Wills

Question 1

Does a Will have any legal effect before death?

Answer 1

No, operative upon death.

Question 2

Do Beneficiaries have property rights in a Will?

Answer 2

No, they only have an expectancy interest

Question 3

Requirements for a valid Will

Answer 3

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

Question 4

For Testator’s signature on a Will, is any mark sufficient for Testator’s sign off?

Answer 4

Generally, yes.

If the Testator is incapable of signing, must be signed

by another

in her presence and

At Testator’s direction.

Question 5

Must the witnesses sign the Will and actually see the Testator signing the Will?

Answer 5

Yes, must see the testator sign the Will and

Must sign as witnesses in testator’s presence in a reasonable time.

Question 6

What does “Testator’s presence” mean?

Answer 6

Line or range of senses.

Many states require witnesses to be within Testator’s line of sight.

Question 7

What is an Attestation Clause?

Answer 7

Clause that states the required elements of the Will have been satisfied.

Question 8

What are the 2 requisite mental states for a Testator to validly execute a Will?

Answer 8

She must have capacity and

Testamentary intent

Question 9

What are the age and capacity requirements for a testator to execute a valid Will?

Answer 9

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

Question 10

Is there a rebuttable presumption that Testator has mental capacity?

Answer 10

Yes.

Question 11

Do physical ailments or drug addiction render the Testator incapacitated?

Answer 11

No.

Question 12

For testamentary intent, is future intent to create a Will sufficient?

Answer 12

No, present testamentary intent is required.

Question 13

Must Witnesses be competent?

Answer 13

Yes, they must have sufficient

maturity and

mental capacity to appreciate the nature of what they witness and attest to.

Question 14

First, what is an interested witness?

And, what is the common law rule concerning interested witnesses in a Will?

Answer 14

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

Question 15

What is the UPC rule concerning interested witnesses in a Will?

Answer 15

Presence of an interested witness does not invalidate Will or any parts

Question 16

What is a Codicil?

Answer 16

An amendment, modification, alteration of previously executed Will

Same formalities in execution as a Will (signed by testator, 2 witnesses, writing)

Question 17

What is a Holographic Will and it’s Requirements?

Answer 17

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)

Question 18

Does a holographic Will replace or revoke a prior valid Will?

Answer 18

Yes.

Question 19

Are oral wills allowed?

Answer 19

No, in most states.

Question 20

What is integration and when is a document integrated?

Answer 20

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

Question 21

What are the elements for Incorporation by Reference?

Answer 21

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)

Question 22

Who does Beneficiary need to get consent from in order to modify a private trust?

Answer 22

Consent of Settlor

Consent of all Beneficiaries

Question 23

Can a Beneficiary modify or revoke a Private Trust without settlor’s consent?

Answer 23

Yes, but only if

All other Beneficiaries provide consent and

Doing so would not frustrate a material purpose of the trust

Question 24

What is Cy Pres Doctrine for charitable trusts?

Answer 24

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.

Question 25

If a Will is created and the Testator was subsequently married, does the marriage effect the Will?

Answer 25

No.

Under the UPC, omitted spouse will take a share of decedents estate equivalent to what their intestate share would be.

Question 26

If a divorce follows execution of a Will, what result?

Answer 26

Revokes all bequests made in favor of the former spouse, unless expressly provides otherwise.

Remainders of the Will remains

Question 27

What is Revival?

Answer 27

Where a Will is revoked, and revoking instrument is subsequently revoked, the original Will is presumptively revived.

Unless expressly stated otherwise.

Question 28

Can a revoked Will be re-executed?

Answer 28

Yes, by codicil or new Will

Question 29

What is a Dependent Relative Revocation?

Answer 29

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.

Question 30

Elements of DRR

Answer 30

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.