Wills Flashcards
Intestate Succesion
Intestacy is the default statutory distribution scheme. It applies when an individual dies without disposing of his property through a valid will. Intestacy statutes generally favor the decedent’s surviving spouse and issue, followed by the decedent’s other relations.
Property Division Schemes
If the decedent’s spouse and parents do not survive the testator, there are two available schemes to divide property among the decedent’s children: per capita at each generation or per capita with representation
Common Law Advancement
When the decedent dies without a will but gives a child a gift during their lifetime, the common law will take the gift into account when computing the heir’s intestate share
Majority Law Advancement
Most states today say that a transfer during the decedent’s lifetime will be treated as a gift and is ignored in computing the heir’s intestate share unless there is evidence of the decedent’s intent
Ademption by Satisfaction
This doctrine applies when there is a will. The UPC states that a lifetime gift is mot prepayment unless the will says so, the testator declares in a contemporaneous writing that the gift is to be deducted, or the devisee acknowledges in writing that the gift is in satisfaction.
Will Execution - General
Generally, a will must be in writing, signed by the testator, and witnessed by two witnesses
Holographic Wills
Holographic wills are unwitnessed wills. They are valid if signed and if the material portions are in the testator’s handwriting
Incorporation by Reference
A writing that is not valid as a will may be incorporated by reference into the will if the will manifests an intent to incorporate the writing, and the writing is identified with reasonable certainty. The writing must exist at the time the will is executed
Revocation
A will may be revoked if it is done with the intent to revoke the will, or if done by someone else, if acting within the testator’s direction and in their conscious presence.
Beneficiary Not Alive
Generally, if a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary unless there is an anti lapse statute
Anti Lapse Statute
Under a typical anti lapse statute, if a beneficiary dies before the testator and was related by blood to the testator and had issue who survived, the gift is saved and will pass to the beneficiary’s issue.
Slayer Statute
An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent’s estate
Property No Longer Exists
If specifically devised property is not in the testator’s estate when they die, the bequest adeems and the gift fails. Under many statutes, if the testator replaced the property, then the beneficiary would receive that in place.
Disclaimed Property
If a beneficiary disclaims property it will pass as if the person predeceased the testator.
Abatement
When the assets of an estate are insufficient to satisfy all of the gifts made in a will, the gifts will be reduced in the following order: intestate property, residuary gifts, general gifts, and specific gifts
Mental Capacity
A testator must have capacity to execute a will. The burden of proving the testator lacks mental capacity rests on the contestant. A testator meets this requirement if they know the nature and extent of the property, the persons who are the objects of their will, the nature of the instrument that they are signing, and the disposition that is being made in the will.
Undue Influence
This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes them to make a gift they would not otherwise have made. It must be shown that the testator was susceptible to undue influence, the influencer had the opportunity to influence, the influencer had a disposition to influence, and the will appears to be a product of such influence.
Nonmarital Children
The common-law rule was that if a child was born out of wedlock, he could not inherit from his natural father. Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if (i) the father subsequently married the natural mother, (ii) the father held the child out as his own and either received the child into his home or provided support, (iii) paternity was proven by clear and convincing evidence after the father’s death, or (iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.
Undue Influence Presumptions
A presumption of undue influence arises when a confidential relationship existed, the beneficiary participated in writing or procuring the will, and the provisions of the will appear to be unnatural and favor to influencer.
Codicil
A codicil is a letter testamentary instrument that amends, alters, or modifies a previously executed will. It may appear on the same piece of paper as the will.
Fraud
To invalidate a will by showing fraud, it must be shown that someone made a knowingly false representation of a material fact for the purpose of inducing the testator to write a will, and the testator reasonably believed and relied on the statement.
No-Contest Clause
In most jurisdictions, a no contest clause is enforceable, but a beneficiary may still challenge the will if it is done in good faith with probable cause.
Special Testamentary Power
A special testamentary power of appointment is one that is exercisable only by the donees will and is in favor of a specified class of persons that doesn’t include the donee or his creditors.
General Testamentary Power
A general testamentary power of appointment is one that is exercisable only by the donees will but maybe exercised in favor of the donee, his estate,and creditors
