Wills Flashcards

Question

Effect of disclaimer

Answer 1

As if they predeceased

Answer 2

Slayer statute – one who feloniously & intentionally brings about death of decedent forfeits interest in estate; treated as if predeceased// imposition of constructive trust// Forfeit’s other’s share if right of survivorship - sometimes eliminates slayer’s decednats from taking either

Answer 3

Murder: as if predeceases Lesser charges: divided Preponderance of the evidence: predeceases

Answer 4

``` Holographic Will (all or most be in handwriting & signed) Formal Will requirements ```

Answer 5

Revocable during lifetime/ operative at death

Answer 6

Later testamentary instrument that amends, laters, modifies previously executed will

Answer 7

Will treated as being executed/ republished on date of last validily executed codicil First will must have been validily executed even if not valid.

Answer 8

CL: Exact compliance UPC: permits harmless errors

Answer 9

CL: Republication/ incorporation by reference UPC: Establish by clear & convincing evidence that testator intended document to be their will

Answer 10

Mere expectancy – not property interest

Answer 11

Decedent’s domicile at death

Answer 12

Savings statute which permits will can be probated if conducted in accordance with law of: - that jurisdiction - state where will was executed - testator’s domicile at time of will’s execution - testator’s domicile at death

Answer 13

- Writing - Signed - Before 2 competent attesting witnesses (UPC: or signed by notary) By someone with - Legal capacity (18 + sound mind) - Testamentary intent (present intent instrument operates as a will)

Answer 14

1. Testator sign at end f will 2. Publish will (declare to witness it is a will) 3. Witnesses sign in the presence of each other UPC: will valid if either 1. Attested by 2 competent witnesses or 2. Signed by notary

Answer 15

Determined at time of will execution. - No capacity for insane delusion only if nexus between delusion and property disposition Understand nature of: 1. act (executing will) 2. property 3. objects of their bounty (family members) 4. Able to formulate orderly scheme of disposition

Answer 16

Intent: 1. dispose of property 2. at death 3. instrument accomplish disposition

Answer 17

1. Proxy may sign at direction & in presence of tesetator (may be witness too) 2. Signing must be part of single contemporaneous transaction but order not important

Answer 18

CL: if 1 witness is bfy – not probated Most states: purging statute will eliminate interest (make gift void); and remainder of will will be void Gifts to interested witnesses are not purged

Answer 19

Creditors, fiduciaries, attorneys (not disqualified from collecting debts/ servigng the estate”

Answer 20

Majority: General awareness of what doing/ act and cognizance of other parties Minority: scope of vision – could have seen signing Phone calls do not count

Answer 21

Certification of elements of due execution Prima facie evidence of elements – not dispositive UPC: allows notarization as substitute for attestation of witnesses

Answer 22

1. States elements of due execution were performed 2. Sworn by testator & witnesses 3. Before notary 4. Functions as deposition // no need to produce witnesses Most courts allow affidavit on will; most courts allow signature on affidavit to serve as signatures of witnesses

Answer 23

Unatteted will entirely or partially in T’s handwriting 1. Written in testator’s handwriting 2. Testator’s signature/marking/etc. 3. no attesting witnesses

Answer 24

If jurisdiction recognizes holographic wills – revisions are valid holographic codicils If does not - Revisions to attested will not usually given effect – may be revocation.

Answer 25

Majority & UPC do not recognize oral wills Minority: - disposition of personal property for soldiers or last sickness/in contemplation of immediate death - requires 2 witnesses

Answer 26

Duty to client & intended beneficiaries SOL runs on date of death Some: require privity between attorney & malpractice plaintiff (intended bfy cannot sue)

Answer 27

Gift of real property

Answer 28

Gift of personal property

Answer 29

Gift of general economic benefit payable out of general asset (ie shares of stock/ acres of property)

Answer 30

Gift of general amount to be paid from particular source (ie money from specific bank out) - Funds available: Treated as specific legacy - Funds unavailable: Treated as general legacy (paid from other assets)

Answer 31

Balance of property after paying - Debts, expenses, taxes - Specific, general and demonstrative gifts

Answer 32

If specifically bequeathed property is not in estate at death, gift fails.

Answer 33

If portion of gift is disposed of during life, beneficiary takes remaining portion

Answer 34

Replacement property: may replace gift if testator replaced gift with similar item Balance of outstanding purchase price: bfy may receive any money still owed to testator after sale of gift Proceeds of condemnation award/ insurance Sale by conservator: receive general pecuniary legacy equal to proceed of sale if guardian sells gift when testator is incompetent

Answer 35

Can take substitute property if grantee shows testator intended bfy to take

Answer 36

Gift may be satisfied by inter vivos transfer | Inter vivos transfer should be in writing

Answer 37

Income on property goes to estate | Improvement to property goes to specific devisee

Answer 38

Stock split: goes to gift recipient Stock dividends/new purchases: - CL: not to gift recipient - UPC/Modern: specific bequest of stock includes stock dividends

Answer 39

UPC/Majority: No; liens not exonerated (paid off) unless otherwise directed Minority/ CL: Yes; liens exonerated

Answer 40

Process of reducing testamentary gifts if estate is insufficient

Answer 41

``` Property passing by intestacy Residuary estate (remaining property after gifts) General legacies (paid out of general estate) Demonstrative legacies (something specific paid out of general estate) Specific bequests/devises (gift of something specific) Within classes, abatement is pro rata ```

Answer 42

If bfy predeceases the testator, lapsed gift controlled by: 1. Term of will 2. Rule of law (ie anti lapse statute) 3. Residuary clause 4. Intestacy

Answer 43

Saves the predeceasing bfy’s gift and provides to surviving testator. Most states: Words of survivorship will negate Anti-lapse UPC: words of survivorship will not negate anti-lapse

Answer 44

Residuary estate devised to 2+ bfy and 1 bfy dies CL: Surviving Bfy; survivors of deceased bfy do not receive residuary UPC: Split b/w Bfies estates; survivors of deceased bfy do receive

Answer 45

Members who survive testator unless otherwise stated

Answer 46

Gift is void

Answer 47

Intent of testator Avoid intestacy (presence of will indicates intent to not die intestate) Last will prevails Will construed as a whole Words given ordinary meaning/ technical word given technical meaning Give effect to all words

Answer 48

Traditional: no extrinsic evidence Modern: extrinsic is admissible to correct patent (obvious) – not blank/omitted gifts

Answer 49

Language is clear on its face but cannot be carried out without further clarification Extrinsic evidence – OK

Answer 50

Can be carried out but bfy/interested person this there is a mistake Traditional: no extrinsic evidence to disturb clear meaning of will Modern: extrinsic evidence ok

Answer 51

Incorporate extraneous document by referencing it and treated as if written in will - Does not need to be signed, witnessed, written by someone with capacity 1. Intent to incorporate 2. Document in existence when will executed 3. Reasonably identified in will

Answer 52

List of tangible personal property need not be in existence when will executed

Answer 53

``` Act/fact outside will that has purpose other than disposing of property at death Ie general gifts, class gift designations, gift to “my spouse”, gifts of contents” ```

Answer 54

Will that is operative if certain events occur Courts will construe as general if possible/ will interpret a “condition” as a motive if possible Parol evidence is not admissible to show will is absolute on its face

Answer 55

Executed with same formalities as will Codicil/will treated as the same instrument Validates a previously invalid will

Answer 56

Reexecute: Will must be reexecuted with proper formalities OR Holographic Will: Changes qualify as holographic codicil if recognized

Answer 57

Provision in will making gift to inter vivos trust

Answer 58

Pages present at execution must be present at probate | Physical attachment/internal references/ page numbers etc.

Answer 59

Highly unadvisable

Answer 60

Separate wills executed by 2 testators that contain substantively similar provisions

Answer 61

Executed or not revoked in consideration for contract Contract law applies Extrinsic evidence is admissible Revocable during life/ irrevocable upon first testator’s death If testator dies in breach – create constructive trust

Answer 62

Testamentary capacity may revoke will at any time prior to death Operation of law Subsequent instrument Physical Act

Answer 63

New spouse takes intestate share as “omitted spouse” unless - Will makes provision for new spouse - Omission was intentional - Will made in contemplation of marriage

Answer 64

Revokes gifts & fiduciary appointments for former spouse (sometimes spouses’ relatives)

Answer 65

Failure to provide for child born after execution of the will statutory provisions apply. Usually gift from residuary (unless pretermitted child’s parent receives remainder)

Answer 66

Properly revokes - Buring, tearing, cancelling - Need Intent concurrent with act // done by proxy Partial revocation permitted – extrinsic evidence permitted to determine partial/total revocation intended

Answer 67

Revokes all codicils Destruction of duplicate executed will – revokes both unless evidence of destruction of one was to avoid confusion Destruction of unexcuted copy – does not revoke

Answer 68

Same formalities as will Express - revokes earlier will Inconsistency – New instrument can completely or partially dispose of inconsistent provisions

Answer 69

Will in normal location + no suspicious circumstances = presumption of no revocation Will in testators’ possession + not found after death = presumption of revocation

Answer 70

Valid execution Cause of nonproduction shows will not revoked Contents of will - proved by 2 witnesses or production of duplicate

Answer 71

Revoked will does not revive older will unless intended to revive. If original will was only partly revoked, revoked provision are revived unless evident no intent

Answer 72

Option 1: Revival is automatic | Option 2: not revived

Answer 73

W1 revived after revocation of W2 if: - Revocation of W1 impliedly conditioned on validity of W2 - W2 was improper and not valid - Testator would have preferred W1 over intestacy

Answer 74

Establish by clear & convincing evidence that decedent intended document that doesn’t meet technical requirements may still be valid

Answer 75

Most: No writing – unless land (minority: writing) | Contract law rules

Answer 76

1. Provisions in will stating material provsiison of contract 2. Express reference in will to contract / extrinsic evidence proving terms of contract 3. Writing signed by decedent evidencing contract

Answer 77

Reasonable expectation would be compensated

Answer 78

A fixed portion of the estate is given to the spouse | Notice filed within 6 mo from admission of will to probate

Answer 79

Varies: - Common Law Marital Property States: Varies - Survived by issue: usually 1/3 of net probate estate - No issue: ½ - Or length of marriage

Answer 80

probate estate – expenses & creditor’s claims

Answer 81

probate estate + lifetime transfers/ bank accounts

Answer 82

Paid first from assets that would have passed to survive spouse, then through abatement rules

Answer 83

Protects only accidentally omitted children by providing a forced share Forced share for child born after will executed (few states allow b/f), believed to be dead

Answer 84

Varies: - Traditional: Intestate share of decedent’s estate - UPC: same as provisions for other children – only other children’s bequests reduced

Answer 85

Family entitled to occupy homestead for as long as they want despite the disportion of residence in will

Answer 86

Provide support during probate administration. Precedence over other claims Varies between dollar amount or amount to maintain family for “reasonable time”

Answer 87

Spouse may petition for personal property to be exempt except for perfected security interests

Answer 88

Interested party (heirs/bfy of prior wills)

Answer 89

Contestant shows will is invalid

Answer 90

``` Defective execution Revocation Lack of testamentary capacity Lack of testamentary intent Undue influence/ Durres Fraud Mistake ```

Answer 91

Will may fail partially or entirely

Answer 92

Exerted: Influence existed/ was exerted Overpowered: Influence overpowered the mind and free will But for: Disposition would not have been executed but for

Answer 93

``` None are conclusive; Unnatural dispositions Opportunity/ access to testator Confidentiality or fiduciary relationship Ability of restator to resist Bfy’s involvement with drafting ```

Answer 94

Confidential relationship Bfy was active in procuring/ draftin/ executing will Some courts add: provision appears unnatural to favor person Not spouses, gifts to attorneys are void in many states

Answer 95

Fraud in execution (did not know they were executed document); Fraud in the inducement (deceived as to extrinsic fact) Willfully deceived testator as to: Character/ content of the instrument Extrinsic facts that would induce the will/particular disposition OR Facts material to a disposition Elements: False representation Knowledge of falsity Testator reasonably believed Statutement caused testator t oexecute will/ make disposition would not have otherwise done

Answer 96

Error caused by no evil conduct Mistake in the inducmenet – mistaken as to extrinsic fact Mistake in execution – identity/ contents lacks testamentary intent extrinsic evidence admissible

Answer 97

Court may reform will – even if unambiguous – if proven by clear & convincing evidence of testator’s intent

Answer 98

In terrorem clause – bfy forfeits interest if the ycontest will and loose Majority: no forfeiture if probable cause for contesting will Minority: give full effect regardless of probable clause

Answer 99

Instrument is judicially determined to be will of decedent

Answer 100

Personal rep: carry out estate administration – named in will = Executor; if not = administrator

Answer 101

State of decedent’s domicile at the time of death

Answer 102

Capacity to contract

Answer 103

Acts as fiduciary File bond unless testator provided that no bond required Give notice to devisees, heirs, claimants Discover & collect decedent’s probate asset & file an inventory Manage assets of the estate during admin Pay expenses & administration, claims, taxes Distribute property

Answer 104

Borrow money Oerpate business Sell property

Answer 105

Rates of compensation set by the state / in will

Answer 106

Creditor file claims within period of time

Answer 107

Administration expenses Funeral expenses/ expenses of last illness Family allowance Debts Secured claims Judgments entered against decedents during lifetime All other claims

Answer 108

Life sustaining procedures Artificial nutrition/hydration Alleviate pain Appoints agent to make healthcare decisions once incapacitated (cannot be admin of hospital)

Answer 109

Writing Signed by declarant 2 witnesses Capacity presumed States breadth of authority for agent (otherwise standard is best interest) If no witnesses, agent may still act under “family consent” statute

Answer 110

Destroying Written revocation Oral revocation

Answer 111

Oral or written request

Answer 112

No civil, crim or unprofessional conduct issues if agent acted in good faith