wills Flashcards
intestate succession
any property not passing by valid will or by operation of law is governed via intestate
if decedent leaves only one surviving spouse –> spouse gets entire estate
if surviving spouse and issue
most states –> spouse and issue will each receive certain % (usually 1/3)
UPC –> spouse receives entire estate if all issue are from that spouse
no spouse –> decedents issue
no spouse or issue –> surviving parents, grandchildren, or issue of parents (siblings & their issue)
majority: assets pass per capita at each generation level
will formalities
in writing, signed by testator, and witnessed by 2 people or notarized
witnessing a will
Majority: conscious presence test – the presence is satisfied if each party was conscious of where the other parties were and what they were doing, and the act took place within the general awareness and cognizance of the other parties
Minority: scope of vision test – the person must be in such proximity that they could have seen the person signing had they looked
will formality compliance standard
common law: strict compliance
some states: substantial compliance
UPC: harmless error - improperly executed will is valid if proven by clear and convincing evidence that decedent intended the writing to be his will
doctrine of integration
doc will be integrated into will if testator
- intended it to be part of the will and
- doc was physically present at will execution
*may be proven via extrinsic evidence or witness testimony
interested witness
common law: must be disinterested to be valid
modern view/majority: will is valid even if witness is interested but the gift will be purged unless
- interested witness is heir (gift is reduced to lesser of intestate share or gift under prior will or gift under current will) or
- if another disinterested witness was present so there was still 2 disinterested witnesses present at signing
codicil
instrument made after will is executed that modifies, amends, or revokes a will
must meet will execution requirements
cannot republish an invalid will, but can cure interested witness issue
holographic will
handwritten or alteration to will that is not witnessed
required to be signed at the end of doc
holographic codicil revokes earlier will to extent it conflicts
incorporation by reference
bequest through an unattested memo is valid if it meets requirements of incorporation by reference
majority:
1. doc was in existence at time the will was executed
2. it was sufficiently described in the will and
3. testator intended to incorporate it into the will
UPC:
a bequest of tangible personal property (other than money) will be incorporated if
1. signed by testator and
2. the items & devisees are described with reasonable certainty
*doc does NOT have to be in existence at time of will execution
acts of independent significance
acts or events with significance outside of the will making process - can be used to fill in gaps of will
revocation of will by physical act
- testator intended to revoke the will and
- it is burned, torn, destroyed, or cancelled by testator or someone at his discretion & in his presence
extrinsic evidence admissible
common law: words of cancellation are valid only if they come in physical contact with the cancelled words of the will
UPC: words of cancellation are valid written anywhere on the will - no physical contact required
revocation of will by subsequent will or codicil
may revoked by executing subsequent will or codicil, but revocation is only valid to extent that previous will conflicts with the new will unless the new will expressly revokes the previous will in entirety
dependent relative revocation doctrine
cancels a previous revocation that was made under mistaken belief of law or fact
court will disregard revocation if premised on mistake of law or fact, would not have occurred but for the mistake, and the results from disregarding revocation are closer to testator intent
revival of an earlier will
common law: auto revived if subsequent will was revoked
modern: revival of revoked will not permitted - can only be revived by re-execution or republication
UPC: a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evidence from the circumstances or testator statements that the testator intended to revive the previous will
– If the OG will was only partly revoked, the revoked provisions are revived unless it is shown that testator did not intend to revive the provisions
contractual wills
contracts to execute mutual wills are enforceable
must expressly state that the parties intend their wills to be a binding k - must be specific reference to the k on which joint wills are based
if breached –> constructive trust in favor of OG beneficiaries
**execution of joint or mutual will does not create presumption of a k not to revoke
per stripes
minority
start with first generation of which there are takers (living or dead), each living and non-living person in that generation is entitled to one share, each share going to non-living person drops down and is split equally among their issue
ambiguity in will
courts allow extrinsic evidence to resolve ambiguity
advancements/satisfaction
common law: gift to heirs during testator lifetime were considered advancements and amount would be deducted from heirs share of the estate
UPC: not deemed advancement unless
- the will provides for deduction or
- a writing indicated that the property was in satisfaction of devise or that its value will be deducted from value of devise
simultaneous death
USDA –> if no proof by clear and convincing evidence that one person survived the other by 120 hours/5 days, then the property is distributed as if that person predeceased the other person
it is presumed that each person outlived the other when distributing assets
when property is held as JT –> rights of survivorship are severed, and property passes as TIC
residue of residue
common law: any residue passes intestacy
Modern: invalid residuary shares of estate goes to other residuary beneficiaries, but only applies where anti-lapse statute does not create substitute taker for beneficiary who fails to survive
condition prohibiting marriage or divorce to inherit
void against public policy if prohibiting first marriage or require divorce
*treated as if not imposed
restraint on marriage will be upheld if
- restraint on re-marraige or
- purpose is to take care of a person’s daily needs until they are able to obtain such support through marriage
per capita by representation
Majority approach
• The property is divided into equal shares at the first-generation level at which there are living takers
• Each living person takes a share, and the share of each deceased person at that level passes to their issue by right of representation
• If all children are dead and all property is going to grandchildren, each grandchild takes an equal share rather than the share or part of the share the parent would have taken if survived
UPC/per capita at each generation level
• Division made at the first generation where there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generation level
person sin same degree of kinship take equal shares
testamentary intent
• Testamentary intent will be found if it is shown that the testator intended to dispose of the property, intended the disposition to occur only upon his death and intended that the instrument in question accomplish the disposition
will signature
o Order and location: order of signing is not critical if the signing is done as part of the single contemporaneous transaction
Maj/UPC: signature can be anywhere on the document
Minority: either the entire will is void if not signed at the end or everything after the signature is void
o Proxy signature: must be at the testator’s direction and in their presence
attestation clause
PF evidence all formalities were met
specific devise
gift of particular item of property distinct from all other object in estate
general devise
gift of general economic benefit, usually a dollar amount, payable out of assets of estate without requiring any source of payment
demonstrative devise
gift of the general amount to be paid from a particular source or fund - treated as a specific legacy to the extent the source of payment is available and general legacy to the extent any shortfall of source of payment
ademption
failure of a gift b/c the property is no longer in the testator’s estate at the time of death
- Maj: specific gift adeems if it cannot be identified or is not owned at time of testator’s death
identity theory: ademption doctrine is an objective test that does not take into account testators intent
exception:
if a guardian or conservator is appointed for testator after will execution, and the property is sold by the conservator, the beneficiary is entitled to sale proceeds to the extent they have not been expended on care
- some UPC states: a specific gift is deemed only if the testator intended the gift to fail. if no intent, the beneficiary is entitled to any property acquired as replacement of gift or monetary devise equal to value of gift
- Applies ONLY to specific bequests
- Partial ademption: a gift may be partially adeemed, where the testator devises a large tract of land and conveys a portion of it in their lifetime
exceptions to ademption
o Replacement property: some states allow beneficiary to receive replacement property if testator replaced the gifted item with another similar item
o Balance of purchase price: some states allow beneficiary to receive the remaining money if the testator sold the gifted item and the purchaser still owes money to the testator
o Proceeds of condemnation award or insurance: some states all the beneficiary to receive a condemnation award paid after the testator’s death or casualty insurance proceeds for the loss of property if they are paid after testator’s death
o Proceeds from sale by guardian or conservator: if testator became incompetent and the devised property was sold by guardian, the beneficiary may be entitled to general pecuniary legacy equal to the amount of the proceeds
accessions
increase in property after execution
• Specific gifts: appreciation and depreciation of specifically gifted personal property b/t execution and death is irrelevant
o Increases occurring before death: income on property goes into general estate, but improvements to real property go to the specific devisee
o Increases occurring after death: any increase in specific gifts after death passes to beneficiary b/c they are deemed owners of the property at death
• Securities acquired after will execution
o Stock splits
At common law, specific bequest of stock includes any additional shares produced by splits, but does not included shares produced by dividend
UPC/Maj: includes stock dividends
o Newly purchased securities: beneficiary does not take new securities that have been purchased or acquired be reinvestment of dividends
exoneration of liens
common law: liens on specifically devised property are exonerated with estate funds
UPC/Maj: liens on specific devised property are not exoneration unless the will directs; thus, beneficiary takes subj to debt
abatement
if debts are greater than assets in estate, gifts will abate to cover estate debts
- creditors always have priority over beneficiaries
order of abatement:
- property passing via intestate
- residuary gifts
- general
- specific
*each category must abate in full before moving on - abatement within each category is in proportion to the amount of property each beneficiary would receive
lapse/antilapse
where gift is conditioned on beneficiary survival
common law: if a gift lapsed, it passes via intestacy
UPC: saves a lapsed gift under anti-lapse statute if gift applies to issue, stepchildren, grandparents, grandparent issue
anti-lapse statute: a lapsed gift will vest in issue of predeceased beneficiary if that beneficiary is a specified descendant of testator and the beneficiary leaves issue who survive testator
majority of courts say words of survivorship bar application of anti-lapsed statute, but under UPC words of survivorship are not enough to negate application of anti-lapse statute
lapse in residuary gift:
o Common law: do not allow the surviving residuary beneficiaries to divide the deceased beneficiary’s share among them – instead, the deceased beneficiary’s share passes by intestacy
o Majority: “no residue of a residue” rule – allows the surviving residuary beneficiaries to divide the share in proportion to their interest in the residuary
o Note: if anti-lapse statute applies, that takes precedent
revocation by operation of law
subseqent marriage: gifts abated and revoked to extent necessary to make up omitted spouse intestate share
divorce: partial revocation unless will leaves everything to ex-spouse. revokes all bequests or appointments of property made to former spouse - some states/UPC extend this to all former spouse heirs as well
birth or adoption: gifts revoked to extent necessary to make up share for pretermitted child
disclaimer
renoucing a legal right to inheritence requires 1. declared in writing 2. describe interest or power disclaimed 3. signed by person making disclaimer 4. delivered or filed
timing:
common law: within reasonable time
some states: within 9 months
UPC: any time as long as disclaimer is not barred by acceptance or transfer of interest
if disclaimed, property passes according to will or trust or as the person pre-deceased testator unless anti-lapse statute applies
class gift
gift to group of persons decribed collectively - class closes when testator dies
rule of convenience: class closed when any member of class is entitled to possession
anti-lapse & class gifts:
- if class members are named –> gift will lapse, unless anti-lapse statute applies
- if named as group –> gift is divided among other members unless the will states otherwise or anti-lapse statute applies
inheritance by equitable adoption
a child may be informally adopted through words or conduct
- person takes a child and assumes parental responsibilities, equity may hold the person as having adopted the child
- some states require the parent promised to adopt the child
spouse elective share
spouses can take an elective share instead of taking under the will
majority: 1/3 net probate estate (gross probate assets less creditor claims and expenses)
minority: 1/3 augmented estate (includes certain lifetime transfers)
this is in addition to statutory family exemptions, i.e., homestead, residence, property, etc.
pretermitted child
a child born or adopted after execution of will is entitled to an intestate share of estate or a share equal to other children share, unless intentionally omitted
some states: this does not apply if provided for child outside of will or left all of the estate to spouse
a child living at time of execution is not entitled to share unless the child was omitted b/c testator believed the child to be dead or did not know of child existence
testamentary capacity
nature and extent of property
natural objects of bounty
disposition made
ability to connect above elements into coherent plan
insane delusion
a false belief in a nonexistent state of facts in which no rational person would believe that deprives a person of the capacity to make a will
there must be a connection b/t the insane delusion and the property disposition
the will is set aside only to extent that the delusion caused the testamentary disposition
undue influence
Influence exerted on testator overpowered the mind and free will of testator and resulting disposition would not have been made but for the influence
Begging, nagging, pleading, or threatening do not constitute undue influence
**Circumstantial evidence of the ability to influence testator is not enough
Presumption of undue influence arises when there is confidential relationship b/t the testator and beneficiary & the beneficiary participated in a significant activity related to execution of the will
Duress is a form of undue influence but connotes violent conduct, such as threat of physical harm
standing to contest will
• Contest may be brought by any person whose interest would be directly affected by the will’s admission to probate
fraud
Either (1) misrepresentation is made as to the nature or contents of the instrument or (2) the testator is induced into making a will or disposition by misrepresentations of fact that influence her motivation
no contest clause
(Sometimes called in torrem clause) clause in a will providing that a beneficiary forfeits all their interest in the estate if they contest and lose
o Majority: no forfeiture if PC for contesting will
o Minority: no contest clause given full effect regardless of PC to contest will
exceptions/does not apply where
- good basis to challenge exists plus either fraud or subsequent will revoking
- contest on behalf of minor or incompetent
- contesting party alleges court does not have jx
- merely asking court to interpret or construe terms of will
patent ambiguity
Patent (obvious) ambiguity: where a provision is ambiguous on its face; fails to convey a sensible meaning
Traditional view: extrinsic evidence is not admissible to correct patent ambiguity
Modern view: extrinsic evidence is admissible but cannot be used to fill in blank spaces or supply omitted gifts
latent ambiguity
Latent (hidden) ambiguity: where the language of the will is clear on its face, but cannot be carried out without further clarification
The court will consider extrinsic evidence to resolve the ambiguity
no ambiguity/mistake
No apparent ambiguity – mistake: where a provision is clear on its face, and can be carried out as written, but a beneficiary or other interested person thinks the testator made a mistake
Plain meaning rule: extrinsic evidence cannot be used to disturb the clear meaning of a will
Modern rule: permits use of extrinsic evidence
majority: permit modification to conform with intent if clear and convincing evidence presented of mistake
UPC: may modify will if there is clear and convincing evidence of mistake even if it is an unambiguous provision, but extrinsic evidence is not allowed
lost or destroyed wills
If a will is lost or destroyed and presumption of revocation is overcome, it may be admitted to probate by showing valid execution, the cause of nonproduction is not revocation, and the content of the will
presumption of revocation
o Presumption of no revocation – if a will is found in normal location and no suspicious circumstances, there is presumption that testator did not revoke
o Presumption of revocation – if a will last seen in testator’s possession or under their control cannot be found after death or is found in mutilated condition, a rebuttable presumption arises that the testator revoked it
However, if the will was last seen in possession of a third person or if a person adversely
affected by its contents had access to it, no presumption of revocation arises
