Wills Flashcards
What are the standards for determining whether testator had mental capacity?
Testator, at the time of will execution, must understand:
- Act - nature of his act
- Property - nature & extent of his property; and
- People - persons who are the natural objects of his bounty
How does the presence of interested witnesses effect the validity of a will under the UPC?
does not invalidate a will or any part of it
Under the majority rule, how can an interested witness still be a beneficiary?
- If there were two other witnesses who were disinterests (i.e., 3 total witnesses, two of whom were disinterested); or
- Interested witness would take if there was no will (i.e., interested witness would have taken as a descendant through intestate succession)
Under the majority rule, what effect does an interested witness have on how the will is probated?
Will is valid but gift to witness-beneficiary is void
What is the basic requirement for witness competency?
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
What are the requirements for a holographic will to be valid?
Must be:
- in testator’s writing (some states require entire doc, others allow some type written text if typed portion is not material)
- be signed by testator
- reflect testator’s intent to make a will
What effect does a validly executed codicil have with regard to the original will?
the original will is treated as republished and deemed to have been executed on the date the codicil was executed
What is the test for whether a document will be integrated into a will?
- Physical Presence - the document was physically present at the time of the will’s execution; and
- Intent of Inclusion - testator intended the document to be part of the will
What are the requirements for a document incorporated by reference in a will that disposes of testator’s tangible personal property?
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:
- be signed by testator
- describe items and to whom they are devised with reasonable certainty
Incorporation by Reference Requirements
- Intent to incorporate - will manifests testator’s intent to incorporate the doc;
- Authenticated document - will sufficiently describes the doc;
- in existence upon will execution
Partial Revocation
Revocation may be accomplished by making marks of cancellation on the will (e.g., crossing out provisions) in most states
What is the doctrine of Dependant Relative Revocation? When might it arise?
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.
Under the modern view, how is a bequest handled where there is a lapse in the residue?
Residuary beneficiaries who survive testator and deceased beneficiary take the deceased beneficiary’s share.
In some states that apply the intent theory, how may adeemed gifts be saved?
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.
What is the most common order of abatement provided for by statutory authority?
- property not disposed of by will
- residuary estate
- general devises - abate pro rata
- specific devises and bequests
Mutual will
separate wills of two or more people containing reciprocal or substantially similar provisions
usually not interpreted as a K to make a will
If there is a breach of a K to make a will, what is the usual remedy?
Court usually probates the will and imposes a constructive trust in favor of the intended beneficiary under the K
In most states a K regarding a will must be in writing. What other requirements does the UPC impose?
- 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
What are the requirements for proving that a will is the result of fraud?
- Testator has been intentionally deceived as to:
- character or content of the will or its provisions and/or
- facts extrinsic to the will that would induce the will or a particular provision or disposition in the will
- Testator acted in reliance on the misrepresentation
What are the requirements for providing testator’s will is invalid due to undue influence?
Will contestant has burden of proof and must show:
- influence was exerted on testator;
- testator’s mind and free will were overpowered; and
- testator’s will would not have been executed absent undue influence
Can a trustee/depositor revoke a Troten trust?
Revocable by trustee-depositor by withdrawing funds before death or revoking the trust by will
Totten Trust
deposit of funds in one’s bank account held in trust for another
e.g., A opens account for herself as trustee for B
What is required for an inter vivos gift to be valid?
Requirements: Intent, delivery, acceptance
- Donor intends to make gift;
- Donor delivers gift; and
- Donee accepts
What is a resulting trust and what is the most common way it arises?
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.)
What elements are required to create a valid express trust?
- Settlor with the capacity to convey
- Settlor has a clear present intent to create a trust relationship
- Competent trustee w/ duties
- Definite beneficiary (must ID beneficiary by name or sufficiently describe how beneficiaries will be ascertained)
- Present & clear disposition of settlor’s specific property in trust
- Valid trust purpose
Pour-ver provisions
provision in a will that devises property to a previously existing trust
⚠️does not create a trust, transfers property to an existing trust
Can an inter vivos trust be created orally?
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
If settlor creates an inter vivos trust with another as trustee, what is required?
Property must be delivered to trustee
What is required for creation of an inter vivos trust?
- Transfer of property - property owner transfers property to another as trustee; or
- Declaration of trust - property owner declares himself trustee for another
What are the primary duties of a trustee?
- Duty to administer trust in good faith and prudent manner
- Duty of loyalty
- Duty to report
- Duty to separate trust property & keep records
- Duty to enforce claims & defend trust
- Duty to preserve property and make it productive
