Wills

Question 1

What are the standards for determining whether testator had mental capacity?

Answer 1

Testator, at the time of will execution, must understand:

1. Act - nature of his act
2. Property - nature & extent of his property; and
3. People - persons who are the natural objects of his bounty

Question 2

How does the presence of interested witnesses effect the validity of a will under the UPC?

Answer 2

does not invalidate a will or any part of it

Question 3

Under the majority rule, how can an interested witness still be a beneficiary?

Answer 3

1. If there were two other witnesses who were disinterests (i.e., 3 total witnesses, two of whom were disinterested); or
2. Interested witness would take if there was no will (i.e., interested witness would have taken as a descendant through intestate succession)

Question 4

Under the majority rule, what effect does an interested witness have on how the will is probated?

Answer 4

Will is valid but gift to witness-beneficiary is void

Question 5

What is the basic requirement for witness competency?

Answer 5

Witness must be of sufficient maturity and mental capacity to understand and appreciate the nature of what they witness and attest to.

✨ i.e., witness could sufficiently testify in court if required

Question 6

What are the requirements for a holographic will to be valid?

Answer 6

Must be:

1. in testator’s writing (some states require entire doc, others allow some type written text if typed portion is not material)
2. be signed by testator
3. reflect testator’s intent to make a will

Question 7

What effect does a validly executed codicil have with regard to the original will?

Answer 7

the original will is treated as republished and deemed to have been executed on the date the codicil was executed

Question 8

What is the test for whether a document will be integrated into a will?

Answer 8

1. Physical Presence - the document was physically present at the time of the will’s execution; and
2. Intent of Inclusion - testator intended the document to be part of the will

Question 9

What are the requirements for a document incorporated by reference in a will that disposes of testator’s tangible personal property?

Answer 9

In most states, a will may incorporate by ref a doc (i.e., statement or list) that disposes of testator’s tangible personal property. Doc can be prepared before or after execution of the will & can be changed before testator’s death.

Document must:

1. be signed by testator
2. describe items and to whom they are devised with reasonable certainty

Question 10

Incorporation by Reference Requirements

Answer 10

1. Intent to incorporate - will manifests testator’s intent to incorporate the doc;
2. Authenticated document - will sufficiently describes the doc;
3. in existence upon will execution

Question 11

Partial Revocation

Answer 11

Revocation may be accomplished by making marks of cancellation on the will (e.g., crossing out provisions) in most states

Question 12

What is the doctrine of Dependant Relative Revocation? When might it arise?

Answer 12

Court doctrine under which a court disregards a revocation that was done to create an alternative disposition to the original will, but was based on a mistake of fact or law.

Question 13

Under the modern view, how is a bequest handled where there is a lapse in the residue?

Answer 13

Residuary beneficiaries who survive testator and deceased beneficiary take the deceased beneficiary’s share.

Question 14

In some states that apply the intent theory, how may adeemed gifts be saved?

Answer 14

If there is evidence that establishes that ademption would be inconsistent with testator’s intent.

Effect - beneficiary gets monetary value of the specific bequest or gets property that was acquired as a replacement for the adeemed gift.

Question 15

What is the most common order of abatement provided for by statutory authority?

Answer 15

1. property not disposed of by will
2. residuary estate
3. general devises - abate pro rata
4. specific devises and bequests

Question 16

Mutual will

Answer 16

separate wills of two or more people containing reciprocal or substantially similar provisions

usually not interpreted as a K to make a will

Question 17

If there is a breach of a K to make a will, what is the usual remedy?

Answer 17

Court usually probates the will and imposes a constructive trust in favor of the intended beneficiary under the K

Question 18

In most states a K regarding a will must be in writing. What other requirements does the UPC impose?

Answer 18

• provisions in the will state the material provisions of the K;
• express reference in the will to the K and extrinsic evidence proving the K terms; or
• writing signed by decedent/testator evidencing the K

Question 19

What are the requirements for proving that a will is the result of fraud?

Answer 19

1. Testator has been intentionally deceived as to:
   
   1. character or content of the will or its provisions and/or
   2. facts extrinsic to the will that would induce the will or a particular provision or disposition in the will
2. Testator acted in reliance on the misrepresentation

Question 20

What are the requirements for providing testator’s will is invalid due to undue influence?

Answer 20

Will contestant has burden of proof and must show:

1. influence was exerted on testator;
2. testator’s mind and free will were overpowered; and
3. testator’s will would not have been executed absent undue influence

Question 21

Can a trustee/depositor revoke a Troten trust?

Answer 21

Revocable by trustee-depositor by withdrawing funds before death or revoking the trust by will

Question 22

Totten Trust

Answer 22

deposit of funds in one’s bank account held in trust for another

e.g., A opens account for herself as trustee for B

Question 23

What is required for an inter vivos gift to be valid?

Answer 23

Requirements: Intent, delivery, acceptance

1. Donor intends to make gift;
2. Donor delivers gift; and
3. Donee accepts

Question 24

What is a resulting trust and what is the most common way it arises?

Answer 24

Trust implied or imposed by law; most often when an express trust fails for some reason (e.g., beneficiary is dead, trust is unenforceable or void, etc.)

Question 25

What elements are required to create a valid express trust?

Answer 25

1. Settlor with the capacity to convey
2. Settlor has a clear present intent to create a trust relationship
3. Competent trustee w/ duties
4. Definite beneficiary (must ID beneficiary by name or sufficiently describe how beneficiaries will be ascertained)
5. Present & clear disposition of settlor’s specific property in trust
6. Valid trust purpose

Question 26

Pour-ver provisions

Answer 26

provision in a will that devises property to a previously existing trust

⚠️does not create a trust, transfers property to an existing trust

Question 27

Can an inter vivos trust be created orally?

Answer 27

A writing is not required for the creation of an inter vivos trust, but an oral trust and its terms can only be established by clear and convincing evidence

Question 28

If settlor creates an inter vivos trust with another as trustee, what is required?

Answer 28

Property must be delivered to trustee

Question 29

What is required for creation of an inter vivos trust?

Answer 29

1. Transfer of property - property owner transfers property to another as trustee; or
2. Declaration of trust - property owner declares himself trustee for another

Question 30

What are the primary duties of a trustee?

Answer 30

1. Duty to administer trust in good faith and prudent manner
2. Duty of loyalty
3. Duty to report
4. Duty to separate trust property & keep records
5. Duty to enforce claims & defend trust
6. Duty to preserve property and make it productive