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Constitution Law Bar Prep > Wills > Flashcards

Wills Flashcards

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1
Q

choice of law for joint property when married in intestate

A

look at the law of the couple where they were domiciled at the time the property was acquired

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2
Q

married descedents share

A

if kids: 1/3 or 1/2 (varies by state)

if no kids: the entire estate

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3
Q

per capita with representation (intestate distribution method)

A

first generation recieves a share, next generation splits that share amongst common decedents

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4
Q

per capita at each generational level

A

pool shares of lower generation, then split into even shares

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5
Q

order of decedndency

A

parents
siblings and their decedents
half/half to maternal/praternal gparents
half/half to next of kin on maternal/paternal

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6
Q

adopted kids and nonmarital kids

A

adopted: treated as biological kids
nonmarital: always from mother, father if mariied after birth, declared father in court, if proved to be father by clear convinincg evidence

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7
Q

disinheritance clause

A

upc: good

common law: no, must dispose of all property in will to exclude an intestate recipient

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8
Q

what is an advacnement

A

when a beneficicary receives a gift intended by will during life of testator

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9
Q

procedures for measuring shares

A

the gifts value is added back in to the estate for purppse of calculating shares, and then subtracted from the recipients share

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10
Q

uniform simulaneous death act

A

so A and B, A’s prperty goes to B’s heirs and B’s proeprty at issue goes to A’s heirs

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11
Q

disclaiming an inheritance

A

signed writing
notarized
filed in appropriate court
9 months of death of testator

estopped if disclaimer recieved the benefit

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12
Q

is a will revocable?

A

revocable during life and operative (self executing) at death

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13
Q

choice of law for wills

A

real property: where the property situs

personal: domicile of testator at time of death

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14
Q

testamentary capcity

A 
must understand:
nature of the act
nautre of their property
beneficiaries/intestates
use this info to form an orderly scheme of dispostion
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15
Q

when is capacity determined

A

at time of will execution (when will is deemed the effective will)

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16
Q

does being too old mean you lack capacity

A

no, neither beign drunk or on drugs, as long as they meet the four steps

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17
Q

for intent on making will

A

testator must have present intent; no future wills

  1. intent to dispose of property
  2. intent of disposal upon death
  3. intended that will to accomplish disposal
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18
Q

formalities of will execution

A

vary by state, but generally:

  1. writing (some states allow electronic)
  2. signed by testator (or another in presence of testator)
  3. 2 witnesses
  4. signed in 2 wintesses presecnes (or single notray for UPC)

Some state may add:
sign at the end of the will
publish the will
witnesses sign in presecnce of each other

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19
Q

testators signature

A

any mark works with intent

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20
Q

holographic will

A

entirely in the testators handwriting and no witnesses
testator signed
-most states recognize
-most states recognize handwritten changes after will is completed

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21
Q

devise

A

gift of rear property

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22
Q

bequest

A

gift of personal property

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23
Q

legacy

A

gift of personal proeprty in a will, usually money

legatee

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24
Q

general legacy

A

general gift of personal property

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25
Q

demonstartive legacy

A

general gift to be paid from a specific source

pay X from the W trust fund

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26
Q

ademption

A

failure of a gift bc the property no longer belongs to the testator

applies only to specifc devise and bequests

27
Q

partial ademption

A

when a beneficiary takes only part of a devise or bequest bc other part is no longer property of testator

28
Q

ademption by satisfaction

A

transfering an entire gift to beneficiary inter vivos

req writing or specific instruction in most states

29
Q

accessions

A

increase in property
before testator death
-income of proeprty: goes to general estate
-improvements to real propety: specifc devisee
after death
-specific devisee

30
Q

exoneration of existing liens on property

A

states vary, but UPC says liens not provided for by estate unless the will says so (exonerated)

31
Q

abatment

A

reducing gifts to accoont for all debts/gifts of estate. order of abatment if not already determingd

intestate
residue
general legacy
demonstrative legacy
specific bequests/devise
32
Q

what happens when a gift lapses

A

beneficiary predeceases the testator

33
Q

anit lapse sattute

A

close intestate recipeints protected from gift lapsing; will go to thier heirs

34
Q

do wills mean the testator wants to avoid intestacy

A

yes

35
Q

what if will contradicts

A

last one prevails

36
Q

extrinsic evidence for will ambiguuity

A

modern rule: yes for patent ambiguity AND latent ambiguity AND mistake

traditional rule: NO for patent ambiguity and mistake YES for latent

37
Q

incorporation by reference

A

good so long as

  • will maifests intent to
  • doc exists at time will executed
  • doc is sufficeintly described in will
38
Q

codicil

A

moidifcaiton to a will

-must follow same steps for execution:
wirting
signed 
two witenss there (or notary)
must be in presence of two witness
39
Q

can a coidcil incorporate a defective or ineffective will?

A

yes, can incorporate by refernce

40
Q

must the person probating the will prove integration?

A

yes, evidence includes

  • physical attachment
  • internal cohencsion of docs
  • orderly plan
41
Q

powers of appointment

A

A power of appointment is an authority granted to a person,
enabling that person (the donee of the power) to designate,
within the limits prescribed by the creator of the power, the
persons who shall take the property and the manner in which
they shall take it.

42
Q

donee of an appontment power

A

someone who is given the power of appointment

43
Q

can power of appointment pass through will

A

if it specifically does: yes

in a residual clause: varies by jurisdcition, some yes, some no

44
Q

can a person revoke their will

A

yes, anytime during life

45
Q

marriage follwoing will execution

A

new rule: new wirfe take intestate interest share as ommitted spouse unless:

  • will makes provision for new spouse
  • omission was intnetional OR
  • will was mad ein contemplation of marriage
46
Q

revocation by phsyical act

A

burning, tearing, cancelling, obliterating will WITH intent to revoke
-intent must be concurrent with act
-usually has to be testator
-

47
Q

can someone partially revoke will by physcial act

A

yes, can use exxtrinsic evidcence to decide

48
Q

does revocation of will revoke all codicils

A

yes BUT revoke of codicil doesnt revoke will

49
Q

revocation by written instrument

A
  • req the same formalities as will execution
  • can revoke
  • -expressly
  • -by inconsistency (complete or partial)
50
Q

if will can’t be found or is found in mutilated state AFTER will was last seen in testators control

A

assumed to be revoked

51
Q

normal assupmtion of revocation of a will?

A

assumed not revoked unless evidence otherwise or will last in testro possession and sub found destroyed or not found

52
Q

revivial of a revoked will

A

Under the UPC and in many states, if a will that wholly
revoked a previous will is thereafter revoked, the previous
will remains revoked unless it is evident from the circumstances
or the testator’s statements that the testator
intended to revive

8.7.2 Automatic Revival Approach
In other states, revival is automatic under the theory that the
revoking will did not take effect because it was revoked prior
to the testator’s death.

8.7.3 No Revival Approach
In some other states, a will, once revoked, is not revived
when the subsequent will is itself revoked. The revocation
clause is effective when executed just like a revocation by
physical act. The earlier will can be revived only if it is re-executed
(that is, re-signed and witnessed) or republished by a
validly executed codicil.

53
Q

conditional revocation

A

express or implied

54
Q

implied revocation and doctrine of dependent relattive revocation

A

The doctrine of dependent relative revocation applies when
a testator revokes their will under the mistaken belief that
another disposition of their property would be effective,
and but for this mistaken belief, the testator would not have
revoked the will. If the other disposition fails, the revocation
also fails and the will remains in force.
To determine whether DRR applies, we ask the following
questions:
• Was the revocation of Will 1 impliedly conditioned on the
validity of Will 2?
• Would Testator have preferred Will 1 over intestacy?

the more similar the provisions are, more likely to revive the will, and vice versa

55
Q

can spouse elect to take statutory share of estate instead of devised estate by will

A

yes, if authroized by statute

from net estate (after expesnes)

with notice

56
Q

homestead, family allowance, exempt personal proerpty

A

all three usually protected from creditors

57
Q

contesting a will

A

only interested party has standing
time to file varies
burden of proof on contestor

grounds for contest: defective execution, revocation, lack of capccity, lack of intent, undue influence, fraud, mistake

58
Q

undue influence

A

The influence existed and was exerted
• The effect of the influence was to overpower the mind
and free will of the testator (so that the will reflects the
desires of the person exerting the influence instead of the
testator); and
• The resulting testamentary disposition would not have
been executed but for the influence (causation)

59
Q

duress

A

same as undue infleunce but with violence

60
Q

fraud

A

False representation made to the testator
• Knowledge of falsity by person making the statement
• The testator reasonably believed the statement
• The statement caused the testator to execute a will or
make a particular disposition that the testator would not
have made but for the misrepresentation

61
Q

mistake in execution of will (works)

A

In the case of mistake in the execution, the testator is in error
regarding the identity or contents of the instrument and thus
lacks testamentary intent.

62
Q

mistake in inducement of will (doesn’t work)

A

In the case of mistake in inducement, the testator is mistaken
as to some extrinsic fact and makes their will based on that
erroneous fact.

63
Q

executor

A

personal rep to carry out the will

notice to devisees
discover/collect the assets
manage the assets
pay expenses of admin
distribute property

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