Wills Flashcards
Types of Wills:
-attested
-requires:
(i) a writing; (ii) signed by T; (iii) in the presence of 2 Ws; (iv) Ws sign will understanding that the instrument is the T’s will
-holographic will
(i) signed by T and (ii) material provisions in T’s handwriting
-extrinsic evidence ok to prove T’s intent
-date NOT required, but may present inconsistency or capacity issues
-interested Ws
-unless 2 disinterested Ws are present, there is a presumption that interested W secured the gift by wrongdoing
*N/A if interested W is a fiduciary
Intent:
-capacity
-T must be more than 18 years old, able to understand the extent of T’s property; know the natural objects of their bounty (eg. beneficiaries); and know the nature of his act
*if no capacity: then the will is INVALID
Intent:
-insane delusion
-T had a false belief that was a product of a sick mind; no evidence to support that belief; and delusion affected T’s will
*the part affected by the delusion is INVALID and will go to residuary or intestate
Intent:
-fraud in general
-representation of material fact known to be false by wrongdoer for the purpose of inducing action or inaction AND does in fact induce desired action
Intent:
-fraud in execution
-T’s signature forged or T given a doc that he believes isn’t testamentary: the ENTIRE will is INVALID
-fraud in inducement
-wrongdoer’s representation effects the contents of T’s will: only the affected part is INVALID
-fraud in preventing T from revokin
-misrepresentation or lie leads T not to revoke
-results in no probate
-Property goes to heirs as constructive trustees until the court determines intended beneficiary
Intent:
-undue influence: prima facie case
(i) susceptibility; (ii) opportunity; (iii) active participation; (iv) unnatural result
-undue influence: presumtion
(i) confidential relationship; (ii) active participation; (iii) unnatural result
*ONLY the affected part is invalid
-statutory undue influence
-donative transfer invalid if transferred to a person that drafted the instrument or drafter’s family; person who has fiduciary relationship and transcribed the instrument; or to care custodian of dependent adult.
-UNLESS: T is related to the drafter; the will is reviewed by an independent attorney, or the Court finds that no wrongdoing occurred
-Consequence: the transferee doesn’t take if the gift exceeds the person’s intestate share
Revocation:
-subsequent will: express or implied; revival
-express or implied (Will #2 totally disposes of T’s estate)
-revival: If #2 is revoked later, #1 ISN’T revived unless T manifests specific intent to revive through oral statements at the time of will #2’s revival or if codicil revoking will #2 so states
Revocation:
-physical act
-burn, tear, cancel (cross out), destroy, obliterate (erase)
-the act and the intent MUST be simultaneous
-physical act: interlineations
-must still satisfy the requirements of attested or holographic will
-No dependent relative revocation if interlin is less than canceled provision
-DRR if interin is more than canceled provision
-physical act: cancellation
-doesn’t increase gift but goes to residuary if no beneficiary is specified
Revocation:
-by operation of law
-the result of a pretermitted spouse or child; or final dissolution of marriage
Revocation:
-dependent relative revocation
-disregards revocation (physical act or subsequent instrument) caused by mistake
-requirements: T revokes the will in mistaken belief that a subsequently identical will or codicil effectuates T’s intent
-By operation of law, revocation of the first is deemed conditional, dependent and relative to second will effectuating T’s intent
*Note: if the 2nd will is invalid bc of fraud in execution, then the revocation of the 1st is invalid too, and will #1 was never revoked
-prevention of revocation via contract
-material provisions of contract are in will; the will expressly references the contract; clear and convincing evidence of agreement enforceable in equity; clear and convincing evidence of agreement for the benefit of claimant that is enforceable in equity
Components of Wills:
-integration
-determines what makes up a will
-look for staples, numbered pages, etc.
-incorporation by reference
(i) doc or writing; (ii) in existence when the will was executed; (iii) doc clearly identified in the will; and (iv) T intended to incorporate the doc into the will (assumed if 1-3 are proven)
-facts of independent legal significance
-fact would have existed without the will
pour over wills
-T devises all assets into inter-vivos trust
-valid through incorporation by ref; independent significance; or Uniform Testamentary Additions to Trusts Act if trust was valid before or at the time of the will’s execution
codicils
-modify, amend or revokes the will
-codicil republishes the will (re-dates)
effect of a codicil on revocation
-if T executed the will, then the codicil, then revokes the codicil: there is a rebuttable presumption that T intended ONLY to revoke the codicil
-if T executes the will, then the codicil, then revokes the will: there is a rebuttable presumption that BOTH the will and the codicil are revoked
Interpretation of Wills:
-mistake in content
-if omission, no judicial remedy bc Courts won’t rewrite
-if addition, remedy is possible bc Court can just cross out
-mistake in execution
-no probate if no intent, unless reciprocal or mutual will
-mistake in inducement
-no relief unless both mistake and what T would have done are expressed on the will
-mistake in description
-latent (on face, the will looks ok): then introduce parol evidence to establish ambiguity and T’s intent
-patent (in its face the will is valid): then under CL no remedy; Mod: use parol evidence
-lapse
-beneficiary must survive T
-anti-lapse statute: if predeceased is T’s blood relative and leaves issue, then issue will step into the shoes of the predeceased and take, absent contrary provision
-ademption
-specific devise (unique);
-general devise (payable out of general assets);
-demonstrative devise (from particular source, but if not enough, from general property);
-residuary devise (all of the leftovers)
-ademption by extinction
-only specific gifts:
-if T doesn’t own enough specific property, then specific gift is adeemed by extinction, unless securities change form; conservator sells off assets (beneficiary will take net sale price) or eminent domain, casualty or installment sale
-ademption by satisfaction
-may satisfy a general or demonstrative gift
-requirements: the will provides for deduction of inter vivos gift; T declares contemporaneous writing that gift is a satisfaction; beneficiary acknowledges in writing the satisfaction; and property given in satisfaction is the same as the gift in the will
Distribution Issues:
-what passes?
-after acquired property and increases during T’s life, eg. dividends and splits, will go to intended beneficiary
-between death and probate, specific devises will go to beneficiary; general devises don’t get increase
abatement
-gifts will increase or decrease by operation of law
-if must satisfy payment to pretermitted spouse or child, abate by: property not passing by will or trust; all beneficiaries pro rate
-to satisfy a general debt, abate by: intestate property; residuary gift, general gift to non-relative; general gift to relative; specific gift to non-relative; specific gift to relative
exoneration
-extinguishes debt on a gift
-CL: T personally liable and executor must pay off debt before passing to beneficiary
Intestate Succession:
-order if no surviving spouse (“SS”)
-Issue; Parents’ Siblings; Grandparents; Aunts and Uncles; Step-kids; Next of kin; Parent in laws; sibling in laws; escheat
-distribution
-generally, issue of the same degree take “per capita” starting at first level where there is a living being
-strict per stripes: distribution at first level so long as there is issue
adoption
-adopted kids treated as natural kids
-natural parents’ relationship severed at adoption unless spouse of natural parent adopts
-equitable adoption
-step-kids/foster kids
-equitable adoption: parties hold out as parent/child
-step-kids/foster kids: treated as adopted IF:
—relationship began during minority; continued throughout parties’ life; and established by clear and convincing evidence that they would have adopted but for a legal barrier
non-marital kids
-if domestic partnership, non-birthing parent is a parent if the child was born during the DP; non-birthing DP named on the birth certificate; or makes a voluntary promise to pay child support
advancements
-inter vivos down payment made by intestate to heir apparent: same result as satisfaction
-intestate declares in writing that gift is advancement and heir acknowledges gift as advancement
simultaneous death
-T and devisee die simultaneously: devisee is deemed to predecease T
-if joint tenant: sever joint tenancy and each get 1/2
-if H&W: community property and qualified community property is divided in half
-life insurance: alternative beneficiary or residuary
*heir must survive for 120 hours to take
Rights of Surviving Spouse and Children:
-omitted child
-child born after testamentary instruments are executed and not provided for: the child will get intestate share plus share of assets in trust
*Exception: omission intentional on the fact of the instrument; T had a child and transferred assets to parent of omitted child; or child provided for outside of the testamentary instrument (eg. annuity)
-omitted spouse/DP
-same as child, but go through CP/QCP rules. *Except: intentional; provided for in alternative; spouse signed waiver
-waiver
-a voluntary relinquishment of known right whether signed before or during the marriage
-requirements: waiver in writing; full disclosure of decedent’s finances; independent counsel by waiving spouse
—NOT invalid if spouse had or should have had knowledge of finances or if waiver was in fact fair
*no enforceability if waiver was unconscionable
Bars to Succession:
-homicide; elder abuse; no contest clause
-homicide: requires conviction or, in all other cases, probate court determines guilt by preponderance of the evidence
-the killer is deemed to predecease so that killer not issue take
elder abuse
-bar to succession
no contest clause
-enforced unless beneficiary, with reasonable cause, brings contest on grounds of forgery, revocation, or invalid tranfer
Wills Substitutes:
-gifts causa mortis
-gifts made in contemplation of imminent death
-the donor must make delivery by
—*actual delivery;
—symbolic delivery (something representative of property is given to donee; or
—constructive delivery (CL: key is providing access to corpus OR Mod: donor has done everything possible to effectuate delivery & no fraud or mistake)
