Wills

Question 1

Will Requirements

Answer 1

• For a will to be valid, the testator must meet the formal requirements of due execution imposed by the statutes of the states (in writing, signed, 2 witnesses)
• The testator must intend that the particular instrument operate as his will, e.g., “this is my last will”
  
  • Extrinsic evidence may be introduced to show testamentary intent or lack of

Question 2

Holographic Wills

Answer 2

• In the testator’s handwriting and signed by the testator
• Must reflect testator’s intent to make a will

Question 3

Codicil

Answer 3

• Later instrument that amends, modifies, or revokes a previous will (must meet the same requirements of will)
• A codicil cannot republish an invalid will
• Original will is treated as republished and has same date as codicil

Question 4

Incorporation by reference

Answer 4

A document that is not present when a will is executed may be incorporated into the will if

(1) The document was in existence when will created
(2) Sufficiently describes the writing
(3) Will manifests intent to incorporate

Question 5

Tangible property exception to incorporation by reference

Answer 5

In most states a will may incorporate by reference a document (statement or list) that disposes of testator’s tangible personal property

Document must be: Signed and describe items with reasonable certainty

Question 6

Slayer Rule

Answer 6

• One who feloniously and intentionally causes decedent’s death forfeits share
  
  • Voluntary manslaughter counts, involuntary manslaughter doesn’t
• May be based on preponderance of evidence during probate

Question 7

Ademption

Answer 7

Under doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at the time of death, the bequest fails

• Most courts follow identity theory (objective and bequest likely fails)
• Some courts have adopted more lenient intent test
• UPC - specific devisee has the right to any real property owned by the testator that was acquired as a replacement for specifically devised property
• EXCEPTION - Sale by conservator

Question 8

Revocation by operation of law

Answer 8

• Divorce revokes all provision in favor of former spouse (must have actual divorce not just filing)
• Divorce does not revoke gift to anyone else
  
  • (Under UPC divorce also revokes bequests to relatives of former spouse)

Question 9

Intestate Succession

Answer 9

Intestate succession involves the distribution of a decedent’s assets that are not disposed by a will

Question 10

Intestate Succession - Share of Surviving Spouse & Children

Answer 10

• Spouse, no descendants = spouse inherits entire estate
• Spouse and descendants = surviving spouse inherits ½ or ⅓ or decedent’s estate with remainder to surviving spouse
  
  • Under UPC = if spouse is mother of children she gets entirety of estate
• No spouse = descendants inherit entire estate
• No spouse no descendants = Surviving parents
  
  • If no parents then siblings, nieces and nephews.. etc

Question 11

Per Capita - Intestate Succession

Answer 11

• Per stripes = equal shares at first level regardless of whether living takes
• Per capita with representation (modern per stripes) = Estate divided into equal shares at the first generation at which there are living takers
• Per capita at at generation (UPC) = Divided at first generation with living takers, but shares of deceased are combined and divided equally among takers at the next level
  
  • (All cousins treated alike, aw how nice)

Question 12

Anti-Lapse

Answer 12

All states have anti-lapse statutes: most save gift for beneficiaries issue if beneficiary is related by blood (usually child or testator’s siblings)

Question 13

Abatement

Answer 13

When assets of an estate are insufficient to satisfy all the gifts made by someone’s will then the gift to the beneficiaries will be reduced (abated) in following order:

• Intestate property
• Residuary gifts
• General gifts
• Specific Gifts

Question 14

Unde Influence

Answer 14

Contestant must prove: Influence exerted, overpower mind of T, and product was will that would not have been executed but for influence. Burden is on contestant until it shifts when the elements below are seen:

“CBP”

• (1) confidential relationship
• (2) beneficiary participated procuring will
• (3) provisions unnatural and favor alleged influence

If only part of will procured by undue influence, only that part is void

Question 15

When does a will take effect?

Answer 15

• Takes effect only upon the death of the testator - because of the ambulatory nature of a will, it operates upon circumstances and properties as they exist at the time of the testator’s death (“a will speaks at the time of death”)

Question 16

Residue of a Residue

Answer 16

• Common law = no residue of a residue rule, any residuary shares of a decedent’s estate found invalid would pass through intestacy
• Modern View = invalid residuary shares of a decedent’s estate go to the other residuary beneficiaries (only applies if an anti-lapse statute does not create a substitute taker)

Question 17

Revocation

Answer 17

• Revocation by written instrument = must comply with the same requirements and will formalities
• Revocation by physical act - generally these are burning, tearing, or canceling a material portion of will
  
  • Common law = must have been shown to have had an actual effect on will or language (actually striking out the physical words)
  • UPC = words of cancellation must be on the will itself but need not touch any of the words of the will

Question 18

Interested Witnesses

Answer 18

• Common law = will not valid if one or two necessary attesting witnesses was a beneficiary
• Most states not have “purging statutes” = eliminate the interest rather than render the will invalid (gift void) if witness was a beneficiary
  
  • In some states the fact that beneficiary is the witness has no effect

Question 19

Cy Pres

Answer 19

If testator had a general charitable intent and its impossible or impractical to use the gift for the purpose indicated, the doctrine of cy press allows the court to apply the property to another purpose as close as possible to the original one, rather than the gift fail and become a resulting trust

• Application is not limited to charitable trusts, can also apply to outright bequests to charities where the named charity is not in existence at the testator’s death

Question 20

Contract

Answer 20

• Under UPC a contract to will can be established only if
  
  • (1) providing in the will stating the material provisions of the contract
  • (2) an express reference in a will to the contract and extrinsic evidence proving the terms of the contract
  • (3) a writing signed by the decedent evidencing the contract
• Also look for promissory estoppel and quantum meriut

Question 21

Integration

Answer 21

The process of embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution

• (1) pages were present when the will was executed
• (2) were intended by the testator to be a part of the will
  
  • Intent can be demonstrated by physical connected of pages, internal coherence by provisions, or when pages read together set out an orderly dispositional plan
  • Witness testimony and other extrinsic evidence are admissible to prove integration requirements
    *

Question 22

Dependent Relative Revocation

Answer 22

Court may disregard a revocation if it determines that the act of revocation was premised on a mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of his property was valid

• The disposition that results from disregarding the revocation must come closer to the effectuation what the testator tried, but failed, to do than would an intestate distribution

Question 23

Child

Answer 23

Adopted = For purposes of intestate succession, an adopted child is treated the same as a natural child of his adopting parents

• Children born out of wedlock and half-bloods are as well.
  
  • Stepchildren are not!

Question 24

Non-marital child

Answer 24

• All states permit a non marital child to inherit from his mother and most states also permit inheritance from his father if paternity is established
  
  • Proved by either (1) the father married the mother after the child’s birth (2) the man was adjudicated to be the father in a paternity suit or (3) after the man’s death is proved in probate proceedings by clear and conceiving evidence to be the daddy

Question 25

Lack of Capacity

Answer 25

• Standard for capacity to make a will is quite low. Can even have capacity for will even if no capacity for contract. Contestant must show testator did not have capacity to
  
  • (1) understand the nature of his act
  • (2) know the nature and character of property
  • (3) know the objects of his bounty (argh!)
  • (4) relate these factors to formulate a disposition of property according to a plan formed in his own mind
    *

Question 26

Disclaimer

Answer 26

Disclaimed property will pass as if the person disclaiming had failed to survive the testator. An anti lapse statute may apply, otherwise, the gift will fall into the residuary.

Question 27

Fraud

Answer 27

Where the execution of a will or the inclusion therein of a particular is the result of fraud, the gift or will is invalid. Must show:

• (1) someone made a false representation of material fact
• (2) Representation was made for the purpose of inducing the testator to write a will in a particular way
• (3) The testator reasonable believed and relied on the statement in making the will

Question 28

No-contest clause

Answer 28

In most states and under UPC, a no-contest clause is enforceable, but the beneficiary will not forfeit the legacy if the court finds that he challenged the will in good faith and on the basis of probable cause. Only given effect if the beneficiary had no reasonable basis for contesting the will.

Question 29

Advancements

Answer 29

Issue when decedent dies without a will but gave a child a gift during her lifetime

• Common law = lifetime transfer to an heir was presumptively treated as a down payment on the heir’s intestate share. Only applied to a gift to a child, but most states have broader it to include any heir.
• Majority law = most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show the contrary
  *

Question 30

Ademption by satisfaction

Answer 30

This doctrine applies when there is a will (unlike advancement). UPC states that a lifetime gift is not a prepayment unless:

(1) the will says so
(2) the testator declares in a contemporaneous writing that the gift is to be deducted from the will; or
(3) the devisee acknowledges in writing that the gift is in satisfaction of the bequest

Question 31

Dispensing power

Answer 31

UPC adopts the dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will

Question 32

Mistake

Answer 32

• Mistake as to nature of instrument = extrinsic evidence may be permitted to show that testator was mistaken as to the nature of the instrument he signed (didn’t know he was signing a will)
• Mistake inducement = no relief is available if a mistake relates to the reason testator made a will or made a gift in the will
• Reformation for a mistake - UPC allows a court to reform terms of a will to conform to testator’s intent
  
  • Must be shown by clear and convincing evidence that a mistake of law or fact affected the will and testator’s intent
    *

Question 33

Non-probate transfers

Answer 33

• Inter vivos gift = gift given by a living person to another living person
  
  • (1) donor intends to make gift (2) donor delivers gift (3) donee accepts
• Totten trust = deposit of funds in one’s own bank account held in trust for another
• Life insurance = K made between policy holder and insurance company under which beneficiary is named.
  
  • Unless K provides otherwise, policy holder cannot change the beneficiary through a provision in their will
    *

Question 34

Power of appointment

Answer 34

• Power of appointment is authority granted to a person enabling donee to designate a new owner of property and how they take it
• General = donee can exercise her power in favor of anyone, including herself, her estate, her creditors, etc
• Specific = power is exercisable in favor of a limited class of appointees

Present vs. testamentary power

• Present = one exercisable by donee during her life
• Testamentary - exercisable only by the donee’s will

Question 35

Living wills and durable healthcare powers of attorney

Answer 35

• Creation = similar to those needed for will execution: writing, signed by testator and 2 witnesses
• Revocation = both living will and durable power of attorney may be revoked

Living will = document specifying life-sustaining and pain alleviating measure one does or does not want if he is indefinitely incapacityed

Durable healthcare power of attorney = document that appoints an individual as agent to make healthcare decisions on behalf of principal

Family consent = most states have laws that come into play where a person becomes terminally ill or otherwise indefinitely incapacity and there is no living will or one with durable healthcare power of attorney (usually close relatives)