Wills

Question 1

What is a will?

Answer 1

a revocable disposition to take effect at death.

Question 2

What are the steps to get the will admitted to probate?

Answer 2

1. The executor or beneficiary must submit an application to probate the will to the clerk of the probate court.
2. The clerk then notifies the sheriff’s officer, who then issues notice to the heirs of the decedent.
3. After notice, the proponent of the will schedules a hearing to establish:
   a. That the decedent is dead
   b. That the court has venue and jurisdiction
   c. That the will is valid:

Question 3

What makes a will valid?

Answer 3

1. Due execution: (at the date of execution)
   a. Testamentary capacity
   b. Testamentary intent
   c. Testamentary formalities
2. Non-revocation - the testator did not revoke the will

Question 4

Who may execute a will?

Answer 4

Must have testamentary capacity, meaning a person of sound mind (see card for sound mind) has the right and power to make a will if, at the time the will is made, the person:
(1) is 18 years of age or older;
(2) is or has been married; or
(3) is a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service.

Question 5

What does it mean for a person to have sound mind to execute a will?

Answer 5

Subjective test: At the time of execution:

1. Did the testator have sufficient mental capacity to know the extent, nature, and value of the estate?
2. Did the testator have sufficient mental capacity to know the objects of the testator’s bounty?
3. Can the testator simultaneously hold elements 1 and 2 in his mind long enough to make a reasoned judgment regarding the disposition of the property?

Question 6

What is the test for testamentary capacity?

Answer 6

18 or older OR has been married OR currently member of the armed forces or Maritime servie AND Sound mind test.

Must determine that there is testamentary capacity before moving to testamentary intent!

Question 7

When is there testamentary intent?

Answer 7

Within the 4 corners of the document, did the testator manifest testamentary intent, meaning is the intent of the document a disposition of the estate to take effect upon death? 4 corners rule: must be able to identify who gets what, when, where, and how.

An instrument cannot be given effect as a will or codicil unless it was written and signed within the intention to make it a will.

Question 8

What are the testamentary formalities for a valid will?

Answer 8

Depends on the type of will (attested or holographic). See cards for each.

Question 9

Testamentary formalities for attested wills:

Answer 9

1. In writing (SOF and Statute of wills compliance)
2. Signed by:
   (A) the testator in person; or
   (B) another person on behalf of the testator: Most states allow proxy signatures for attested wills)
   (i) in the testator’s presence; and
   (ii) under the testator’s direction; and
3. attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.

Question 10

Testamentary formalities for attested wills: what is a signature?

Answer 10

Doesn’t have to be full legal name, just anything that the testator intends to be his signature

Location of signature: most states say no location requirement, can be at the beginning, middle, or end. But some states say it must be at the end.

Question 11

Testamentary formalities for attested wills: what is the attestation process?

Answer 11

Not merely witnessing. Process begins with:

1. Testator acknowledging for the witness that this is their document and requrests them to witness. (Texas does not require publication (“This is my will”) but some states do.)
2. The witness must affix their signature
   a. Most states have no location requirement.
   b. Witnesses do not have to sign in EACH OTHER’s presence or confirm the testator’s mental capacity. Only have to sign in the testator’s presence.

Question 12

Testamentary formalities for attested wills: what does in the testator’s “presence” mean?

Answer 12

Most states follow strict compliance when it comes to defining “presence”:

1. Conservative strict compliance use line of sight test: testator must have an uninterrupted line of sight when seeing the proxy or witness pen to paper.
2. Relaxed strict compliance use conscious presence test: testator must be in a postion where the testator could see or make use of the testator’s other sense to determine what is happening.

Question 13

Who can be a witness for an attested will?

Answer 13

Must be of age and must be credible. (Competent to testify under Rules of Evidence.)
Can create problems if the witness or executor is a beneficiary, so want disinterested witnesses.

TX says that if witness is also a beneficiary of the will, the bequest is void, unless the will is corroborated by at least one disinterested and credible person who testifies that the subscribing witness’s testimony is true and correct.

Question 14

Testamentary formalities for holographic wills: generally

Answer 14

A will written wholly in the testator’s handwriting is not required to be attested by subscribing witnesses.
NO proxy signatures for holographic wills.

Question 15

Testamentary formalities for holographic wills: pre-printed text problem

Answer 15

Two tests depending on the state court:

1. Intent test: If the testator intended for the preprinted test to be include in the will, no longer holographic and must follow requisite formalities for attested wills.
2. Surplus test: As long as preprinted text is not a material provision, then it can stay a holographic will (modern view).

Question 16

Testamonium clause

Answer 16

A well drafted will will include a testamonium clause, though not required. Declares that the instrument is a will and states the date of execution. Testator signs directly below the testamonium clause.

Question 17

Attestation clause

Answer 17

A well drafted will will include, though not required. This recites that the testator duly executed the will. Found after the testator’s signature and the witnesses sign directly below it. A will that includes a properly drafted attestation clause should be admitted to probate in any state with a savings statute.

Question 18

Self-proving affidavit

Answer 18

A self-proved will is a will:
(1) to which a self-proving affidavit subscribed and sworn to by the testator and witnesses is attached or annexed; or
(2) that is simultaneously executed, attested, and made self-proved as provided by Section 251.1045.

NOT part of the will, it is a separate document.
Purpose: after the will is validly executed, the testaors & witnesses swear to what has happened before a notary who then notarizes the document.

Creates a presumption that the will is duly executed.

Question 19

Construction of the will: generally

Answer 19

Regardless of how carefully testators select the language used in their wills, all wills must be interpreted and constructed to some extent before their terms can be carried out.

Construction may arise prior to the will’s admission to probate, but most of the time they arise after it is probated.

Question 20

Construction of the will: Integration

Answer 20

External integration: refers to the process of establishing the testator’s will by piecing together all of the testator’s wills, codicils, and other testamentary instruments.

Internal Integration: Only those pages of the will present at the time the testator executed the will are entitled to probate. Internal integration is the process of making certain that the testor’s will contains no fewer and no more pages than it did when the testator executed it. Techniques include the testator and witnesses initialing each page.

Question 21

Construction of the will: Incorporation by Reference

Answer 21

Addendum to the 4 corners rule. A method for treating a document as testamentary in character even though that document is not physically part of the testator’s will. Court using extrinsic evidence.

Three requirements must be satisfied before a writing may be successfully incorporated by reference:

1. Intent: The testator must intend to incorporate the writing into the will
2. In-Existence: the writing the testator wishes to incorporate must have physically existed when the testator executed the will
3. Identification: The testator must identify the writing to be incorporated with sufficient specificity so that no other document could reasonably be referred to by that description.

Question 22

Construction of the will: Facts of Independent Significance

Answer 22

Another addendum to the 4 corners rule because use of extrinsic evidence.
courts adopted facts of independent significance doctrine. Can resort to extrinsic evidence if that evidence has significance other than who gets what under the will.

Question 23

Construction of the will: Tangible Personal Property Document

Answer 23

A limited number of states authorize a testator to use a separate writing to dispose of tangible personal property even though that writing does not meet the requirements of a will
NOT TX

Question 24

Construction of the will: Pour-over provision

Answer 24

Revocable inter vivos trust substitute! (On the exam, if there is an inter vivos trust, see if pour-over should apply as a substitute) A pour-over provision ensures an individual’s remaining assets will automatically transfer to a previously established trust upon their death.

Question 25

How may a will be validly revoked?

Answer 25

1.Subsequent document with like formalities
2. Physical destruction

Question 26

What is required to validly revoke a will?

Answer 26

Have testamentary capacity
Have testamentary intent to revoke
Must comply with the statutory formalities

Question 27

Why may a testator revoke their will?

Answer 27

The testator may change or revoke the will at any time with or without a reason.

Remember: a will has no legal effect until testator’s death. As long as the testator has mental capacity, the testator has full authority to change or revoke the will.

Only upon the testator’s death does the will become irrevocable!

Question 28

Concepts related to revocation BUT NOT technically revocation: Subsequent marriage

Answer 28

Depends on if testator is domiciled in common law or community property JX:

Common law: Majority rule: Forced statutory share: gives surviving spouse an election. Spouse can claim the statutory share or forego the statutory share in lieu of what they are entitled in the will (get to elect, not get both). If electing statutory share, they. disclaim under the will.

Community property: No JX says revocation. Instead, assumed that the surivivng spouse has a ½ interest in all community property. So, the testator has testamentary power over the ½ interest.

Question 29

Concepts related to revocation BUT NOT technically revocation: divorce after execution but before death

Answer 29

GAP: most states now have statutes that state that upon divorce, al provisions of a will executed during marriage in favor of an ex-spouse are void.

Void provision in favor of ex-spouse doesn’t revoke the whole will unless the whole estate is left to the ex-spouse.

Treat ex-spouse as pre-deceasing!

Same goes for step children or ex-relatives

Question 30

Concepts related to revocation BUT NOT technically revocation: Pretermitted heirs

Answer 30

GAP: A child must be born or adopted after the testator executed the will to receive a forced share as a pretermitted heir.

But, just because they were born after execution doesn’t give them an automatic inheritance right.

Depends on if accidentally or inadvertently disinherited.

If everything is left to the child’s mother, the child typically will not get anything!

Question 31

Revocation by operation of law includes:

Answer 31

Marriage of the testator
Divorce of Testator
Pretermitted Heirs
Death of Benficiary: see lapse vs. anti-lapse statute
Beneficiary killed testator
Alienation: If the testator makes an inter vivos transfer of an item subject to a specific devise or bequest in the testator’s will, that gift is revoked by operation of law.

Does NOT include:
Passage of time: wills do not expire, regarledless of how long between execution and death.
Change of relationship between testator and beneficiary is also irrelevant.

Question 32

Revocation by physical act

Answer 32

The testator may revoke a will by destroying it or otherwise physically performing some act upon the will that manifests the testator’s intent that the will is not to be used to determine the at-death disposition of the testator’s property.

Mere physical destruction of the will is NOT enough to trigger a revocation.

It is a testamentary act so must also have testamentary capacity and intent.

Question 33

Partial revocation by physical act:

Answer 33

Attested will:
TX (Majority but not GAP) says no partial revocation by physical act of an attested will.

Holographic will?
TX says yes partial revocation by physical act, so admitted in modified form. Testator “readopts” his original signature.

Question 34

Revocation by subsequent writing

Answer 34

1. New writing may be:
   a. A new will (most likely)
   b. An amendment to the existing will (codicil)
   c. A document that revokes the prior will but does not contain replacement dispositive provisions.
2. The subsequent writing may revoke the entire will or only the provisions specified by the testator.

Question 35

Conditional revocation:

Answer 35

A testator may execute a revoking instrument and expressly condition the revocation on the occurrence or nonoccurrence of a stated event or condition.

Question 36

Difference between interpretation and construction:

Answer 36

Interpretation: trying to figure out testator’s intent. Question of fact

Construction: question of law when interpretation fails. When actual intent is not discernable, concepts of law to determine the deemed intent.

Question 37

Types of testamentary dispositions

Answer 37

Specific gift
General gift
Residuary gift

Question 38

What is a specific gift

Answer 38

Real or personal property.

Testator’s intent is to devise a specific item that can only be satisfied by the PR delivering that specific item.

Question 39

What is a general gift

Answer 39

Usually personal, but can be real property.

Testator’s intent is for the executor to satisfy this intent out of the general assets of the estate (those not used to pay debts and not used to satisfy specific gifts.)

Most common is cash

Question 40

What is a residuary gift

Answer 40

What is left over after satisfying debts, specific, and general gifts. Goes to the residuary beneficiaries.

Most of the time the residuary is the largest, so primary beneficiary.

Question 41

Rule of survival

Answer 41

Dead guys can’t own or inherit. Difference between biologically dead and legally dead.

Same concept applies under wills where the beneficiary must survive the testator. BUT difference:

Survival under intestacy: no exception, must be 120 hours.

Survival under a will: Rule of construction so only used if the will is silent. 120 hours unless modified by the will.

Question 42

Rule of lapse

Answer 42

Tesatamentary gifts intended for a beneficiary who died before the testator will not take effect; the gift lapses. If the gift lapses, the gift is void!

May also lapse if they disclaim or if biologically survived but legally predeasesed (didn’t meet the survival period)

Question 43

Rule of anti-lapse

Answer 43

Anit-lapse does not apply when there is an express condition of survivorship in the will because there is a condition precedent to property that the taker does not meet.

Only applies if will is silent on survivorship and no alternative taker is listed by testator.

Unless the gift is a class gift (see below), if the beneficiary is a descendant of the testator or the testator’s parents, the descendants of the beneficiary take the gift.

Question 44

Rule of specificity:

Answer 44

Rule of construction for specific gifts.

If gift of real property, presumption is that the fit does not include personal property.

Question 45

Ademption by extinction

Answer 45

Rule of construction for specific gifts.

refers to the failure of a specific gift because the property is not in the testator’s estate when the testator dies.

Majority GAP: Identity theory. Very rigid. If the exact item the testator attempted to give away in the will is not in the testator’s estate, the gift adeems and the beneficiary receives nothing. Beneficiary does not receive the value of the attempted gift and cannot trace to the proceeds.

Question 46

Change in value:

Answer 46

Rule of construction for specific gifts.

Difference in value between date of execution and date of death is not considered when distributing the property.

Question 47

Corporate securities as specific gifts

Answer 47

If it is a specific gift: as of the time of death, beneficiary owns the property (subject to administration). So beneficiary is entitled to post death income! Dividends, rent, etc. During administration, executor collects, but must distribute. NOT pre-death income.

Question 48

Interest on legacies

Answer 48

When executor eventually delivers 100k to son, must deliver PLUS interest (which comes out of the residuary)

Question 49

Exoneration of specific gifts

Answer 49

Specifically devised or bequeathed property is often subject to encumbrances.

Modern rule (including TX, but not GAP) Takes subject to debt unless the will expresses otherwise.

Question 50

Ademption by satisfaction

Answer 50

Only general or residuary gifts, both real and personal.

the failure of a testamentary gift because the testator has already transferred the property ot the beneficiary between the time of will execution and time of death. (Analogous to the advancement concept in intestate succession.)

Question 51

Abatement

Answer 51

We know what debts we need to pay, the PR has marshalled (filed inventory)so the next question is, what if we don’t have enough cash to pay all of the debts (which is typical)?

Have to sell assets to raise the cash. The abatement process tells us the priority of what to sell to satisfy the debt:
a. property not disposed of by will, but passing by intestacy;
b. Residuary (Personal before real)
c. general (personal before real)
d. specific (personal before real)

Question 52

Election will

Answer 52

A will that attempts to give away property the testator does not own but is instead owned by a beneficiary of the will. The beneficiary must make an election between two alternatives:

1. The beneficiary could elect against the will. The testator cannot give away the beneficiary’s property without the beneficiary’s consent. So they could retain the property that the testator attempted to give away.
   a. But, the beneficiary is then precluded from accepting any of the benefits under the will.
2. The beneficiary could elect to take under the will. The beneficiary may now receive the benefits under the will but must renounce every right inconsistent with the will. So they must consent to the will’s disposition of the beneficiary’s property as a condition of enjoying any befits under the will.

Most common use of an elect will is between spouses who live in a community property marital property jurisdiction.

Question 53

Dislcaimer

Answer 53

The beneficiary of a will may disclaim property because a beneficiary is not obligated to accept any testamentary gift.

If the beneficiary properly disclaims, the disclaimed property passes under the terms of the will just as if the beneficiary had predeceased the testator (LAPSE)

Question 54

Ambiguity of the will

Answer 54

4 corners rule: Can only admit extrinsic evidence if the will is ambiguous!

Question 55

Precatory language

Answer 55

The testator’s instructions in a will regarding property disposition must be mandatory to be enforceable.

Precatory language is “I wish,” “I recommend” or “I suggest” and courts consider this language merely suggestive and not binding on the beneficiary.

Question 56

Judicial modification of the will

Answer 56

Not GAP, but modern trend. Court may reform the will post-death under certain circumstances.

1. To prevent waste or impairment of the estate’s administration
2. to achieve tax objectives
3. to correct scribe or clerk’s error in the terms. of the will.

Question 57

Class gifts

Answer 57

1. Opens upon Effective date of whatever the transfer is:
   a. Deed: Delivery and acceptance
   b. Will: Date of death
   c. Inter vivos trust: date created and funded
   d. Testatmentary trust: Date of death
2. Closes when a member of the class can demand subject and enjoyment. Not that they have to, but that they can.

Identifying members of the class. Resort to extrinsic evidence to identify members of the class.