Wills

Question 1

Valid will requirements vs holographic wills

Answer 1

Valid will- in writing, signed with present testamentary intent, in the presence of 2 witnesses

holographic wills- in T’s handwriting, signed by T, need not be witnessed- validity varies, UPC will probably allow via showing of intent

Question 2

incorporation

Answer 2

does not need testamentary formalities, so long as it:

1. existed at time the will was executed, 2. T intended writing to be incorporated, and 3. writing is described with sufficient certainty

Question 3

Abatement

Answer 3

Gifts by wills are abatement when assets of estate are insufficient to pay all debts.

Question 4

CL rule for children vs majority

Answer 4

CL - out of wedlock, cannot inherit.

Majority- inherit if: subsequent marriage, if father held out child as his own, if paternity was proven via clear and convincing evidence, or of P was otherwise adjudicated

Question 5

Three forms of revocation

Answer 5

1. by subsequent writing
2. physical destruction of will
3. operation of law

Question 6

Omitted children rules

Answer 6

If: birth of child post execution of will AND:

no living kids at execution: presumption of accidental ommission and will be able to get intestate share

1+ living kid: get to share whatever the kids get
(they get 0, new kid gets 0)

Question 7

Omitted child exceptions

Answer 7

1. it appears intentional
2. T had other children at execution and left estate to coparent
3. T provided for kid outside the will

Question 8

codicils

Answer 8

executed with same formalities of a will, republishes will at date of codicil

Question 9

How a validly executed codicil can validate an invalid will

Answer 9

If it refers to the will with sufficient certainty to ID and incorp it, or if it is on same paper as initial will

Question 10

Stock dividends and estates

Answer 10

CL - stock dividend is a distinct entity from the stock in a bequest

Modern - bequest of certain number of shares includes additional shares acquired via dividend, split, or merger but not cash dividends or proceeds

Question 11

Replacement gifts

Answer 11

CL- you get nothing, you lose, good day sir

UPC- bene can get property aquired as a replacement property or proceeds upon argument - fact intensive

Question 12

Per stripes vs per capita

Answer 12

Pure - half goes to each kid, and their lineage shares

Modified - all living get a share of that kids amount

per capita - oldest alive sets the amount each member in that class can pass down

Question 13

Who is a child

Answer 13

adopted kids, children born out of wedlock, halfbloods BUT NOT step children

Question 14

Dispensing power

Answer 14

upon proof via clear and convincing evidence, a court can validate an invalid will

Question 15

Key to remember with slayer

Answer 15

MUST be felonious and intentional - not a bar if not felonious and intentional

Question 16

order of abatement

Answer 16

intestate property, residuary, general devise, specific devise

Question 17

Reqs for mental capacity

Answer 17

if T knows
1. nature and extent of property, 2. persons who are natural objects, 3. nature of instrument they’re signing, and 4. what they’re signing

Question 18

To prove undue influence, P must show

Answer 18

1. Susceptibility, 2. opportunity by alleged wrong doer, 3. influencer had a disposition to exert undue influence, 4. will appears to be product of undue influence

Question 19

Revocation by subsequent will

Answer 19

If new will disposes of entire estate, presumed to have replaced the prior will

if subsequent will does not fully dispose, it revokes up to the inconsitency

Question 20

Dependent relative recovation

Answer 20

if a revocation was based on a mistake of fact or law, then undo revocation if thats what T would want

Usually used when there is a close identity b/t bequest revoked and what T intended

Question 21

Codicil to revoked wills

Answer 21

Codicils will revive revoked wills via incorporation on date of codicil

Question 22

Integration

Answer 22

If issue of integration, proponent must show that the will offered for probate is actually the will

Question 23

Facts of independent significance

Answer 23

valid so long as they’re nontestmentary facts - IE “all my shoes to X” Ok, “give all my shoes to the those on my paper filed as Last Instructions in my desk” not OK