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BAR REVIEW > Wills > Flashcards

Wills Flashcards

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1
Q

Nonprobate property/ will substitutes

A 
Inter vivos gifts
Inter vivos trusts
Life insurance
Joint tenancies or tenancies by the entirety
Bank account trusts
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2
Q

Intestate succession

A

Property passes in intestacy when a decedent dies without having made a will or their will denied probate. Also applies where a will does not dispose of all of the property (failed gift or no residuary clause)

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3
Q

Spouse’s intestate share

A

If there are living descendants it is usually one third or one half of the estate. If no descendants, surviving spouse takes the entire estate.

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4
Q

Classic per stirpes

A

Divide at the child level and then pass those shares down to grandchildren if the child predeceased the person who died intestate.

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5
Q

Per capita with representation

A

property divided into equal shares at first generation where there are living takers. If all children are deceased, each grandchild takes ane qual share rather than the share the parent would have taken had the parent survived.

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6
Q

per capita at each generational level

A

modern trend and UPC. Initial division of shares is made at the first generational level where there are living takers but shares od deceased persons at that level are then combined and divided equally among the takers at the next generational level.

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7
Q

Intestate distribution with no spouse or descendants

A
  • parents or surviving parent
  • brothers sisters and their descendants
  • paternal and maternal grandparents and their descendants
  • nearest kin on maternal or paternal side
  • estate escheats
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8
Q

nonmarital children

A

inherits from the father if

  • father married the mother after the child’s birth
  • man adjudicated to be the father in a paternity suit
  • after his death and during probate proceedings, the man proved by clear and convincing evidence to be the father
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9
Q

Advancements

A

Lifetime gift is presumptively not an advancement unless shown to be intended as such. Some states require

(1) declaration of advancement in contemporaneous writing by the donor OR
(2) acknowledgment as an advancement in a writing by the heir

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10
Q

Simultaneous death

A

Uniform Simultaneous Death Act says that if order of death cannot be established, property of each person passes as though they survived the other. Does not apply if there is evidence that one person outlived the other, even just for a short period of time.

Some states have 120 hour rule which requires a person survive the decedent by 120 hours to take their property.

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11
Q

Disclaimer

A

In most states must be written, signed by disclaimant, acknowledged before notary, and filed within nine months of death.

Cannot disclaim if you have accepted property or any benefits.

Property passes as if disclaimant predeceased the decedent.

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12
Q

out of state and foreign wills

A

Most states will admit a will to probate if

  • will executed according to laws of the jurisdiction
  • will executed according to laws of the state where the will was executed
  • the testator’s domicile at the time of the will’s execution or
  • testator’s domicile at death
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13
Q

Capacity

A

Legal capacity- 18 years old and of sound mind

Testamentary capacity- must understand the nature of their act, nature and extent of property, natural objects of their bounty, and must be able to formulate an orderly scheme of disposition

Capacity determined when will executed

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14
Q

Testamentary intent

A

testator must have present intent that the instrument operate as their will

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15
Q

Formal requirements

A
  • will must be in writing
  • signed by testator
  • signed by two attesting witnesses
  • testator signs or acknowledges their signature in the witness’ presence
  • witnesses sign in testator’s presence

some states require

  • signature at end of will
  • testator publishes the will- declares it to their will
  • witnesesses sign in presence of each other
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16
Q

Interested witness

A

At common law, interested witnesses were not competent and thus the will could not be probated unless there were two other competent witnesses.

Now the gift will be purged but the will is still valid, depending on the state’s purging statute.

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17
Q

self-proving affidavit

A

recites that all elements of due execution were performed and is sworn to by the testator and witnesses before a notary. Functions like a deposition and eliminates the need to produce the witnesses in court years later.

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18
Q

Holographic will

A

Will that is entirely in testator’s handwriting and has no attesting witnesses.

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19
Q

Devise

A

Gift of real property. Recipient is a devisee.

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20
Q

Bequest

A

Gift of personal property.

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21
Q

Specific devise or legacy

A

Gift of a particular item of property distinct from all other objects in testator’s estate.

Specific bequest of a general nature is not distinguishable from the rest of testator’s estate until the testator dies

22
Q

General legacy

A

gift of a general economic benefit payable out of the general assets of the estate without requiring any particular source of payment

23
Q

Demonstrative legacy

A

gift of a general amount that is to be paid from a particular source or fund. Treated as a specific legacy to the extent the source of payment is available and a general legacy to the extent of any shortfall of that source of payment. If the designated fund is insufficient, it will usually be paid from other assets of the estate.

24
Q

Residuary estate

A

Balance of testator’s property after paying debts, expenses, and taxes and specific, general, and demonstrative gifts.

25
Q

Ademption

A

failure of a gift because the property is no longer in the testator’s estate at the time of death. Only applies to specific devises and bequests.

General or demonstrative legacies do not adeem if there is cash missing from the estate to cover the gift. They will be satisfied by selling or directly giving other assets.

26
Q

Securities acquired after will execution

A

At common law, specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend. Now, UPC and nearly all states include stock dividends as well. Beneficiary will also take an increase in securities caused by a merger or corporate reorg.

Beneficiary does not take new securities that have been purchased or acquired by the reinvestment of dividends.

27
Q

Exoneration of liens

A

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

28
Q

Abatement

A

where estate assets are not sufficient to pay all claims against estate and satisfy all bequests and devises.

Default order

  • intestacy property
  • residuary
  • general legacies
  • demonstrative legacies
  • specific bequests and devises
29
Q

Anti-lapse statutes

A

Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator. statute applies unless there is a contrary provision in the will.

No residue of a residue rule has been replaced in most states with a rule that allows surviving residuary beneficiaries to divide a share of a dead residuary beneficiary.

30
Q

Basic rules of will construction

A

With no evidence of testator intent courts resort to

  • presumption in favor of construction that avoids intestacy
  • will construed as a whole
  • words given ordinary and grammatical meaning unless its clear from the will that the testator intended otherwise
  • technical words given technical meaning unless clear from the will that the testator intended otherwise
  • attempt to give effect to all words testator included in the will
31
Q

Patent ambiguity

A

Provision is ambiguous on its face. Traditional view was that extrinsic evidence was not admissible to correct a patent ambiguity but the modern view is that extrinsic evidence is admissible.

Extrinsic evidence cannot be used to fill in blank spaces or supply omitted gifts.

32
Q

Latent ambiguity

A

Language of will is clear on its face but cannot be carried out without further clarification.

Court will consider extrinsic evidence to resolve the ambiguity.

33
Q

Mistake

A

plain meaning rule- extrinsic evidence cannot be used to disturb the clear meaning of a will

Modern rule- some jurisdictions permit the use of extrinsic evidence

34
Q

Incorporation by reference

A

Instead of writing something in a will, testator may incorporate an extraneous document into the will by reference. Requirements:

(1) will manifests an intent to incorporate the document
(2) document is in existence at the time the will is executed and
(3) document is sufficiently described in the will

35
Q

Codicil

A

Modifies a previously executed will and must itself be executed with the same formalities.

Republication by codicil- the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.

Validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will. Invalid will technically cannot be republished. Even if the codicil uses the word republish, the defective will will be impliedly incorporated by reference. Enhanced chance of validation if the original document was intended to be a will

36
Q

integration

A

Person probating the will must be able to show that the pages present at the time of execution are those present at the time of probate

37
Q

Power of appointment

A

Authority granted to a person enabling that person to designate within the limited prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.

General power of appointment- exercisable in favor of anyone including the donee themself, their estate, their creditors, or the creditors of their estate

Special power of appointment- power exercisable in favor of a limited class of appointees which does not include the donee, their creditors, or the creditors of their estate.

Donee can appoint property outright or in trust, create life estates and future interests, impose conditions and limitations on the interests created, and create additional powers of appointment.

38
Q

Revocation of wills

A

Person with testamentary capacity may revoke their will at any time prior to death.

Will may be revoked by operation of law, subsequent instrument, or physical act.

Revocation of a will revokes all codicils to it but revocation of a codicil does not revoke the entire will.

39
Q

revocation by physical act

A

Testator must have intent to revoke and the intent must be concurrent with the act. Can direct someone else to destroy or cancel the will but in most states the physical act must be done at testator’s request and in testator’s presence.

40
Q

Partial revocation by physical act

A

Most statutes authorize partial revocation by phyiscal act if there is sufficient evidence that the testator made the changes. Extrinsic evidence is admissible.

41
Q

Revocation by written instrument

A

All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will.

Subsequent instrument can expressly revoke the earlier will.

Can revoke by inconsistency. if new instrument completely disposes of testator’s property, old will complete revoked by inconsistency. If new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions.

42
Q

lost or destroyed wills

A

If you overcome presumption that testator revoked a missing will it may be admitted if

(1) valid execution proven
(2) cause of nonproductive (proof that will not revoked)
(3) contents of the will

43
Q

Revival

A

UPC- if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless evident from circumstances or testator’s statements that they indeed to revive. If the original will was only partly revoked, the revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions.

automatic revival- some states revival is automatic

no revival- in some states will once revoked is not revived. earlier will can be revived only if it is re-executed or republished by a validly executed codicil.

44
Q

conditional revocation

A

dependent relative revocation. testator revokes their will under the mistaken belief that another disposition of their property would be effective and but for this mistaken belief, testator would not have revoked the will. we ask:

  • was the revocation of will 1 impliedly conditioned on the validity of will 2?
  • would testator have preferred will 1 over intestacy?

The more similar the two provisions of the wills are, the more likely the court will apply DRR. The more different the wills are, the more likely the testator would have preferred intestacy to the old will.

45
Q

Pretermitted child

A

Sometimes they’ll receive an intestate share or they’ll receive a share of what was given to other children.

Statutes don’t apply where testator had other children at the time and advised all of their estate to the other parent of the omitted child. Or it appears from will that commission was intentional. Or if they provided for the omitted child through another mechanism like a nonprobate asset.

46
Q

Standing to contest a will

A

Only interested parties (those whose interests would be adversely affected by admission of the will) have standing to contest a will. This includes and in some states, beneficiaries of prior wills.

Contestant has burden of proof to prove the will is valid

47
Q

Grounds for contesting a will

A
  • defective execution
  • revocation
  • lack of testamentary capacity
  • lack of testamentary intent
  • undue influence or duress
  • fraud
  • mistake
48
Q

insane delusion

A

a belief in facts that do not exist and that no rational person would believe existed. Destroys testamentary capacity only if there is a connection between the insane delusion and the property disposition.

49
Q

Undue influence

A

Contestants must establish

  • influence existed and was exerted
  • effect of the influence was to overpower the mind and free will of the testator so that the will reflects the desires of the person exerting the influence instead of the testator and
  • resulting testamentary disposition would not have been executed but for the influence

Factors

  • unnatural dispositions like cutting out close family
  • opportunity or access to testator
  • confidential or fiduciary relationship between parties
  • ability of testator to resist
  • beneficiary’s involvement with the drafting or execution of the will

Presumption of undue influence where there is a confidential relationship between testator and a beneficiary and the beneficiary was active in procuring, drafting, or executing the will.

50
Q

Fraud

A

Testator wilfully deceived as to

(1) character or content of the instrument
(2) extrinsic facts that would induce the will or a particular disposition or
(3) facts material to a disposition

Elements of fraud

(1) false representation made to testator
(2) knowledge of falsity by person making the statement
(3) testator reasonably believed the statement
(4) statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation

51
Q

Mistake

A

Mistake in execution- court will grant relief where nature of mistake is obvious

Mistake in inducement- If the mistake involves the reasons a testator made their will a particular way and the mistake was not fraudulently induced, the court will not normally grant relief. relief might be granted if mistake inducement appears on face of will.

Under UPC court can reform will even if it is unambiguous, to conform to testator intent if it is proven by clear and convincing evidence that testator intent and terms of will were affected by mistake of fact or law.

52
Q

No contest clauses

A

Clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose.

Under UPC and most states a no-contest clause is valid and will be enforced unless the beneficiary had probable cause for bringing the contest.

some states give clause full effect regardless of whether there was probable cause for challenging the will.

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