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DET Fall 2022 > Wills > Flashcards

Wills Flashcards

1
Q

What are the legal requirements for the execution of a formal will? (3)

A

Writing, Signature, Attestation

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2
Q

What are the requirements for a valid will?

A

Legal capacity, mental capacity, testamentary intent, statutory compliance

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3
Q

What is legal capacity?

A

Age of majority (most states is 18, some are younger, and some states allow individuals below age of majority to create a will if they are legally married)

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4
Q

What is mental capacity?

A

Sound mind - T must have had testamentary capacity at the time of signing the will

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5
Q

What are the requirements for a testator to have sound mind?

A

1) understand the nature and extent of their property
2) understand the natural objects of their bounty (children)
3) understand the disposition they are making of their property
4) be able to relate all these elements to each other and make a reasoned judgment in regard to property disposition

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6
Q

Describe the temporal nature of mental capacity.

A

T must have mental capacity at the time they execute the will. Even lacking capacity the moment before or after does not prevent a court from finding existence of mental capacity (but may open up for challenges).

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7
Q

Can a person who is adjudicated incompetent ever have mental capacity?

A

Maybe. A testator who is AI is presumed to lack mental capacity, but this is a rebuttable presumption if evidence shows T was in a lucid interval at the time of execution.

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8
Q

Can an audio or video recording serve as the writing requirement for an attested will?

A

No - while the writing requirement is broad, it still requires some sort of visual text.

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9
Q

What constitutes a signature for the purposes of an attested will?

A

Broad - can encompass any symbol T uses with intent to authenticate the will
1) T must intend the mark to function as their signature and
2) T must either make the mark or direct someone in their presence to make it

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10
Q

What are the requirements for a proxy signature on an attested will to be valid?

A

1) Proxy must sign in T’s presence
2) Proxy must sign at T’s direction

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11
Q

How many witnesses are required for an attested will?

A

2

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12
Q

What does the UPC allow instead of 2 witnesses to satisfy the attestation requirement?

A

T may acknowledge the will in front of a notary

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13
Q

For states that require publication, what does that entail?

A

Witnesses must know they are witnessing a will. T must tell the witnesses that this is their will or something to that effect.

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14
Q

What is the continuous transaction approach to witness signatures?

A

As long as T signs and the witnesses attest at approx. the same time as part of a continuous transaction, it is effective.

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15
Q

What is the UPC approach to the timing of witness attestation?

A

Attestation must occur within a reasonable time after:
1) the witness observed T sign the will
2) T acknowledged their signature on the will or
3) T acknowledged the will

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16
Q

What is the conscious presence approach to witness attestation?

A

T must be able to sense the presence of the witnesses signing (requires physical presence)

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17
Q

What is the line of sight approach to witness attestation?

A

T must have been able to actually see the witness signing (requires physical presence)

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18
Q

What is an interested witness?

A

Witness who will benefit if T’s will is valid

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19
Q

What are some ramifications if one of the witnesses to a will is an interested witness?

A

1) Purging statute - witness gift is void (so they can therefore testify about will)
2) No effect (UPC approach) - beneficiary will take property exactly as T specified in the will
3) Entire will is void (original common law approach)

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20
Q

What is an attestation clause?

A

Provision of the will that recites that T duly executed the will - found after T’s signature

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21
Q

What is a self proving affadavit?

A

A notarized statement by T and the witnesses affirming under oath that all the requirements of a valid will have been satisfied.

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22
Q

What does a self proving affidavit do/allow?

A

1) Substitutes for witness testimony in court when T’s will is probated
2) Raises the presumption that all matters stated within the will are true

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23
Q

May heirs to an estate contest a will with a self proving affidavit?

A

Yes

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24
Q

Does a self proving affidavit prevent T from amending or revoking a will?

A

No

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25
Q

What is a holographic will?

A

A will prepared in T’s own handwriting

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26
Q

What is the first generation statute requirement for a holographic will?

A

T must handwrite the entire will, including operative provisions (OK)

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27
Q

What is the second generation statute requirement for a holographic will?

A

The signature and material provisions of the will must be in T’s handwriting to be valid

Ex: I leave my house to my spouse - material provision

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28
Q

What is the third generation statute requirement for a holographic will?

A

Signature and material portions of the will must be in T’s handwriting to be valid (UPC)

  • Material portion = words that identify the property and recipient

Ex: Gifting words (I devise, etc.) do not need to be in T’s handwriting

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29
Q

Can a typed or computer printed will be considered holographic?

A

No

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30
Q

What is a nuncupative will?

A

An oral or spoken will

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31
Q

Can a will be valid without witnesses if it is notarized?

A

In some states and under the UPC, yes.

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32
Q

What is a devise?

A

A gift of real property

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33
Q

What is a bequest?

A

A gift of personal property

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34
Q

What is a specific gift?

A

An identifiable gift with sufficient detail so it is clear which exact asset the beneficiary is entitled to receive.

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35
Q

What is a specific gift of a general nature?

A

A specific gift described in broad terms so the property to which it refers cannot be ascertained until T dies

Ex: “I leave my computer to ___”

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36
Q

What is a general gift?

A

Gift of property payable from any asset in T’s estate

Ex: $10,000 to my daughter

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37
Q

What is a legacy?

A

A gift of money

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38
Q

What is a demonstrative gift?

A

A gift that refers to a sum of money from a specific account.

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39
Q

What is a residuary gift?

A

Property remaining in the estate after all specific, general, and demonstrative gifts are satsfied.

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40
Q

What is a private gift?

A

A gift to an individual for that person’s enjoyment

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41
Q

What is a charitable gift?

A

A gift that benefits society

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42
Q

What is ademption by extinction?

A

The failure of a specific gift because the property is not in T’s estate when T dies

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43
Q

What are the two types of ademption by extinction rules?

A

1) Identity
2) Intent

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44
Q

What is identity theory in ademption?

A

If the exact items T attempted to give away in the will is not in T’s estate, the gift adeems and the beneficiary receives nothing.

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45
Q

What is the intent theory of ademption?

A

Tracing of the gift is allowed and the beneficiary may be permitted to receive the value of the missing property

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46
Q

What is ademption by satisfaction?

A

The failure of a testamentary gift because T has already transferred the property to the beneficiary between the time of will execution and the time of death

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47
Q

What is the doctrine of esjudem generis?

A

The character of the testamentary gift and the inter vivos gift must be the same before satisfaction took place

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48
Q

Is the change of value of gifted property considered when distributing T’s property?

A

No

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49
Q

For a gift of corporate securities, does a change in form prevent a beneficiary from taking the securities?

A

Typically, no.

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50
Q

For a gift of corporate securities, does a change in substance prevent a beneficiary from taking the securities?

A

Typically, yes.

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51
Q

Are cash dividends a change in form or change in substance?

A

Substance

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52
Q

Are stock dividends and stock splits a change in form or substance?

A

Form

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53
Q

Is a merger a change in form or substance?

A

Form

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54
Q

Is a dividend reinvestment a change in form or substance?

A

Typically substance, but can be form under UPC.

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55
Q

What is exoneration?

A

When property is devised free of debts (an implied gift of sufficient money to pay off the debt)

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56
Q

Is exoneration presumed under modern statutes and the UPC?

A

No - exoneration occurs only if there is express language requiring it in the will.

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57
Q

What is abatement?

A

The taking from a gift to pay the debts of the estate or a higher priority gift

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58
Q

What is the abatement order for taking from gifts?

A

1) Intestate succession (if T died partially intestate)
2) Residuary gifts
3) General gifts
4) Demonstrative gifts
5) Specific gifts

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59
Q

What is the abatement order for 1st priority of gifts?

A

1) Specific gifts
2) Demonstrative gifts
3) General gifts
4) Residuary gifts

60
Q

How does abatement affect gifts within the same category?

A

Pro rata - each gift is reduced by the same percentage

61
Q

If specific gifts are abated, how does that work?

A

Specific gifts will be sold and the balance of the value given to the beneficiary if debts remains & beneficiary does not want to pay for the debts with their own money (to keep the gift)

62
Q

What are the steps to an abatement problem?

A

1) Figure out which gifts are what type for ranking system
2) Calculate everyone’s gifts if estate had no debts
3) Work backwards through gifts until debts are paid
4) If $ remains, proportion the amount available to the amount intended:
Ex: $15k intended, 7.5k available (7.5/15 = 1/2 - divide each gift by 50%)
Ex2: $30k intended, 10k available (10/30 = 1/3 - divide each gift by 1/3)

63
Q

What is tax apportionment?

A

When taxes need to be paid out of T’s estate because of the privilege of making gratuitous transfers upon T’s death

64
Q

What is the allocation of tax liability when there is apportionment?

A

1) In some cases, the will can determine the source from which taxes are paid
2) By default, most states apportion to the residue or pro rata based on the value of the property

65
Q

Where is the elective share in place?

A

Separate property states only (no community prop states)

66
Q

What is the elective share?

A

Where the surviving spouse is protected through an elective share which is taken out of decedent’s estate, regardless of the terms of the will and the duration of the marriage

67
Q

What is the elective share electing against?

A

Whether the surviving spouse takes:
1) the elective share a) as calculated or b) minimum 75k,
2) the share to which the spouse is entitled under a premarital will,
3) the share to which the spouse is entitled to pursuant to T’s will, or
4) the share pursuant to the intestacy provisions of UPC

68
Q

What is the augmented estate?

A

Contains the value of the net probate estate, nonprobate transfers to others and to surviving spouse, and “spousal equivalent” of all the property - takes into account the combined value of both spouses’ probate and nonprobate assets

69
Q

What does the augmented estate help ensure?

A

Prevents the deceased spouse from reducing surviving spouse’s elective share by using probate avoidance techniques to dispose of the property

70
Q

When would a surviving spouse want to elect for the elective share?

A

Probably when they have been married a significant amount of time and the augmented estate contains a lot of property, or when the spouse would be entitled to receive the residuary under a will but there are significant debts to the estate.

71
Q

Can a spouse take the minimum amount of an elective share if their own assets are worth more than the percentage of the elective share?

A

No

72
Q

How is the elective share calculated?

A

1) Total up the augmented estate
2) Add up the total time of marriage to figure out the percentage of the augmented estate that is considered marital
3) Take half of the percentage of the marital estate to find the elective share

Ex: Augmented estate is worth 1.2 million. Marriage is 5.5 years. Percentage of marital estate is 30% for 5.5 years = $360,000. Half of 30% is 15% of total estate = $180,000.

73
Q

What happens to an ex-spouse after divorce if they are a beneficiary under their ex-spouse’s will?

A

All provisions of the will executed in favor of the ex-spouse will become void after the divorce, and all remaining provisions will remain effective as written.

74
Q

Does the automatic voiding of gifts to ex-spouses apply if T executes a will after the divorce?

A

No

75
Q

What is a pretermitted heir?

A

An child who has been omitted from the will

76
Q

When can pretermitted heirs receive a forced share of their parent’s estate?

A

1) When they are born or adopted after T executed their will
2) When T has omitted a child upon the mistaken belief of that child’s death
3) A child was alive at T’s death but T did not know about their existence

77
Q

When would a gift lapse?

A

1) When a beneficiary has died before T and has a testamentary gift in T’s will
2) When a beneficiary biologically outlives T but is legally treated as predeceasing T

78
Q

What are anti-lapse statutes?

A

Statutes that prevent gift lapse by providing substitute beneficiaries for the lapsed gift.

79
Q

When do anti-lapse gifts apply?

A

1) Beneficiary is in the family class of beneficiaries protected by the state staute and
2) beneficiary has a surviving issue (child) and
3) the will does not provide a contrary intent (like a substitute gift to someone else or a statement that an anti-lapse statute doesn’t apply)

80
Q

What is the doctrine of cy pres?

A

Upon the failure of a charitable gift, courts may use equitable approximation to find a charitable beneficiary or purpose that is sufficiently similar to what T provided in the will

81
Q

What must the court find in order to apply cy pres?

A

That T had a general charitable intent

82
Q

When would a charitable gift fail?

A

1) Charity is no longer in existence when T dies or
2) Charitable purpose is illegal, impossible to fulfill, or has already been fulfilled

83
Q

How long must a beneficiary survive the testator to take under the UPC?

A

120 hours (5 days)

84
Q

What are the three main categories of will revocation?

A

1) operation of law
2) physical act
3) by a subsequent writing

85
Q

What are some examples of will revocation by operation of law?

A

1) Divorce
2) Marriage
3) Pretermitted heirs
4) Slayer statutes
5) Death of beneficiary
6) Alienation

86
Q

What are the requirements for a valid revocation by physical act?

A

1) capacity to revoke
2) intent to revoke
3) satisfactory physical act performed on the will
4) all three other requirements happening at the same time as the physical act

87
Q

If a testator lacks mental capacity when they destroy their will, has a proper revocation occurred?

A

No - T lacked the necessary sound mind to make the revocation effective.

88
Q

Can a revocation that is made under duress, undue influence, or fraud be effective?

A

No - even if T has the mental capacity at the time of the physical act, the presence of any undue influence, duress, or fraud would nullify the attempted revocation.

89
Q

Are partial revocations of a will effective?

A

In some states. In other states, they are ineffective and the will remains in effect as it was originally written.

90
Q

What is the most reliable method of will revocation?

A

Revocation by subsequent writing (another will or codicil, etc.)

91
Q

What are the two method of revocation by subsequent writing?

A

1) Express revocation
2) Revocation by inconsistency

92
Q

What is express revocation through a subsequent writing?

A

Where T specifically states that a will is revoked.

93
Q

What is revocation by inconsistency through a subsequent writing?

A

Where provisions between testamentary documents conflict, the proper writing closest to the time of T’s death controls as to the inconsistencies.

94
Q

What is the presumption of nonrevocation?

A

A will proponent who can present the original will to the court may benefit from the presumption of continuity that T died without revoking the will.

95
Q

What is the presumption of revocation?

A

A will proponent who cannot produce the original will will have to rebut the presumption that T revoked the original will.

96
Q

What is revival?

A

The reinstatement of a will that T has already revoked.

97
Q

What are the two most common interpretations of revival?

A

1) Intent based approach (UPC)
2) No automatic revival approach

98
Q

What is the intent based revival approach?

A

Fairly liberal presumption that the revival of an earlier will occurs when T revokes a document that eliminated the earlier will, but courts will look to find T’s intent at the time they revoked a document that could lead to a revival.

99
Q

What is the no automatic revival approach?

A

Views a revocation as two documents in one - a revocation and a dispositive instrument.

Thus, the revocation of the first will would become immediately effective, and if the dispositive instrument was later revoked, there would be no automatic revival of the first will.

100
Q

What is the doctrine of dependent relative revocation?

A

If T purports to revoke his will under a mistaken assumption of law or fact, the revocation is ineffective if I would not have revoked their will had they known the truth.

101
Q

What does interpretation of the will mean?

A

the process of determining T’s actual intent from the language of the will and permitted extrinsic evidence

102
Q

What does construction of the will mean?

A

the attempt to assign a meaning to a will provision when T’s actual intent cannot be fully ascertained

103
Q

What are the three types of ambiguity in a will?

A

1) patent
2) latent
3) not readily apparent

104
Q

What is a patent ambiguity?

A

A will provision that is unclear on its face and does not convey a sensible meaning to the reader

Ex: Secret codes, code words, blank spaces

105
Q

Can a court permit extrinsic evidence to clear a patent ambiguity?

A

Depending on the ambiguity, yes. Secret codes and code words usually will allow evidence, but filling in blank spaces will not.

106
Q

What is a latent ambiguity?

A

A will provision that conveys a sensible meaning on its face but cannot be carried out without further clarification (a hidden ambiguity)

Ex: A misdescription of a beneficiary, misdescription of property, a specific request of a general nature

107
Q

If T miswrites the name of a property in their will, does the gift fail?

A

No - the principle of falsa demonstratio non nocet means that a gift does not fail merely because the description of the property is not precisely correct.

108
Q

What is no apparent ambiguity?

A

When the will provision is neither latently nor patently ambiguous, but someone wants to introduce extrinsic evidence that T did not mean for the will to say what it appears to say.

Ex: “I leave all my personal property to Niece” and T’s estate consists of $50,000 and a house.

109
Q

What is the plain meaning rule in ambiguity?

A

Courts look only to the language in the will itself; extrinsic evidence is not allowed.

110
Q

What is incorporation by reference?

A

A method for treating a document as testamentary in character even though that document is not physically part of T’s will

111
Q

What are the requirements for incorporation by reference?

A

1) Intent - T must intend to incorporate the writing into the will
2) In-Existence - the writing must exist when T executed the will
3) Identification - T must identify the writing to be incorporated in the will with sufficient specificity so that no other document could reasonably be referred to by that description

112
Q

What is republication by codicil?

A

When a will can be treated as reexecuted (republished) on the date of the codicil (treating a will as if it were executed at a later date)

113
Q

What is the doctrine of acts of independent significance?

A

Permits the use of facts and circumstances outside the four corners of the will to impact the property disposition T made in the will.

114
Q

What is a pour over provision?

A

A clause in a will making a gift to an inter vivos trust

115
Q

What is precatory language?

A

Language that does not create mandatory instructions for the distribution of property in a will.

Ex: “I wish,” “I recommend,” “I suggest”

116
Q

What is a class gift?

A

Where T designates a group of beneficiaries by a generic reference rather than by their individual names.

117
Q

When will class membership be determined?

A

1) If T specifies a specific time in the will
2) Either 1) a natural closing of the class (when it is impossible for additional individuals to join the class) or b) the rule of convenience - the time at which any existing member of the class is first entitled to distribution

118
Q

What is the dead man’s statute?

A

Limit the admissibility of evidence of what T did or said if the testimony being offered is by a party to the action

119
Q

What is a conditional gift?

A

Where a specified gift (not the whole will) is conditioned on the occurrence or nonoccurrence of an event, beneficiary conduct, or the truth of a given statement

120
Q

What is a conditional will?

A

where T conditions the effectiveness of a will based on the occurrence or nonoccurrence of an event or the truth of a given statement

121
Q

How does property pass if a conditional will is not satisfied?

A

Through the provisions of an unrevoked will or through intestate succession

122
Q

What is a condition precedent for a conditional gift?

A

The event or behavior must occur before the beneficiary may claim the gift

123
Q

What is a condition subsequent for a conditional gift?

A

the beneficiary may keep the gift until the condition is violated

124
Q

What is a no contest provision?

A

Provides that a beneficiary who contests the will loses some or all of their gifts under the will

125
Q

Are no contest provisions always enforced?

A

No. Many courts will not enforce a no contest provision if it violates public policy, if the beneficiary contests in good faith and with probable cause, or consider them invalid as a whole.

126
Q

Who may contest a will?

A

Beneficiary or heir - someone who would have pecuniary interest

127
Q

What must the proponent of a will prove under the UPC?

A

Proper execution

128
Q

What must the contestants of a will prove under the UPC?

A

Lack of testamentary intent, lack of capacity, undue influence, fraud, duress, mistake, or revocation

129
Q

What is an insane delusion?

A

When T’s mind is warped by false and unfounded beliefs that they cannot make rational disposition of their property

130
Q

What are the two components of insane delusions?

A

1) T believes something is true when it is false
2) The misbelief is irrational - there is no credible evidence to support T’s unreasonable version of reality

131
Q

What is undue influence?

A

T has been subjected to and controlled by another’s influence, and therefore lacks testamentary capacity

132
Q

What are the three elements of undue influence?

A

1) Person must actually exert undue influence over T
2) Influence is so strong that it overpowers T’s mind at the time of execution
3) T would not have executed the will but for undue influence

133
Q

How can you demonstrate undue influence?

A

1) Motive
2) Untraditional disposition of property
3) Opportunity and Access
4) Relationship b/w T and Undue Influencer
5) Susceptibility of T/T’s Ability to Resist
6) Connection b/w Influencer and Will

134
Q

May an attorney be named as a beneficiary of a will they drafted?

A

In most cases, no. There is an exception for wills drafted for very close relations.

135
Q

What is duress?

A

Where T lacks testamentary capacity due to the threat of force or actual force

136
Q

What are the elements of duress?

A

1) A person performs or threatens to perform
2) a wrongful act
3) that coerces the transferor to make a transfer
4) that they would not have otherwise made

137
Q

What are the elements of fraud?

A

When a wrongdoer:
1) knowingly or recklessly
2) makes a false representation to the donor
3) about a critical fact
4) intending to lead T to make a transfer they would not otherwise have made
5) which causes the transfer

*T lacks testamentary intent

138
Q

What are the two types of fraud?

A

1) Fraud in the execution
2) Fraud in the inducement

139
Q

What is fraud in the execution?

A

misrepresentation about the nature of contents of the document T is signing

140
Q

What is fraud in the inducement?

A

misrepresentation concerns an external fact relevant to the pattern of distribution among beneficiaries

141
Q

What is the difference between undue influence and duress?

A

Undue influence is messing with T’s mind, duress is threatening or performing physical harm

142
Q

What is tortious interference with an expectancy?

A

P may bring a claim for intentional interference with their expectancy (under the will) due to tortious conduct

143
Q

Is tortious inference with an expectancy a will contest?

A

No - it is a tort claim

144
Q

What is mistake in the execution?

A

Where T errs regarding the identity or contents of the will

145
Q

Will most courts allow mistakes to be corrected through reformation?

A

Yes

146
Q

Can a will that has been revoked by a physical act be revived?

A

No - T must execute a new will with identical terms if they wish to revive a destroyed will

DET Fall 2022 (3 decks)

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