Wills

Question 1

Advancement

Answer 1

1. is a lifetime gift given to an heir with the intent that the gift be applied against the heirs share of the estate from donor. At common law any substantial lifetime gift was an advancement. Under CL the donee must sign a document stating it is a lifetime advancement or a writing by the donor which is contemporaneous with the gift

Question 2

Requirements for a will

Answer 2

1. Testamentary present intent to devices his property via will at the moment of death
2. Testamentary capacity should be 18 years old and of sound mind

Question 3

Execution of a will

Answer 3

1. The will is signed by the testator
2. Attested by two witnesses
3. who are present at the time it is signed by the testator in each others presence
4. Witnesses sign in testator presence
5. Signed at the end
6. Will must be published

Under UPC (1) Two attesting witnesses or a (ii) public notary

Question 4

Attestation Clause

Answer 4

prima facie evidence of due execution

Question 5

UPC Harmless Error

Answer 5

• By clear and convincing evidence to show testators intent

Question 6

Holographic Will

Answer 6

• Written entirely in the testators handwriting and has not attesting witnesses

Question 7

Oral Will

Answer 7

UPC and Maj Do not recognize however, some states do for

1. Personal property or
2. Soldiers and sailors or
3. Person during his last sickness or in contemplation of immediate death. There must exist two witnesses

Question 8

Conflict of law issues

Answer 8

1. Real property - where property is located
2. Personal property - where testator id domiciled
3. Foreign will - can be admitted to probate if it was in accordance w the law of (1) that judx (2) the state it was executed in (3) testators domicile during execution or at death

Question 9

Codicil

Answer 9

1. A codicil must be executed with the same formalities as a will and under the doctrine of republication by codicil. Provided 1. it is in existence at the time of execution (2) it is sufficiently described in the will and (3) the will manifests an intent to incorporate the document.

Question 10

Power of Appointment

Answer 10

1. General v Special power of appointment 
a general power of appointment is a power exercisable in favor of the donee himself 
a special power of appointment is a power exercisable in favor of a limited class of appointees which class does not include the donee

Question 11

Revocation by operation of law

Answer 11

1. Marriage following the execution of a will - in most states marriage following execution of a will has no effect on the earlier will. under the UPC the new spouse takes an intestate share as an omitted spouse unless (1) the will makes a provision for the new spoiuse (2) the ommision was intentional or (3) the will was made in contemplation of marriage
2. Divorce or annulment revokes provisions in favor of former spouse - D or A revokes the earlier will and appointments in favor of former spouse, under UPC it revokes all gifts in favor of the former spouses family
3. Pretermitted Children - If testator fails to provide for adopted child or child born after the execution of the will most states state it is an intestate share however note if a parent disinherits the child they are not pretermitted children
4. Revocation
   5.

Question 12

Dependent Relative Revocation

Answer 12

1. Applies when testator revokes his will under the mistaken belief that another disposition of his property would be effective - if not for that mistaken belief he would not have revoked - closer to what the testator wanted v intestacy

Question 13

Ademption

Answer 13

When the failure of a gift because it does not exist in the estate

Question 14

Abatement

Answer 14

When the estate is not large enough (1) intestacy (2) residuary (3) general legacies and (4) specific bequests