Wills

Question 1

Per capita at each generation

Answer 1

(where cousins are treated equally)

Question 2

Per capita with representation (modern per stirpes)

Answer 2

where a child will simply take his parent’s share

Question 3

civil law consanguinity method

Answer 3

Under the consanguinity method, heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares

Question 4

The parenetic method adopted by the UPC

Answer 4

Under the parenetlic method, descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents

Question 5

Who is a child

Answer 5

a child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren).

Question 6

Advancements

Answer 6

This is an issue when the decedent dies without a will but gave a child a gift during her lifetime.

Question 7

Ademption by Extinction

Answer 7

when an intended gift of property through a will fails to transfer those property rights because the property as described in the will no longer belongs to the testator when the will takes effect

Question 8

Execution of wills

Answer 8

in writing, 
signed by the testator, 
and witnessed by two witnesses. 
They also require that the testator is 18 or older 
and intend.

Question 9

Holographic Wills

Answer 9

Unwitnessed wills. Holographic wills are valid if signed and if the material portions are in the testator’s handwriting.

Question 10

Incorporation by reference: A writing that is not valid as a will may be incorporated by reference into a will

Answer 10

if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty.
This writing must exist at the time the will is executed.

Question 11

Revocation by physical act

Answer 11

by execution of a new will or by some other physical act, such as cancellation or other writings on the will — This must be done with the intent to revoke the will.

Question 12

DRR

Answer 12

Under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.

Question 13

Anti-lapse

Answer 13

Usually a gift to a devisee fails if they die before the testator. Anti-lapse makes sure the gift goes to the next blood relative

Question 14

Slayer statute

Answer 14

An individual who feloniously and intentionally kills the decedent

Question 15

Abatement

Answer 15

when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated)

Question 16

Mental capacity

Answer 16

A testator must have capacity to execute a will.

(1) the nature and extent of his property,
(2) the persons who are the natural objects of the testator’s bounty,
(3) the nature of the instrument that the testator is signing, and

Question 17

Undue influence

Answer 17

This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made.

SODA:

(1) the testator was susceptible to undue influence,
(2) the alleged influencer had the opportunity to exert undue influence,
(3) the alleged influencer had a disposition to exert undue influence, and
(4) the will appears to be a product of undue influence. Most courts only invalidate portions that are infected by undue influence.