Wills

Question 1

Intestacy

Answer 1

Occurs when:

1) Decedent (D) had no will
2) Testator (T)’s will was denied probate
3) T’s will did not dispose of T’s entire estate (lacked a residuary clause)
4) Residuary bequest lapsed (I DROPS)

Laws of intestacy attempt to distribute D’s estate to people D likely would have chosen had D executed a will. Generally favors D’s spouse and children (marital, non marital, adopted).

Question 2

Intestacy: residuary clause

Answer 2

Residuary clause inserted in T’s will or trust indicates T’s strong intent that T’s property not pass under the rules of intestacy.

Majority: NO RESIDUE OF A RESIDUE – where will’s residuary is left to two or more OR where the will does not have a residuary clause but names two or more legatees (e.g., entire estate to my friends, X and Y) and Y predeceases T, then Y’s share does not fall into intestacy but passes to X, the other co-residuary.

Minority/common law: do not recognize no residue of a residue because it alter’s T’s bequest (i.e., the even split becomes 100% to X). In these minority states, X gets her 50% and the other 50% passes to intestacy.

Question 3

Proper Will Execution

Answer 3

SWEPT
S - signed by adult T (with someone’s help or at T’s direction)
W - in writing
E - at the end of the will (any provision below sig. ignored)
P - published (aka acknowledged as T’s will)
T - signed by two witnesses in T’s presence*

SIGNATURE NOTES:

• Majority: when T physically unable to sign, TP can sign for T but must be at T’s direction and in T’s line of sight/vision.
• Minority: conscious presence of signing witnesses

Absence of an attestation clause does not invalidate will/simply gives rise to a rebuttable presumption of SWEPT compliance/allows proponent of will to move for summary judgment that will was properly executed. When attorney oversees will exception, presumption of proper execution arises.

Self-proved wills are those in which T and Ws execute a notarized affidavit detailing SWEPT procedures that were followed.

T may sign in the presence of 2 Ws or alone, provided he later acknowledges his signature to Ws. Ws must sign in T’s presence within a reasonable time.

Question 4

Holographic will

Answer 4

Majority recognize holographic wills unwitnessed but written and signed in T’s handwriting. Most of these states allow some typewritten parts as long as the “material” parts are in T’s handwriting.

Question 5

Harmless Error Rule

Answer 5

Minority allow courts to dispense with strict execution requirements if T intended the doc to be a valid will. Harmless Error Rule - based solely on T’s intent. Allows probate court to admit will if there is clear & convincing evidence that T intended the document as a will.

NOTE: the more SWEPT errors there are, the less likely the HER can cure the defects, esp. for signature requirement.

Question 6

Interested Witnesses

Answer 6

If B named in T’s will is a necessary witness then will is still valid, but NW forfeits bequest.

If at the time of execution there were two disinterested Ws then the supernumerary W does not lose her bequest because she is not a NW.

If the NW is also an intestate distributee or a B in T’s prior will (revoked by current iteration), then bequest is void only to the extent it exceeds W’s intestate share or exceeds the W’s bequest in the prior will.

NW is not disqualified from:

1) taking under a subsequent codicil that republished the earlier will, provided she was not a NW to the codicil OR
2) acting as the trustee or executor named in T’s will since commissions are deemed compensation for services and not a testamentary bequest.

UPC abolishes the interested witnesses rule.

Question 7

Incorporation by Reference

Answer 7

RULE: for a doc to be incorporated by reference:

1) signed or unsigned writing must be in existence at the time the will is executed;
2) will must identify the writing in sufficient detail;
3) will must describe the doc as being in existence at the time the will is executed; and
4) will must show an intent to incorporate the writing into the will.

MAJORITY: allow an existing even unsigned doc that was not present when the will was executed but was specifically referenced in the will to become part of the will.

MINORITY: allow a document executed even after the will to dispose of “tangible personal property” - not property, cash, or interest in a biz. Doc must be signed by T and cannot contradict a will provision.

Under incorporation by reference, a properly executed codicil can incorporate a defectively executed will.

Question 8

Amending a Will with a SWEPT Codicil

Answer 8

Codicil - edits/supplements an existing will; republishes the will on the date the codicil was SWEPT.

A will and its codicil are considered a single instrument for determining T intent.

A properly executed codicil may revive an earlier will that was:

(1) Expressly or impliedly revoked by a subsequent will; or
(2) in those states that recognize the doctrine of incorporation by reference, defectively executed (un-SWEPT will).

The execution of a codicil may affect:

1. prior advancements made by the T
2. rights of after-born children, or
3. rights of T’s divorced surviving spouse (treated as deceased).

Under R3, codicil will not republish a prior will bequest if it would be inconsistent with T’s expressed intent.

Question 9

How to revoke a will

Answer 9

To revoke a will T must have:

1) mental capacity;
2) the intent to revoke; and
3) strictly conform to statutory requirements

Question 10

Revoking a Will

Answer 10

Can be revoked in two ways:

1) via subsequent will either (a) expressly or (b) impliedly by inconsistency
2) by T destroying by “tearing up, burning, cutting, canceling, or obliterating the entire will”

TP may physically revoke T’s will provided it is:
(1) at T’s direction and (2) in T’s presence.

• MAJORITY: allow a will to be partially revoked by T’s changes on an existing will. When the will was known to be in T’s possession, presumption that T made the change. Rebuttable by sufficient contrary evidence. Some states require change to be initialed/signed by T.
• MINORITY: prohibit partial revocation by physical act.

NOTE: if subsequent will (B) revoked a prior will (A), then upon revocation of will B, will A is not revived. Only a few states recognize revival.

Question 11

Dependent Relative Revocation

Answer 11

Primarily used to avoid intestacy where intestacy was not T’s intent. Arises where T marks up an existing valid will, indicating an intent to draw a new will but the new will is either not executed or is not properly executed. In this case, court will adhere to original will to avoid intestacy.

Question 12

Lost Wills

Answer 12

If T’s will was last known to be in T’s possession but cannot be located after T’s death, a presumption arises that T destroyed it unless absence can be explained by clear and convincing evidence.

To rebut this presumption/admit a lost will to probate, show:

1) Duly SWEPT
2) probably not destroyed by T, and
3) contents of the will usually established by:
a) testimony of anyone who read the will or
b) an unexecuted copy of the will

If will was last in T’s possession, but upon being found it had been revoked by a physical act, strong presumption that T revoked it.

Most states - felony to unlawfully conceal/destroy a will or codicil with the intent to defraud.

Question 13

Contesting a Will’s Validity

Answer 13

Consider DIET
D - deceit
I - undue influence
E - improper execution
T - lack of testamentary capacity

Only an intestate distributee or a B under a prior will who is now adversely affected by the more recent will has standing to contest. Standing requires a financial interest.

Question 14

Will Contest: Deceit/Fraud

Answer 14

Two types of fraud arising from T’s reliance on a material misrepresentation made with an intent to deceive T either by:
(1) Fraud in the inducement; or (2) Fraud in the content.

Court can either excise just the fraudulent/influenced provision or void the entire will.

Challenger of will: burden of proof for deceit/undue influence.
Proponent of will: burden of proving proper execution/T’s capacity.

Question 15

Will Contest: Undue Influence

Answer 15

Undue influence by a will B is unfair psychological persuasion exerted on T to be named as a will B. Involves the misuse of a position of trust/confidence that overcame T’s free will, resulting in T making the bequest which, if left alone, T would not have made.

Must show:

1) T was susceptible to undue influence;
2) person exerting the influence had the opp. to do so;
3) person exerting the influence had the disposition (motive/inclination);
4) T’s will was executed favorably to person accused of undue influence.

In many jx: where a confidential relationship exists in which a T is justified in assuming that the other party will not act inconsistently with T’s best interests, presumption of undue influence arises, shifting burden of persuasion onto influencer to rebut presumption by a preponderance of the evidence.

Question 16

Will Contest: Improper Execution

Answer 16

SWEPT requirements not met.

Question 17

Will Contest: Lack of Testamentary Capacity

Answer 17

T must be at least 18 years old and be of sound mind so that, without prompting, T understands the nature and consequence of executing a will, the extent of her estate, and the natural objects of her bounty (family).

Capacity focuses on T’s mental condition at the moment of execution, regardless of T’s mind prior or subsequent to the will execution.

Question 18

Subsequent Events Affecting Distribution under T’s will:

Answer 18

DAMN CAR LAW
D - Divorce
A - after-born children
M - marriage
N - no contest clause

C - cy pres of charitable bequests
A - advancement of bequest
R - renunciation of bequest

L - lapsed legacy (+ anti lapse!)
A - ademption or abatement
W - wrongfully killing T (slayer rule)

Question 19

Events affecting distribution: Divorce

Answer 19

If T is named in a judgment of divorce or annulment, judgment automatically revokes bequests to T’s former spouse. In some jx, also revokes bequests to former spouse’s relative not only named in T’s will, but also in any TRIP JAW document in theory that T would not want that.

Judgment of divorce treat’s spouse as pre-deceasing T.
NOTE: separation judgment does not invoke these rules.

TRIP JAW
T - totten trust
R - revocable lifetime trust
I - life insurance policy
P - pension plan
J - jointly held real property
A - power of attorney naming former spouse as agent
W - spouse's will

Question 20

Events affecting distribution: after-born children

Answer 20

Under pretermitted children (children not mentioned in T’s will) statutes, ABC include marital, nonmarital, adopted children born or adopted after T executed will. Pretermitted status protects future children by requiring T to specifically disinherit them.

If T’s children are born after T executes a will, then their birth may affect T’s will:

1) If T had no children when T executed will, then without contrary lang., any ABC is entitled to an intestate share of T’s estate, unless T otherwise provided for the ABC with beneficial transfers outside the will.
2) If T had children and provided for them in the will, then any ABC will share ratably with siblings’ total bequests, unless T otherwise provided for the ABC with beneficial transfer outside the will.
3) If T had children when executing the will and either expressly disinherited or simply made no bequest for them, then a child born thereafter is NOT entitled to anything.

A few states have adopted the UPC rule that where T’s will leaves all or substantially all of T’s assets to the ABC’s other parent, this defeats the ABC’s rights.

Question 21

Events affecting distribution: marriage

Answer 21

Surviving Spouse’s Right of Election:
T’s surviving spouse has the right to elect the greater of $50K or a fraction of T’s net estate minus exempt family property passing to the surviving spouse, debts, and admin expenses to be paid by T’s estate.

Right of election can be exercised regardless of whether decedent left a will. Spouse may waive right of election in agreement.

9 states - community property law with no right of election.
Other 25 states - for elective share, D’s estate is augmented by the value of any non-probate assets - JAG TIP.

JAGTIP
J - jointly held bank accounts; stock brokerage accounts; personal property; savings bonds, but only to the extent the consideration was furnished by D
A - stock brokerage accounts payable on death
G - gifts causa mortis
T - totten trust accounts/revocable lifetime trusts 100% owned by depositor but held in trust for named B
I - intervivos gifts (even to charity) exceeding $15K if made within 1 year prior to death
P - assets in a trust over which a decedent during her lifetime held a general power of appointment

In all states, life insurance policies on T’s life are NOT testamentary substitutes and are not counted toward augmented probate estate.

Calculating elective share: take net probate estate, add JAG TIP testamentary substitutes and divide by 3 to get elective share. Then subtract the value of any testamentary substitutes plus any testate/intestate property passing to spouse –> net elective share.

Must exercise right of election by serving estate and filing with probate court within 9 months of D’s death.

Question 22

Events affecting distribution: non marital children

Answer 22

Non-marital child is entitled to inherit:

1. through intestacy
2. through a testamentary class bequest naming T’s children
3. under the anti lapse statute
4. as an ABC if born after that child’s parent earlier executed a will

Non-marital child can inherit from (1) and (2):

1. His birth mother and her heirs; or
2. His biological father and his paternal heirs, but only if the father:
   a) acknowledged paternity (binding if not challenged w/in 60 days) either:
   i) by having his name placed on the child’s birth certificate; or
   ii) in about half states, in the putative father registry where a male can register that he is the biological father for the purpose of receiving notice of an intended adoption of the out-of-wedlock child
   b) is the subject of a court order of paternity. Must be established by clear and convincing evidence, including: DNA evidence or father’s open and notorious acknowledgment of the child as his.

Absent contrary language, non-marital children treated same as marital children.

Question 23

Events affecting distribution: cy pres

Answer 23

Cy pres prevents a charitable bequest in a will/trust from lapsing if the named charitable beneficiary no longer exists.

If no gift over provision, cy pres doctrine used to sustain a general charitable bequest in T’s will or trust. Court will find another charity similar to the one chosen by T.

Question 24

Events affecting distribution: advancements

Answer 24

Majority: lifetime transfers presumed to be gifts and will not decrease donee’s intestate or testate share of donor’s estate.

Valid intervivos advancement of an intestate share or a lifetime gift in satisfaction of a testamentary bequest must be: (1) documented in writing; (2) executed contemporaneously by donor or donee evidencing advancement intent.

• Majority: no oral advancements - treated as inter vivos gifts.
• Minority: oral evidence is admissible.

Valid testate satisfaction/intestate advancement on an existing will is extinguished IF a new will/codicil is executed after the advancement or satisfaction is executed. Terms of the new instrument control and the advancement is no longer considered.

Question 25

Events affecting distribution: renunciation / disclaimer

Answer 25

Renunciation allows B of a JAG TIP or TRIP JAW testamentary substitute, life insurance policy, life estate, will bequest, or intestate share to decline all/part of it. A survivor of a joint tenancy, joint bank account, or a joint stock brokerage account can renounce her survivorship interest regardless of the survivor’s contribution to the jointly held property.

Renunciation cannot be made once the renouncing party has accepted.

Process: a signed renunciation must be filed with the probate court and with estate’s representative within 9 months from the date of death. Once filed, irrevocable.

Renouncing party treated as if she immediately predeceased T.
Renunciation of a life estate immediately accelerates the remainder interest.

Question 26

Events affecting distribution: lapsed legacies

Answer 26

If a B named in a TRIP JAW doc predeceases T, the bequest lapses back into T’s estate and will not be given effect (lapses back to estate to be distributed via intestacy or the residuary if the will had a residuary clause) if B uses I DROPS:

I - a will B breaches an in terrorem clause (no contest clause), thereby forfeiting a will bequest, but no other TRIP JAW docs
D - B was divorced from T or marriage annulled
R - B renounced TRIP JAW interest w/in 9 months of death
O - no clear and convincing evidence that B survived T by 120 hours (not applied if legacy would escheat to state)
P - B predeceases T
S - B slays T (intentional killing) UNLESS slaying was done in SIN (self defense; insanity; or it was a negligent killing)

EXCEPTION - anti lapse (AL) statute involving bequests in T’s will to T’s issue or sibling (IS) = (AL IS). These bequests do not lapse but pass down to predeceased B’s issue. Also applies to intestacy.
BUT NOTE - anti lapse can be defeated by contrary language in T’s will. Cannot be used to benefit stepchildren.
- MAJORITY – anti lapse statute applies ONLY TO WILL BEQUESTS, not to other TRIP JAW documents.

*Anti lapse prevails over no residue of a residue rule passing to co-residuary. Thus, if T leaves a residuary to X and Y, and X predeceased/was T’s issue or sibling who left issue, then that 50% goes down to the issue and not to Y, the co-residuary.

Question 27

Per Stirpes - Classic

Answer 27

Divide equally among members of first generational level below deceased, and any shares that pass to the next generation pass down to the representatives of that predeceased issue.

Question 28

Per stirpes - modern

Answer 28

Divide equally among members of first generational level below deceased at which there are survivors, and any shares that pass to the next generation pass down to the representatives of that predeceased issue.

Question 29

Per Capita at Each Generation

Answer 29

Divide equally among members of first generational level below deceased at which there are survivors, and add together the shares of any deceased issue at that level. Then divide equally by issue at the next level (cousins take equally).

Question 30

Events affecting distribution: ademption by extinction

Answer 30

“Specific disposition” - T’s bequest of a “specifically, identified” item of T’s property. If property specifically described in T’s will has been lost, destroyed, stolen or conveyed away at the time of T’s death, it “adeems” and the B does not receive the request or its value.

MAJORITY - identity theory: B receives nothing if exact piece of property identified in the disposition is no longer in T’s estate.
MINORITY - intent theory: devise fails unless clear evidence establishes that failure would be inconsistent with T’s intent (allows executor to trace funds if the property was sold or traded for a similar item).

UPC limits strict rule of ademption under the doctrine of “replacement property” based on T’s intent –> any real/personal property owned at death that was acquired as replacement property for a specific bequest passes to the named beneficiary. If the lost/stolen/destroyed property was insured by T and insurance proceeds had not been paid until after T’s death, then the specific legatee receives the insurance proceeds.

Ademption does not apply to: (1) general legacies (sums of money) or to (2) demonstrative legacies (bequests of money from an identified source).

Question 31

Events affecting disposition: Abatement

Answer 31

Abatement is the method applied when there are insufficient estate assets to pay all of T’s bequests, after estate has paid off debts and admin expenses. Abatement occurs when T makes too many general bequests, which when added together, exceed T’s net estate available for distribution.

Interests in T’s estate are extinguished by abatement in the following order:

1) intestate distributes forfeit first;
2) residuary legatees
3) general legatees (sums of money)
4) specific and demonstrative legacies (but if all/part of the funding for the demonstrative legacy has deemed, the legacy or portion of the depleted legacy is treated as a general legacy for abatement purposes)
5) the last to abate is any disposition to a surviving spouse regardless of whether it is a specific, demonstrative, or general legacy.
* Shares in a class - e.g., general legacies abate proportionally.

Question 32

Events affecting distribution: wrongfully killing T

Answer 32

When B commits a felonious intentional homicide of T (as principal, accomplice or co-conspirator), apply IDROPS and forfeit killer’s TRIP JAW benefits.
-Reason: one may not profit from one’s bad acts.
NOTE: criminal conviction is not required. A preponderance of the evidence standard is required under the UPC, though some states require clear and convincing evidence of wrongdoing.

Jointly held real property between the victim and the killer is usually distributed as if they were TIC .

A killer will not forfeit if the homicide was committed in SIN:
S - self defense
I - killer was insane at the time of the homicide
N - it was accidental (negligent homicide)

Question 33

Will Construction

Answer 33

Patent ambiguity - found on reading of the language of the will (parol evidence inadmissible).

Latent ambiguity - arises not from will’s language but by considering extrinsic facts. (usually parol evidence admissible).

Question 34

Doctrine of Independent Significance

Answer 34

To determine the identity of a person/identify property, courts will allow evidence from outside the will that has “independent significance.”