Wills Flashcards
Intestacy: Spousal Right of Election
- Spouse may take a statutory share instead of share (if any) in will
- Amount—in most states, one-third of net probate estate if surviving descendants and
one-half without surviving descendants - Share paid in manner causing least disruption
Intestacy: Order of Distribution
If no descendants survive, the intestate estate passes:
a. To parents
b. If no parents, to descendants of parents
c. If no descendants of parents, to grandparents or their descendants
d. If no grandparents or their descendants, divided into maternal and paternal shares and pass to nearest kin (watch for laughing heir statute)
e. If no relative capable of taking, the estate passes to the state (escheat)
Intestacy: How the estate is split
Majority—per capita with representation
Modern trend—per capita at each generation
Minority—strict per stirpes (i.e., division always at child level)
Adopted Children
treated same as natural child in adopting family; all inheritance
rights cut off in family of natural parents
Half-Bloods
Half bloods are brothers and sisters who have only one
common parent.
The UPC and most states make no distinction between half bloods and whole bloods; they inherit
equally.
However, some jurisdictions give half bloods half
shares or cut them out from inheriting entirely if whole-blood
siblings exist.
Stepchildren and Foster Children
no inheritance rights unless adopted, but may be
exception for adoption by estoppel
Adoption by Estoppel/Equitable Adoption
The doctrine of adoption by estoppel, however,
permits a child to inherit from or through a stepparent or
foster parent when legal custody of a child is gained under
an (unfulfilled) agreement to adopt them.
However, if the child dies, many states prohibit the stepparent or foster parent from inheriting.
Nonmarital Children
Child can always inherit from the mother.
can inherit from father if:
a. Father and mother married after child’s birth,
b. The man is adjudicated the father in a paternity suit, or
c. After the man’s death, he is proved to be the father of the child
Controlling Law
Succession Rights:
Which state’s intestacy law applies? For personal property,
we use the law of the decedent’s domicile at death. For real
property, we use the law of the situs of the property.
Execution of Wills
Rule: In most states, to be valid, a will must be in writing, signed or acknowledged by a competent testator, in the presence of two competent witnesses who sign in the testator’s presence
“Signed or acknowledged”: Testator may sign or ask someone else to do it at their direction
Interested Witnesses
If witness is also a beneficiary, will is valid but gift to interested witness is purged unless:
1) Witness is supernumerary
2) Witness would take without the will (takes lesser gift)
3) UPC provision (minority view) allows interested witness to keep gift
Foreign Wills
Valid here
Holographic Wills
A holographic will is a will that is handwritten, but unattested. Majority of states recognize holographic wills. It must be in the testator’s handwriting
Modifications: If the jurisdiction recognizes holographic wills then it will recognize modifications
Incorporation by Reference
Ex. “In my nightstand I left a note. . .”
The document must be:
a. In existence at the time the will was executed,
b. Sufficiently described in the will, and
c. The will must show intent to incorporate
2. Signed list of tangible personal property is valid even if made or altered after will’s execution
Acts of Independent Significance
Will may identify beneficiaries or property by reference to acts or events that have significance apart from the will. The group of people or the item may chance but it is still operable.
Ex. “Each person employed at my old nursing home gets $50”
“My niece gets my car” (the car may change)
Codicils
Considered a component of the will that is outside of the staples
- Must be executed with same formalities as a will
- Republishes will
- Revocation of will revokes codicils; revocation of codicil revokes only codicil—not will
Revocation of Wills: By Physical Act
- Burning, tearing, obliterating, or canceling with intent to revoke
- May partially revoke will
- Will not found at testator’s death is presumed revoked
- Contents of accidentally lost or destroyed will may be proven
Revocations of Wills: Revival of Revoked Will
In a majority of states, destruction of revoking instrument presumptively revives revoked will unless testator did not so intend. Will always revived if:
a. Reexecuted with formalities, or
b. Republished by codicil
UPC Approach
Under the UPC and in many states, if a will that wholly
revoked a previous will is thereafter revoked, the previous
will remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive (that is, restore to effectiveness) the previous will.
No Revival Approach:
In some other states, a will, once revoked, is not revived when the subsequent revoking instrument is revoked.
Revocation of Wills: Divorce
Once you get divorced, any gift to a former spouse is nullified, to the extent that it was bequested to them on the basis of them being your spouse.
Under the UPC, this includes former spouse’s relative
Revocation of Wills: Dependent Relative Revocation
a court may disregard revocation of a will if:
a. Premised on a mistake of law or fact,
b. Would not have occurred but for the mistaken belief that another disposition was valid, and
c. The results from disregarding revocation come closer to testator’s intent
Basically, if T revokes old will under the belief that a new will is going to be valid, but then the new will ends up not being valid, then the court will probate the old will
Nonprobate Assets – Cannot be disposed of by will
Includes life insurance, property passing by right of survivorship, property in trust
Will Contests: Who may challenge?
Anyone whose interest would be directly affected by the will’s admission to probate.
Mainly, this includes anyone who is taking under the will or someone who is not in the will but would be taking through intestacy
Will Contests: Grounds for Contestation
a. Defective execution
b. Will offered has been revoked
c. Testator lacked testamentary intent or capacity
d. The will or gift is a product of undue influence
e. The will or gift was procured by fraud
f. The document was executed or gift made because of mistake
Will Contests: Fraud
Willful deceit as to character or content of will or as to a material fact
a. Fraud in execution—contents of instrument misrepresented
b. Fraud in the inducement – you don’t even know that you’re signing a will
c. Fraudulent prevention of execution—possible constructive trust remedy
Will or gift as result of fraud is invalid
Undue Influence
Requirements:
a. Influence exerted on testator,
b. Overpowered the mind and free will of testator, and
c. Product was will that would not have been made but for the influence
Presumption of undue influence arises when:
a. There is a confidential relationship between the testator and beneficiary, and
b. The beneficiary participated in a significant activity related to execution of the will
Incapacity
- Testator must be at least 18 years old at date of execution
- Contestant must prove that testator could not understand:
a. Nature of act
b. Nature and extent of property
c. People who are the natural objects of testator’s bounty
d. Nature of disposition - Capacity determined at time of will execution
- Insane delusion invalidates will only to extent delusion caused disposition
Administration of the Estate: Creditor’s Claims
- Must be filed within time specified in statute or are barred
- Priority—administration expenses, funeral and last illness expenses, family allowance, tax claims, secured claims, judgments, all other claims
Abatement
When there is not enough in the estates, gifts will be reduced/eliminated in the following order (#1 being the first group to not get anything):
- People through intestacy
- Residuary beneficiaries
- General legacies
- Specific devisees and bequests
Ademption by Extinction
When property is not in the estate.
Applies only to specific devises and bequests.
Majority/”Identity” Approach: if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing. The beneficiary does not take a substitute gift nor the value of the gift.
Ademption by Satisfaction
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect.
Majority: Most states require a writing or specific instructions in the will before the gift is deemed a satisfaction.
UPC: In UPC states, the doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction.
However, a writing is not required if the testator gives specifically described property to the beneficiary; in this case, there is both a satisfaction of the legacy and an ademption.
Simultaneous Death
Under the Uniform Simultaneous Death Act (“USDA”), property of each person passes as though he survived the other person
About half of the states have adopted 120-hour rule—must survive by 120 hours to take as a beneficiary, heir, etc., and avoid application of USDA
But the governing instrument can make a different provision
Decedent’s Death Caused by Heir or Beneficiary (“Slayer Statute”)
In nearly all states, a person who feloniously and intentionally brings about the death of the decedent forfeits any interest in their estate.
The property passes as if the killer predeceased the victim
Class Gifts
If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or antilapse applies
Increases in Property After Execution of the Will (Accretions)
- Increases before testator’s death: income goes to general estate, but improvements to real property go to devisee
- Increases after testator’s death pass to specific beneficiary
- Specific bequests include stock splits and stock dividends
Stock Splits and Stock Dividends
UPC and Majority: Specific bequest includes any additional shares of stock produced by a stock split AND additional stock produced by a stock dividend
Disclaimers
Person does not want their gift :(
- Disclaimed property passes as though disclaimant predeceased decedent
- Disclaimer must describe the property and must be in writing, signed by the disclaimant, and filed within nine months
- Estoppel of disclaimer if benefits accepted
Interpretation of Will Provisions
The focus is on the testator’s intent
Evidence of the surrounding circumstances is permitted
T’s declarations are not admissible
Pour Over to Intervivos Trust
- Valid even if trust amended after will execution
- Under Uniform Testamentary Additions to Trusts Act, trust need not be in existence
at will execution
