Wills

Question 1

What are the two ways in which property may pass by intestate succession?

Answer 1

1. Decedent dies without having made a will or their will is denied probate (total intestacy)
2. A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (partial intestacy)

Question 2

What share of the intestate does a surviving spouse receive? If descendants do/do not survive?

Answer 2

Under Modern law, spouse is an heir.
If decedent leaves descendants as well as spouse, spouse takes 1/3 or 1/2 of estate. Under UPC, surviving spouse takes entire estate.

If no descendants, surviving spouse takes entire estate. In UPC states, spouse takes entire estate only in not survived by descendants or parents

Question 3

How many shares does each child descendant get under the majority rule?

Answer 3

Per capita with representation
-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, the share of each deceased person at that level passes to their issue by right of representation

Question 4

How many shares does each child descendant get under the modern trend?

Answer 4

Per capita at each generational level
- 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 5

What is an advancement of intestate share? What is the procedure if advancement found?

Answer 5

• 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
• If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares and then subtracted from the recipient’s share

Question 6

What is a disclaimer? What are reasons to disclaim? What is required to make a disclaimer?

Answer 6

Heir/beneficiary foregoes inheritance/gift

Reasons: burdensome, tax, avoid creditors

Disclaimer must be written, signed by disclaimant, acknowledged before a notary, and filed with the appropriate court within 9 months

Question 7

What happens if a decedent’s death is caused by heir or beneficiary?

Answer 7

Person who brings about death of a decedent forfeits any interest in the estate; property passes as though the killer predeceased the victim (Reached through Slayer Statute)

Question 8

What constitutes a will?

Answer 8

An instrument executed with certain formalities that usual directs the disposition of a person’s property at death; revocable during testator’s lifetime and operative at their death; codicil = supplement to will that modifies it

Question 9

What law applies to the real vs. personal property of a will?

Answer 9

Real prop = determined by law of the state where the property is located

Personal prop = determined by the law of the testator’s domicile at the time of death

Question 10

What level of capacity must a testator have?

Answer 10

• Must be at least 18 yrs old
• Must have capacity to understand: [at time of will’s execution]
  (1) nature of their act
  (2) nature and extent of their property
  (3) persons who are the natural objects of their bounty
  (4) above factors and be able to formulate an orderly scheme of disposition

Question 11

What is required to execute an attested will?

Answer 11

• Will/codicil must be in writing
• Signed by testator, or another at testator’s direction AND in their presence
• Two attesting witnesses
• Testator sign the will in each of the witnesses’ presence
• Witnesses sign in the testator’s presence

Question 12

What is a holographic will?

Answer 12

• One that is entirely in the testator’s handwriting and has no attesting witness
• UPC recognize holographic wills accept a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material
• MUST contain testator’s signature

Question 13

Define:

• Devise(e)
• Legacy
• Specific devise or legacy
• General legacy
• Demonstrative legacy
• Residuary estate

Answer 13

(1) Devise: gift or real property; devisee = recipient of a devise (compare to bequest, gift of personal property)
(2) Legacy: gift of personal property in a will, recipient = legatee
(3) Specific: gift of a particular item of prop distinct from other objects in testator’s estate
(4) General is gift of a general economic benefit payable out of the general assets of estate
(5) Demonstrative: gift of general amount that is to be from a particular source or fund
(6) residuary: balance of the testator’s property after paying debts, expenses, taxes, other gifts

Question 14

What is ademption?

Answer 14

Refers to 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

Question 15

How is a specific bequest of stock deal with dividends?

Answer 15

• UPC and most states also include stock dividends in specific bequest of stock
• Beneficiary will take an increase in securities caused by the merger or corporation reorganization
• B does not take new securities that have been purchased or acquired by the reinvestment of dividends

Question 16

What is the effect of increases to property after execution of will on: specific gifts

Answer 16

• Appreciation and depreciation of specifically gifted property is normally irrelevant
• Income on property goes into general estate, improvements on real property go to specific devisee
• Increase to specific gifts after T’s death pass to specific beneficiary because they are deemed to own the property from the time of the testator’s death

Question 17

What is abatement?

Answer 17

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 not set out in will, usually abate in this order: property passing by intestacy, residuary estate, general legacies, demonstrative legacies, specific bequests/devises

Question 18

Who raises will interpretation and construction issues?

Answer 18

• The personal representative who wants to do the right thing and avoid liability for improper administration
• Beneficiaries or heirs who would take under various will interpretations

Question 19

What are some of the basic rules of construction when there is no evidence of the testator’s intent?

Answer 19

• The fact that testator left a will indicates an intent not to die intestate - favor the construction that avoids intestacy
• Among 2+ contradictory will provisions, the last one prevails
• Will is construed as a whole, not from isolated parts out of context
• Words are given their ordinary and grammatical meaning
• Technical words given their technical meaning
• Attempt to give effect to all words the testator included in the will

Question 20

What is incorporation by reference? What effect? What is required to do so?

Answer 20

• Instead of writing something in the will, T may incorporate an extraneous document into the will by reference
• Effect is that incorporated material is treated as if it were actually written out in full in the will
• Incorporated if: will manifests an intent to incorporate the doc, doc is in existence at time the time is executed, doc is sufficiently described in the will

Question 21

What is a codicil?

Answer 21

-Modifies a previously executed will and must itself be executed with the same formalities; treated as one instrument with the will from the date of the last codicil’s execution

Question 22

What is a contractual will? What happens if the contract is breached?

Answer 22

• Will executed or not revoked as the consideration for a contract, governed by contract not Wills law
• NO remedy for breach during the testator’s lifetime; if testator dies in breach, usual remedy is for the court to grant a constructive trust for the benefit of the promisee

Question 23

What is the power of appointment?

Answer 23

An authority granted to a person enabling that person to designate within the limits prescribed by the creator of the power, the person who shall take the property and the manner in which they take it

Question 24

In what three ways can a will be revoked?

Answer 24

1. Operation of law
2. Subsequent instrument
3. Physical act

Question 25

What effect does divorce or annulment have on gifts/fiduciary appointments have on former spouse?

Answer 25

Revokes all gifts and fiduciary appointments in favor of former spouse, even appointments as executor, guardian, or trustee

Question 26

How can a will be revoked by a physical act?

Answer 26

A will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke (intent concurrent with the act)

Question 27

How can a will be revoked by written instrument?

Answer 27

• Express

- Revocation by inconsistency

Question 28

What is conditional revocation?

Answer 28

Testator may state in the revoking instrument that a revocation is effective upon the happening of an event (express)

Dependent relative revocation - applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for the mistaken belief, the testator wouldn’t have revoked the will
–> ASK: was revocation of will 1 impliedly conditioned on validity of will 2; would T prefer will 1 over intestacy

Question 29

What does the elective share statute provide to the surviving spouse?

Answer 29

• Give the spouse an election to take a statutory share of the decedent’s estate rather than taking under the decedent’s will
• Typical amount is 1/3 of the net probate estate if the decedent is survived by issue a 1/2 if the decedent is not survived by issue

Question 30

What do pretermitted child statutes do?

Answer 30

-A testator may disinherit their children, pretermitted child statutes protect children from being ACCIDENTALLY omitted

Question 31

Who has standing to contest a will? Who has burden of proof to show will is invalid?

Answer 31

Only interested parties (those whose interests would be adversely affected by the admission of the will) - includes heirs and in some state beneficiaries of prior wills

• Creditors, executors, and testamentary trustees are not interested parties
• Will contestant has the burden to prove the will is invalid

Question 32

What are grounds to challenge the validity of a will?

Answer 32

1. defective execution
2. Revocation
3. Lack of testamentary capacity
4. Lack of testamentary intent
5. Undue influence or duress
6. Fraud
7. Mistake

Question 33

How does one establish undue influence?

Answer 33

• Influence existed and was exerted
• Effect of the influence was to overpower the mind and free will of the testator (not mere begging, nagging, etc.)
• The resulting testamentary disposition would not have been executed but for the influence

Question 34

How does one establish fraud to contest a will?

Answer 34

Testator 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

Question 35

What are the elements of fraud?

Answer 35

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