Wills

Question 1

Elements of establishing undue influence

Answer 1

(i) influence was exerted on the testator;
(ii) the effect of the influence was to overpower the mind and free will of testator, and;
(iii) the product of the influence was a will that would not have been executed but for the influence

Question 2

When does a presumption of undue influence arise?

Answer 2

(i) there is a confidential relationship between the testator and the beneficiary-influencer;
(ii) the beneficiary participated in procuring or drafting the will; and
(iii) the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence

(shifts burden to proponent of the will to prove it was not induced by undue influence)

Question 3

What is duress?

Answer 3

undue influence + threat of violence

Question 4

Who has burden to prove will is invalid?

Answer 4

will contestant

Question 5

grounds for contest

Answer 5

(1) defective execution
(2) revocation
(3) lack of testamentary capacity
(4) lack of testamentary intent
(5) undue influence or duress
(6) fraud
(7) mistake

Question 6

What is insane delusion, and what is its effect on the validity of a will?

Answer 6

Insane delusion is a belief in facts that do not exist and that no rational person would believe existed.

It destroys testamentary capacity, but only if there is a connection between the insane delusion and the property disposition.

Question 7

Elements of Fraud

Answer 7

(i) false representation made to the testator;
(ii) knowledge of falsity by person making the statement;
(iii) testator reasonably believed the statement; and
(iv) statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation

Question 8

What are the two types of mistake and the effects of each?

Answer 8

Mistake in the execution

• testator is mistaken regarding the identity or contents of the instrument
• will is void for lack of testamentary intent

Mistake in the inducement

• testator is mistaken as to some extrinsic fact and makes their will based on that erroneous fact
• if mistake involves reasons T made their will a particular way, and it was not fraudulently induced, normally no relief (sometimes relief if on face of will)

mistake under UPC
- may reform a will even if unambiguous to conform to T’s intent if proven by clear and convincing evidence that there was mistake

Question 9

What is a no-contest clause?

Answer 9

A clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose

majority rule: UPC and most states won’t enforce if valid probable cause for bringing contest

Question 10

What are the elements of capacity?

Answer 10

Legal Capacity: 18 years old and of sound mind

Testamentary Capacity: T must have the capacity to understand

(i) nature of their act;
(ii) nature and extent of their property;
(iii) the persons who are the natural objects of their bounty; and
(iv) the above factors and be able to formulate an orderly scheme of disposition

Question 11

What is necessary to execute a valid will?

Answer 11

capacity, intent, and formalities

Question 12

What are the will formalities?

Answer 12

(i) must be in writing (a few states allow electronic wills);
(ii) signed by T, or by another at T’s direction and in T’s presence;
(iii) two attesting witnesses
(iv) T signs in presence of witnesses; and
(v) witnesses sign in T’s presence

Question 13

Is order or location of signatures important?

Answer 13

Order not important as long as single contemporaneous transaction

UPC allows signing anywhere. Some states require at the end. Some of those will hold the will is void, and some will disregard everything after signature.

Question 14

Two tests for presence

Answer 14

1. Conscious presence test (most states)
   Presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties
2. scope of vision test

Requirement is satisfied only if the person was in such close proximity that they could have seen the signing had they looked

Question 15

Intestate share of surviving spouse

Answer 15

If there are descendants

• in most states spouse takes ⅓ or ½
• under UPC, spouse takes entire estate if descendants are also descendants of spouse and spouse has no other descendants

If no descendants

• in most states, spouse takes entire estate
• under UPC, spouse takes entire estate if also no parents

Question 16

classic per stirpes

Answer 16

1. One share is created for each child and each deceased child who has at least one surviving descendant
2. Each child receives one share, and one share passes to a deceased child’s descendants by representations

*divides shares at child generation even if no child survives

Question 17

per capita with representation

Answer 17

*majority rule

1. Property is divided into equal shares at the first generational level at which there are living takers
2. Each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by representation

Question 18

per capita at each generational level

Answer 18

1. Property is divided into equal shares at the first generational level at which there are living takers
2. Each living person at that level takes a share, and the shares of deceased persons at that level are combined and divided equally among the takers at the next generational level

Question 19

Intestate rules for adopted children

Answer 19

• treated the same as biological children
• inherits from and through adopting parents and their kin, and adopting parents take from and through adopting child
• generally no inheritance in either direction between adopted children and biological parents, except where one biological parent marries an adopting parent

Question 20

Adoption by estoppel

Answer 20

The doctrine of adoption by estoppel permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them.

However, if the child dies, many states prohibit the stepparent or foster parent from inheriting.

Question 21

When will a nonmarital child inherit from their father?

Answer 21

(1) the father married the mother after the child’s birth; (2) the man was adjudicated to be the father in a paternity suit; or (3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father

Question 22

Advancements

Answer 22

A lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate

• presumption against advancement unless shown to be intended as such
• under UPC, only advancement if (1) declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir

Question 23

Simultaneous death rules

Answer 23

• Uniform Simultaneous Death Act - property disposed as if each decedent survived the other
  
  • applies only if there is no sufficient evidence of survival
• Revised USDA (also UPC) - 120-hour rule
  
  • a person must survive the decedent by 120 hours to take any distribution of the decedent’s property

Question 24

Requirements for disclaimer

Answer 24

in most states, must be (i) in writing (ii) signed by the disclaimant, (iii) acknowledged before a notary (iv) and filed with the appropriate court within nine months of death (UPC allows any time as long as no acceptance or used benefits)

Question 25

Effect of disclaimer

Answer 25

Disclaimed property passes as if the disclaimant had predeceased the decedent

*if life estate, remainder is accelerated

Question 26

Slayer statute

Answer 26

A person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim.

*usually imposes constructive trust

• murder conviction is conclusive
• in absence of murder conviction, court must find killing was unlawful or intentional by preponderance of the evidence

Question 27

interested witnesses

Answer 27

All states provide that the will is still valid, but the bequest to the interested witness may be void under a “purging statute” unless they are supernumerary or would have taken a share as an heir if the will had not been probated

Under UPC, gifts to interested witnesses are not purged

Question 28

harmless error statute

Answer 28

If a will is not executed in accordance with all of the required formalities, UPC gives the court the authority to ignore harmless errors

*proponent must establish testator’s intent by C+CE

Question 29

holographic will

Answer 29

A will written in the testator’s handwriting with no attesting witnesses

• UPC and most states allow typewritten text as long as all material portions are handwritten
• must contain signature but doesn’t need to be at the end of the will

Question 30

What is a specific devise?

Answer 30

A gift of a particular item of property distinct from all other objects in the testator’s estate

*specific bequest of a general nature is not distinguishable from the rest of the testator’s estate until the testator dies

Question 31

What is a general legacy?

Answer 31

A general legacy is a gift of a general economic benefit payable out of the general assets of the estate without requiring any particular source of payment

Question 32

What is a demonstrative legacy?

Answer 32

A gift of a general amount that is to be paid from a particular source or fund

*if the designated fund is insufficient, the balance will usually be paid from other assets of the estate

Question 33

What is ademption by extinction?

Answer 33

The failure of a gift because the property is no longer in the testator’s estate at the time of their death

• applies only to specific devises and bequests
• most states follow identity approach so if specifically bequeathed property is not in estate at death, bequest is adeemed and beneficiary takes nothing
• some states allow replacement property

Question 34

Replacement Exception to Ademption Doctrine

Answer 34

Some states allow the beneficiary to receive replacement property if the testator replaced the gifted item with another similar item

• if testator sold item and purchaser still owes money to testator, some states allow beneficiary to receive remaining money
• if testator became incompetent and item sold by a guardian, the beneficiary may be entitled to a general pecuniary legacy equal to the amount of the proceeds

Question 35

Ademption by Satisfaction

Answer 35

When a testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary, if the testator intends the transfer to have that effect

• most states require writing or specific instructions in the will before the gift is deemed a satisfaction
• under UPC, doctrine does not apply unless the testator provides for satisfaction in the will or contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction (writing not required if testator gives specifically described property)

Question 36

What are accessions?

Answer 36

Increases to property after execution of will

Question 37

Accession rules for stocks

Answer 37

• At common law, a specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock divided
• UPC and nearly all states now include stock dividends
• beneficiary does not take new securities purchased or acquired by the reinvestment of dividends

Question 38

What is abatement?

Answer 38

The process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises

Question 39

When does a gift lapse?

Answer 39

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator

Question 40

What is an anti-lapse statute?

Answer 40

An anti-lapse statute operates to save a lapsed gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator

applies unless a contrary provision appears in the will

• in most states, words of survivorship are a contrary will provision
• under UPC, words of survivorship are not sufficient

Question 41

Effect of lapse in a residuary gift

Answer 41

If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator (and anti-lapse statute does not apply)

• common law states do not allow surviving residuary beneficiaries to divide the deceased beneficiary’s share among them; share passes by intestacy
• most states allow surviving residuary beneficiaries to divide the share in proportion to their interests in the residue

Question 42

lapse in class gift

Answer 42

If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met.

Question 43

What are the basic rules of construction?

Answer 43

• leaving a will indicates intent not to die intestate - favor construction that avoids intestacy
• among two or more contradictory provisions in a will, last one prevails
• will is construed as a whole
• words given ordinary meaning unless clear intent otherwise
• technical words given technical meaning unless clear intent otherwise
• attempt to give affect to all words in will

Question 44

Patent ambiguities

Answer 44

A patent ambiguity exists if a provision is ambiguous on its face, that is, it fails to convey a sensible meaning.

• traditional view - no EE is not admissible to correct
• modern view - EE is admissible, but can’t be used to fill in blank spaces or supply omitted gifts

Question 45

Latent Ambiguities

Answer 45

A latent ambiguity exists when the language of the will is clear on its face but cannot be carried out without further clarification.

Court will consider extrinsic evidence to resolve ambiguity

Question 46

Mistake rules

Answer 46

• plain meaning rule - traditional approach, EE can’t be used to disturb clear, unambiguous meaning
• modern rule - reformation of mistake allowed if C+CE of scrivener error

Question 47

Incorporation by Reference

Answer 47

• may incorporate an extraneous document into will by reference
• effect: incorporated material is treated as if it were written out in full in the will
• requirements: (i) the will manifests an intent to incorporate the document; (ii) the document is in existence at the time the will is executed; and (iii) the document is sufficiently described in the will
• exception: many states and UPC permit reference to a list distributing items of tangible personal property and to write or alter that list after executing the will

Question 48

What are the requirements for and effects of a codicil?

Answer 48

• a codicil modifies a previously executed will and must be executed with the same formalities
• under doctrine of republication by codicil, the will and codicil are treated as one instrument from date of last codicil
• will impliedly incorporate a defective will by reference

Question 49

Effect of contract not to revoke will

Answer 49

1. A revokes will, notified B, B sues - no relief b/c B can change will
2. A revokes will and dies, B sues - no relief b/c B can change will
3. A dies in compliance, B revokes, beneficiary of contractual will sues - no relief b/c B not in breach until death
4. A dies in compliance, B attempts to dispose of covered property, beneficiary of contractual will sues - constructive trust because unjust enrichment
5. A dies in compliance, B revokes and makes new will then dies - new will probated but constructive trust imposed in favor of beneficiary of contractual will

Question 50

What is a power of appointment?

Answer 50

A power of appointment is an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.

Question 51

General v. Special Power of Appointment

Answer 51

• general power of appointment = power exercisable in favor of anyone including the donee themself, their estate, their creditors, or the creditors of their estate
• special power of appointment = power exercisable in favor of a limited class of appointees, which class does not include the donee, their estate, their creditors, or the creditors of their estate

Question 52

Can creditors reach appointive assets?

Answer 52

• Under the theory that the donee doesn’t own the appointive property, if the donee doesn’t exercise their general power, the donee’s creditors can’t reach the property.
• If the donee exercises the power, even if they appoint it to another person, the donee’s creditors can reach it as if the donee were the owner

Question 53

Does a residuary clause exercise a testamentary power of appointment?

Answer 53

• majority rule: a residuary clause does not, by itself, exercise any power of appointment
• minority rule: a residuary clause exercises a general power (but not special) unless: (1) the donor’s will called for exercise by specific reference to the power, or (2) the donor’s will provides for a gift in default of appointment

*but can use blanket exercise of power unless specific reference is required

Question 54

When is a will revoked by operation of law?

Answer 54

1. marriage after will execution

• in most states, no effect
• under UPC, new spouse takes intestate share as omitted spouse unless: (1) new will provides for new spouse; (2) omission was intentional; or (3) will was made in contemplation of the marriage

2. divorce or annulment

• in most states, revokes all gifts and fiduciary appointments in favor of former spouse (considered predeceased)
• UPC extends application to gifts to former spouse’s relatives

3. pretermitted children

• if testator fails to provide for any child born or adopted after execution, child will take share under statutory formula
• in many states, if entire estate to pretermitted child’s parent, no forced share

Question 55

Revocation by physical act

Answer 55

A will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke

• may direct someone else to destroy or cancel but usually must be done at testator’s request and in his presence
• most states authorize partial revocation by physical act if sufficient evidence testator made the change - EE admissible to determine if partial or total revocation intended

Question 56

Revocation by written instrument

Answer 56

All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will

• may expressly revoke the will
• if new instrument completely disposes of property, old will is completely revoked by inconsistency
• if new will partially disposes of property, old will revoked to the extent of the inconsistent provisions

Question 57

Presumption of no revocation

Answer 57

If a will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that the testator did not revoke it.

Examples of normal locations include the possession of a person to whom the testator delivered the will or among the testator’s valuable papers in the place the testator usually kept valuable papers like a safe deposit box or filing cabinet.

Question 58

Presumption of revocation

Answer 58

If a will last seen in the testator’s possession or under their control cannot be found after their death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked it.

• However, if the will was last seen in the possession of a third person or if a person adversely affected by its contents had access to the will, no presumption of revocation arises.
• Note that EE is admissible to overcome the presumption of revocation

Question 59

general revival rules

Answer 59

• UPC - if will 2, which revoked will 1, is revoked, no revival unless clear from circumstances or T’s statements there is intent to revive; if will 1 only partly revoked, revoked provisions are revived unless clear intent not to revive
• other states, revival is automatic because first revocation never took place
• other states, no revival because revocation effective when executed; will 1 must be reexecuted

Question 60

dependent relative revocation

Answer 60

When a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for that mistaken belief, the testator would not have revoked the will, the revocation fails if the second disposition fails

Essentially, the revocation of Will 1 is impliedly conditioned on the validity of Will 2

*the more different the two wills are, the more likely T would have preferred intestacy

Question 61

Elective Share statutes

Answer 61

Allow the decedent’s spouse to take a statutory share of the estate instead of taking under the will

• share varies but usually ⅓ if issue or ½ if no issue (UPC bases on length of marriage)
• usually calculated from net estate, but some states use augmented estate (includes certain lifetime transfers)
• paid first from assets that would have gone to the spouse anyway, then abatement applies

Question 62

Pretermitted Child Statute

Answer 62

Provides a forced share for a child who was born or adopted after the will was executed (usually also includes a child mistakenly believed to be dead)

• in many states, takes an intestate share
• UPC, limited to a share of the bequests to other children
• exceptions: (1) testator had other children when will was executed and devised substantially all of estate to other parent of omitted child; (2) appears omission was intentional; and (3) T provided for omitted child outside of will in lieu of will

Question 63

Homestead statute

Answer 63

Statute protecting the family residence or farm from creditors’ claims by exempting a certain amount of land

• usually provide that decedent’s spouse or dependent children are entitled to occupy homestead for as long as they choose despite disposition in the will

Question 64

Who has standing to contest a will?

Answer 64

interested parties = heirs and beneficiaries of prior wills

Question 65

What is in a living will?

Answer 65

An individuals desires regarding: (1) whether to administer, withhold, or withdraw life-sustaining procedures; (2) whether to provide, withhold, or withdraw artificial nutrition or hydration; and (3) whether to provide treatment to alleviate pain

Question 66

What does a durable healthcare power do?

Answer 66

It appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated

Question 67

Requirements for the execution of living wills and durable healthcare powers

Answer 67

Must be (1) in writing, (2) signed by the declarant or principal or another at the person’s direction, and (3) witnessed by two adult witnesses

• in most states, person designated as agent can’t witness