Wills

Question 1

Requirement for due execution:

Answer 1

The will is signed by the testator and witnessed by 2 people.

Question 2

What is a codicil?

Answer 2

A later testamentary instrument that amends, alters, or modifies a previously executed will.

Question 3

3 requirements for a document to be incorporated into a will:

Answer 3

1. The document must be in existence at the time the will was executed
2. The language of the will must sufficiently describe the writing to permit its identification
3. The will must manifest an intention to incorporate the document.

Question 4

What is a slayer statute?

Answer 4

One who feloniously and intentionally brings about the death of the decedent forfeits any right in the decedent’s estate.

Question 5

What is intestacy?

Answer 5

The portion of the estate not passing to the surviving spouse will pass to the decedent’s children and descendants of the deceased children.

Question 6

When will parents never inherit under intestacy?

Answer 6

If the decedent is survived by children or more remote descendants.

Question 7

What is ademption?

Answer 7

When specific property is not in the estate at death, the bequest fails (intent is irrelevant).

Question 8

What does a specific bequest of stocks include?

Answer 8

Any additional shares produced by a stock split, but not those produced by a stock dividend.

Question 9

What is the UPC view of a specific bequest of stock?

Answer 9

A specific bequest includes stock dividends.

Question 10

What is the exception to ademption?

Answer 10

If the property was sold by the guardian/conservator and the money was not used towards the testator’s care, the beneficiary is entitled to the sale proceeds.

Question 11

What is the effect on a will by divorce?

Answer 11

All gifts to the former spouse are revoked and the residue will pass through intestacy.

Question 12

What is the UPC rule on the effect of divorce on a will?

Answer 12

Under the UPC, the bequest to both the spouse and relatives of the spouse are revoked.

Question 13

3 ways property can pass through intestacy:

Answer 13

1. In most states, if a decedent is not survived by a spouse or descendants, property passes to parents and/or siblings; the property is divided at the first generational level at which there are living takers.
2. In some states, a per capita distribution at each generational level would be used.
3. Strict per stipes method; the shares are determined at the first level regardless of whether there are living takers.

Question 14

What is a holographic will?

Answer 14

An unattested will entirely in the testator’s handwriting.

Question 15

What are life insurance proceeds and who do they pass to?

Answer 15

Non probate assets and pass to the beneficiary of the contract.

Question 16

What happens if a beneficiary dies during the testator’s lifetime?

Answer 16

The gift to them fails.

Question 17

What is the purpose of an anti lapse statute and what is the majority?

Answer 17

Saves the gift of the predeceasing beneficiary who was in a certain degree of relationship and left descendants; the majority view is that the gift is not saved and falls into the residuary estate.

Question 18

What happens when an estate’s assets are not sufficient to pay all claims?

Answer 18

The gifts are abated in which the gifts are reduced.

Question 19

What is the order of gift abatement?

Answer 19

1. Intestate property
2. Residuary estate
3. General legacies
4. Specific devises
5. Bequests

Question 20

3 conditions to establish undue influence:

Answer 20

1. Influence was exerted on the testator
2. The effect of the influence was to overpower the mind and free will
3. The product was a will that would not have been executed but for the interference.

Question 21

3 situations where undue influence is presumed:

Answer 21

1. A confidential relationship existed between the testator and the beneficiary who was alleged to have exercised undue influence
2. The beneficiary participated in drafting or procuring the will
3. The provisions of the will seem unnatural and favor the person who allegedly exercised undue influence.

Question 22

What is a specific bequest?

Answer 22

A gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described.

Question 23

May a beneficiary disclaim any interest?

Answer 23

Yes with the consequence being that the interest passes as though the disclaimant predeceases the testator and becomes part of the residuary estate.

Question 24

What is the residuary estate?

Answer 24

The balance of the testator’s property after all expenses, claims, and bequests have been paid.

Question 25

3 ways a will may be revoked:

Answer 25

1. By operation of law
2. By subsequently written instruments executed in the same formalities as the will
3. Physical act that has an actual effect on the will or its language; UPC allows the words to be on the will itself but need not touch the words.

Question 26

What is a purging statute?

Answer 26

They eliminate the interest of a beneficiary who was a witness to a will leaving the will.

Question 27

3 ways for a contract to make a will established:

Answer 27

1. Provisions in the will state material provisions of the contract
2. An express reference in a will and extrinsic evidence proving the terms of the contract
3. Writing signed by the decedent evidencing the contract

Question 28

What is the function of the doctrine of cy pres?

Answer 28

It allows the court to apply the property to another purpose as close as possible to the original one rather than permit the gift to fail.

Question 29

What is integration?

Answer 29

The process of embodying sheets of paper or documents into a single, entire will, validated by a single action.

Question 30

3 ways integration may be presumed:

Answer 30

1. There is a physical connection of the pages
2. There is an internal coherence of provisions
3. When read together it sets out a dispositional plan

Question 31

What is the doctrine of dependent relative revocation?

Answer 31

A court may disregard a revocation if it determines that the act of revocation was premised on a mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of the property was valid.

Question 32

3 ways paternity can be established:

Answer 32

1. The father married the mother after the child’s birth
2. The man was adjudicated to be the father in a paternity suit
3. After the man’s death, he is proved in probate proceedings to have been the father

Question 33

What is the standard capacity in making a will?

Answer 33

It is low; one may have the capacity to make a will even though they don’t have the capacity to contract and the law presumes everyone is of sound mind unless the contrary is shown.

Question 34

4 requirements needed to show the testator did not have sufficient capacity to:

Answer 34

1. Understand the nature of his act
2. Know the nature and character of his property
3. Know the objects of his bounty
4. Relate these factors to formulate a disposition of property according to a plan formed in his own mind.

Question 35

3 things a contestant must show that fraud was sufficient to invalidate a will:

Answer 35

1. Someone made a false representation of material fact, knowing it to be false
2. The representation was made for the purpose of inducing the testator to write a will in a particular way
3. The testator reasonably believed and relied on that statement in making the will

Question 36

What is the view on no-contest clauses?

Answer 36

They are enforceable as long as the will is challenged in good faith and on reasonable grounds (question of fact).

Question 37

What is a holographic will?

Answer 37

All or most of the will is in the testator’s handwriting and signed by the testator.