Wills

Question 1

What is Patent ambiguity?

Answer 1

Ambiguity that appears on the face of the document.

Question 2

What is Latent Ambiguity?

Answer 2

When the Court will have to consider extrinsic evidence to determine testamentary intent because the facts as they exist in probate make the testators intent and words confusing.

EG - “I give half of my estate to Daniel.” But the testator has three relatives named Daniel.

Question 3

When is a beneficiary allowed to take under a decedent’s Will?

Answer 3

In order for a beneficiary to take under a decedent’s will, the beneficiary must survive the decedent.

Question 4

How long must a beneficiary “survive” after a decedent’s deaths in order to take?

Answer 4

Under the UPC, a beneficiary must survive a decedent by at least 120 hours (5 days) in order to take.

Question 5

When is someone “mentally competent” or have the requisite capacity to make a will?

Answer 5

The requisite mental capacity exists when the testator understands in a general way:

[1] the nature and extent of his or her property,

[2] the natural objects of his or her bounty, and

[3] how she is disposing of her property, and

[4] how these 3 elements are interrelated

Question 6

When can insane delusion invalidate a bequest?

Answer 6

Even if the testator has mental capacity, provisions of a will/bequests may be invalidated if they are a result of the insane delusion.

Question 7

When does insane delusion concern the capacity to make a will?

Answer 7

Its only a concern if the delusions directly affect the will. A client could think the walls talk to him, but if they are lucid in regards to their will and how they wish to apportion their estate, they are capable of writing a valid will.

Question 8

When is a will the product of undue influence?

Answer 8

When the testator is manipulated into making a testamentary gift the testator did not want to make. However, the influence must substantial and forceful to be undue. This happens when a person takes unfair advantage of the testator, particularly if that testator is especially vulnerable or dependent.

Question 9

Is a will entitled to probate if it is procured by Undue Influence, Duress, or Fraud? Why or why not?

Answer 9

No, because if a will is the product of any of these things, then it does not reflect the true testamentary intent of the decedent.

Question 10

What is the test for undue influence?

Answer 10

“A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.” (Restatement)

Question 11

What is some direct evidence that could prove undue influence?

Answer 11

(1) the donor was susceptible to undue influence,
(2) the alleged wrongdoer had an opportunity to exert undue influence
(3) the alleged wrongdoer had a disposition to exert undue influence, and
(4) there was a result appearing to be the effect of the undue influence.

Question 12

What is the definition of Fraud in the Wills context?

Answer 12

When someone deliberately misleads the testator as to a fact, the testator reasonably believes it, and the testator then changes her estate plan based on that fraudulent information.

Question 13

What are the elements of Fraud?

Answer 13

(1) Knowingly or recklessly,
(2) makes a false representation to the donor,
(3) about a critical fact,
(4) intending to lead the testator to make a transfer he would not otherwise have made, which
(5) causes the transfer.

Question 14

Explain Evidentiary Burden-Shifting in Undue Influence Litigation

Answer 14

Challengers must establish the presumption of undue influence using clear and convincing evidence. If met, the proponent must rebut the presumption of undue influence by a preponderance of the evidence (lesser evidentiary burden) (See Mueller v. Wells)

Question 15

Whats the difference between fraud in the execution vs. inducement?

Answer 15

Fraud in execution: Misrepresentation about the nature or contents of the document the testator is signing.
Fraud in inducement: when the misrepresentation concerns an external fact relevant to the pattern of distribution among beneficiaries.

Question 16

When does duress occur in the Wills context?

Answer 16

Duress occurs when the testator is coerced into executing a will by wrongful act, often a threat of force or violence to the testator or another.

Question 17

What are the elements of duress?

Answer 17

A Will is induced by duress when a wrongdoer:
(1) performs or threatens to perform,
(2) a wrongful act,
(3) that coerces the transferor to a make a transfer,
(4) that the transferor would not otherwise have made.

Question 18

Whats the difference between mistake in the execution vs. inducement?

Answer 18

Mistake in Execution: doesn’t understand what is signing or that something is incorrect in will.
Mistake in inducement: Makes bequest because of erroneous information.

Question 19

Elements of Tortious Interference with an Expectancy

Answer 19

P Must prove:
(1) The existence of an expectancy,
(2.) Intentional interference with the expectancy through tortious conduct
(3) Causation
(4) Damages and
(5) The probate remedies were exhausted through no fault of the wronged party.

Question 20

Example of Tortious Interference with an Expectancy

Answer 20

Caretaker exercises undue influence then conceals the testator’s death from their family.

Question 21

Does Tortious Interference with an Expectancy allow for recovery of punitive damages?

Answer 21

Yes

Question 22

What is “Standing” in a Wills context? Who has Standing in a wills contest?

Answer 22

A will contest can only be brought by an “interested party” who has standing. That means someone who has property at risk, such as heirs, beneficiaries, children, spouses, creditors, or others having a property right in or claim against the estate.

Question 23

What is a No Contest Clause and what is its effect?

Answer 23

A provision in a will that states any beneficiary who brings a will contest or similar challenge will forfeit any bequest in his favor under the will. This should disincentivize interested parties from bringing a lawsuit to contest the will.

Question 24

Are there any exceptions to a No Contest Clause? Give an example

Answer 24

The court in Parker v. Benoist recognized a good-faith and probable-cause exception so that if a will is contested in court for undue influence or duress etc… they would not lose their share of the will even if the will has a No Contest Clause. Thus, No Contest Clauses are allowed, but when there is a valid challenge, such a challenge will be allowed by courts.

Question 25

What are some techniques lawyers can use to avoid will contests?

Answer 25

• Using nonprobate transfers
• Making a series of transfers over time
• Avoiding inflammatory language
• Having family meeting for the testator to explain the plan and the reasons behind it
• Maintaining medical records where there may be incapacity claims
• Allowing the client privacy in representation (without guests)
• Maintaining good records of client communications
• In extreme cases, considering adoption to eliminate standing to contest.

Question 26

When does a gift “lapse”?

Answer 26

When a beneficiary does not survive the decedent, as defined in law or document.

Question 27

What is the general rule of a devise that lapses?

Answer 27

It passes with the residue

Question 28

What does an Anti Lapse Statute do?

Answer 28

Creates a substitute gift but only if testator did not provide for an alternative gift/taker.

Question 29

What is a specific bequest?

Answer 29

A specific bequest is a gift of a particular asset, specifically identified in the will. A gift of “my cat, Mr. Sprinkles,” “my minivan,” or “all of my jewelry” are all specific bequests.

Question 30

What is a general bequest?

Answer 30

A bequest payable from the general assets of the estate.

EG - like “100 shares (but not shares presently owned) of Bank of America stock.” Executor will use estate funds (normally from residuary) to buy Bank of America stock for the beneficiary. General bequests are uncommon, except for general pecuniary bequests.

Question 31

What is a residuary bequest?

Answer 31

The estate left after all other bequests. Remember that the leftovers are often quite juicy!

Question 32

What is a Pecuniary bequest?

Answer 32

A gift of a certain amount of money that must be satisfied from general assets of estate, normally from the residuary (this is a kind of general bequest).

Question 33

What are the exceptions to the 120 hour survival rule?

Answer 33

1. The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
2. A governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period; but survival of the event or the specified period must be established by clear and convincing evidence;

Question 34

When may an Anti-Lapse Statute apply? (Requirements)

Answer 34

• B predeceased T
• B was a “protected devisee” – a family member by blood within the first three parentela or a stepchild
• B left descendants
• T did not expressly leave a contrary intention, such as: the devise is to lapse if B predeceased T,

Question 35

What happens after all debts and taxes have been paid by the estate there is not enough property and money left in the estate to fulfill all of the devises set forth in the will?

Answer 35

The Doctrine of Abatement kicks in!

Question 36

What is the Doctrine of Abatement?

Answer 36

This doctrine provides the rules for determining which devises are reduced or eliminated to pay debts or bequests of a higher priority. If assets in an estate are insufficient to pay all devises in a will after creditors and expenses have been paid, the order in which gifts are reduced/eliminated is:

1. Property not disposed of by the will (i.e., the intestate estate if there is no will as there are no specific, general or residuary gifts)
2. Residuary
3. General, incl. monetary (pecuniary)
4. Specific

Question 37

What is Ademption?

Answer 37

Only applies to specific devises; When property is no longer in the estate at the testator’s death, it is said to have adeemed, or become extinct from the estate, and the beneficiary will no longer receive the gift (unless the will indicates a substitute gift.)

Question 38

What is the difference between Identity Theory and Intent Theory of Ademption?

Answer 38

Identify Theory (common law): if a specifically devised item is not in the testator’s estate, the gift is extinguished.

Intent Theory (Modern): if the specifically devised item is not in the testator’s estate, the beneficiary may nonetheless be entitled to the cash value of the item if the beneficiary can show that this is what the testator would have wanted.

Question 39

What is Ademption by Satisfaction?

Answer 39

When an item of specifically identified property may no longer be in the estate because the testator gave the property to the beneficiary named in the will. The property is adeemed, but the beneficiary has the property, so no substitute gift is necessary.

Question 40

What is the effect of a Slayer Statute? Is there a way to prevent the alleged slayer from inheriting even if not criminally liable?

Answer 40

A beneficiary who kills the testator, or an intestate heir who killed the (loser) who didn’t write a will, cannot inherit from the decedent. But, only where the killer could be prosecuted as felonies with the element of intent.

Even if the criminal proceeding results in an acquittal, an interested party can petition the probate court for a civil proceeding to hold the killer liable under a preponderance of the evidence to block the killer from inheriting.

Question 41

What are some possible remedies under a Slayer Statute?

Answer 41

(1) the slayer is treated as having predeceased the decedent
(2) the slayer receives the property, but an equitable remedy applies (constructive trust) and property must be reconveyed to the victim’s heirs, or
(3) ignore it and handle it under principles of criminal law.

Question 42

Under exoneration, when a will bequeaths property, and a debt or mortgage owed against the property, how will such a debt be paid off? How has the UPC reversed this rule?

Answer 42

Unless the will states otherwise, the debt will be paid off by the residue of the estate. This is known as the doctrine of exoneration.

However, the UPC reverses this rule and holds that any property distributed by the estate comes with the mortgage attached.

Question 43

How is Apportionment different than Exoneration?

Answer 43

Many states have adopted Apportionment Statutes that require (in the absence of clear direction) to pay taxes out of the residue (exoneration), and each bequest shares the tax burden pro rata.

Question 44

What is the purpose of will substitutes? What law governs them?

Answer 44

They allow for property to be transferred at death and pass outside of probate. They are governed by contract, property and trust law and NOT probate

Question 45

What are the most common forms of will substitutes?

Answer 45

• Life Insurance
• Retirement Accounts
• Jointly Owned Bank Accounts or Brokerage Accounts
• Revocable Intervivos Trusts
• Multi-Party Accounts with banks
• JTWROS

Question 46

What does a ‘power of attorney” do?

Answer 46

Through a power of attorney, a principal can authorize an agent to act on behalf of the principal on various financial transactions.

Question 47

Why use non-probate transfers?

Answer 47

Will substitutes allow an individual to continue to control assets during life, and then have those assets transferred at death outside of the probate process. Also, Nonprobate transfers can be faster and cheaper than probate transfers.

Question 48

What legal requirements do states generally impose for a valid will?

Answer 48

Must be:
1) in a writing,
2) signed by the testator, and
3) signed by a requisite number of witnesses.

Question 49

What are the requirements for attestation under the UPC?

Answer 49

A will must be signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will or the testator’s acknowledgment of that signature or acknowledgment of the will.

Question 50

What is a holographic will and what are the legal requirements?

Answer 50

Half of states recognize some form of handwritten will as valid, even if there are no witnesses. A will may be validated as holographic if:

• the will is written in the testator’s handwriting, and
• the testator has signed the document

Question 51

What is the Doctrine of Substantial Compliance?

Answer 51

When the requirements of a will have not strictly been followed, this doctrine allows a court to excuse an otherwise defective execution based on clear and convincing evidence that the defective execution nonetheless fulfills the goals of the formalities.

Question 52

What is the Harmless Error Rule? How is it established? How will a court be convinced of the testator’s intent?

Answer 52

Allows a court to excuse a defect in execution entirely, if it was harmless is relation to the purpose of the statutory formalities.

The proponent must establish by clear and convincing evidence that the decedent intended the document to be her will.

The farther the departure from the formality, the harder it will be to convince the court that the instrument reflects the testator’s intent.

Question 53

What are the 3 different approaches taken by states as to what must be handwritten in a holographic will?

Answer 53

1st Gen (Oklahoma): require that the testator write the entire thing, including all operative provisions.

2nd Gen: required that the signature and the material provisions be in handwriting of the testator to be valid.

3rd gen: (UPC) only require that the signature and material portions be in the testators handwriting.

Question 54

When may a revocation (of a will) in writing be effective?

Answer 54

Either by express revocation of part or all of a previous will or by inconsistency with it.

Question 55

Which will’s terms are valid when there are multiple testamentary documents?

Answer 55

The terms of the latest validly executed document control and override the provisions of any earlier document.

Question 56

When may a revocation (of a will or codocil) by physical act be effective? Why about partial physical revocation?

Answer 56

It may be effective so long as the testator has intent to revoke the document and performs the appropriate physical act (IE - burning, tearing, or cancelling).

Partial revocation may be permitted but varies by state; in some states, it is all or nothing

Question 57

What is the doctrine of dependent relative revocation?

Answer 57

Revocation is usually permanent, but the effect of revocation may be reversed if this doctrine is applied because the testator would not have revoked the will if he would have properly understood the consequences of the revocation.

Question 58

Under what circumstances may a testator’s will automatically be altered?

Answer 58

Marriage, divorce, or having children. Divorce often results in automatic partial revocation of a will, while marriage and having children usually create rights in these individuals to the decedents property.

Question 59

Can a revoked will ever be revived? How?

Answer 59

Under the doctrine of revival, a revoked will may be revived when a testator expressly reinstates the document by executing it again or if state law triggers an automatic revival through the revocation of the revoking document.

Question 60

Can you make a contract to make a will? Is this a good idea? What remedies exist for breach of contract to make a will?

Answer 60

An individual may make a contract to make a will. to refrain from making a will, or not to revoke a will, but planning for property transfers through non-probate alternatives (trusts etc..) is often more effecient, because the only remedy in the case of breach of contract to make or revoke a will is a lawsuit against the decedent’s estate.

Question 61

Can you make a contract to make a will? Is this a good idea? What remedies exist for breach of contract to make a will?

Answer 61

An individual may make a contract to make a will. to refrain from making a will, or not to revoke a will, but planning for property transfers through non-probate alternatives (trusts etc..) is often more efficient, because the only remedy in the case of breach of contract to make or revoke a will is a lawsuit against the decedent’s estate.