Wills

Question 1

Valid will requirements

Answer 1

1. Legal capacity (e.g., 18 years old and of sound mind)
2. Testamentary capacity (e.g., ability to understand the nature of their act; nature and extent of their property; natural objects of their bounty; etc.)
3. Testamentary intent (e.g., intent to dispose of property through will)
4. In a signed writing with two present witnesses

Question 2

Competency of witnesses

Answer 2

Interested witnesses (i.e., beneficiary) not competent

Question 3

Holographic will

Answer 3

Must be entirely in testator’s writing and does not need attesting witnesses. Typewritten text is generally ok as long as the terms are not material

Question 4

Classification of property

Answer 4

Specific devise (‘I leave my computer with 123 serial number’)

General devise (‘I leave my computer’)

Residuary estate is left over after paying debts and other gifts

Question 5

Ademption by Extinction

Answer 5

The failure of a gift because the property is no longer in the estate at the time of testator’s death. Some states allow the devisee to take replacement property

Question 6

Ademption by satisfaction

Answer 6

Testamentary gift may be satisfied if testator intends

Under the UPC, the doctrine is N/A unless provided for in the will/acknowledged by the devisee in writing

Question 7

Exoneration

Answer 7

Liens on the property are not paid off with estate funds unless the will explicitly states

Question 8

Abatement

Answer 8

Reduction of gifts when the estate assets are not enough to pay the claims against the estate and satisfy all bequests

1. Intestacy
2. Residuary estate
3. General bequests
4. Demonstrative bequests
5. Specific bequests

Question 9

Lapsed gifts

Answer 9

Beneficiary predecessors testator

Question 10

Anti-Lapse Statutes

Answer 10

Saves gifts from lapsing if the deceased beneficiary has descendants

Question 11

Basic rules of construction

Answer 11

1. If there is a will, avoid intestacy
2. In situations with two contradictory provisions, the last one prevails
3. Will is construed as a whole
4. Ordinary meaning of words

Question 12

Patent vs. latent ambiguities

Answer 12

Patent ambiguity is ambiguous on its face, but the modern rules allow for the use of extrinsic evidence.

Latent ambiguities arise with clear terms that can’t be carried out without further clarification. Courts can and will consider extrinsic evidence.

Question 13

Mistakes in wills

Answer 13

States following the plain meaning rule bar the use of extrinsic evidence that disturbs the plain meaning of the will.

The modern approach is to allow extrinsic evidence in situations where a mistake is challenged.

Question 14

Incorporation by Reference

Answer 14

1. Will manifests an intent to incorporate
2. The document is in existence when the will is executed
3. The document is sufficiently described in the will

Question 15

Codicils

Answer 15

Codicils modify wills but must be executed with the same formalities.

Changes to wills must be re-executed or are otherwise ineffective.

Question 16

Power of appointment

Answer 16

Allows appointed person to designate persons who shall take property