Wills Flashcards
Rule to determine what law is applicable?
At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death. Under the UPC, validity is determined under the law of the place where (i) the will was executed, or (ii) the testator is domiciled, has a place of abode, or is a national at the time of death.
Explain the rule regarding conditions to a will?
The validity of a will can be conditioned on a particular event or circumstance. However, whenever possible, the court will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument. The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will. The court considers factors such as where the will was stored after the purported “condition” lapsed, whether setting the will aside would result in intestacy, and whether effectuating the will would result in an inequitable distribution.
Explain the rule regarding ambiguity in a will?
Under the general rule of construction, a will “speaks” as of the time of death. Courts are reluctant to disturb the plain meaning of a will regardless of mistake. However, if there is an ambiguity, courts allow extrinsic evidence to resolve it. Traditionally, courts distinguished between patent and latent ambiguities; however, many states no longer make this distinction.
Patent ambiguities appeared on the face of the will and were required to be resolved within the four corners of the instrument but without extrinsic evidence; latent ambiguities were not apparent from a reading of the will and were allowed to be resolved by extrinsic evidence.
Explain the rule regarding anti-lapse statutes
Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition. Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests. Under most statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.
Explain the rule regarding omitted children
Pretermitted heir statutes allow children of a testator to claim a share of the estate even though they were omitted from the testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.
An omitted child statute does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.
Explain the rule regarding incorporation by reference
A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.
Note that under the UPC the writing need not exist at the time the will was executed if it only disposes of the T’s personal property (in other words, the testator can write a will referencing another document and then create the document later).
Describe the rule regarding abatement
Gifts by will are abated, i.e., reduced, when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.
Explain the rule regarding power of attorneys and healthcare POAs.
Explain the agents duty
A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent. A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions. Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal.
An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.
Explain the civil liability of an agent acting under the scope of a healthcare POA
Explain whether such an agent would be barred from recovering under a slayer statute
The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith. Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney. In general, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong.
In general, a party cannot take property from a decedent when the party was responsible for the decedent’s death. The killing must have been intentional and felonious to bar the killer from taking. Thus an agent’s actions in good faith acting within the scope of such an agreement should not apply under the statute Allowing such a statute to apply to a healthcare POA would undermine the purpose of the POA, which is to appoint a trusted family member or friend to act in good faith on the patient’s behalf.
Explain the rule regarding the revocation of wills
A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.
Majority Rule: The majority rule is that an effective canceling of a will requires defacement of the language of the will (i.e., at least some of the language must be crossed out, including the signature).
UPC: rejects the majority rule; the destructive act must merely affect some part of the will
Explain the default intestacy rule
Intestacy is the default statutory distribution scheme that applies when an individual dies without effectively disposing of all of his property by other means. Intestacy statutes generally favor the decedent’s surviving spouse and issue, followed by the decedent’s other relations. A party cannot take property from a decedent when the party was responsible for the decedent’s death.
Explain the rule regarding ademption of specific property
A specific bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate. If the subject matter of a specific bequest is missing or destroyed (“extinct”), the beneficiary takes nothing. The property is adeemed regardless of the testator’s intent. However, under the UPC, the bequest is adeemed only if the facts and circumstances establish that ademption was intended. The UPC permits a beneficiary of a specific extinct gift to take the property acquired by the testator as replacement property.
Explain the rule regarding stocks
At common law, a stock dividend is a property interest distinct from stock given by a specific bequest. A bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares is deemed to include any additional shares of that security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions.
Under the UPC, a bequest of a security that was owned at the time the will was executed will include any additional shares of that security as long as the action was initiated by the corporate entity.
