Wills

Question 1

Which Law Controls?
-Devise (Real Property)-

Answer 1

The devise of real property is controlled by the jurisdiction in which the property is located.

Question 2

Which Law Controls?
-Bequest (Personal Property)-

Answer 2

The bequests of personal property are controlled by the laws of the jurisdiction in which the testator resided.

Question 3

Requirements of Making a Valid Will

Answer 3

(1) Testamentary Capacity; (2) Writing; (3) Testator’s Signature; (4) Witnesses.

Question 4

The Harmless Error Rule in UPC

Answer 4

If there is clear and convincing evidence that T intended the written document as a will, even though there is not substantial compliance, it should be admitted.

Question 5

Testamentary Capacity

Answer 5

(1) Over 18; (2) Must understand the nature and consequences of a will; (3) Must understand the nature and extent of property owned; (4) Knowledge and understanding of intestate distributes.

Question 6

Testator Signature

Answer 6

(1) Can be a symbol or scribble as long as intent to sign is there; or (2) a third party can sign on Testator behalf, but the Testator must be in the room.

Question 7

Common Law
-Interested/Disinterested Witnesses-

Answer 7

Interested witness voids the will.

Question 8

UPC
-Interested/Disinterested Witnesses-

Answer 8

Interested witness does not affect the validity of the will.

Question 9

NY + Many Modern Jurisdictions
-Interested/Disinterested Witnesses-

Answer 9

The fact that one or more witnesses are interested will not defeat the will but may defeat the gift to the witness.

Question 10

Holographic Will

Answer 10

Wills unwitnessed but written and signed in the testator’s handwriting.

[NY only recognizes a holographic will as valid where the testator was a solider at war or mariner at sea]

Question 11

Noncupative Will

Answer 11

Oral will that is made before a witness during the testator’s last illness.

Question 12

Negative Will

Answer 12

A will that expressly indicates who the testator does not want to inherit his/her estate.

Question 13

Foreign Wills

Answer 13

(1) In writing; (2) Signed by the testator; (3) Executed and attested in accordance with local law.

Question 14

Joint Will

Answer 14

A will that is executed by two or more testators.

Question 15

Mutual Will

Answer 15

Occur where two or more testators execute separate wills that leave their property to each other on the condition that the survivor leave the remaining property at the time of death as agreed by the testators.

Question 16

Changing a Will by Codicil

Answer 16

(A separate document that must be executed to amend a will)

It must be executed with (1) the same formalities as a will and (2) the codicil must incorporate by reference the will it is amending.

Question 17

Revoking a Will

Answer 17

A will is revoked if the testator intentionally burns, tears, obliterates, or otherwise destroys it.
A properly executed subsequent will revokes a prior will if it specifically states that it is the testator’s intention to do so. Absent expressly stated intention, a subsequent will act like a codicil or modification.

Question 18

Partial Revocation

Answer 18

A bare majority of states (27) and the UPC allow a will to be partially revoked by T’s changes on an existing will, for example, by allowing an unsigned partial revocation of a sentence or paragraph.

Question 19

Revocation then Addition

Answer 19

Almost all jurisdictions prohibit the addition of words to a will without re-executing it.

Question 20

Does revocation of a subsequent will revive an earlier will?

Answer 20

NO.

If a subsequent will (#2) revoked a prior will (#1) then upon the revocation of will #2, will #1 is not revived.

Question 21

Doctrine of Dependent Relative Revocation

Answer 21

Bequests that are made or altered based on a mistaken understanding of the law can be revoked to meet the intention of the testator.

Question 22

The Lost Will

Answer 22

Lost will = presumed to be revoked.

Presumption can be overcome by clear and convincing evidence of: (1) duly executed will; (2) lack of intent to destroy or revoke will; (3) Proof of contents by way of copy of will or otherwise.

Question 23

Can the survivor alter or revoke the joint or mutual will?

Answer 23

Not where there is contractual intent.

Some states presume contractual intent, others require express language evidencing such intent.

Question 24

Joint Will v. Subsequent Will

Answer 24

If a joint will created a contract, the contract becomes irrevocable upon the death of one of the parties.

The will contract does not invalidate a subsequent will, but instead makes the beneficiaries contract creditors.

Question 25

Interpreting the Will

Answer 25

Ascertain and give effect to the testator’s intent. This intent must be gleaned from a sympathetic reading of the will as an entirety.

Extrinsic evidence is only admissible to demonstrate intent or explain ambiguities.

Question 26

Rules of Construction

Answer 26

Generally, a will identifies beneficiaries and the inheritance, and the terms of the will as of the time of death control disposition; look to “plain meaning” of words to determine disposition.

Question 27

Doctrine of Facts Independent Significance
-Exception to Rules of Construction-

Answer 27

Allows disposition to be controlled by reference to acts and events; such act or event must have significance that is separate and apart from the making of a bequest.

Question 28

Incorporation by Reference

Answer 28

(1) The writing must be in existence at the time of the will is executed; (2) The will must identify the writing in sufficient detail; (3) The will must describe the document as being in existence at the time the will is executed [not a requirement under UPC]; and (4) The will must show an intent to incorporate the writing into the will.

Question 29

Invalidated Will and Distribution

Answer 29

The estate is distributed in accordance with the rules of intestacy.

Absent a surviving spouse, an estate will be divided equally among children; where a child has predeceased, their share is distributed to the grandchildren.

Question 30

Undue Influence

Answer 30

It must be shown that: (1) T was susceptible to undue influence (e.g., old, sick, weak); (2) the person allegedly exerting the influence had the opportunity to do so; (3) the person exerting the influence had the disposition (motive and inclination); and (4) there was a result appearing to be the effect of undue influence.

Question 31

Duress

Answer 31

If the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Question 32

Wrongful Act

Answer 32

Action that is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator’s pressure.

Question 33

Fraud

Answer 33

Clear and convincing evidence that: (1) the proponent of the will knowingly made false statements to the testator (2) to induce the testator to make a will which (3) disposed of property in a manner different from that in which the testator would otherwise done had the fraudulent misrepresentation not been made.

Question 34

Rules of Intestacy

Answer 34

UPC – Surviving Spouse takes 100%

If children from different relationship, spouse’s share is divided.

Question 35

Disqualification of Intestate Rights

Answer 35

(1) Parents who parental rights are terminated; (2) Parents who failed to financially support a child during minority; (3) Beneficiaries who cause the death of the testator; (4) Distributees who fail to survive at least 120 hours [5 days] after decedent’s death.

Question 36

Ademption

Answer 36

If a testator leaves a specific devise of property to a beneficiary, but the property is no longer in the estate when the testator dies, the beneficiary receives nothing.

Question 37

Abatement

Answer 37

If the property the testator leaves is not sufficient to satisfy all the beneficiaries named in a will and there are both general and residuary bequests, the residuary bequest is abated first.

Question 38

Advancements
-Common Law-

Answer 38

Gifts to heirs (children, grandchildren) were presumed to be advancement unless evidence to the contrary.

Question 39

Advancements
-Modern Rule-

Answer 39

Gifts are not presumed to be advances.

Unless: (1) it is a contemporaneous writing; (2) signed by donor/donee; and (3) intent to be an advance.

Question 40

No Contest Clause

Answer 40

A testator expressly provides that if a beneficiary contests the will, then that beneficiary forfeits his or her disposition in the will.

Question 41

Pre-Deceased Beneficiaries
-General/Common Rule-

Answer 41

If a will beneficiary predeceases the testator, the bequest fails and lapses back into T’s estate.

Question 42

Anti-Lapse Statutes

Answer 42

Allows gifts to immediate family members (siblings and issue) to automatically pass to their issue.

Cannot be used to benefit bequests to spouses who died before the testator.
(Spouses not saved)

Question 43

Per Stirpes Distribution

Answer 43

A distribution of the estate that makes grandchildren and great-grandchildren of the deceased inherit by representation of their parent (i.e., they split what their deceased parent would have received).

Question 44

Per Capita by Representation

Answer 44

A distribution of the estate: the children, as a generation, receive an equal inheritance, and the grandchildren, as a generation, receive an equal inheritance.

Question 45

The “Slayer” Rule

Answer 45

When a beneficiary kills the testator, they are barred from inheriting.

Unless the killing was: (1) self-defense; (2) insane; or (3) an accident.