Wills

Question 1

Undue Influence

Answer 1

To establish undue influence, the contestants, who have the burden of proof, must establish that 1) influence was exerted on the testator, 2) the effect if 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.

Presumption arises when 1) a confidential relationship existed, 2) the beneficiary participated in procuring the will, and 3) the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence. Shifts burden to proponent to prove will was not induced by undue influence.

Question 2

Effect of Undue Influence

Answer 2

A will is void if its execution is procured by undue influence. If only part was procured, only that part is void.

Question 3

Special Bequest

Answer 3

A gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described.

Includes specific devise (real property) and specific legacy (gift of personal property like money)

Question 4

Stock dividends/splits

Answer 4

For purposes of stock splits/dividends, most courts consider all bequests of stock to be specific bequests.

At common law, this includes any additional shares produced by a stock split, but does not include shares produced by stock dividend. But in most states and UPC, a specific bequest of stock also includes shares of stock produced by stock dividend.

Question 5

Ademption

Answer 5

When specifically bequeathed property is not in the testator’s estate at the time of death, the bequest is adeemed.

Most courts decide the ademption issue on an objective basis, and do not consider the testator’s intent.

Some states have adopted a more lenient test, under which the beneficiary is entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substitute property.

Additionally, if property is sold by a guardian AFTER the will is executed, the beneficiary is entitled to the proceeds.

Exceptions: replacements, balance of purchase price, proceeds (of condemnation and of sale by the guardian)

Question 6

Generally described gifts

Answer 6

A will speaks at the time of death. Generally described gifts will be those as they exist at the time of death.

Includes specific bequests of a general nature and general legacies (gift of general economic benefit)

Question 7

Disclaimer

Answer 7

A beneficiary may disclaim any interest that would otherwise pass to her from the decedent’s estate, with the consequence that the interest passes through as though the disclaimant predeceased the descendent.

Question 8

Anti-Lapse Statutes

Answer 8

A typical anti-lapse statute provides that the surviving descendants take by substitution only when the predeceasing beneficiary is a descendant of the testator.

Other states and UPC extend the application of the anti-lapse statute to stepchildren, grandparents or descendants of grandparents.

Question 9

General Execution of a will

Answer 9

For a will to be valid, the testator must meet the formal requirements of execution. A testator must have present intent to execute a will and testementary capacity.

Most states require that the will be signed by the testator and two witnesses who sign in the testator’s presence.

Witnesses cannot be interested. All states provide that the will is still valid, but the bequest to the interested witnesss may be void unless they are supernumerary or would have taken a share as an heir if the will had not been probated.

Question 10

Holographic will

Answer 10

A holographic will requires that all or most of the will be in the testator’s handwriting and be signed by the testator.

Question 11

Codicil

Answer 11

A codicil is a later testementary instrument that amends, alters or modifies a previously executed will. A will is treated as having been executed or republished on the date of the last validly executed codicil.

To be republished by codicil, the original will must have been validly executed. Otherwise, it will operate as a partial will.

Question 12

Incorporation by Reference

Answer 12

A document not present when a will is executed may be incorporated by referenced so it can be considered part of the will.

• The document must be in existence at the time the will was executed,
• the language of the will must sufficiently describe the writing to permit its identification,
• the will must manifest an intention to incorporate the document

Question 13

Divorce

Answer 13

Divorce revokes gifts made in favor of a spouse. There must be a complete divorce or annulment. Under the UPC, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.

Question 14

Doctrine of Dependent Revocation

Answer 14

DRR enables a court to invalidate the revocation of a will or bequest when the evidence shows 1) the revocation was based on a mistaken assumption of law or fact, and 2) the testator would not have revoked if she had known the truth.

However, courts typically apply DDR only when 1) there is an alternative plan in a subsequent codicil, or 2) the mistake leading to the document’s revocation is recited in the revoking instrument itself.

Question 15

Extrinsic evidence and wills

Answer 15

When interpreting a will, a court is only permitted to consider extrinsic evidence when the terms of a will are ambiguous.

Question 16

Advancements

Answer 16

An advancement is 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.

At common law, a substantial lifetime gift to a child was presumed to be an advancement.

Now, a lifetime gift is presumptively not an advancement unless it is shown to be intended as such. Some also require it is 1) declared as such in a contemporaneous writing, or 2) acknowledged as such in writing by the heir.

Question 17

Simultaneous Death

Answer 17

½ USDA: When disposition depends on order of death and it cannot be established, the property of each decedent is disposed of as if they had survived the other. However, if there is evidence one survived the other by even minutes, the USDA does not apply.

½ 120 Hour Rule: Requires that a person survive by 120 hours/5 days to take any distribution of the decedent’s property.

Question 18

Legal Capacity

Answer 18

18 years old and of sound mind at the time of execution

Question 19

Testementary Capacity

Answer 19

They understand:

• nature of their act,
• nature and extent of their property,
• who their family members are
• and can formulate an orderly scheme of disposition

Question 20

Testementary intent

Answer 20

Must have present intent that the instrument is their will (future promises are ineffective)

Question 21

Residuary estate

Answer 21

The balance of the testator’s property after 1) debts, expenses and taxes, and 2) specific, general and demonstrative gifts.

Question 22

Abatement

Answer 22

Abatement is the process of reducing testementary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests.

1. property passing by intestacy,
2. residuary estate,
3. general legacies,
4. demonstrative legacy,
5. specific bequests and devises

Question 23

Grounds for Will Contest

Answer 23

• defective execution,
• revocation,
• lack of testementary capacity,
• lack of testementary intent,
• undue influence or duress
• fraud
• mistake

Question 24

Fraud

Answer 24

Testator was willfully deceived as to 1) the character or content of the instrument, 2) extrinsic facts that would induce the will or a particular disposition, 3) facts material to a disposition

Elements:

• false representation made to the testator
• knowledge of falsity by person making the statement
• the statement caused the testator to execute a will or make a particular disposition that they would not have made but for the misrepresentation

Question 25

Mistake

Answer 25

Obvious mistake – will grant relief

Mistake in inducement (as to some extrinsic fact) court will not grant relief unless it appears on the face of the will.

Under UPC, a court may reform a will even if the will is unambiguous, to conform to the testator’s intent if it is proven by clear and convincing evidence that the intent and terms were affected by mistake.

Question 26

No Contest Clause

Answer 26

Beneficiary forfeits interest in estate if they contest the will and lose. Under UPC and most states, valid and enforceable unless there is probable cause to contest.