
84
What is a conditional will?
Can extrensic evidence be considered to prove that a will that is absolute on its face was actually conditional?
A will that provides it is to be operative only if certain event occurs/does not occur.
Courts try to construe wills to avoid conditions (might be reconstrued as statement of motive if possible). But conditions are respected if clear.
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Yes.
85
What is a codicil?
What is required for republication by codicil?
What is the effect of republication by codicil?
A codicil is an amendment to the extent inconsistent and a republishing
Must satisfy the same formalities as a will
Republication by codicil causes the will and the codicil to be treated as one instrument speaking from the date of the last codicil (date might be important if people were born/died since execution)
86
What is a work around to an invalidly executed will?
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What is a prerequisite to republishing a will?
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What is the result of a codicil that purports to republish (but not incorporate) an invalid will?
If a codicil is validly executed and references a will, then the will can become valid because the codicil is valid if the requirements of incorporation are met
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The will must have been validity executed. Accordingly if a will was not validly executed, a codicil must meet the requirements of incorporating it (not just republishing it) to make the earlier will valid.
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The codicil operates as a partial will rather than a codicil
87
What is a pour over provision?
How can the trust be amended?
What happens if the trust is revoked?
A pour over provision is a will provision making gift to an intervivos trust.
The trust can be created before or after the execution of the will.
The property in trust is governed by all trust amendments even those after the testator dies.
If the trust is revoked, the gift lapses
88
What does the person probating the will have to prove to establis integration? What is integration?
Integration is proving that the pages in the will when it was executed are the same pages present during probate.
Can be proven by physical attachment, coherence, or an orderly plan (or by testimony/extrensic evidence)
89
What are the three types of joint wills?
1) Joint will
2) Recriprocal or Mutual Wills
3) Contractual Wills
90
What is a joint will?
A joint will is a single instrument executed by two or more testators and intended to be he will of each (highly unadvisable)
91
What is a recriprocal or mutual will?
Separate wills executed by two or more testators that contain substantially similar proivisions
92
What is a contractual will?
Can the contract be revoked?
How is such a contract breached?What's the remedy?
A contractual will is a will executed or not revoked as the consideration for a contract.
A contract to make/not to make/not to revoke a will is valid, but modern law requires a writing.
The contract can be revoked while both are aliv but becomes irrevocable once one dies.
These contracts cannot be breached until death unless repudiated. No remedy unless a party dies in reliance- then the remedy is that the court grants a construtive trust for the benefit of the promisee's beneficiaries (to pevent the other from transferring property as to deprive the beneficiaries of the benefit)
93
If two wills were executed at the same time, is there a presumption that they were executed pursuant to a promise by the other party not to revoke?
No - there is no presumption that there were promises not to revoke
94
What is a power of appointment?
Authority granted to a person (the "donee" of the power) to designate (within prescribed limits) who gets what and how
95
What is the difference in a general vs special power of appointment?
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General power of appointment is a power exercisable in favor of anyone including the donee of the power themselves.
Special power of appointment is a power exercisable in favor of a limited class of appointees which does not include the donee or their creditors
```
96
What is the difference in a presently exercisable and testamentary power of appointment?
A presently exercisable power of appointment is one exercisable by the donee during their lifetime.
A testamentary power is one that is exercisable only by the donee's will
97
Can the donee's creditors reach the assets the donee has a power of appointment over?
Not until the donee exercises the appointive power, because the donee technically does not own the appointive property BUT as soon as the power is exercised, creditors can reach the assets (even if the donee appoints someone else to receive the property)
98
Does a residuary clause exercise a power of appoinment held by a testator?
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Can a donee holding a testamentary power of appointment exercise it with a residuary clause?
Majority View: No
Minority View: A residuary clause exercises a general appointment power UNLESS the donor's wiil called for its exercise by specific reference to the power or the donor's will provides for a gift in default of the appointment
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Yes, if the residuary clause specifically calls for it unless the creator of the power called for the power's exercise by an instrument that specifically referred to the power
99
How can a power of appointment be exercised by implication?
If the donee purports to dispose of the property subject to the power unless the creator of the power called for its exercise by a specific reference to the power
100
How can the donee of a power of appointment exercise the power?
Unless the creator of the power provides otherwise, the donee can appoint the property outright, create life estates/future interests, put the property in trust and create additional powers of appointment
101
What are the three ways to revoke a will?
Revocation by operation of law
Revocation by physical act
Revocation by subsequent writing
102
If a contractual will is created, can it still be revoked?
Yes, the revocation is always valid (but there may be a COA for breach of contract)
103
What is the effect of an executed will followed by a marriage?
Majority View: no effect
Minority and UPC view: new spouse takes an intestate share as an omitted spouse unless:
- the will makes provision for a new spouse
- omission was intentional
- the will was made in contemplation of marriage
104
What effect is a divorce or annulment on a will executed during the marriage?
Majority View: Revoke all gifts in favor of the former spouse (but will remains valid and is read as if the spouse predeceased the testator)
Minority View: Revoke all gifts in favor of the former spouse and the former spouse's relatives who are not relatives of the testator (step children, mother in law)
All gifts in favor of a former spouse incudes all even appointments as executor, guardian or trustee
Divorce must be FINAL (if remarry, no voiding)
105
How can a person terminate a will by physical act?
Can the physical act of another terminate a person's will?
Testator must have INTENT to revoke and the intent must be CONCURRENT with the act of destruction/writing void (if accident or mistake, no revocation). Person must have legal capacity when revoking.
Revocation by Proxy physical act is valid if the proxy acts at the direction of the testator and is done in the testator's presence (not over the phone)
106
Is a partial revocation by physical act effective (e.g. by striking out a provision in pen)?
Majority View: Partial revocation by physical act is effective if there is sufficient evidence that the testator made the changes (extrensic evidence allowed to determine if partial or full revocation intended). Some also allow adding to gifts by writing it in
Minority View: No effect - probate will as originally written
107
What happens to codicils if a will is revoked?
What happens to a will if a codicil is revoked?
Revocation of a will also revokes any codicils to it
Codicil is revoked but will remains
108
What is the effect of destruction of a duplicate of a will?
What is the effect of destruction of an unexecuted copy of a will?
Destruction of any executed copy revokes the will unless there is no intent to revoke
Destruction of an unexecuted copy with intent to revoke does not revoke the will
109
How can a will/codicil be revoked by writing?
Can be revoked or altered by a subsequent writing that follows all of the formalities of a will.
Can be done expressly or by inconsistency. If done by inconsistency and disposes of all of the testator's property, there is a complete revocation. IF done by inconsistency and disposes only part of the testator's property, then revokes to the extent inconsistent.
110
Who has the burden of proving the testator did not revoke a will?
The person seeking to admit the will into probate has the burden of proving it was not revoked
111
What are the presumptions as to revocation of a will?
A will is presumed not to have been revoked if found in a usual place for a will (e.g. important papers folder or with an atty)
If a will was last seen in the testator's posession and cannot be found or is found in a mutilated condition, there is a presumption that it was revoked, BUT if the will was last seen in the possession of a third party or if a person adversely effected had access to the will, there is no presumption of revocation.
Extrensic evidence admissible to overcome either presumption
112
If a will cannot be found (and the presumption of revocation has been overcome), can the will be admitted to probate?
Yes if can prove:
1) valid execution
2) cause of nonproduction (proof that the will was not revoked)
3) the contents of the will (by testimony of at least two witnesses or by carbon copy)
113
What are the approaches to "revival" of a will
UPC View: If a will that wholly revoked a previous will is itself revoked, the previous will remains revoked (is not revived) unless there is evidence of testator's intent to revive. If a will that only partially revoked a previous will is itself revoked, the previous will is revived absentevidence of testator's intent not to revive.
Automatic Revival Approach: Revival is automatic under the theory that the revocation was itself revoked before the testator' death
No Revival Approach: The only way to revive a will that was revoked by ANY method is to reexecute it (resign/witness/etc)
114
What is a conditional revocation?
| What are the 2 forms of conditional revocation?
A revocation that operates only if/when a condition is satisfied.
Conditional revocation can be either:
1) Express (RARE; statement in a revoking instrument that the revocation is operative only upon satisfaction of certain conditions)
2) Implied Conditional Revocation aka Dependent Relative Revocation
115
When is an implied Conditional Revocation (aka Dependent Relative Revocation) at play?
e.g. T executes W1, Revokes W1, Executes W2 but W2 is invalid.
A DRR exists when T revokes one Will under the belief that a later will would take its place and but for the later will, T would not have revoked. If the later will fails, then the revocation also fails as a dependent relative revocation.
To determine if there is a DRR ask 2 questions:
1) Was the revocation of W1 impliedly conditioned on the validiy of W2?
2) Would testator have preferred W1 over intestacy? (similarity between W1 and W1 is more likely to result in DRR)
If yes to both, then DRR exists
116
What is a "harmless error statute"
A harmless error statute is a provision of the UPC that applies to the execution and revocation/amendment of wills. Allows a document that does not meet the technical requirements of a will/revocation/amendment to be operative if the proponent proves testator's intent by clear and convincing evidence
117
When does an elective share statute usually exist?
What is an elective share statute?
How much is an elective share?
How does a spouse elect to take the elective share?
Elective share statutes exist in marital property states (because in marital property states, earnign spouse can give away all of the couple's finances) - no need in community property states because the earning spouse can ony give away their individual property and their half of the community property
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A statute that gives a spouse an election to take a statutory share of the decedant's estate in lieu of taking under the decedant's will.
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The amt varies by state but 1/3 of the net probate estate (total less expenses and creditor's claims) is common if decedant is survived by issue and 1/2 is common if not survived by issue. Some states and the UPC base the amt on length of marriage.
Some states base the % on an "augmented estate" which takes into account certain amts that pass outside of probate
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Must elect within 6 months from admission of the will to probate
118
What effect does the spouses taking their elective share under an elective share statute have on the testator's testamentary plan?
The share is paid first from what the spouse would have taken under the will - beyond that the rules of abatement apply
119
What is the key difference between an elective share statute and a pretermitted child statute?
Pertermitted child statute is aimed at carrying out the intent of the testator and elective share statutes ae motivated by public policy and intentionally override the intent of the testator.
120
What is a "pretermitted child"?
Pretermitted child is a child that is left out of the will that is born after the will was executed.
Children born after te execution of the will and excluded because they were believed to be dead can take shares under the statute
Most states have statutes that create a share for the child (according to a statutory formula)
121
How large is a pretermitted child's statutory share?
When is a pretermitted child likely to be denied a statutory share?
Varies by jurisdiction, but…
- Often equal to an intestate share (which could be the whole estate)
- Amt often capped at what other children received
- Bequests to other children are reduced but no other beneficiay's bequest is reduced
Likely to be denied a statutory share if...
- it appears the omission was intentional
- the omitted child was provided with a transfer outside of the will in place of the testamentary gift
- If the entire estate is left to the pretermitted child's other parent
122
What is the big gotcha in pretermitted child statutes?
The pretermitted child only gets a share if unborn or presumed dead at the time the will was executed, but if a codicil is executed after the child is born, the republication of the entire will means that the pretermitted child takes no share
123
What are the three categories of property that are shielded from creditors?
1) Homestead
2) Family Allowance
3) Exempt Personal Property
124
What is the extent of the homestead exemption for property from the reach of creditors? What is another protction for survivors of the deceased related to the homestead?
Family residence/farm out of reach of creditors
Spouse or dependent children are often entitled to live in the homestead as long as they choose regardless of what was done with the homestead in the will
125
What is a family allowance?
How is it calculated?
An amt of money to support the family during the probate administration. Takes priority over all claims other than funeral and admin expenses
It is in addition to any amts received by the family through the will/intestacy/elective share. May be a fixed dollar amount or just a "reasonable amount" which is a function of number of children, etc
126
What is exempt personal property?
Is there a deduction from the taker's share for the exempt personal property claimed?
Personal property that is outside of the reach of creditors and to which the surviving spouse/children are entitled to (e.g. furniture, personal items, sometimes farm equipment/cars). These are not exempt from perfected security interests in the items themselves.
There is no deduction from the taker's share for the exempt personal property claimed
127
What are the timing and notice requirements for a will contest?
States vary on how quickly a will contest must be filed
Notice must be given to all legatees under the will and all intestate heirs
128
Who has standing to contest a will?
Only "interested parties" which includes those that take or believe they should take under a will, heirs/would be heirs under intestacy, and maybe beneficiaries of prior wills.
Creditors, executors, and testamentary trustees are not interested parties
129
Who has the burden of proof in a will contest?
The party contesting the will has the burden of proving it is invalid
130
What are the common reasons why a will is contested?
Usually arguing defective execution, revocation, lack of legal/testamentary capacity/intent, lack of intent undue influence/duress, fraud, or mistake
131
Is a will valid or invalid in an all or nothing style? Or can part be valid and part be invalid?
Partial invalidation is possible but rare because the usual reasons for invalidating taint the entire document (e.g. lack of capacity)
132
What is insane delusion?
Insane delusion is a ground for contesting a will. It is belief in facts that do not exist and that no rational person would believe existed.
Insane delusion destroys testamentary capacity only if there is a causal nexus between the delusion and the property disposition - can invalidate the entire will or one particular property disposition
133
What is undue influence?
Undue influence is a ground for contesting a will. To establish undue influence, the contestants must establish that:
1) influence EXISTED and was EXERTED
- the effect of the influence was to OVERPOWERED THE MIND and free will of the testator so that the will reflects the desires of the person exerting the influence and not the testator
- the resulting testamentary disposition would not have been executed but for the influence (CAUSATION)
Simple pleading/begging/threatening is not undue influence - need to destroy free will
134
What kinds of evidence is used to contest a will on grounds of undue influence?
Direct evidence is rare, so the following circumstantial factors are considered:
- unnatural dispositions such as cutting out close family
- opportunity/access to the testator
- confidential/fiduciary relationship
- ability of the testator to resist
- beneficiaries involvement with drafting or execution of the will
But suceptibility to undue influence and an unnatural disposition alone is not enough to establish undue influence - need free will to be overcome
135
When is a will or gift in a will presumptively invalid due to undue influence?
What is the effect of the presumption?
There is a presumption of undue influence if:
1) there was a confidential relationship between the testator and a beneficiary (ie placing confidence in them and relying on them) AND
2) the beneficiary was active in procuring/drafting/executing the will
Maybe 3) Some states require that the disposition be unnatural and favor the person exercising the undue influence
*BUT there is no presumption between spouses unless the spouse overpowered the will of the testator and resulted in a disposition reflecting the desires of the dominating spouse
*Attorney drafting a gift to himself is presumptively invalid unless close family relationship
The presumption shifts the burden of proof to the other party to prove there was not undue influence
136
What is duress as a ground for contesting a will?
Duress is a ground for contesting a will. It's like undue influence but connotes threat of physical violence
137
What is fraud as a ground for contesting a will? As to what must the person be deceived?
What are the elements of fraud?
The person contesting the will must prove the testator was WILLFULLY DECEIVED as to EITHER:
1) character/content of the instrument
2) extrinsic facts that woud induce the will or a particular disposition
3) facts material to a disposition
If a testator is fraudulently prevented from making a will, some courts will create a constructive trust in favor of those for whom it would have been made
Elements of fraud are:
1) false representation to the testator
2) knowledge of falsity by the person making the statement
3) testator reasonably believed the statement
4) statement caused the testator to exeute a will or make a particular disposition that the testator would not have made but for the misrep
138
What is fraud in the factum?
A ground for contesting/voiding a will. Misrepresentation as to the identity or contents of the instrument. Testator did not know the document was a will or what it contained.
(Often coupled with a lack of testamentary intent)
139
What is fraud in the inducement?
A ground for contesting/voiding a will. The testator knows they are executing a will and what the will contains, but they are deceived as to some external fact and makes the will based on that fact
140
What is mistake in the factum as a ground for contesting a will?
Mistake in the factum is a ground for contesting a will - no evil conduct involved.
Mistake in the factum is when the testator is in error regarding the identity or contents of the instrument and thus lacks testamentary intent. Either didn't know the document was a will or didn't know what it contained
Extrensic evidence allowed
141
What is mistake in the inducement?
Mistake in the inducement is when the testator is mistaken as to some extrensic fact and makes their wil in reliance on that mistaken belief.
If the mistaken belief was not fraudulently induced, this is NOT a ground for contesting a will.
BUT under the UPC, a court can reform a will even if it is unambiguous to conform with testator's intent if it is proven by clear and convincing evidence that it was affected by the testator's mistake of fact or law
142
What is a no-contest clause? What is the latin name?
aka in terrorem clause. Says that a beneficiary forfeits their interest in the estate if the contest the will and lose.
Majority Rule: Not enforced if the beneficiary had good faith and probable cause for bringing the contest
Minority Rule: Enforced absolutely
143
What does probate mean?
Proceeding in which an instrument is judicially determined to be the will of the decedent or in which a decedent's heirs are determined
144
What is a personal representative (in the probate context)?
The person appointed to carry out the estate administration.
If named in the will, the person is also called the executor. Will be appointed unless DQ'd and if DQ'd, an administrator is appointed
If not named in the/a will, a personal rep is appointed and is called the administrator
145
What court has primay jurisdiction over probate?
The jurisdiction in the state of the decedent's domicile at death. Ancillary jurisdiction wherever the decedent's assets are located
146
When do a person's heirs/beneficiries have to go to probate court?
Testate estates have to go through some sort of proceeding for the will to be determined to be valid. A will has no power to transfer property until you get a court order saying it's valid.
Intestate estates need a proceeding so that the heirs can be judicially determined
147
Who can serve as personal representative in probate?
Any person with capacity to contract
148
What is a personal representative in probate supposed to do?
Acts as fiduciary - may be required to post bond by state law/will
1) Give notice to devisees, heirs, claimants against the estate
2) discover and collect the decedent's probate assets and file an inventory
3) manage the assets of the estate during administration
4) pay expenses of administration such as claims against the estate and taxes
5) distribute the property
Generally must get court approval to borrow money, operate a business, or sell property
Personal rep may be reasonably compensated (rate may be set by statue) or may receive something or nothing according to the terms of the will
149
What is the personal representative's responsibilities with regard to creditor's claims?
Personal reps must give notice to creditors and creditors must file their claims within the time specified else the claim is barred.
150
What is the ordering of how creditor's claims against the estate are paid?
1) administration expenses
2) funeral expenses and expenses of last illness
3) family allowance
4) debts given preference under federal law
5) secured claims
6) judgments entered against the decedent durign their lifetime
7) all other claims
151
What is a living will?
A living will states an individual's desires regarding:
1) when to administer/withhold/withdraw life-sustaining procedures
2) whether to provide, withhold, or withdraw artificial nutrition or hydration
3) whether to provide treatment to alleviate pain
152
What is a durable healthcare power or a medical power of attorney? Who can be appointed ?
Appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated.
Many states allow anyone to be appointed except for an owner/operator/employee of a healthcare facility
153
What is necessary to execute a living will or medical power of attorney?
Must be:
1) in writing
2) signed by the declarant
Maybe 3) witnessed by two adult witnesses (or maybe notarized instead)
154
What is a family consent statute?
aka statutory surrogate statute. Allows a close family member to act as surrogate decisionamker for a person who has not properly designated an agent under the state's durable healthcare power statute
155
What is the procedure for revoking a living will or durable healthcare power/medical power of attorney?
Living will can be revoked at any time by:
1) destroying it
2) written revocation
3) oral expression of intent to revoke
Durable healthcare power/medical power of attorney can be revoked either by notifying the agent or the healthcare provider (can be oral or written)
156
What is the authority of an agent under a durable healthcare power or medical power of attorney?
Is the agent liable for decisions made
Agent has the authority to make most healthcare decisions that the principal could have made for themselves if they had capacity. The authority of the agent can be limited by the instrument itself. If no specific powers stated, must act in the principal's best interest.
The agent is not suject to civil, criminal, professional liability for actions taken in good faith
