Wills

Question 1

advancement of an intestate share

Answer 1

A lifetime gift is presumptively not an advancement.

An advancement is found only if it is (1) declared as such in a contemporaneous writing by the donor or (2) acknowledged as such in writing by the heir (which need not be contemporaneous).

Question 2

disclaimer

Answer 2

The disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within a reasonable amount of time (or nine months, e.g.).

Question 3

effect of disclaimer

Answer 3

The disclaimed property passes as if the disclaimant had predeceased the decedent. The disclaimant cannot choose the recipient of the property.

Question 4

real property & wills

Answer 4

use the law of the situs (where the land is located)

Question 5

personal property & wills

Answer 5

use the law of the testator’s domicile at the time of death

Question 6

legal capacity

Answer 6

must be 18 years old and of sound mind (and some states permit testators under 18 if they are married or in the military)

Question 7

testamentary capacity

Answer 7

A testator simply must have the capacity to understand:

(1) the nature of the act—the testator is making a will;
(2) the nature and extent of their property;
(3) the persons whoa re the natural objects of their bounty (family members);
(4) the above factors and be able to formulate an orderly scheme of disposition.

Question 8

when to determine capacity

Answer 8

determined at the time of the will’s execution

Question 9

effect of testator adjudicated insane or incompetent

Answer 9

an adjudication of insanity or an appointment of a guardian/conservator is evidence of lack of capacity, but it is not conclusive.

Question 10

testamentary intent

Answer 10

you intended the very instrument executed to be your will

Question 11

execution of attested wills (requirements)

Answer 11

the will must be in writing
the will must be signed by the testator or his proxy (must be in the presence and under the direction of the testator)
the will must be two attesting witnesses who sign in the testator’s presence;

Question 12

effect of a notary’s signature

Answer 12

the will is valid if either (1) it is attested by two competent witnesses; or (2) it is signed by a notary

Question 13

purging

Answer 13

the invalidation of a gift under a will if a witness to that will is to receive that gift (unrecognized by the UPC)

Question 14

“presence” requirements

Answer 14

under the conscious presence tests, the presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.

in most states, the witnesses do not need to attest in each other’s presence

Question 15

classifications of testamentary gifts

Answer 15

devise; bequest; legacy

Question 16

specific devise/legacy

Answer 16

a specific devise or legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate

Question 17

a specific bequest of a general nature

Answer 17

“I leave my computer to Bishop.”

This gift is not distinguishable from the rest of the estate until the testator dies.

Question 18

general legacy

Answer 18

a general legacy is a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment

Question 19

demonstrative legacy

Answer 19

a demonstrative legacy is a gift of a general amount that is to be paid from a particular source or fund.

Question 20

ademption

Answer 20

ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death

Question 21

ademption by satisfaction

Answer 21

In UPC states, the doctrine does not apply unless the testator provides for satisfaction in the will or contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction.

Question 22

exoneration of liens

Answer 22

The UPC and a large number of states provide that liens on specifically devised property are NOT exonerated (paid off with estate funds) unless the will so directs. This means the benny takes the property subject to the debt.

Question 23

abatement

Answer 23

abate in the following order:

(1) property passing by intestacy;
(2) residuary estate;
(3) general legacies;
(4) demonstrative legacies;
(5) specific bequests and devises.

Question 24

anti-lapse statutes

Answer 24

Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing benny was in a specified degree of relationship to the testator (for example, descendant of the testator, the testator’s parent, or the testator’s grandparent) and left DESCENDANTS who survived the testator. These DESCENDANTS take by substitution.

Question 25

words of survivorship

Answer 25

make the anti-lapse statutes inapplicable

Question 26

plain meaning rule

Answer 26

under the traditional approach, extrinsic evidence cannot be used to disturb the clear meaning of the will

Question 27

plain meaning rule (modern approach)

Answer 27

the more liberal rule permits the use of extrinsic evidence to vary the terms of the rule

Question 28

requirements of incorporation by reference

Answer 28

the will manifests an intent to incorporate the document
the document is in existence at the time the will is executed; and
the document is sufficiently described in the will

Question 29

marriage following execution of will

Answer 29

In most states, marriage following execution of a will has no effect on the earlier will. In some states and UNDER THE UPC, the new spouse takes an intestate share as an “omitted spouse” unless (1) the will makes provision for the new spouse; (2) the omission was intentional; or (3) the will was made in contemplation of the marriage.

Question 30

effect of divorce on wills

Answer 30

divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse (including provisions granting gifts to other ex-relatives)

DIVORCE MUST BE FINAL
REMARRIAGE VOIDS THE VOID

Question 31

revocation by physical act (elements)

Answer 31

intent to revoke
mental capacity
physical act

Question 32

revival of revoked wills—intent approach

Answer 32

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.

if the original will was only PARTLY revoked, the revoked provisions are REVIVED unless it is evident from the circumstances that the testator did not intend to revive the provisions

Question 33

revival of revoked wills—automatic revival approach

Answer 33

Revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death

Question 34

revival of revoked wills—intent approach

Answer 34

a will, once revoked, is not revived when the subsequent will is itself revoked

the revocation can only be overcome by republication or reexecution

Question 35

implied conditional revocation or dependent relative revocation

Answer 35

testator executes valid will 1
testator validly revokes will 1
testator executes will 2, but will 2 is invalid

The doctrine applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will.

To determine whether DRR applies, we ask: (1) Was the revocation of Will 1 impliedly conditioned on the validity or Will 2?; (2) Would testator have preferred Will 1 over intestacy.

Question 36

grounds for will contest—in general

Answer 36

Grounds for challenge are: (1) defective execution; (2) revocation; (3) lack of testamentary capacity; (4) lack of testamentary intent; (5) undue influence or duress; (6) fraud; and (7) mistake.

Question 37

insane delusion

Answer 37

an insane delusion is a belief in facts that do not exist and that no rational person would believe existed. Insane delusion applies only if there is a nexus between the insane delusion and the property disposition.

Question 38

undue influence

Answer 38

the influence existed and was exerted
the effect of the influence was to overpower the mind and free will of the testator
the resulting testamentary disposition would not have been executed BUT FOR the influence

mere opportunity is insufficient

Question 39

presumption of undue influence

Answer 39

a presumption of undue influence arises when (10 there was a confidential relationship between the testator and a benny (that is, the T placed an unusual amount of confidence in the benny, and relief on the benny); and (2) that benny was active in procuring, drafting, or executing the will.

Question 40

duress

Answer 40

this is a form of undue influence but connotes violent conduct

Question 41

fraud

Answer 41

false representation made to the T
knowledge of the falsity by the person making the statement
the T reasonably believed the statement
the statement caused the T to execute the will or make a particular disposition that the T would not have made but for the misrepresentation

if a testator is fraudulently prevented from making a will, some courts will impose a constructive trust against the intestate bennies in favor of those who would have taken had the will been made

Question 42

mistake in the inducement

Answer 42

father mistakenly believes that his daughter was a murderer, so he disinherits her.

NO RELIEF

Question 43

reformation for mistake under the UPC

Answer 43

Under the UPC, a court may reform a will, even if the will is unambiguous, to conform to the testator’s intent if it is proven by CLEAR AND CONVINCING EVIDENCE that the T’s intent and the terms of the will were affected by a mistake of fact or law.

Question 44

no-contest provisionsmajority rule

Answer 44

no forfeiture if probable cause for contesting a will

Question 45

primary probate jurisdiction (test)

Answer 45

primary probate jurisdiction is in the state of the decedent’s domicile at the time of death