Wills

Question 1

Will execution

Answer 1

Most states require a will to be in writing, signed by the testator, and witnessed by two witnesses who also sign the will. A testator need be 18 years or older and intend that the document is a will. Generally, any mark made with intent to adopt the will is a sufficient signature.

Question 2

Challenging capacity

Answer 2

A contestant challenging a testator’s capacity must show that at the time of execution the testator (1) didn’t understand the nature of her act; (2) know the nature and extent of her property; (3) know the objects of her bounty; and (4) know the nature of the disposition she was making.

Question 3

Holographic will

Answer 3

A holographic will is an unwitnessed will. Under the UPC, a holographic will is valid if signed and if the material portions are in the testator’s handwriting.

Question 4

Dispensing power

Answer 4

The UPC adopts dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 5

Codicil

Answer 5

A codicil is a later testamentary instrument that amends, alter, or modifies a previously executed will. It must be executed in the same formalities as a will. A codicil may republish a prior valid will, revive a previously revoked will that is still in existence, or incorporate by reference and validate a prior invalid will.

Question 6

Incorporation by reference

Answer 6

A document that is not a will may be incorporated by reference into a will if (1) the document was in existence at the time of will execution; (2) the will sufficiently describes the document; and (3) the will manifests an intent to incorporate the document.

Question 7

Beneficiary as a witness

Answer 7

A will witness by a beneficiary is valid but the interested witness forfeits a gift under the will unless (1) the witness was a supernumerary witness; or (2) he would have taken a part of the estate if the will not be probated.

Question 8

Ademption

Answer 8

If specifically devised property is not within the testator’s estate when he dies, the gift adems (fails). Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property.

Question 9

Disclaimed property

Answer 9

Disclaimed property, property the beneficiary does not want, will pass as if the person disclaiming had failed to survive the testator. A beneficiary may not deny in part and accept in part, he must accept the whole gift or reject the whole. An anti-lapse statute may apply, otherwise, the gift will fall into the residuary.

Question 10

Abatement

Answer 10

When the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts.

Question 11

Fall into the residuary

Answer 11

If a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary. However, all states have anti-lapse statutes - if a beneficiary dies before the testator and was related by blood to the testator with a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.

Question 12

Undue influence

Answer 12

The burden of establishing undue influence is on the will contestant to show (1) influence was exerted on the testator; (2) the effect of the influence was to overpower the mind and free will of the testator; and (3) the product of the influence was a will that would not have been executed but for the influence. The burden then shifts to the proponent of the will to prove that it was not induced by his undue influence.

Question 13

Presumption of undue influence

Answer 13

A presumption of undue influence arises when (1) a confidential relationship existed between the testator and beneficiary; (20 the beneficiary participated in the procuring or drafting of the will; and (3) the provisions of the will appear unnatural and favor the person who allegedly exercised undue influence.

Question 14

Intestate succession

Answer 14

Intestate succession is the statutory method of distributing assets that are not disposed of by will. If a decedent’s will is denied probate, his entire estate passes by intestacy. If there is no surviving spouse, the entire estate passes to the decedent’s children and descendants of the deceased children.

Question 15

Per capita with representation

Answer 15

In most states, the issues take per capita with representation. The property is divided into equal shares at the first generational level at which there are living takers, with the shares of each deceased person at that level passing to his issue by right of representation.

Question 16

Per capita at each generational level

Answer 16

Under the per capita at each generational level scheme, the initial division of shares is made at the first generational level at which there are living takers, but the shares of the deceased person at that level are combined and then divided equally among the takers at the next generational level.

Question 17

Strict per stripes

Answer 17

Under the common strict per stripes distribution, one share passes to each child of the decedent, regardless of whether there are living takers at that level. If the child is deceased, that child’s share passes to his descendants by representation.

Question 18

Advancement

Answer 18

An advancement is a substantial gift given typically to a child and is deemed to be an early disbursement of the issue’s share (only applicable to intestate heirs). A lifetime gift is preemptively not an advancement unless shown to be intended as such. Under the UPC, an advancement requires written proof.

Question 19

Satisfaction

Answer 19

A testamentary gift under a will may be satisfied by an inter vivos transfer from the testator to the beneficiary if the testator intends to have that effect.

Question 20

Slayer statute

Answer 20

One 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 decedent. In the absence of a murder conviction, a court may consider whether the killing was unlawful or intentional.