Wills

Question 1

Classic Per Stirpes

Answer 1

Minority view

Decedent’s estate is divided among the first generation equally, the children, and any deceased children will have their share of that division pass on to their children.

Question 2

Per capita with Representation

Answer 2

Majority View - USE THIS FIRST ON MBE

Descendent’s estate is passed to the first generation with “living takers” in equal shares, and any deceased persons will have their share passed to their children.

Question 3

Per Capita at each Generation

Answer 3

Modern View (USE 2nd)

Start with first generation of “living takers” but the deceased person’s shares will be combined and divided equally among takers at the next level.

Question 4

Will Formalities

Answer 4

Attested/Formal:

1. In Writing;
2. Signed by Testator (proxy must be in T’s presence and at his direction);
3. Attestation (signed by at least 2 witnesses (or 1 notary) in testator’s conscious presence)

Question 5

Requirements for a valid will

Answer 5

1) Legal Capacity (18 years old)
2) Testamentary Capacity (sound mind)
- - - (1) Understand Act
- - - (2) Understand Effect (property passing when dead)
- - - (3) Understand Nature & Extent of Property
- - - (4) Recognize the Natural Objects of Your Bounty (your family)
- - - (5) ALL FOUR SIMULTANEOUSLY
3) Testamentary Intent - intended the instrument to be executed as will.
4) Formalities (depend on type of will)

Question 6

Attestation

Answer 6

A clause between testator and witnesses on the will that sets forth that the will formalities were fulfilled (prima facie evidence of the facts recited in the clause).

Question 7

Holographic Will Requirements

Answer 7

1. In Testator’s Writing (varies whether all or material terms only);
2. Signed and dated;
3. Reflects Testator’s Intent to make a will

Question 8

Types of ambiguities

Answer 8

1. Patent: Ambiguous terms - Modern: Extrinsic Evidence OK (but not for blanks/omissions)
2. Latent: Makes sense written but not in reality - Extrinsic Evidence OK
3. No Apparent Ambiguity (Mistake) -
   - — Traditional: Do whatever the will actually says
   - — Modern: Extrinsic Evidence to alter plain meaning to satisfy T’s intent (CLEAR & CONVINCING EVIDENCE of SCRIVENER ERROR)

Question 9

Incorporation by Reference

Answer 9

Documents extrinsic to the will may be incorporated by reference into the will.

1. Intent
2. Writing in existence when the will is executed
3. Writing must be clearly identified

Tangible Property Exception: allows reference to a LIST that is incorporated into will but is NOT in existence at time the will is made. Must be (1) signed by T; and (2) describe items and to whom they are devised to with certainty.

Question 10

Acts of Independent Significance

Answer 10

A will can dispose of property by reference to acts/events occurring after T executes the will, such as identification of beneficiary or amount of gift.

Examples: Specific gifts of general value; class gift; gifts to “spouse”; gifts of box contents.

Question 11

Power of Appointment

Answer 11

POA is authority (no duty, just right) granted to a person (donee) that allows them to designate a new owner of property and how they will take it.

Present (exercised during life) vs. testamentary power (exercised by will). Residual clause may or may not exercise POA.

General - Donee can exercise power in favor of anyone (including self)

Special / Limited - power exercisable in favor of a limited class of appointees (cannot include self, or her creditors).

Question 12

Revocation

Answer 12

1. By Operation of Law (divorce deletes ex-spouse & possibly relatives / marriage or kids post-will may change / murderer of T won’t take).
2. Physical Act (Requires: Intent, mental capacity, actual physical act by T or in physical presence).
   - - - Partial Revocation (cross-out, adjustment, increased gift): varies per state
3. Subsequent Will / Codicil - The newer prevails over older if inconsistent

Question 13

Presumption against Will Revocation

Answer 13

A presumption of non-revocation if will is found in a normal location and there are no suspicious circumstances.

Question 14

Lost will

Answer 14

If original will not found, the presumption is that will was revoked by Testator.

Can be rebutted by house burning down with will inside, etc.

Question 15

Revival of Revoked Wills

Answer 15

Three approaches:

1. Intent Approach (UPC) - is there evidence of what T wanted?
2. Revival of original because the subsequent will revoked.
3. No Revival - original is gone and if subsequent wills revoked, then must go intestacy.

Question 16

Dependent Relative Revocation (DRR)

Answer 16

If subsequent will fails formalities (mistake of law/fact), Court may revive original will and ignore will revocation, if it best reflected what the Testator intended.

If provisions similar, likely to revive. If not, intestacy.

Question 17

Harmless Error Rule (UCC)

Answer 17

Statute applies to execution or attempted revocation or alteration of will if established by CLEAR & CONVINCING EVIDENCE that even though technical requirements not met, Testator intended for it to function for its purpose.

Question 18

Elected Share for Spouses

Answer 18

Public Policy distribution that forces share to spouse that can depend on children / marriage length.

Augmented Estate: allows spouse to get percentage of assets that include non-probate assets.

Reasonable period: 6 months

Question 19

Community Property States

Answer 19

Surviving spouse automatically protected because they own half the assets already; and deceased spouse only has half to give away. This may be counter to T’s intent.

Question 20

Pretermitted Children

Answer 20

Presumed intent that omitted children born after the will were intended to inherit; so child would take intestate share.

But can be deprived of any inheritance if T intended to provide otherwise (i.e. the child’s other parent, or life insurance beneficiary) or purposefully omitted them (by omitting then from subsequent will/codicil after their birth).

Question 21

Other protections of spouse / minor children

Answer 21

1. Homestead - protection of house for certain value against creditors.; Life in Property even without title interest
2. Family Allowance - may be a statutory figure or tied to lifestyle
3. Exempt Personal Property - items protected from creditors (food/ hh furniture/ car)

Question 22

Insane Delusion: Will Contest

Answer 22

Insane delusion is a belief in facts that do no exist and that no rational person would believe existed.

If there is a connection between the insane delusion and the property disposition, then it destroys testamentary capacity, and will is set aside to the extent that the delusion created the testamentary disposition (e.g. wife turns into alien and gets disinherited).

Question 23

Undue Influence / Duress (Will Contest)

Answer 23

Elements:

1. Influence actually existed and was exerted;
2. Influence overpowered the T’s mind and free will;
3. Causation - T would not have executed without undue influence.

** Duress has same elements

Undue Influence is presumed if:

1. confidential relationship between testator an beneficiary (attorney / caretaker); AND
2. beneficiary participated to a significant degree in execution, drafting or procuring will.
   - - - Once established, burden shifts to proponent to will to prove no undue influence.

Question 24

Fraud (will contests)

Answer 24

Elements:

1. False representation made to T;
2. With speaker knowing that those statements were false;
3. T reasonably believed statements;
4. causing him to execute will that he otherwise would not have.

Two kinds:

(1) Fraud in the Factum / Execution - T did not know what was in the document when signed - goes to testamentary intent.
(2) Fraud in the Inducement - T knows that he’s executing a will and content but will made based on erroneous extrinsic fact that was not true (one sibling gets cut out because of other sibling ruining her).

Question 25

Mistake (will contests)

Answer 25

1 ) Mistake in the Factum / Execution - T signed by mistake - goes to T’s intent - OK to use extrinsic evidence and most courts will except if mistake is obvious (married couple signing each other’s wills)

2) Mistake in the Inducement - T is mistaken as to intrinsic fact, and makes will with full intent, but no evil conduct for remedy. No Relief.

Question 26

Advanced Directives

Answer 26

Medical Power of Attorney: Appoints individual agent to make healthcare decision on behalf of the principle when they become incapacitated; extends to ALL healthcare questions unless limited. Created same as will formalities usually.

Living Will: document specifying life-sustaining and pain-alleviating measures if indefinitely incapacitated (terminally ill / persistent vegetative state)

Question 27

Ademption

Answer 27

Applies when specifically bequeathed property is not in the testator’s estate at death, causing it to fail.

Identity theory: if specifically devised item is not in T’s estate, then gift is extinguished.

Intent Theory (modern): if not in T’s estate, then may get replacement item (or cash value) if B can show T’s intent.