Wills Flashcards
Does a Will have any legal effect before death?
No, operative upon death.
Do Beneficiaries have property rights in a Will?
No, they only have an expectancy interest
Requirements for a valid Will
Generally, a Will is valid if it complied with State specific formalities
However all Wills must have the following:
(1) Writing
(2) Signed by the Testator
(3) Signed by at least 2 Witnesses
For Testator’s signature on a Will, is any mark sufficient for Testator’s sign off?
Generally, yes.
If the Testator is incapable of signing, must be signed
by another
in her presence and
At Testator’s direction.
Must the witnesses sign the Will and actually see the Testator signing the Will?
Yes, must see the testator sign the Will and
Must sign as witnesses in testator’s presence in a reasonable time.
What does “Testator’s presence” mean?
Line or range of senses.
Many states require witnesses to be within Testator’s line of sight.
What is an Attestation Clause?
Clause that states the required elements of the Will have been satisfied.
What are the 2 requisite mental states for a Testator to validly execute a Will?
She must have capacity and
Testamentary intent
What are the age and capacity requirements for a testator to execute a valid Will?
Age: 18 or older at the time of the execution.
Mental Capacity: testator must understand at the time of execution:
(1) Act - nature of act
(2) People - natural people of Will
(3) Property - nature of property
Is there a rebuttable presumption that Testator has mental capacity?
Yes.
Do physical ailments or drug addiction render the Testator incapacitated?
No.
For testamentary intent, is future intent to create a Will sufficient?
No, present testamentary intent is required.
Must Witnesses be competent?
Yes, they must have sufficient
maturity and
mental capacity to appreciate the nature of what they witness and attest to.
First, what is an interested witness?
And, what is the common law rule concerning interested witnesses in a Will?
An interested witness is a witness who stands to benefit from the Will
CL: entire Will can not be probated
Majority: Will is valid but gift to Witness-Beneficiary is void
Exception to majority rule:
Interested witnesses can still be beneficiary if:
(1) 2 other disinterested witnesses existed, and
(2) interested witnesses would take if there was no Will
What is the UPC rule concerning interested witnesses in a Will?
Presence of an interested witness does not invalidate Will or any parts
What is a Codicil?
An amendment, modification, alteration of previously executed Will
Same formalities in execution as a Will (signed by testator, 2 witnesses, writing)
What is a Holographic Will and it’s Requirements?
It’s a handwritten, unwitnessed Will.
Must be:
(1) testator’s writing
(2) testator signed
(3) reflect testator’s intent to make Will (must not contemplate some future Will)
Does a holographic Will replace or revoke a prior valid Will?
Yes.
Are oral wills allowed?
No, in most states.
What is integration and when is a document integrated?
When multiple documents are separated and they’re all allegedly part of the same Will. If there’s paper connectors (paper clips, staples, or page numbers) there’s a presumption of integration.
A document will be integrated into a Will if:
(1) physical presence: doc was present at time of Will’s execution
(2) intent of inclusion: testator intended the doc to be part of Will
What are the elements for Incorporation by Reference?
Documents extrinsic to the Will may be incorporated by reference where:
(1) Testator’s intent to corporate
(2) the Will sufficiently describes the document that it can be authenticated
(3) document exists at the time of the Will execution.
(remember that element 3 is a lot more flexible when it comes to physical tangible property)
Who does Beneficiary need to get consent from in order to modify a private trust?
Consent of Settlor
Consent of all Beneficiaries
Can a Beneficiary modify or revoke a Private Trust without settlor’s consent?
Yes, but only if
All other Beneficiaries provide consent and
Doing so would not frustrate a material purpose of the trust
What is Cy Pres Doctrine for charitable trusts?
Allows courts to modify terms **to as near as possible to Settlor’s original intent.
Arises where trusts original purpose is complete, unlawful, or impractical.
If a Will is created and the Testator was subsequently married, does the marriage effect the Will?
No.
Under the UPC, omitted spouse will take a share of decedents estate equivalent to what their intestate share would be.
If a divorce follows execution of a Will, what result?
Revokes all bequests made in favor of the former spouse, unless expressly provides otherwise.
Remainders of the Will remains
What is Revival?
Where a Will is revoked, and revoking instrument is subsequently revoked, the original Will is presumptively revived.
Unless expressly stated otherwise.
Can a revoked Will be re-executed?
Yes, by codicil or new Will
What is a Dependent Relative Revocation?
When a court disregards a revocation that was done to create an alternative disposition to the original Will - but it was based on a mistake.
Court can apply DRR and revive revoked Will if it’s what the Testator wanted.
Elements of DRR
Court can apply DRR and ignore Will revocation where:
(1) Revocation was a mistake
(2) revocation would not have occurred had it not been for the mistaken belief
(3) original Will is closer to Testator’s preference than intestate succession.
