Wills Flashcards
The difference between a deed and a will
Deeds are a present intent to convey an interest in real property.
Wills have a future intent to convey interests in real property (and other property) upon the putative testator’s death
Presumption of Undue Influence (not a conclusion)
- the existence of a confidential or fiduciary relationship between the grantor and the fiduciary
- fiduciary (or interest of his) benefits from the transaction
- fiduciary had an opportunity to influence the grantor’s decision
(R. - Relationship; O. Opportunity; B. Benefit - ROB)
Undue Influence Analysis
Threats, misrepresentation, flattery, fraud, coercion, etc.
Any influence that is sufficient to destroy free agency of the putative testator
Any influence that might compel the putative testator to act against his free will
Attestation Will Requirements
- Writing
- Signed by Testator
- signed by 2 witnesses
(witnesses may be interested)
Holographic Will Requirements
- Material portions in Testator’s handwriting
- Dated
- NOT witnessed
Harmless Error Will Requirements
The proponent can show upon clear and convincing evidence that decedent intended the writing to be a will
Divorce
Divorce extinguishes a spouse’s interests in a will (or in intestacy) as a matter of law - even if the spouse is still named.
An extinguished spouse is treated as a devisee who disclaims the benefit, and thus, is treated as if he has predeceased the testator.
Note that if a codicil or some other modification is executed after the divorce, and the name remains, then the testator intent might be construed to include the ex-spouse.
Surviving Spouse Rights
Named or Unnamed
NAMED:
1. Abide by the terms of the will
OR
2. Take the elective spousal share (half intestacy share, less half value of non-probate devises)
UNNAMED:
e. g. pretermitted spouse
1. Elective spousal share (half intestacy share, less half value of non-probate devises) OR
2. intestate share less spouse’s children devise
6 Requirements for a Valid Will
- Testamentary capacity (4 requirements)
- Testamentary Intent
- Proper Execution (Attested will, holographic will, or harmless error)
- No Fraud/Duress
- No undue influence
- No revocation
Insurance Policy relationships to Probate
Insurance policies are presumptively not a part of probate.
However, if the ESTATE is the named beneficiary or there is no beneficiary named at all, then the policy might be probated.
Anti-Lapse Statute
Michigan has a broad Anti-Lapse statute.
If a devisee predeceases the testator (120 hour rule) then the anti-lapse statute protects some devisees by giving the gift to his or her issue.
People protected by the anti-lapse statute are
- grandparents
- all lineal descendants (blood not marriage) of the grandparents
- step-children
Non-Ademption Statute
Michigan has a broad Non-Ademption statute.
If a gift that was devised to a devisee is no longer within the control of the estate, it might adeem.
Non-ademption provides a substitute gift to the devisee to prevent ademption of the gift. This is often the gift of an income stream (e.g. the value of a house that was sold)
Order of claims
- Costs and expenses of administration (pay the lawyers)
- Burial Expenses/Funeral Expenses
- Statutory Allowances (Homestead, Family, Tangible Property)
- Federal Debts
- Medical Expenses
- State debt (e.g. property taxes)
- All other claims - starting with the spousal share and omitted children
Who is a Child
Child conceived during marriage (parenthood may be reebutted)
Adopted children
Half-blood
Children born after death if in gestation at death and lives 120 hours after birth
Children born out of wedlock presumed child of mother
Children born out of wedlock are only children to father if MWCCADP
(Marriage, Written agreement, Birth Certificate, Conduct as if Father-Child, Adjudicated to be father, DNA, Paternity action).
Men Who Can’t Cook And Don’t Pay
Revocation
- Physical action that is 1. described in statute and 2. accompanied by revocatory intent
- Writing (express or implied)
- Operation of Law (legal action that revokes whole or part e.g. divorce)
- Presumption (will cannot be found)
If the will cannot be found:
Testator had last control then presumed revoked
Agent had last control then presumed valid and can be probated (even if it is missing)
