Wills

Question 1

Creating a Valid Will

Answer 1

• Signed by the Testator
• Signed by two witnesses
• In the Testator’s presence

Question 2

Holographic Will

Answer 2

• Most states and UPC recognize
  
  • All or most of the will is in Testator’s handwriting; and
  • Signed by the Testator

Question 3

Incorporating a Document by Reference

Answer 3

• 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; and
• the will must manifest and intention to incorporate the document

Question 4

Slayer Statute

Answer 4

• One who feloniously and intentionally brings about the death of the decedent
• Forfeits any interest and
• The property passes as though the killer predeceased the decedent

Question 5

Ademption

Answer 5

• When specifically bequeathed property is not in the testator’s estate at death
• The bequest fails
• Most courts apply the identity theory (objective test), intent is irrelevant
  
  • Exception: property is sold = entitled to proceeds
• Other use an intent test which allows substitute property

Question 6

Specific Bequest of Stock

Answer 6

• Common law rule: Bequest will include any additional shares produced by a stock split but not stock dividend
• UPC and many state statutes: Includes dividends

Question 7

Gifts In Favor of a Former Spouse

Answer 7

• Revoked by operation of law (some states include former spouse’s relatives)

Question 8

Per Capita w/Representation

Answer 8

• Followed in most states
• First generational level with living takers
• One share for each deceased person at that level passes to issue

Question 9

Per Capita at Each Generational Level w/Living Takers

Answer 9

• Initial division of shares at the first generational level with living takers
• Shares of deceased takers are then combined and divided evenly among next generation

Question 10

Abatement

Answer 10

• Estate’s assets are not sufficient to pay all claims and satisfy all bequests and devises
• Gifts then abate (are reduced)
• Absent testator specifying order of abatement:
  
  • Intestate property
  • Residuary estate
  • General legacies
  • Specific devises and bequests

Question 11

Undue Influence

Answer 11

• Influence was exerted on the testator
• Effect of the influence was to overpower the mind and free will of the testator
• The product of the influence was a will that would not have been executed absent the influence

Question 12

Presumption of Undue Influence

Answer 12

• Confidential relationship
• Beneficiary participated in procuring or drafting the will; and
• the provisions of the will appear to be unnatural and favor the influencer

Question 13

What Happens When a Residuary Interest Lapses

Answer 13

• Common law: passes under intestacy
• Majority rule: passes to other residuary beneficiaries in proportion to their interests in the residue

Question 14

Revoking a Will by Physical Act

Answer 14

• Requires intent to revoke; and
  
  • Burning, tearing, obliterating, or canceling material portion of the will
  • Must have actual effect on will or its language

Question 15

Contract to Make a Gift By Will

Answer 15

• Contract law governs
• General Rule: Writing not needed, unless land involved
• UPC: requires will provisions stating
  
  • the terms of the contract
  • express reference in the will to the contract; or
  • signed writing by the decedent

Question 16

Integration of a Will (separate pages)

Answer 16

• Pages present, and
• Testator intended pages to be a will
• Presumption of the above if:
  
  • Pages physically connected,
  • Internally coherent, or
  • Pages constitute orderly dispositive plan

Question 17

Doctrine of Dependent Relative Revocation

Answer 17

• Revocation was premised on a mistake of law or fact and
• Would not have occured but for the mistaken belief that another disposition of property was valid
• Court may disregard if: the disposition that results from disregarding the revocation is closer to Testator’s intent than intestacy

Question 18

What Happens When Someone Challenges a Will w/ a No-Contest Clause?

Answer 18

• They forfeit their share
• Majority: No forfeiture if probable cause

Question 19

Capacity of Testator

Answer 19

• Must be able to understand
  
  • The nature of the act
  • Extent of property
  • Objects of bounty
  • Effect of the will
• Misc.
  
  • Lower than standard legal capacity
  • Sound mind presumed
  • Burden on contestant

Question 20

Fraud

Answer 20

• Burden on testator to prove:
  
  • Willful misrepresentation of material fact
  • Purpose to mislead testator for purposes of influencing the will
  • Testator relies on misrepresentation