Wills

Question 1

When do you apply Intestacy Rules?

Answer 1

If there is:

• no will
• the will fails
• the will does not dispose of all probate property
• the will specifies intestate distribution

Question 2

Which state’s intestacy law applies?

Answer 2

Personal property: law of the decedent’s domicile at death

Real property: law of the situs of the property

Question 3

Intestate share of the surviving spouse

Answer 3

If descendants also survive: ⅓ or ½ of the estate; UPC: the entire estate

If no descendants survive: most states: surviving spouse takes the entire estate; UPC: entire estate ONLY IF decedent is not survived by descendants OR parents

Question 4

Intestate share of children and other descendants

Answer 4

Equal shares if all children survive

Different methods of computing shares if at least one descendant predeceased the decedent and is survived by a descendant: classic per stirpes, majority rule-per capita with representation, modern trend-per capita at each generational level

Question 5

Per Stirpes

Answer 5

Classic rule (minority): one share is created for each child and one share for each deceased child who has at least one surviving descendant. Each child receives one share and one share passes to a deceased child’s descendants by representation

Question 6

Per Capita with Representation

Answer 6

Majority Rule: the property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to their descendants by right of representation

If all children are deceased and all property is going to the grandchildren, each grandchild takes an equal share rather than the share (or part of the share) the parent would have taken had the parent survived

Question 7

Per Capita at Each Generational Level

Answer 7

Modern trend and UPC: persons at the same degree of kinship to the decedent always take equal shares.

Make initial division of shares at the 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

Question 8

Intestate share of nonmarital children

Answer 8

A nonmarital child always inherits from the mother. Generally, the child will inherit from their father if: (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 his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father

Question 9

Advancement of intestate share

Answer 9

An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate

A lifetime gift is presumptively not an advancement unless shown to be intended as such. UPC states, as well as many non-

UPC states, go further, finding an advancement only if it is: (1) declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir (which need not be contemporaneous).

Question 10

What constitutes a will?

Answer 10

A will is an instrument executed with certain formalities that usually directs the disposition of a person’s property at death

A will is revocable during the testator’s lifetime and operative at their death. A codicil is a supplement to a will that modifies it

Most states require exact compliance, rather than substantial compliance, with all requirements for a valid will. However, the UPC permits the court to excuse minor errors using a substantial compliance test

Question 11

Requirements for All Wills

Answer 11

1. Legal Capacity: Testator age 18 and of sound mind
2. Testamentary capacity: testator must have capacity to understand the nature of their act (that they are executing a will); the nature and extent of their property; the persons who are the natural objects of their bounty (family members); must be able to formulate an orderly scheme of disposition
3. Testamentary intent—present intent to make a will
4. Execution requirements:
   
   1. Writing (though some allow electronic wills)
   2. Signed by the testator (or by another at testator’s direction and in their presence) and must be in the presence of witnesses
   3. Two attesting witnesses
   4. The witnesses must sign in the testator’s presence

UPC: will is valid if either attested by two competent witnesses or signed by a notary

Question 12

Holographic Will

Answer 12

A will that is entirely in the testator’s handwriting and has no attesting witnesses. Most states say that some portions can be typed, but all material portions must be hand written

Question 13

Oral WIlls

Answer 13

Most states and UPC do not recognize oral wills

The small number of states that allow oral wills do so only for the disposition of personal property and only if made by: (1) soldiers or sailors (with some states requiring an armed conflict in progress); or (2) any person during their last sickness or in contemplation of immediate death. Two or more witnesses to the spoken words are often needed.

Question 14

Specific Devise or Legacy

Answer 14

a gift of a particular item of property distinct from all other objects in the testator’s estate

Question 15

General Legacy

Answer 15

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.

Question 16

Demonstrative Legacy

Answer 16

A gift of a general amount that is to be paid from a particular source or fund. A demonstrative legacy is a hybrid—it is 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, the balance will usually be paid from other assets of the estate

Question 17

Residuary Estate

Answer 17

The balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts.

Question 18

Ademption by Extinction

Answer 18

The failure of a gift because the property is no longer in the testator’s estate at the time of their death

Applies only to specific devises and bequests. Neither general nor demonstrative legacies are adeemed by an absence of cash or the specific asset in the estate; they will be satisfied by selling (or directly giving) other assets

Question 19

Ademption by satisfaction

Answer 19

A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect

Most states require a writing or specific instructions in the will before the gift is deemed a satisfaction. In UPC states, the doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction

Question 20

Exoneration of Liens

Answer 20

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

Common law is the opposite

Question 21

Abatement

Answer 21

the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises. If the testator does not set out an order of abatement in the will, testamentary gifts will usually abate in the following order:

• Property passing by intestacy
• Residuary estate
• General legacies
• Demonstrative legacies
• Specific bequests and devises

Question 22

Lapsed Gifts

Answer 22

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator because, for example, the beneficiary disclaimed or did not survive long enough

Question 23

Anti-Lapse Statutes

Answer 23

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 (for example, descendant of the testator, the testator’s parent, or the testator’s grandparent) and left descendants who survived the testator. These descendants take by substitution. The statute applies unless a contrary provision appears in the will.

Question 24

Basic Rules of Will Construction

Answer 24

When there is no evidence of the testator’s intent, the courts resort to the following rules of construction:

• The fact that the testator left a will, especially if it has a residuary clause, indicates an intent not to die intestate. Therefore, favor the construction that avoids intestacy
• Among two or more contradictory provisions in a will, the last one prevails
• The will is construed as a whole, not from isolated parts out of context
• Words are given their ordinary and grammatical meaning unless it is clear from the will that the testator intended otherwise
• Technical words are given their technical meaning unless it is clear from the will that the testator intended otherwise
• Attempt to give effect to all words the testator included in the will

Question 25

Patent (Obvious) Ambiguity

Answer 25

A patent ambiguity exists if a provision is ambiguous on its face, that is, it fails to convey a sensible meaning

Traditional view: extrinsic evidence is not admissible to correct a patent ambiguity

Modern view: extrinsic evidence is admissible. However, extrinsic evidence cannot be used to fill in blank spaces or supply omitted gifts

Question 26

Latent (Hidden) Ambiguity

Answer 26

A latent ambiguity exists when 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

E.g. “To my sister, Pat,” but the testator has a sister named Chris and a brother named Pat.

Question 27

No Apparent Ambiguity—Mistake

Answer 27

The situation may arise where a will 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: traditional approach, extrinsic evidence cannot be used to disturb the clear meaning of a will

Modern Rule: permits the use of extrinsic evidence. These courts hold that the evidence is significant and assists the court to carry out the testator’s intent

Question 28

Incorporation by Reference

Answer 28

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

A document may be incorporated by reference into a will, provided:

• The will manifests an intent to incorporate the document
• The document is in existence at the time the will is executed; and
• The document is sufficiently described in the will

Question 29

Acts or Facts of Independent Significance

Answer 29

Something outside of a will which has a purpose other than disposing of property at death

e.g. Testatrix’s will provides, “I leave the contents of my safe deposit box Number 657 at New York State Bank to Tony Stark.” Even though Testatrix may change the contents of the box at any time after will execution, Tony will receive the contents of the box even if Testatrix does not execute a new will after changing the contents because the safe deposit box is a fact of independent significance.

Question 30

Conditional Wills

Answer 30

A will that provides that it is to be operative only if a certain event occurs or does not occur. Courts will construe wills as general, not conditional, if possible. Note that a court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur

Question 31

Codicil

Answer 31

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

Question 32

POUR-OVER GIFT TO INTER VIVOS TRUST

Answer 32

A pour-over provision is a provision in a will making a gift to an inter vivos trust.

Most states have adopted the Uniform Testamentary Additions to Trusts Act, which permits a testator to make a gift to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of the will. The trust may be created before or after the testator executes the will. The property will be governed by all trust amendments, even those made after the testator executed the will or dies. If the trust is revoked, the gift fails (lapses). The trust does not have to be funded prior to the testator’s death

Question 33

Integration

Answer 33

The 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

Internal integration methods include: • Pages fastened together • Sentences flow page-to-page • Ex toto pagination, such as “page x of y” • Avoidance of blank spaces • Testator and witnesses initialing of each page

Question 34

Reciprocal or Mutual Wills

Answer 34

separate wills executed by two or more testators that contain substantially similar provisions. These are often called “sweetheart wills.”

Question 35

Contractual Will

Answer 35

A contractual will is a will executed or not revoked as the consideration for a contract. A contract to make, not to make, or not to revoke a will is valid

Contract law, not wills law, governs these issues: consideration is required.

A contractual will can be revoked by agreement between the parties while they are both alive. The contract becomes irrevocable upon the first testator’s death

Question 36

Breach of Contractual Will

Answer 36

Generally, there is no remedy during the testator’s lifetime because the testator can comply up until death. If the testator repudiates the contract after substantial performance by the promisee, however, the promisee may seek damages, quantum meruit, or equitable relief. If the testator dies in breach, the usual remedy is for the court to grant a constructive trust for the benefit of the promisee

Question 37

Revocation of Wills

Answer 37

A person with testamentary capacity may revoke their will at any time prior to death. A will may be revoked by operation of law, by subsequent instrument, or by physical act. Even a will that the testator has contractually agreed not to revoke may be revoked, but the beneficiaries may then have a breach of contract action against the estate

Question 38

Revocation by operation of law

Answer 38

Marriage Following Execution of a Will: In most states, marriage following execution of a will has no effect on the earlier will. In some states and under the UPC, however, the new spouse takes an intestate share as an “omitted spouse” unless: The will makes provision for the new spouse; The omission was intentional, or; The will was made in contemplation of the marriage

Divorce or Annulment Revokes Provisions in Favor of Former Spouse: Divorce must be final. The will remains valid and is read as if the ex-spouse predeceased the testator

Pretermitted Children: Most states have pretermitted child statutes. The purpose is to provide a share for a left out child on the assumption that the testator would have made provision for the child had the testator thought about it. Under these statutes, if the testator fails to provide in their will for any child born or adopted after the execution of the will, the child takes a share computed using statutorily provided formulas

Question 39

Revocation by Physical Act

Answer 39

Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke

The intent must be concurrent with the act. If the will is destroyed accidentally or by mistake, no revocation occurs

Question 40

Revocation by Written Instrument

Answer 40

Express: The subsequent instrument may expressly revoke the earlier will

Revocation by Inconsistency: If the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency. If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions

Question 41

Lost or Destroyed Wills

Answer 41

If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven: (1) valid execution; (2) the cause of nonproduction (that is, proof that the will was not revoked); and (3) the contents of the will. The contents are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will

Question 42

Revival of Revoked Wills

Answer 42

UPC Approach: if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive (that is, restore to effectiveness) the previous will. 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 Approach: revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death

No Revival Approach: a will, once revoked, is not revived when the subsequent will is itself revoked. The revocation clause is effective when executed just like a revocation by physical act. The earlier will can be revived only if it is re-executed (that is, re-signed and witnessed) or republished by a validly executed codicil.

Question 43

Implied Conditional Revocation or Dependent Relative Revocation

Answer 43

Applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force

Ask: Was the revocation of Will 1 impliedly conditioned on the validity of Will 2? And Would Testator have preferred Will 1 over intestacy?

Question 44

UNIFORM PROBATE CODE—HARMLESS ERROR STATUTE

Answer 44

The proponent must establish by clear and convincing evidence that the decedent intended the document which does not meet the technical requirements for a valid will to be a partial or complete revocation of a will or an alteration of the will

Question 45

PROTECTION OF THE SURVIVING SPOUSE— ELECTIVE SHARE STATUTES

Answer 45

Common law marital property states have elective share statutes that give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will.

Question 46

PROTECTION OF CHILDREN— PRETERMITTED CHILD STATUTES

Answer 46

A testator may disinherit their children; pretermitted child statutes protect children from being accidentally omitted

Most states provide a forced share for a child who was born or adopted after the will was executed. Only a few states provide a forced share for a child born or adopted before the will execution

Question 47

Homestead Protection

Answer 47

Most states have statutes that protect the family residence or farm from creditors’ claims by exempting a certain amount of land. These statutes often provide that the decedent’s spouse or dependent children are entitled to occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s will

Question 48

Family Allowance

Answer 48

The purpose of the family allowance is to provide support during probate administration, and usually takes precedence over all claims other than funeral and administration expenses. It is in addition to the amount passing by will, intestacy, or elective share. Some states limit the allowance to a specific dollar amount (for example, $15,000), while others authorize payment of an amount needed to maintain the spouse and children for one year or a “reasonable amount.”

Question 49

Will Contests: Standing

Answer 49

Only interested parties (that is, those whose interests would be adversely affected by the admission of the will) have standing to contest a will. This includes heirs (because they would receive the estate by intestacy if the will is invalid) and, in some states, beneficiaries of prior wills (because if the will is invalid, property would pass under the testator’s prior will). Creditors, executors, and testamentary trustees are not interested parties.

Question 50

Grounds for Contest

Answer 50

A will contest challenges the validity of a document offered for probate. Grounds for challenge are: (1) defective execution, (2) revocation, (3) lack of testamentary capacity, (4) lack of testamentary intent, (5) undue influence or duress, (6) fraud, and (7) mistake.

Question 51

Undue Influence (Wills)

Answer 51

To establish undue influence, the contestants must establish that:

1. The influence existed and was exerted
2. The 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
3. The resulting testamentary disposition would not have been executed but for the influence (causation)

Evidence:

• Unnatural dispositions, such as cutting out close family
• Opportunity or access to testator
• Confidential or fiduciary relationship between parties
• The ability of the testator to resist
• The beneficiary’s involvement with the drafting or execution of the will

Question 52

Fraud (Wills)

Answer 52

A successful contest on grounds of fraud requires that the testator have been willfully deceived as to: (1) the 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: False representation made to the testator • Knowledge of falsity by person making the statement • The testator reasonably believed the statement • The statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation

Question 53

No-Contest Clauses

Answer 53

A no-contest clause (sometimes called an in terrorem clause) is a clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose

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

Minority Rule: Some states give a no-contest clause full effect, regardless of whether there was probable cause for challenging the will

Question 54

Probate

Answer 54

“Probate” refers to the proceeding in which an instrument is judicially determined to be the will of the decedent or in which a decedent’s heirs are determined.

A personal representative is appointed to carry out the estate administration. If named in the will, the personal representative is an executor; if not so named, they are an administrator

Question 55

Powers and Duties of Personal Representative

Answer 55

The primary functions of the personal representative are to: (1) give notice to devisees, heirs, and claimants against the estate; (2) discover and collect the decedent’s probate assets and file an inventory; (3) manage the assets of the estate during administration; (4) pay expenses of administration, claims against the estate, and taxes; and (5) distribute property.

Question 56

Creditors’ CLaims

Answer 56

Claims are generally paid in the following order: (1) administration expenses, (2) funeral expenses and expenses of the last illness, (3) family allowance, (4) debts given preference under federal law, (5) secured claims, (6) judgments entered against the decedent during his lifetime, and (7) all other claims.

Question 57

Living Wills

Answer 57

A living will states an individual’s desires regarding: (1) whether to administer, withhold, or withdraw life-sustaining procedures; (2) whether to provide, withhold, or withdraw artificial nutrition or hydration; and (3) whether to provide treatment to alleviate pain

Question 58

DURABLE HEALTHCARE POWERS

Answer 58

A durable healthcare power (also called a medical power of attorney) appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated