Wills Flashcards
Share of the Surviving Spouse
If the decedent is married, the spouse will get everything if the decedent’s parents are deceased and if the decedent did not have children outside of their relationship.
If the decedent’s parents survive the decedent the parents will receive a portion of the estate and the spouse will receive the rest.
If the decedent has children that are not children in common with the spouse, the children will receive a significant portion of the estate. The spouse will receive the rest.
Adopted Children
At CL, only blood relations could inherit from an intestate decedent. However, modernly, all states grant adoptive children inheritance rights.
An adopted child generally does not receive an inheritance from the biological parent.
However, if a step-parent adopts a child, the child may inherit from both their biological parents and the and step-parent.
Inheritance of Children Born Out of Wedlock
At CL, a non-marital child could not inherit from either parent.
Today, all states grant such 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.
How is paternity usually established for inheritance purposes?
Paternity usually established through
- Evidence of subsequent marriage of parents
- acknowledgment by father
- adjudication during life of father
- other clear and convincing evidence
Share of Children - Per Capita at Each Generation
(all about fairness)
If the decedent’s spouse and parents do not survive the testator, there are schemes to divide property among the decedent’s children. Under the “per capita at each generation” model, the basic number of shares is determined in the following way:
First, one must identify the first generation where there are issue (children) living.
Second, one share is given for each living issue and one share for each person in that generation who died before the decedent but left issue surviving. If a person died and did not leave any issue, their line is extinct and is not taken into account.
Third, all shares of the deceased persons are then combined into a single share and distributed equally at the next generation level.
Share of Children - Per Capita w/ Representation (“Modern Per Stirpes”)
If the decedent’s spouse and parents do not survive the testator, there are schemes to divide property among the decedent’s children. Under the “per capita with representation” or “modern per stirpes” model, the basic number of shares is determined in the following way:
First, one must identify the first generation where there are issue (children) living.
Second, one share is given for each living issue and one share for each person in that generation who died before the decedent but left the issue surviving. If a person died and did not leave any issue, their line is extinct and is not taken into account.
Third, each deceased person’s share is passed on to their issue.
Validity of a Will
A will is valid if specific state formalities are followed.
- In a writing
- Signed by testator or proxy
- With the present testamentary intent that doc is is will
- Signed/witnessed by at least two witnesses in T’s presence in a reasonable time
Many also require testator be 18+
Does a will have to be in writing?
Yes. Will must be in writing.
Oral Wills are not recognized under the UPC or in most states
What counts as a signature on a will?
Anything intended to be signature qualifies (nicknames, X, etc.)
UPC - T may sign anywhere on document and whole Will will be valid
UPC/Majority Standard
Signatures
Conscious Presence of Signature aka w/in range of Testator’s senses, not necessarily in line of sight (just so long as can see and hear)
Minority Signature
Line of Sight - proxy sig only valid if T can see proxy signer and witnesses sign will
Testamentary Intent
Testator __________ intended to (1) make a ___________ of property that (2) would be _____________ by the ______________ in question and (3) become _________ upon Testator’s ______.
This is usually established by provisions in the will (“I, Testator X, hereby declare that this is my last will”)
______________ evidence is allowed to prove requisite intent or lack thereof.
Testamentary Intent
Testator presently intended to (1) make a disposition of property that (2) would be governed by the instrument in question and (3) become effective upon Testator’s death.
This is usually established by provisions in the will (“I, Testator X, hereby declare that this is my last will”)
Extrinsic evidence is allowed to prove requisite intent or lack thereof.
Interested Witnesses
(those who receive property under a will)
CL
Will = invalid if Ws are not disinterested
Interested Witnesses
(those who receive property under a will)
Modern
Will still valid but some states say can’t take bequest.
Exceptions:
(a) will witnessed by 3+ Ws and would have been valid w/o interested W
(b) will republished by codicil + disinterested W witnessed codicil;
(c) if interested W also heir, would forfeit only so much as bequest exceeds what intestate share would have been
Interested Witnesses
(those who receive property under a will)
UPC
Disinterested Ws do not invalidate will or any provision of it under UPC.
Can take bequest.
What’s a holographic will?
Unwitnessed wills
Valid Under UPC if:
(1) Testator signs will; AND
(2) Material portions are in testator’s handwriting
When state requires that a will be subscribed/published, what does that mean?
T must sign @ end of will
Integration
Doctrine that permits separate papers to become a single will
Elements (UPC):
(1) Physical Presence - Pages physically present at the time when T and Ws signed the last pg of will
AND (2) Intent of Inclusion - Intended to be Part of the Will via
(a) Physical Connection (aka staples)
OR
(b) Logical Connection (aka Internal Coherence)
What is a Codicil?
A supplement to a will the modifies it, adds to it, explains it, or revokes it. Generally, a codicil must be executed in compliance with will formalities
If a codicil republishes the will to which it refers…
The original will is treated as if it was written on the date the codicil was executed
Republictioncan cure defects that might otherwise affect the validity of bequests made under the will. However, most states say that a document that is not a valid will to begin with cannot be republished by codicil.
To the extent that the codicil is inconsistent with the will, which controls?
The Codicil
What happens to a codicil when a will is revoked? What happens to a will when a codicil is revoked?
Revoking a will revokes all codicils. But revoking a codicil does not revoke a will.
Incorporation by Reference
A writing that is not valid as a will,
but is in existence when a will is executed
may be incorporated by reference into the will
if the will manifests an intent to incorporate the writing and
the _writing to be incorporated is identified w/ reasonable certai_nty
Disclaimer
One may disclaim an interest that otherwise would pass to them from a decedent to a decedent’s estate
Requirements: must be (1) __________, (2) ______________, and (3) filed w/in __ months of D’s death
Effect = ______________________________
Disclaimer
One may disclaim an interest that otherwise would pass to them from a decedent to a decedent’s estate
Requirements: must be (1) in writing, (2) irrevocable, and (3) filed w/in 9 months of D’s death
Effect = interest passses as if disclaiming party predeceased D
Simultaneous Death Statute
An heir or beneficiary must be alive at the time of the testator’s death. Under the revised Uniform Simultaneous Death Act (USDA), an individual who is not established by ________ and ___________ evidence to have survived the decedent by ____ hours is deemed to have __________ the decedent and cannot _________
Simultaneous Death Statute
An heir or beneficiary must be alive at the time of the testator’s death. Under the revised Uniform Simultaneous Death Act (USDA), an individual who is not established by clear and convincing evidence to have survived the decedent by 120 hours is deemed to have predeceased the decedent and cannot take as an heir
Acts of Independent Significance
A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after execution of the will
Valid so long as act or event has some independent significance other than providing gift in will
e.g., Identification of a beneficiary or property or amount of a gift in will
Contractual Wills
- Ordinarily, Ks to make a will must be made in writing (some states use SoF)
- UPC → existence of joint will does not by itself establish K between two testators to dispose of their property in a certain way. K to make a will may be est by (1) provisions of a will stating material portions of K; (2) an express reference in a will to a K and extrinsic evidence proving the terms; or (3) a writing signed by the decedent evidencing a K
- Execution of mutual wills does not create a presumption of a K not to revoke the will/wills
Effect of K will = if 2 Ts have executed contractual wills, either may revoke the will during their joint lifetimes if notice given to other person. UPC doesn’t have a provision regarding the revocation of will, so if revoking testator dies first, all survivng testator can do is change their own will moving forward.
Conditional Wills:
Go into effect when a certain act or conditions happen
Death of testator is not a “condition” in this sense
Probated only of conditions are satisfied
Can be a formal or holographic will
Most courts will really want to look at express language in the will b/c if language makes clearly conditional, won’t probate. If unclear, crt usually probates (interpretation = dangerous event simply motivated testator to make the will)
*Pay attn to facts to see if something cry could probate - Didn’t destroy will after surviving whatever they feared would happen; Only will that’s there, otherwise intestate
How does the UPC handle incorporation by reference?
UPC → tangible personal property list. Signed memo w/ list of assets. Flexibility w/ timing. Doc does not have to exist @ time of will and can be created, modified thereafter. Can’t use to dispose of money
Revocation of Will
Any testator with ________ can revoke their will in _______ or in _______ by _________ will or by _________ act at any time prior to ___________
Any testator with capacity can revoke their will in whole or in part by subsequent will or by revocatory act at any time prior to death
What is dependent relative revocation?
A first will is not revoked if a later will is found invalid.
If T revokes a will or bequest based on mistaken assumption of law or fact, revocation of will is ineffective if it appears the T would not have revoked the bequest has he had accurate info.
Court disregards a revocation that was done to create an alternative disposition to the OG will, but was based on a mistake of fact or law (e.g. didn’t follow will reqs). Court will apply DRR and revive revoked will if doing so would come closer to giving the effect to what T tried, but failed, to do than would intestate succession.
e.g. T drafts will that leaves $20k to sister. Later, crosses out $20k and leaves $40k (which was invalid b/c not witnessed or signed by T). Clearly not T’s intent to leave sister w/ nothing, so $20k stands. However, if T drafts will leaving bookcase and crosses out and says motorcycle, sister left with nothing b/c crt probs can’t apply dependent relative revocation b/c lack of sufficiently close identity.
Revocation by Physical Act
A testator may revoke their will or a part of it by performing a revocatory act w/ the simultaneous intent to revoke all or part of it.
This can be done by another person in the Testator’s conscious presence & by Testator’s direction. The burden of proof is on the person trying to establish that will was revoked to prove it was revoked.
If T made several copies, revoking 1 revokes all
CL → words of cancellation had to “touch” the words of the will
UPC/Most States → CL rule doesn’t apply (e.g. could write “I no longer want this to be my will” on back of will)
Partial Revocation by Physical Act: Most states and the UPC specifically authorize partial revocation by physical act
Physical Acts that Cause Revocation Include…
Destroying
Burning
Tearing
Obliterating
Cancellation
Interlineation
Revocation due to Changed Circumstances
