Wills

Question 1

Uniform Probate Code (UPC) Approach: Intestacy if surviving spouses only has decedents with decedent

Answer 1

The surviving spouse gets 100% of the estate if the decedent’s only surviving relatives are
also surviving relatives of the surviving spouse (example: children that decedent and
surviving spouse had together), and the surviving spouse does not have any other
descendants.

Question 2

Uniform Probate Code (UPC) Approach: Intestacy if no descendant alive at the time of decedent’s death, but there is a surviving a parent of the decedent. (So no kids or anything for decedent)

Answer 2

The surviving spouse gets $300,000 and 75% of the remainder of the estate if no descendant is alive at the time of decedent’s death, but there is a surviving a parent of the decedent.

Question 3

Uniform Probate Code (UPC) Approach: Intestacy if all of the decedent’s issue are also issue of the surviving spouse, and the surviving spouse has other issue.
(ie all his kids are his and his not widow, but she has kids from prior marriage)

Answer 3

o The surviving spouse receives $225,000 and 50% of the remainder of the estate if all of the
decedent’s issue are also issue of the surviving spouse, and the surviving spouse has other
issue.

Question 4

Uniform Probate Code (UPC) Approach: Intestacy If the decedent has issue not related to the surviving spouse (Like kids from previous marriage)

Answer 4

If the decedent has issue not related to the surviving spouse, then the surviving spouse
receives $150,000 and 50% of the remainder of the estate.

Question 5

Uniform Probate Code (UPC) Approach: Intestacy If the decedent has a spouse but no descendants or parents

Answer 5

then the surviving spouse takes the entire estate.

Question 6

Community Property Rules for intestacy

Answer 6

do not apply unless the exam question states that the jurisdiction applies Community Property rules.

a. Community Property

At death, the surviving spouse is entitled to 1/2 of the Community Property (CP).

The surviving spouse of an intestate decedent is also entitled to the decedent’s 1/2 CP and quasi-CP. Therefore, the surviving spouse will take 100% of the CP.

Question 7

Putative spouses:

Answer 7

Even if a marriage is not valid, as long as one party believes in good faith in its
validity, the spouses are termed putative and qualify as spouses for inheritance purposes.

Question 8

Uniform Probate Code: Requirements for surviving spouse to take

Answer 8

The surviving spouse must be legally married to the decedent at the
time of death, and there must be clear and convincing evidence that he/she survived the
decedent by 120 hours to take by intestacy.

Question 9

Non-Marital Children: The common-law rule

Answer 9

. Non-Marital Children
o The common-law rule was that if a child was born out of wedlock (mother and father are
not married when child is born), then she could not inherit from her natural father.

Question 10

Non-Marital Children: modern trend

Answer 10

The modern trend adopted by most jurisdictions is that an out-of-wedlock child cannot inherit from her natural father unless:
 The father subsequently married the natural mother; or

 The father held the child out as his own and either received the child into his home or provided support; or

 Paternity was proven by clear and convincing evidence after the father’s death; or

 Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.

Question 11

Calculating Share – Per Capita

Answer 11

—If the surviving issue are all of equal degree of kinship (all the same level of relation bto the decedent), the property passes equally to each person

Question 12

Per Capita with Representation

Answer 12

If the surviving issue are not of equal kinship, the property is
divided at the first generation in which at least one member survives the decedent. The shares that would go to the member that predeceased the decedent would go to his/her issue

Question 13

Per capita at each generation

Answer 13

To decide who gets the shares of the estate, find the first
generation where there are issue living.

Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue
surviving.

Combine the shares belonging to the deceased persons and distribute them equally at the next generational level. (Cousins are treated alike.)

Question 14

What happens if no surviving spouse or children/issue? - Common law

Answer 14

Ancestors and Remote Collaterals—If no surviving spouse or issue exist, then the property may be distributed to the decedent’s ancestors (e.g., parents, grandparents, great-grandparents) and more remote collateral relatives (i.e., those related to the decedent through a common
ancestor, such as siblings, cousins, aunts, and uncles).

Question 15

What happens if no surviving spouse or children/issue? UPC Approach

Answer 15

UPC Approach—If there is no surviving spouse or descendant, then the estate passes in the following order to the individuals designated below who survive the decedent:

o To the decedent’s parents equally if both survive, or to the surviving parent;

o Then to the descendants of the decedent’s parents;

o Then the estate passes to the decedent’s maternal and paternal grandparent, one-half to each, or to the descendants of the decedent’s maternal and paternal grandparents if the grandparents are deceased;

o Then the entire estate passes to the decedent’s nearest maternal and paternal relative; and

o If there are no surviving relatives, then the estate escheats to the state.

Question 16

EXECUTION OF WILLS: Capacity and elements to show it

Answer 16

The testator must be at least 18 years old and possess a sound mind. The testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know the:

• Nature of the act;
• Nature and character of his property;
• Natural objects of his bounty; and
• Plan of the attempted disposition.

Question 17

Testamentary Intent

Answer 17

The testator must understand he is executing a will and intend for it to have testamentary effect, and
must generally know and approve of its contents.

Question 18

Attested (Witnessed) Wills

Answer 18

1) Writing & Signature: The will must be in writing and signed by the testator (T), or by some other person in his presence and at his direction.

Question 19

Witnesses Majority and UPC for Attested Wills

Answer 19

o Majority view: The will must be signed in the joint presence of and attested to by two witnesses.

o UPC: The witnesses do not have to be present at the same time. Also, the T does not have to sign in their presence, as long as he acknowledges his signature to them before they sign and they sign within a reasonable time.

o Each witness must be of sufficient mental capacity and maturity.

Question 20

interested Witness Doctrine

Answer 20

a. Interested Witness

 At common law, a witness who has a financial interest in the will is an “interested witness” and is not competent to be a witness to the will. If the interested witness is a
necessary witness, the will has not been validly executed.

 Today, many states invalidate the portion of the will that provides an excess portion to the interested witness (any amount in excess of what the witness would otherwise have
received).

 The UPC has now abolished the interested witness doctrine.

Question 21

Wills: How is statutory compliance handled between common law and UPC

Answer 21

At common law, strict compliance with the formalities was required.

• Under the UPC, a will that is not executed in compliance with the law will treated as if it werevalid if there is clear and convincing evidence that the testator intended for the document toserve as his will and he has substantially complied with the required formalities

Question 22

Holographic Wills, Necessary Components and form of it

Answer 22

T must handwrite the “material provisions” of a holographic will. “Material provisions” include
the beneficiaries of the will and the items that they will receive. A preprinted will form can still
be a valid holographic will, as long as the “material provisions” are handwritten.
• T must sign the instrument.
• No witness requirement: Although it need not be witnessed or dated, it must be clear that T
intended the document to be a will

Question 23

Codicils, what they are and formalities needed

Answer 23

• A codicil is a supplement to a will that alters, amends, or modifies the will, rather than replacing

it. Generally, a codicil must be executed with the same formalities as a will (can be attested or
holographic) .

Question 24

Codicil republication of will

Answer 24

Republication Date: A validly executed codicil republishes a will as of the date of the codicil.

Question 25

Codicil Curing an Invalid Will

Answer 25

A valid codicil executed after the original will may cures problems that existed
at the execution of the will, such as an insufficient number of witnesses

Question 26

Attested Will and Holographic Codicil

Answer 26

: A valid attested will can be altered, amended, or

modified by a holographic codicil.

Question 27

the 3 will substitutes

Answer 27

1. Trusts
   A trust may achieve the results of a will.
2. Pour-over Wills
   A pour-over will includes a clause wherein some or all of the decedent’s probate property is given to the trustee of the decedent’s inter vivos trust.
3. Deeds
   A deed of property can serve as a will substitute for transferring property upon the death of the
   landowner. If a grantor (owner of land) delivers a deed to a third party (agent) with instructions
   to give the deed to a person (grantee) upon the grantor’s death, the deed will serve as a will
   substitute and the deed will be transferred to grantee upon the grantor’s death.

Question 28

Laws governing Personal Property and Real Property in Wills

Answer 28

1. Personal Property
   Questions regarding the validity of a decedent’s will regarding personal property and the transfer of personal property from someone who dies intestate or who has a will are governed by the law of the deceased’s domicile at the time of death.
2. Real property
   Questions regarding the validity of a decedent’s will regarding real property and the transfer of
   real property from someone who dies intestate or who has a will are governed by the law of the
   situs (location of the property).

Question 29

Revocation

Answer 29

A will or codicil may be revoked in whole, or in part, any time prior
to death of the testator by a subsequent writing, physical destruction, or by
operation of law.

Question 30

Subsequent Instruments revocation will wholly or in part

Answer 30

A testator can revoke a will or codicil by executing a later valid will or codicil that partly or
completely revokes the prior will or codicil. Oral revocations are not valid.
Partial or Complete Revocation: A revocation can be partial (part of the original will or codicil is
revoked, but part of it is not) or complete (the entire original will or codicil is revoked).

Question 31

Subsequent Instrument: Express or Implied

Answer 31

The revocation can be express (the new will or codicil expressly states that it is revoking the prior will or codicil) or can be implied (the terms of the new will or codicil conflict with the terms of the prior will or codicil) by the terms of the subsequent instrument.

Exam Tip 9: Implied revocation—be sure to explain why the new will or codicil conflicts with the prior will. For example, the original will gives testator’s house to B. A subsequent codicil gives the house to C. The testator has impliedly revoked the gift of the house to B

Question 32

Subsequent Instrument: Inconsistencies

Answer 32

Inconsistencies: If there are inconsistencies between the prior will or codicil and the subsequent will or codicil, the later document controls and revokes the prior
inconsistencies.

Question 33

Revocation:. Physical Destruction : majority Rule

Answer 33

A will or codicil may be partially or completely revoked by destroying a portion of the will or codicil with the intent to revoke it. The act of destruction must occur with the intent to revoke (simultaneous act and intent).

Majority Rule: The majority rule is that an effective canceling of a will requires defacement of the language of the will (i.e., at least some of the language must be crossed out, including the signature).

Question 34

Revocation:. Physical Destruction : UPC

Answer 34

: rejects the majority rule; the destructive act must merely affect some part of the will.

Question 35

Physical Destruction of Will, presumption of revocation

Answer 35

If a will once known to exist cannot be found at the testator’s death, or is found mutilated, then there is a rebuttable presumption of revocation.

The presumption is inapplicable if a duplicate original is found. Extrinsic evidence is permitted to rebut the presumption.

Destruction of a signed original or duplicate original presumptively destroys all copies.

A third party can revoke through physical destruction of the will or codicil on behalf of the testator if it is requested by testator and destroyed in testator’s presence.

Question 36

Revocation by Operation of Law – Divorce

Answer 36

In most states, divorce revokes all will provisions in favor of the former spouse, unless it can be
shown that the testator intended for the will to survive. Separation does not revoke the will
provisions unless there is a separation agreement.

Question 37

Alteration of a Will

Answer 37

A testator cannot increase a gift to a beneficiary by canceling words in his will, but he may be able to decrease the gift as long as the alteration is made to the existing language of the will rather than through the addition of new language.

Question 38

Holographic Wills Alteration

Answer 38

A holographic will can be altered or revoked in whole or in part by holographic changes, but must be signed under the UPC.

Question 39

Revival: Republication, admissible evidence, and proof needed

Answer 39

Revocation of a later will or codicil that revokes the original will revives the original will if:

there is proof that the testator intended to revive the original will.

If the later will or codicil is revoked by physical act, extrinsic evidence of testator’s intent to revive the original will is admissible.

Question 40

Dependent Relative Revocation (DRR)

Answer 40

The doctrine of Dependent Relative Revocation (DRR) will allow a court to revive a revoked will when the testator revoked the will by subsequent instrument or physical act under a mistaken belief of law or fact. It must be shown that the testator would not have revoked the original will
but for the mistaken belief.

Exam Tip 11:DRR should be discussed when a testator revokes the original will under a mistaken belief of law or fact. DRR will revive the original will if the testator would not have revoked the original will but for the mistake of law or
fact.

Question 41

Construction of Wills: Integration doctrine

Answer 41

Under the doctrine of Integration, the will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown by physical connection of the pages (stapled or paper clipped together) or by the ongoing nature of the language of the will (pages are not attached, but page numbers indicate that the pages follow each other).

Question 42

CONSTRUCTION OF WILLS: Incorporation by Reference, Common law

Answer 42

A writing not executed with testamentary formalities may be incorporated by reference if it existed at the time the will was executed, is intended to be incorporated, and is described in the will or codicil with sufficient certainty.

A validly executed codicil can incorporate an invalid will and make the terms of the will valid.

Question 43

CONSTRUCTION OF WILLS: Incorporation by Reference, UPC

Answer 43

UPC: The writing need not exist at the time the will was executed if it only disposes of the T’s
personal property (in other words, the testator can write a will referencing another document
and then create the document later).

Question 44

Acts of Independent Significance

Answer 44

A will can provide for designation of a beneficiary or amount of a disposition by reference to some unattested act or event occurring before or after execution of the will or the T’s death, if the act or event has some significance apart from the will.

Question 45

Classification, Abatement, and Ademption

Answer 45

When distributing the real property (devise) and personal property (bequest or legacy) under a testator’s will, an estate’s assets may be insufficient to satisfy the gifts made under the will.

In this situation, a court must determine the order of distribution and abatement (reduction or elimination of
gifts) by classifying each gift.

Question 46

Classification of a gifts ( 4 kinds)

Answer 46

1. Specific Gift
   A specific legacy, devise, or bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate (a specific car (“my car”) or item of furniture).
2. General Gift
   A general legacy is a gift of personal property (such as money) that the testator intends to be satisfied from the general assets of his estate (such as “$100,000 to John”).
3. Demonstrative Gift
   A testator intends that a demonstrative legacy be paid from a particular source, but if that source is insufficient, he directs that the legacy be satisfied out of the general assets of the estate.

Example 8: $100,000 to John from my Bank of Columbia account, but if funds are not sufficient, then the rest paid out of general funds.

4. Residuary
   A residual legacy is a legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.

Question 47

Abatement

Answer 47

If the assets of the estate are insufficient to pay all debts of the testator and legacies, a court will
“abate” or reduce the gifts to pay the debts

Question 48

Order of Abatement

Answer 48

The court will abate the gifts in the following default order:

• Intestate property (property that has not been addressed in the will)
• Residuary bequests
• General bequests
• Specific bequests

(Demonstrative legacies are treated as specific legacies for abatement purposes to the extent that they
can be satisfied, and otherwise as general legacies.)

Question 49

Ademption by Extinction - traditional approach

Answer 49

Traditionally, if the subject matter of a specific gift is missing, destroyed, or there is a substantial change in the form of the gift (the court can trace the gift it undergoes a minor
change), the beneficiary takes nothing.

This does not apply to general or demonstrative gifts, which can be satisfied from the general assets of the estate.

o The beneficiary is entitled to whatever is left of the specifically devised property or balance of the purchase price owing from the purchaser of the property.

Question 50

Ademption by Extinction: UPC approach:

Answer 50

The testator’s intent at the time he disposed of the subject matter of the devise or bequest is examined.

o If there is evidence that the testator intended for the beneficiary to receive the gift, despite ademption, the UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money relating to the extinction, the outstanding balance.

o If neither the replacement property nor the outstanding balance doctrine applies, then the UPC provides that a beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition of the gift if ademption is inconsistent
with the testator’s Intent or Plan of Distribution.

Question 51

Lapse and Anti-Lapse: Common Law

Answer 51

, if a beneficiary dies before the testator, the gift to the beneficiary
lapses (fails).

Question 52

Lapse and Anti-Lapse Under modern anti-lapse statutes

Answer 52

if the beneficiary was blood-related to the testator, the

beneficiary’s surviving issue (child, grandchild, etc.) will take in his/her place.

Question 53

Lapse and Anti-Lapse: Class Gift Rule

Answer 53

If the will beneficiaries are a class, such as “my brothers”, the traditional rule is
that only the members of the class who are alive at the time of the execution of the will receive
the benefit of the will. However, under modern statutes, if an anti-lapse statute applies
(because the predeceased class member was related to the testator), then the issue of the
predeceased member also will take

Question 54

Ambiguities in the Will

Answer 54

Traditionally, there was a distinction between patent and latent ambiguities:

patent ambiguities appeared on the face of the will and were required to be resolved within the four corners of the instrument but without extrinsic evidence;

latent ambiguities were not apparent from a reading of the
will and were allowed to be resolved by extrinsic evidence.

Many states no longer distinguish between patent and latent ambiguities and allow both to be resolved by extrinsic evidence

Question 55

Mistakes in Will extrinsic evidence use

Answer 55

Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when the testator is unaware that she was signing a will.
Extrinsic evidence is not allowed if the mistake involves the reasons behind the testator making the will or a particular gift.

Question 56

Omitted Spouse, and when are they NOT entitled to intestate share

Answer 56

A marriage or domestic partnership is formed after the execution of testator’s will and spouse is not mentioned in the will.

• An omitted spouse is entitled to an intestate share unless:

o The omission was intentional;

o The spouse was given property outside of the will in lieu of a disposition in the will; or

o The spouse is party to a valid contract (prenuptial agreement) waiving her right to a share in the estate.

Question 57

Omitted Children in will, how they are ommitted, limitations on the recovering form the omission, and how that share is divvied up amongst the other children/heirs

Answer 57

Omitted Children: A child who is omitted from the will can force a share if certain requirements are met:
o The child is born or adopted after the will is created, or the testator mistakenly believed the child was dead; and
o The child is unintentionally omitted from the will.

o Limitations:
A share will not be forced if the child has been provided for outside of the will, or if the testator had other children at the time the will was executed and left substantially
all of his estate to the omitted child’s parent.

o Share:
If the testator had no other children when the will was executed, then the child takes her intestate share. If the testator has at least one other child living at the time of the execution of the will, and the will devised property to at least one of those children, then the omitted child’s share is taken from that portion of property already devised to the other child, and it must equal the share the other child receives.

Exam Tip 15: To earn full credit, you should discuss why the child qualifies as omitted child and then consider any limitations that may apply

Question 58

Bars to Succession (2)

Answer 58

1. Homicide (“Slayer Statute)
   A party cannot take property from a decedent when the party was responsible for the decedent’s death. The UPC and the majority of jurisdictions treat the killer as if he had
   predeceased the decedent.
2. Disclaimer
   Because acceptance of a testamentary gift is presumed, a party must actively disclaim if she wishes not to accept it. The disclaiming party is treated as if she had predeceased the decedent, and the property is distributed to the next eligible taker.

Question 59

Will Contests, how to contest (3), not explanations

Answer 59

A will contest is an objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator. The basis of a will contest is the assertion that the testator

(i) lacked testamentary capacity,
(ii) was operating under an insane delusion, or
(iii) was subject to undue influence or fraud.

Question 60

Will Contest, Lack of Testamentary Capacity

Answer 60

The testator must be at least 18 years old and possess a sound mind. The testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know the:

o Nature of the act;
o Nature and character of his property;
o Natural objects of his bounty; and
o Plan of the attempted disposition.

Question 61

Will contest, insane delusion contest

Answer 61

A belief is an insane delusion if a rational person in the testator’s situation could not have reached the same conclusion.

If it is shown that the testator has an insane delusion, it must be also shown that but for this delusion, testator would not have disposed of his property in the manner he did. (In other words, the delusion must have caused the testator to make the disposition).

Exam Tip 16: Similar to capacity, look for facts indicating that the testator is suffering from an insane delusion, such as mental illness and drug or alcohol abuse.

Question 62

Will Contest, undue Influence, General rule, and majority rule view

Answer 62

General Rule: Undue influence occurs when mental or physical coercion is exerted by a third party on a testator with the intent to influence the testator such that he loses control of his own judgment. If undue influence is shown, the will may be invalidated in whole, or in part.

Undue Influence – Majority View: A contestant must show four elements:
o Susceptibility: The testator was susceptible to being influenced.
o Motive: The influencer has reason to benefit.
o Opportunity: The influencer had opportunity to influence.
o Causation: The influencer caused an unnatural result.

Question 63

Will Contest, Fraud (2 kinds)

Answer 63

A will can be invalidated due to fraud. Fraud requires a misrepresentation made by a beneficiary with both the intent to deceive the testator and the purpose of influencing the testamentary disposition. The result must be a will that would not have been executed but for the fraud.

Fraud in the Inducement: A misrepresentation that causes the testator to make a different will that he otherwise would have made. It must be shown that the testator would not have made the gift if he had known the truth.

Fraud in the Execution: A misrepresentation as to the will itself or its contents (testator does not know he is creating a will or is not told the true content of the will).

Question 64

Children for intestate succession

Answer 64

Child: a child for purposes of intestate succession includes adopted children, children born out of
wedlock, and half-bloods (but not stepchildren!).

Question 65

Advancement General Rule

Answer 65

Advancements: This is an issue when the decedent dies without a will but gave a child a gift during her
lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of
intestate succession?

Question 66

Wills, heirs, Advancement Common Law

Answer 66

Common law: A lifetime transfer to an heir was
presumptively treated as a down payment on the heir’s intestate share and thus is taken into account when computing the heir’s intestate share.

At common law, this only applied to a gift to a child (not, say, a gift to a sibling), but most states have broadened it to include any heir

Question 67

Advancement Majority Rule

Answer 67

Majority law: most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show that the
decedent intended the gift to be an advancement.

Question 68

Ademption by satisfaction

Answer 68

Ademption by satisfaction: This doctrine applies when there is a will (unlike the advancements doctrine).

The Uniform Probate Code (UPC) states that a lifetime gift is not a prepayment unless:

(1) the will says so,
(2) the testator declares in a contemporaneous writing that the gift is to be deducted from the will, or
(3) the devisee acknowledges in writing that the gift is in satisfaction of the bequest.

Question 69

General Rule for a Valid Will

Answer 69

General rule:

Many state laws require that the will is in
writing,
signed by the testator,
and witnessed by two witnesses.

They also require that the testator is 18 or older and intend that the document is his will.

Note: generally, any mark that is made with intent to adopt the will counts as a signature.

Question 70

Holographic wills General Rule

Answer 70

Holographic wills are unwitnessed wills. Holographic wills are valid if signed and (according to the UPC and some states) if the material portions are in the testator’s handwriting.

Holographic wills are recognized by about half the states. Mention this doctrine if you see an unwitnessed will on the MEE

Question 71

Wills Dispensing Power under UPC

Answer 71

: the UPC adopts the dispensing power under which a court can validate a will so long
as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 72

Incorporation by reference:

Answer 72

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty.

This writing must exist at the time the will is executed.

(The UPC and some states recognize the
right of a testator to dispose of tangible personal property by a signed memorandum, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.)

Question 73

Divorce on Will Revocation

Answer 73

Divorce revokes gifts in favor of a spouse. Note: there actually needs to be a divorce (or annulment)—not just a filing of divorce.

Question 74

When a gift fails because the beneficiary is not alive

Answer 74

The general rule is that if a beneficiary does not
survive the testator, the gift will lapse or fail and fall into the residuary. However, all states have antilapse
statutes (which keep gifts in the family). Under a typical antilapse statute, if a beneficiary dies before the
testator and was both related by blood to the testator within a certain degree of relationship and had
issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in
lieu of the beneficiary

Question 75

Slayer statute

Answer 75

: An individual who feloniously and intentionally kills the decedent, or who is convicted of
committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect
to the decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s
share, etc.). Voluntary manslaughter is a form of a felonious and intentional killing. Note that if a
beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule
does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent. Note:
when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the
killing is not felonious and intentional!).

Question 76

When a gift fails because the property no longer exists—ademption

Answer 76

If specifically devised property (i.e.,
property that is specifically described in the will) is not in the testator’s estate when the testator dies, the
bequest adeems—i.e., the gift fails. Under many statutes, if the testator replaced the property, or if there
were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the
property.

Question 77

Wills: Disclaimers

Answer 77

Disclaimed property (property that a beneficiary does not want) will pass as if the person 
disclaiming had failed to survive the testator. An antilapse statute may apply; otherwise, the gift will fall 
into the residuary

Question 78

Wills Abatement and order

Answer 78

when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will,
then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property,
residuary gifts, general gifts, and specific gifts

Question 79

Undue Influence in will making SODA

Answer 79

This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift that he would otherwise not have made. The burden of establishing undue influence is generally on the will contestant who must show the following (mnemonic=SODA):

(1) the testator was susceptible to undue influence,
(2) the alleged influencer had the opportunity to exert undue influence,
(3) the alleged influencer had a disposition to exert undue influence, and
(4) the will appears to be a product of undue influence.

Most courts only invalidate portions that are infected by undue influence