Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Decedents, Estates, and Trusts > wills! > Flashcards

wills! Flashcards

1
Q

wills act formalities

5 reqs

A

Must be (1) in writing: (2) signed; and (3) attested. Sometimes (4) subscription (signed at the end or foot by testator) and (5) publication (affirmative declaration before witnesses that instrument is a will)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

subscription

A

signed at the end by the testator

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

publication

A

affirmative declaration before witnesses the instrument is last will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

attestation clause

A

boilerplate language which presumes the validity of the will / formalities met

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

self proving affadavit

A

added to the last will, where witnesses swear an oath that this is last will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

signature - when may mark meet req?

3 reqs

A

IF
* Intent to adopt mark as signature
* Intent to adopt document as will and
* Intent to adopt mark as identity
1. Not a stamp, but most anything else

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

can someone else sign for the testator?

A

(ii) One may sign for another if acting according to the intent of the testator

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

attestation general reqs

A

(i) At least two witnesses are required (three in some states)
(ii) Witnesses signatures
* In the presence of other witnesses
* In the presence of the testator – Testator sign in front of or acknowledge signature
1. UPC allows “reasonable time” after signed to be acknowledged
2. Notarization as an alternative under UPC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

two presence tests

A

line of sight
conscious presence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

line of sight test

A
  1. Test: would they be able to see the witness if they were to look?
  2. Must be in the same room – eyes*
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

conscious presence test

A
  1. UPC test: through sight, hearing, or general consciousness of events, can they comprehend the witness signing?
  2. Mental comprehension through any of senses
  3. Restatement wrinkle – presence must be “near enough” to testator to be able to sense each other’s presence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

witness reqs

A
  • To be competent a witness must be (1) sane and (2) disinterested
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

how to treat a interested witness

4 ways

A
  1. Common law rule: void entire will
  2. Purge rule: void the gift to the interested party
  3. Excess rule: void only gift greater than intestate share
  4. UPC: void only if there is suspicious circumstances – fraud / undue influence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

the purposes of the wills act formalities

A

a) Evidentiary function: reliable evidence of testator’s intent
b) Channeling function: standardizes will. Looks like a will probably is
c) Cautionary/Ritual function: impresses significance on testator for sincerity
d) Protective function: protect from the imposition of coercion or fraud or mistaken substitute

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

3 types of compliance w/ formlities

A

strict
substantial
harmless error

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

strict compliance

A

majority rule
a) Must meet all formalities requirements exactly. If it does not it will be invalid

= 1) writing, (2) signature, (3) attestation (testator signs in the presence of two witnesses AND witnesses sign in presence of one another)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

substantial compliance

A

C&C substantially complied with (50/50 may deem – a choice)

a) C&C substantially complied with (50/50 may deem – a choice)
a) Rule : a court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purpose of formalities were served

(i) Court rules will is in compliance with formalities if C&C intent, substantially complied with, & it serves the purposes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

harmless error rule

A

67/33 – court excuses)
a) UPC RULE codified

b) Rule: The court will excuse noncompliance if there is clear and convincing evidence that the document was intended to be testator’s will

(i) Basically, presumption that it was executed in compliance if C&C of intent to make that a will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

notarized wills

A

allows a notary to stand in place of witnesses (UPC alternative)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

ways to fix bad execution in strict compliance jurisdiction

A

(i) Probate will testator actually signed and change terms to eliminate wrong names in document
(ii) Offer both wills together at probate
(iii) Probate will signed wrongfully by spouse meant for testator

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

ways to get around wills act reqs

4

A

a) Substantial compliance  may deem
b) Harmless error rule  codified, court will excuse – presumption of valid will
c) Notarized wills
(i) Allow a notary to stand in place of witnesses
(ii) Means
* Person who is signing the will is who they say they are
* Notaries have authority from the state
* Serves will formality purposes
* UPC uses as alternative – minority rule
d) Holographs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

holographic wills

A

(no harmless error rule here) (based on jurisdiction) *majority of states
1) Rule: in states that recognize holographic wills, a will written in the testator’s (1) handwriting and (2) signed by testator can be a valid will if intended document to be last will and testament

intent is key!!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

analysis for holographic wills

A

did testator intend this document to be will?

is there a fruad or deception issue?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

holographs: handwriting analysis

A

a) First Gen:it all must be handwritten
b) Second Gen:material “provisions” and signature handwritten
c) Third Gen:material “portions” handwritten and typeface can be used as extrinsic evidence to contextualize handwriting
(i) If it is all handwritten – clearly okay, if some typed – material provisions need to be handwritten

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

policy for hologrpahs

A

(i) For everyone
(ii) Allows ordinary people to have their intent carried out
(iii) Helps people who cannot hire a lawyer
(iv) In extreme circumstances
(v) Authentic
(vi) Most people are not dumb
(vii) Carries out wishes of ordinary people

b) Issues and concerns
(i) Trouble in determining intent
(ii) Deception / fraud
(iii) Testators lack basic knowledge / actual intent of estate planning

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

will components

4

A

integration
republication by codicil
incorporation by reference
acts of independent significance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Integration

A

Rule: all papers present and in existence at time of execution and intended to be in the will are integrated as part of the will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

republication by codicil

A

Rule: A later codicil that reaffirms original will is treated as if it is reissued or republished on date of codicil
(i) Can cure defects of prior will/codicils

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

incorporation by reference

general defintion

A

Gives testamentary effect to documents that are not present at the execution ceremony and not having testamentary formalities.
If within will, it becomes a part of the will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

incorporation by reference: common law rule

A

General rule: cannot change the writing after will – must be in existence at execution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

incorporation by reference: UPC rules

A

b) UPC rule: will must (1) manifest intent and (2) describe writing sufficiently to permit identification - (3) already in existence!!!
(i) “constructive integration”

c) UPC tangible personal property rule: will may refer to outside writing to dispose of tangible personal property
(i) the writing must be signed by the testator and must describe the items and the devisees with “reasonable certainty” described
(ii)** may be altered **after will preparation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

acts of independent significance

A

a) Facts or circumstances outside of the scope of one’s testamentary intent/will can change the testamentary scheme even if lack formalities
(i) Issue when the gift specifies events or things about or to determine beneficiaries

b) UPC rule: may dispose of property by reference to acts and events that have significance apart from their effect upon dispositions **made by will whether they occur before or after execution of will or before or after T’s death
(i) If will is affected by outside events or acts that are separate from intent to change testamentary scheme, it may stand. If fraud or post will change for that intent, strike gift because not a will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

UPC contract rule

A

only contract about will if the will (1) states contract provisions, (2) references to K, or (3) writing evidences K

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

will construction issues

A

ambiguity and mistakes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

ambiguities happen when

A

the words have more than one meaning

36
Q

plain meaning rule

A

common law rule
plain meaning of the words of the will cannot be disturbed by evidence the testator intended another meaning
(i) No extrinsic evidence, no reformation

37
Q

no reformation rule

A

court cannot reform mistaken or ambiguous terms to reflect what the testator meant or intended to say

common law rule

courts do not have the power to refrom wills. only the words can be analyzed

38
Q

types of ambiguities

A

patent: evident on the face of the will
latent: manifests when applied to facts

39
Q

patent ambiguity

A

evident on the face of the will
(i) Common law: extrinsic evidence not permitted. Confined to the four corners
* If can’t find meaning  gift fails

modern rule: collapse the difference in patent and latent and EE may be introduced

40
Q

latent ambiguity

A

manifests when applied to facts LATER LATENT
(i) Common law/modern: extrinsic evidence may be admitted determining ambiguity of intent
(ii) Examples
* When gift doesn’t fit anything
* Gift matches something T intended to use in T’s personal usage (nickname)
* Gift fits two things exactly
* Gift fits different things partially

41
Q

mistake analysis UPC RULE

A

language has one meaning but it does not reflect the testator’s intent

a) UPC trend toward open reformation – Minority rule
(i) court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence what the testator’s intention was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inadvertently

42
Q

mistake cases

A
  • Mahoney plain meaning rule
    1. when the language is unclear in its application can extrinsic evidence be introduced to show the testators meaning
  • Gibbsallowed to strike words of mere identification for mistake
    1. “no reformation”
  • Duke open reformation for mistakes. Extrinsic evidence allowed if C&C then reformation allowed
43
Q

types of gifts

4

A

a) General devise: gift from general assets
b) Specific devise: specific gift object, specific in description
c) Demonstrative devise: specific amount from specific fund / place
d) Residuary devise: catch all – all the rest

44
Q

lapsed gifts: common law rule

A

when beneficiary does not survive testator, the devise fails and is said to have lapsed.
(i) Gift was made subject to condition that beneficiary survives testator

45
Q

if beneficiary was dead or gift otherwise void at time of execution

A

gift is void & goes to residue or intestacy
(gift to a pet)

46
Q

when a class gift lapses

A

surviving members divide gift equally and take

47
Q

when specific or general devise fails

A

goes to residue or intestacy - if no a anti lapse statute

48
Q

when portion of residue gift fails

common law v. UPC

A

pass through intestacy
(i) Traditional rule: no residue of residue rule  named living residuary beneficiary only gets what is written to him, the failed residuary gift passes through intestacy

(ii) UPC/majority rule: named living residuary beneficiary takes all

49
Q

anti lapse statutes

A

goes to devisee’s descendants rather than residue or intestacy (intent)

(i) When a predeceased devisee is related to the testator in a proscribed way in statute and is survived by one or more descendants who also survive Testator, those descendants are substituted for the predeceased devisee

  • Every state has an anti-lapse statute that substitutes beneficiaries for a predeceased named
    (ii) Applies to family; not to step kids or friends, distant relatives
50
Q

class gifts

restatement def

A

a) Surviving members of the class take if class gift created

b) Restatement 3d
(i) Take as members of a group
* Means identities and shares are subject to fluctuation

(ii) Presume class gift created if terms identify beneficiaries by term of relationship or group label
* Class label and intent to be a class gift
* Rebuttable if language or circumstance establishes intended identities and shares fixed

51
Q

when there is a named individual in a class gift

A

(i) majority and upc- gift in equal shares to all the class members because all have the same relationship

(ii) Minority: if people are named individually, the individual gift goes to the named beneficiary and the rest goes to the class. ½ to Dumbledore

52
Q

ademption

identity and intent rules

A

specific devise is extinguished and no longer a gift
(i) When specific devisee is no longer in testator’s ownership at death
(ii) UPC identity rule: if specific gift not in estate, the gift is extinguished
* Exception: If removed from involuntary act  rule doesn’t apply
* If replaced with something new: devisee takes replacement
* If specific property is sold or mortgaged acting within authority of POA, then right to monetary amount = to net sale price, or loan amount.
(iii) Intent theory: gives replacement or cash value of item

53
Q

abatement

def / priority gifts

A

when not enough money to pay debts; creditors have priority
(i) Priority gifts
* First – specific devisees
* Second – general devisees (maybe demonstrative)
* Third – residuary devisees
(ii) Class gift – pro rata rate
(iii) UPC: can ignore priority if shown frustrated testator’s intent

54
Q

capacity

four elements

A

a) Nature and extent of the property : property in one’s control
b) Natural objects in bounty : people to give to
c) The disposition of the property : how stuff is given
d) Understanding how all three go together
(i) Fact intensive

55
Q

lucid interval rule

rule and purpose

A

a person who is mentally incapacitated part of the time but has a lucid interval during which they meet the standard for mental capacity can make a valid will when the execution ceremony is during the lucid interval

a) Purpose: protect from fraud and undue influence, intention of testator, give more people the ability to make a will

56
Q

burden of proof for capacity

maj or min rules

A

a) Majority rule: presume sanity; challengers must show by preponderance of evidence lack of capacity
b) Minority rule: proponent of will must show capacity by preponderance of evidence

57
Q

insane delusion

analysis and elements

A

a) Analysis: is there an insane delusion? Definition & Maj. / Min. rules. Causation? Effect test. scheme

b) (1) A false conception of reality one holds against all evidence and reason to the contrary and (2) has bearing on the testator’s plan
(i) Causation is the key
(ii) Mistake may be corrected and still valid
(iii) Between capacity and delusion : has capacity but will invalid if hold on to insane delusion

58
Q

table of capacity to delusion

A

Testamentary Capacity

4 part test =
Know or be capable of knowing:
1. Nature and extent of property
2. Natural objects of bounty
3. Disposition of property
4. How 1-3 come together (Middle Ground)

insane delusion
Delusion to which testator adheres despite all evidence and reason (effects testamentary scheme)

key = things that impact disposition

delusion
False conception of reality

59
Q

defining insane delusion

maj and minority rule

A

majority rule: factual basis rule
* If there is any evidence to support the testator’s delusion, the delusion is not insane
* If there is no factual basis or evidence to support belief there is an insane delusion.
1. Just show one factual basis and defeats insane delusion and valid will
2. Presume it is a rational belief

minority rule: rational basis rule
* If a rational person can come to the same conclusion as the testator with respect to irrational belief and dispose of property the same way, presume reasonable and not insane delusion
* Could rational person belief; then rational person act; and it effect scheme

60
Q

factual basis rule

A

majority rule
*** If there is any evidence to support the testator’s delusion, the delusion is not insane
* If there is no factual basis or evidence to support belief there is an insane delusion.
1. Just show one factual basis and defeats insane delusion and valid will
2. Presume it is a rational belief
**

61
Q

rational basis rule

A

majority rule
* If a rational person can come to the same conclusion as the testator with respect to irrational belief and dispose of property the same way, presume reasonable and not insane delusion
* Could rational person belief; then rational person act; and it effect scheme

62
Q

majority and minority rule general meaning for insane delusion

A

If no quantum of facts to support belief and impacted testamentary scheme, probably insane delusion under both majority or minority.
* Insanity is a social construct

63
Q

capacity contests

5!

A

insane delusion
undue influence
fraud
duress
tortious interference with expectancy

64
Q

undue influence

def

A

a) Definition: a donative transfer is procured by undue influence if
(i) (1) the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and
(ii) (2) caused the donor to make a donative transfer that the donor would not otherwise have made

  • About the relationship between two people
65
Q

undue influence

inferring SODR

A

show by circumstantial evidence
(i) Donor is susceptible to UI
(ii) Alleged wrongdoer had an opportunity to exert UI
(iii) Alleged wrongdoer had a disposition (intent) to exert UI
(iv) Result appearing to be the effect of UI

66
Q

undue influence

majority rule for presumption - 2 part

A

(i) (1) Confidential relationship and
* Fiduciary, reliant, dominant/subservient

(ii) (2) Suspicious circumstances
* Unnatural disposition, lack of independent advice, will in secrecy or haste, change in donor

= Presume undue influence. Burden shift to proponent to show voluntary
* Result = void and go to intestacy or DRR

67
Q

duress

A

a) Definition: a donative transfer is procured by duress if:
(i) Wrongful act the wrongdoer threatened to perform or did perform a wrongful act that
(ii) coerced the donor into making a donative transfer the donor would not have otherwise made
b) “do this or else” but for the cause

68
Q

Constructive fraud

A

c) Restatement on constructive fraud if: 1) false misrepresentation 2) reference to a material fact 3) for the purpose of inducing the other party to rely on such representation 4) on which the other party did justifiably rely, 5) which resulted in damages or injury and 6) a fiduciary relationship between the parties

69
Q

fraud

def & elements

A

**a) Definition: **
(i) knowingly or recklessly made a false representation to the donor
(ii) about a material fact that was intended to and did
(iii) lead the donor to make a donative transfer
(iv) that the donor otherwise would not have made

**b) elements of fraud **
(i) misrepresentation of material fact – omission not fraud unless fiduciary relationship
(ii) scienter – intent to defraud
(iii) result – relied on and change in testamentary scheme
(iv) causation – nexus between misrepresentation/scienter and result but for

common law

70
Q

types of fraud

A

(i) fraud in execution
* when person intentionally misrepresents character or contents of the instrument signed that is not the testator’s intent

(ii) fraud in inducement
* when misrepresentation causes the testator to execute or revoke a will, or change, to include particular provisions in wrongdoer’s favor

71
Q

tortious interference with expectancy

A

a) Only can bring when no other remedy available = usually when probate closed
b) Must prove interference involved tortious conduct not just lack of capacity – such as undue influence, duress, or fraud

c) Elements
(i) Reasonable expectation of inheritance – existence of expectancy
(ii) Defendant’s intentional and tortious behavior that interfered with expectancy – intentional interference with expectancy through tortious conduct
(iii) Causation & Damages
* Possibility of punitive damages
* Need to prove cannot be made through probate contests anymore – U/D, F, D

d) Must be brought after probate closes

72
Q

constructive trust

A

an equitable remedy

where one has taken property under will after agreeing outside the will to devote that property to some purpose declared by testator - equity will enofrce a constructive trust to effectuate that purpose

73
Q

codicils

A

same requirements as a will
a) Amendment to a will that completes the will or substitutes portion of will by striking it and replacing it
(i) If a writing does not explicitly revoke a will, it is probably an amendment not a revocation

harmless error, holograph, etc may be applied to codicils

74
Q

ambulatory

A

wills are ambulatory in nature. subject to amednment or recovation by testator by any time prior to death

75
Q

revocation presumption

A

a) If there is a missing will at death and last in testator possession, presume that will is revoked

(i) If a duplicated will is revoked, the other duplicate will is revoked
* Rebuttable presumption

76
Q

when subs. testamentary instrument makes complete disposition of estate

A

will usually revoke prior wills by inconsistency even if no explicit revocation clause. If supersede old will in every way

77
Q

if there is a conflict in codicil and will

A

instrument made closest to death controls

78
Q

if main will is revoked but there is also a codicil

A

apply the codicil and pass the rest through intestacy

79
Q

common law will revocation rule

3 elements

A

a) (1) capacity; (2) intent to revoke; and (3) an affirmative step or act

(i) A subsequent writing executed with intent and formalities OR physical act of testator or in the testator’s presence at his request
(ii) Common law rule: writing to revoke must deface the words of actual will

80
Q

common law will revocation rule

3 elements

A

a) (1) capacity; (2) intent to revoke; and (3) an affirmative step or act

(i) A subsequent writing executed with intent and formalities OR physical act of testator or in the testator’s presence at his request
(ii) Common law rule: writing to revoke must deface the words of actual will

81
Q

UPC revocation rule

A

a) (1) Capacity; (2) intent – presumed in UPC through act; (3) subsequent will or revocatory act on the will with intent and purpose of revocation
b) Act can be cut, tear, burn, touch the words

harmless error rule under UPC

82
Q

harmless error in will revocation

A

a) Prove by clear and convincing evidence one wants to revoke a will
(i) Revocation may be by physical act of cancellation whether or not the cancellation touches any words of the will
* Peeing on copy example lol
(ii) Use extrinsic evidence to prove revocation intent

83
Q

partial revocation of will by act

A

a) UPC allows partial revocation by act, depends on state
(i) Usually the effect is just removal not adding

84
Q

revocation of a will by law

A

a) Marriage – revokes will made before marriage unless made in anticipation of marriage
b) Divorce – always revokes. UPC revokes all relations to EX
c) Birth of children – pretermitted child statutes

85
Q

dependent relevant revocation

A

a) If a revocation is based on an assumption of mistaken or misrepresented law OR fact OR fails under the law  revocation may be ineffective so the original, prior will be applied
(i) if shown T would prefer old will over intestacy
* multiple wills issue – mistake negates revotatory intent
(ii) testator would not have revoked but for misrepresentation

b) rebuttable presumption if proven revocation based on mistake by C&C evidence
(i) rebut by showing testator’s probably intent

c) essentially a way to get around intestacy when there is a mistake in W2 if W1 is better showing of intent

86
Q

revival of revoked will

A

a) If a testator destroys a latter will thinking it will reinstate the prior will, the prior will may be revived and valid
(i) Intentionally destroys a will to bring back another one \
(ii) Get around intestacy if intended to reinstate another will

b) UPC rule
(i) If w2 wholly revoked w1, revocation of w2 by revocatory act does not revive w1 unless evidence of intent to revoke w2 to revive w1
(ii) If w2 revoked w1 in part (codicil), revocation of w2 by revocatory act does not revive rest of w1 unless party arguing against revival shows no intent to revoke w2 to revive part of w1 revoked by w2
(iii) If w2 revoked by later will, w3 doesn’t revive w1 unless text of w3 says such result intended

Decedents, Estates, and Trusts (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions