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Trusts + Estates > Wills > Flashcards

Wills Flashcards

1
Q

Benefits of Wills

A

1) Less worry about will suppression
2) Parent’s custody recommendations might help kids
3) Appointing a reliable executor and alternate
4) Pay just debts
5) Change time survivor to 30 days

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2
Q

What is needed for a will?

A

Intent
Capacity

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3
Q

Subjective intent

A

Animus testandi

Certain intent at the time of the instrument being executed that includes: (1) the intent to make a gift by THAT instrument + (2) the gift to be effective at death

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4
Q

Fleming v. Morrison

A

A properly executed will but denied because there was no intent for the document to be executed as a will

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5
Q

If there is no animus testandi

A

Part/All of the instrument can be denied to probate

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6
Q

Dumeland

A

1995 ND case that admitted a will to probate even though there was no animus testandi

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7
Q

How do mistakes affect wills?

A

Perhaps means that there is no animus testandi

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8
Q

Mistake in the execution

A

(1) document signed and not realizing it is a will
(2) contains provisions not intended by the sender

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9
Q

Effect of mistake in the inducement

A

(1) document is not admitted to probate
(2) do not admit misunderstood portions to probate

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10
Q

Coercion/Duress

A

substitutes intent is NOT allowed under probate, typically more of an issue about the gifts later on

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11
Q

Undue Influence

A

overcomes T’s free will through psychological domination and does not require the wrongdoer to take control of T’s mind, it is enough for the wrongdoer took control of T’s actions in executing the instrument

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12
Q

Undue Influence Effect

A

May result in denial of part/all of the will

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13
Q

Loss of Free Agency Test

A

1) Influencer have opportunity?
2) Influencer have motive?
3) Are the results unnatural?
4) Was the decedent suspectible to psychological domination?

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14
Q

Variation of Improper Conduct Approach

A

Loss of free agnecy (opportunity, motive, unnatural results, and susceptibility)

PLUS unethical conduct

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15
Q

Mueller v. Wells

A

Listed factors:
Opportunity, causation, result, and vulnerability of T

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16
Q

Other factors involved in testing loss of free agency

A

If T and the WD had a confidential relationship, If WD took bulk of the estate, if T’s intellect was weak, suspicious circumstances

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17
Q

Burden of proof in loss of agency

A

To proponent, must show BOTH (1) presumed influencer acted in good faith and (2) decedent acted freely

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18
Q

Punitive Damages against undue influence

A

Common Law: no
NJ case in 2008: yes, if wanton and willful disregard of harmed people
Tough because it imposes their morality of judge/jury

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19
Q

Devises to lawyers

A

Common law: not undue influence if the lawyer drafts the will and gives themselves a gift

Modern: Yes - rebutting presumption of C+C evidence that no undue influence occurred or legal advice on the will alone (depends on state)

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20
Q

Fraud in the execution

A

misrepresentation based on the instrument

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21
Q

Fraud in the inducement

A

misrepresentation about something OTHER THAN the document

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22
Q

Fraud elements

A

1) Misrepresentation
2) Made with the intent to deceive and purpose influence
3) Causing or inducing a change in behavior
4) Then executing/revoking instrument or not

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23
Q

Puckett v. Krida

A

Nurses convinced the decedent that her niece wasted her money, but there was a tough showing of misrepresentation

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24
Q

McDaniel v. McDaniel

A

Found for fraud after there was a change in the will that the son was out-of-state spending money

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25
Q

Key difference in fraud v. mistake

A

Intent to deceive and purpose

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26
Q

Lantham v. Father Divine

A

Constructive trust for a will that was not properly executed is fine as a remedy, based on the change of behavior

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27
Q

Fraud Remedies

A

Deny probate to will

Impose constructive trust if a will was NOT executed because of fraud

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28
Q

Pope v. Garnett

A

Court imposed a constructive trust on all the heirs – even the innocent heirs – for the benefit of the person who would have taken under the will that was not executed because of the interference of some of the heirs

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29
Q

A possible additional remedy for malfeasance

A

Intentional interference with expectancy of inheritance (intentional tort)

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30
Q

Schilling v. Herrera

A

Elements of IIEH: (1) existence of expectancy, tort (undue influence), (2) causation, (3) damages (nothing for Ed)

Defense: no duty to Ed; concealment allows to get around

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31
Q

Wellin v. Wellin

A

Did not allow the intentional tort, but there is a state statutory remedy to allow it

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32
Q

Codicil

A

the newer of the two wills if the new revokes the old in part

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33
Q

No contest clauses

A

UPC and majority: Yes - unless PC for contest

Minority: Yes, exceptions for certain challenges which are allowed

FL: no

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34
Q

Sorts of disputes that come from no contest cluases

A

1) validity
2) construction

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35
Q

Advantages of no-contest clauses

A

Reduces litigation

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36
Q

Externalities of no-contest clauses

A

1) reduce the litigation
2) injustice to those who would’ve taken if there had been a contest
3) might increase undue influence against others

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37
Q

Legal age to make a will

A

UPC 2-501: 18

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38
Q

Mental Capacity

A

UPC 2-501/UPC 2-407: burden of proof is on the contestant to show lack of capacity

Requires a sound mind

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39
Q

Can someone with a guardian make a will?

A

YES!

Standard to write a will is lower than to avoid being a will, lacks capacity may get capacity in a short moment

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40
Q

Disciplinary Board v. Kuhn

A

Proves evidence needs to be kept for client capacity proof

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41
Q

Sheppard v. Jones

A

Knowing what the person can will is fundamental

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42
Q

In re McIntyre

A

Suicidal people can create their own will

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43
Q

Specific Capacity

A

An insane delusion that materially affects a dispostivie portion of the will

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44
Q

Insane delusion

A

Belief, that is false, that is persistent (cannot be dislodged by evidence and is contrary)

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45
Q

Levin v. Levin

A

An insane delusion is a spontaneous conception and acceptance as a fact of which has no real existence, adhered to all against evidence and reason

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46
Q

Materially effect majority view

A

Must-have-been test: will would have been made but for the insane delusion

No other reasonable way to explain the delusion

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47
Q

Materially Effect (minority)

A

Might-have-been test: dispositive provision might have been the product of an insane delusion

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48
Q

Remedy for insane delusion

A

Deny probate to part/all of will

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49
Q

Doughtery

A

The fact that the son put his dad in a nursing home is not insane, that is not what he wanted, so it is pretty normal and not a violation of specific capacity

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50
Q

Strittmatter

A

Louisa hating men was an opinion, not an insane delusion - allowed because she was otherwise reasonable

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51
Q

Townsend v. Townsend

A

proves that court can impose its morality on cases; wanted to give money back to slaves and the court agreed this was insane at the time (1848)

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52
Q

Why require a sound mind?

A

Devil speaks through insane people

Protects decedent’s family

Provide care + support for the aged

Protect people of unsound mind from exploitation

Honoring an unsound mind would be arbitrary and make the law seem more rational to enhance the rule of law

Cost/Benefit analysis

Honor a later will when someone becomes unsound later? 70% class says no; capacity required to start, opt out later

53
Q

True result

A

probate result aligns with the intent of the decedent

54
Q

False result

A

probate result that is not what the decedent intended

55
Q

False positive

A

Type I error: an instrument not intended to be a will is admitted to probate

56
Q

False-negative

A

Type II error: an instrument intended to be a will is denied admission to probate

57
Q

Are false positives or false negatives rare?

A

False positives

58
Q

Why are formalities important?

A

Reduce false positives (but they can still slip through), formalities can also cause false negatives

59
Q

Can formalities also prevent false negatives?

A

Yes - more evidence there is a desire to admit to probate, harder to make a will

60
Q

Who do formalities protect?

A

People who trusting from abuse by those who are untrustworthy

61
Q

Formalities Functions (5)

A

1) evidentiary (reduce false positives

2) protective ([1] reduce predatory behaviors, [2] allow people to be more trusting than if there were no formalities)

3) cautionary or ritual (impress T with importance of instrument - better planning)

4) channeling (send people to lawyers for better advice in better planning/drafting)

5) reduce administrative costs of probate (less cases)

62
Q

Does a will require a writing?

A

YES - comes from the SoF

63
Q

Wills typed into a cell phone?

A

Michigan court allowed

64
Q

Is an audio recording allowed as a will?

A

No

65
Q

What must the writing contain?

A

Animus testandi: express that this instrument is transferring the title of assets at death (AKA objective expression)

66
Q

Does the UPC require animus testandi?

A

No, UPC 2-502(c) allows extrinsic evidence to be allowed in to establish that a document is a will

67
Q

Do wills have to be signed?

A

Yes, see Chastain (TN court denied a will because it was not signed)

68
Q

Do some states strictly require signature?

A

Yes

69
Q

Where does the signature aspect come from?

A

Sof

70
Q

Signature can be used as what to get admitted without witness?

A

Self-proving affidavit

71
Q

“Subscribed by testator”

A

Signing the bottom of the will

72
Q

What happens when T does not subscribe their will?

A

Some parts can be admitted to probate anyway, only admit parts of the instrument above the signature, deny entirely

Depends on the state (all three can happen)

73
Q

Taylor v. Holt

A

Electronic signatures of wills are permitted

74
Q

Additional requirement for ATTESTED wills:

A

SoF requires the witnessing and subscription of three witnesses

75
Q

Kirkeby v. Covenant House

A

For a witness’s attestation to be valid, the testator must acknowledge the signature on the will while the witness is perceiving the will

76
Q

What test does the Kirkeby court require?

A

Conscious presense: hear them, see them, not as direct

77
Q

Stevens v. Casdorph

A

Even though the instrument was the intent of T, it was not let in because the witnesses did not see T sign and T did not watch the witnesses sign

78
Q

Result of witness signature under UPC 2-502(a)(3)(A)

A

1) signed by 2 witnesses
2) who saw the T sign within a reasonable time OR!!!!!!!!!
3 T’s acknowledgement of that signature or acknowledgment of the will

79
Q

2 meanings of “in the presense”

A

Line of sight: W watches T sign the document

Conscious presense: W comprehends that T is signing

80
Q

2008 UPC provision on notary witnesses

A

1 notary = 2 witnesses

81
Q

To be an attesting witness, when must a person be competent

A

1) at the time T signs/acknowledges a will/signature

2) at the time the witness signs

82
Q

To be a witness in probate litigation when must a person be comptenet?

A

1) at the time T signs/acknowledges a will/signature

2) at the time the witness signs (assuming they are an attesting witness)

3) at the time of probate

83
Q

What makes a person incompetent to be a witness to a
will?

A

Mental incompetence: aka the witness must be competent to be a witness in litigation

84
Q

What makes a person incompetent to witness a will?

A

If they have a financial interest in the will

85
Q

Results if a person with $ interest witnesses a will signing?

A

1) SoF: strike the witness, deny probate (prevent false +)

2) Some ourging statutes: probate the will, strike W’s gift, probate the will but strike W’s gain from the gift in the will

3) UPC 2-505: probate the will, strike nothing

4) CA: presume duress/fraud, deny probate for those reasons

86
Q

Does Stake like UPC 2-505 rule?

A

No - influencer of these fraud cases are more careful than being witnesses, kinda silly

87
Q

ALL THE FORMALITIES OF A WILL:

A

1) Writing
2) Signed by T

88
Q

Additional formalities for attested wills:

A

1) T signed/acknowledged the signature or acknowledged will in the presense of witness

2) Witness signed/acknowledged the signature in the presence of the witness

3) In presense (line of sight/conscious)

4) Witnesses are competent

89
Q

Informal (holographic wills)

A

Historically admitted to probate without witnesses, 1/2 states allow, no witness compliance aspect

90
Q

Requirements for a holographic will

A

1) signature
2) subscription (some states)
3) date (some states)
4) written by T
5) Intent

91
Q

What if part of a holographic will is not signed by the T?

A

Traditional: Deny all

UPC 2-505(b) - the signature and material portions must be in the decedents hand - then carry those portions

92
Q

Do holographic wills satisfy the functions of formalities?

A

Might create additional opportunities for undue influence/mistake in admission to probate

Add to litigation

93
Q

Are oral wills allowed?

A

Some states in VERY limited circumstances

94
Q

In Matter of Snide

A

Husband + wife signed the wrong wills, court crafted narrow exception of allowing the wills to probate

95
Q

Burton v. Didricksen

A

The first will was lost by T, which said “White gets everything”

Second will, only 1 witness (T dies intestate)

No substantial compliance which increases the risk of mistake + fraud

96
Q

Substantial Compliance Doctrine

A

party complies with statutory requirements by “satisfaction
of the substance essential to the purpose of the statute”

97
Q

UPC 2-503: Harmless Error

A

C+C evidence that instrument was intended to be a will is enough for probate

Adopts Australian dispensing power

98
Q

Benefits to Harmless Error?

A

Reduce false negatives

99
Q

Cost of harmless error?

A

Increase in false positives, predatory behavior (fraud, UI, Forgery), honest mistakes taken seriously, reduce certainty

100
Q

In re Estate of Horton

A

D killed himself after writing a will, treated the document as if complied with the formalities through C+C evidence

101
Q

Does 2-503 require the court to find that all of the purposes of the formalities are satisfied?

A

NOT ALL - main purpose is the intent requirement

102
Q

Integration of Wills doctrine

A

The will is all the papers present at the time and place of execution and intended to be part of the will

103
Q

Keener v. Archibald

A

IN has not adopted the integration of wills doctrine

104
Q

Incorporation by Reference Doctrine

A

A writing NOT part of a will might be given testamentary effect if it is incorporated by reference into the valid will

105
Q

If a document is incorporated by reference:

A

It is NOT part of the formal will
Part of the probate file
Recipients under the document are called: devisees

(few states do not allow)

106
Q

Incorporation by reference requirements:

A

Language in the will that manifests as an intent to incorporate another writing (UPC 2-510)

Writing must exist at the time of will creation

107
Q

What do some states also require for incorporation by reference?

A

Existence of document at death

Will refers to the document being in existence at the time of execution

108
Q

Subsequent Statement/List

A

UPC 2-513: allows these to have some testamentary effect

109
Q

Requirements of subsequent statement/list (UPC 2-513)

A

1) will refer to the writing
2) only for tangible property not devised in will, not money
3) writing describes the items and persons with reasonable certainty
4) signature

110
Q

Acts of Independent Significance

A

UPC 2-512

If the contingency affecting the disposition might be determined by factors other than the purpose to make a devise, T’s actions are allowed to change the will without formalities

111
Q

After a will’s execution it remains:

A

ambulatory: it can be amended or nullified

112
Q

Revocation

A

process of making a valid will ineffective (in whole or in part) requires this

113
Q

Methods of revocation by law:

A

Occurs when the decedent changes status

Includes: marriage, divorce,

114
Q

Divorce - Revocation

A

Common Law: total revocation of wills existing at divorce

UPC 2-804: partial revocation of gifts in wills and other instruments to the former spouse + their kind (treated as if disclaimed)

Statutes vary: some revoke gifts in will, gifts to former spouse only

115
Q

Marriage - Revocation

A

Some states: total revocation wills that did not provide for marriage

UPC 2-804(f): No revocation

116
Q

Volitional revocation

A

Decedent choice to alter the effectiveness of a will

117
Q

What must the decedent have to revoke the will volitionally?

A

1) Intent (NO coercion, fraud, mistake, UI)

2) Capacity

118
Q

Methods of volitional revocation

A

1) Instrument (same formal reqs. as a will, can wholly/partially revoke, expressly revoke or by inconsistency)

  1. By revocatory act to the will (destruction, cancellation, obliteration)
119
Q

Milbourne v. Milbourne

A

Revocation by volition was not allowed because the intent was not there - there was undue influence

120
Q

Thompson v. Royall

A

Judge writing on the back: “This will is null and void” did not make it null and void because there were no other witnesses nor was it holographic

121
Q

Revocatory act - touching the will

A

Some courts: require the physical act touch the words of the will

UPC 2-507(a)(2): act does not need to touch the words of the will

122
Q

Partial revocation

A

By instrument: the statute allows the will itself to be in writing - focus on the prevention of fraud

(NY and IN do not allow)

123
Q

Non-revocations

A

When an attempted volitional revocation is ignored even though it meets all the requirements, not a revival of the old will

124
Q

Dependent Relative Revocation

A

Revocation was dependent or conditioned on a related will being admitted into probate

Since the related one is not admitted, the condition is NOT satisfied

The will or part is not revoked

125
Q

Fiction of DRR

A

Revocation was intended to be conditional and since that revocation did not occur, it fails

126
Q

Reality of DRR

A

There was a mistake in the inducement about the original will (being admissible to probate or another mistake of fact in the instrument)

127
Q

Can the decedent’s intent overcome DRR?

A

Yes - if the intent of recognizing the revocation is closer to the intent of the decedent

128
Q

Can a revoked will be brought back to life?

A

YES!

UPC 2-507(a)(1) - partical revocation by inconsistency

(some states do not allow or make Will #2 supersede Will #1)

Trusts + Estates (14 decks)

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