Wills Flashcards
Attested Wills & Holographic Wills Intro
Most states require that the attested will be signed by the testator and 2 witnesses, who must sign in the testator’s presence.
The UPC and a majority of states also recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator.
Republication by Codicil
A codicil modifies a previously executed will and must itself be executed with the same formalities.
Under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.
A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will. [Enhanced change of validation if the original document was intended to be a will.] However, an invalid will technically cannot be republished. So even if the word “republished” is used in the codicil, the defective will is instead impliedly incorporated by reference.
Incorporation by Reference
A document that is not present when a will is executed may be incorporated into the will by reference so that it is considered part of the will. To incorporate a document by reference:
(i) the document must be in existence at the time the will was executed;
(ii) the language of the will must sufficiently describe the writing (to identify it); and
(iii) the will must manifest an intention to incoporate the document.
Slayer Statutes
One who feloniously and intentionally brings about the death of decedent forfeits any interest in decedent’s estate; the property passes as though the killer predeceased the decedent. Result reached by operation of slayer statute or imposing constructive trust.
Slayer’s share would pass to the slayer’s descendants unless the state’s slayer statute precludes both the slayer and slayer’s descendants from taking.
Slayer statutes only apply when the heir kills the decedent whose estate is at issue; they do NOT apply to bar someone from taking a share of an estate bc she killed another person - even if that person is the source of the decedent’s property. [e.g. if Daughter kills her father, Decedent’s husband, Daughter can still inherit from Decedent]
Ademption
Under the doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at death, the bequest fails. [Ademption applies only to specific devises/bequests (not general or demonstrative ones which are satisfied with other assets).]
Most courts apply the identity theory of ademption, which uses an objective test; the testator’s intent is irrelevant.
Some courts have adopted a more lenient intent test, under which the beneficiary is entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substitute property.
Under the UPC, a specific devisee has the right to any real property owned by the testator at death that was acquired as a replacement for the specifically devised property.
Exception to Ademption Doctrine
If a conservator is appointed for the testator after the will is executed and the property is sold by the guardian, the beneficiary is entitled to the sale proceeds - at least to the extent that they have not been expended for the testator’s care.
Demonstrative legacy
A gift of a general amount that is to be paid from a particular source or fund.
Hybrid - 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 designated fund is insufficient, balance typically paid from other assets of estate.
Example: I leave $10,000 to Walter from my account at Superior State Bank.
Classification of Property (devises; bequests; legacies)
A devise is a gift of real property (recipient = devisee)
A bequest is a gift of personal property.
A legacy is a gift of personal property in a will, usually of money (recipient = legatee).
Specific Devise or Legacy
A gift of a particular item of property distinct from all other objects in testator’s estate. Issue is whether testator intended the B to have a particular thing and that thing only.
Example: I leave my Sony computer Model XYZ with serial # 88526 to Walter. A gift of “Blackacre” or “all of my land in Smith County” or “my Rolex watch” or “my Porsche.”
[A specific bequest of a general nature is not distinguishable from rest of estate until testator dies.]
General Legacy
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.
Example: I leave $10,000 to Walter.
Order of Abatement
Abatement is the process of reducing testamentary gifts in cases where the estate assets are insufficient to pay all claims against estate and satisfy all bequests and devises. If no order given in will, usually follows this order (generally least specific to most specific):
- property passing by intestacy
- residuary estate
- general legacies
- demonstrative legacies
- specific bequests and devises
Pro rata abatement within classes. Some states use up personal property in each category before real property in that category.
Stock Dividends and Splits
Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend.
Under the UPC and the statute of most states, a specific bequest of stock includes stock dividends. The B would also take an increase in securities caused by a merger or corporate reorganization.
Revocation by operation of law - Divorce
If a testator is divorced after making a will, all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator.
Majority View: Testator’s divorce from the spouse revokes only gifts to that spouse, not gifts to anyone else. Absent a revocation, a bequest in a validy executed will remains in full force regardless of the subsequent relationship of the parties.
But under the UPC, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.
Intestate Succession Generally
Intestate succession is the statutory method of distributing assets that are not disposed of by will. If a decedent’s entire will is invalid (or he has no will), his entire estate passes by intestacy.
In most states, if a decedent is not survived by a spouse, the entire estate passes to the decedent’s children and descendants of deceased children.
Generally, if a decedent is not survived by a spouse or descendants, her intestate property passes to her parents and/or siblings (and children of deceased siblings).
Schemes of Distribution for Intestate Succession Overview
In most states, the intestate property is distributed per capita with representation, meaning the property is divided at the first generational level at which there are living takers, with the share of each deceased person at that level passing to his issue by representation.
Some states (and the UPC) follow a per capita at each generational level type of distribution. Initial division is at first generational level at which 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 generational level.
A few states use a strict per stirpes distribution, under which the shares are always determined at the first generational level regardless of whether there are living takers in that level.
