Wills Flashcards
What is a holographic will?
Priority: High
A holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed.
Can a life insurance policyholder change their beneficiary?
Priority: Medium
A life insurance policyholder has the power to change beneficiaries during their lifetime. However, such a change is generally not permitted through a will, and must be changed on the policy directly.
How can a document be incorporated into a will by reference?
Priority: High
In most states, a document or writing may be incorporated into a will by reference if: (1) it EXISTED AT THE TIME THE WILL WAS EXECUTED; (2) it is SUFFICIENTLY DESCRIBED in the will; and (3) the testator INTENDED to incorporate it into the will.
Under common law, what happened if a beneficiary died before the testator?
Priority: High
Under common law, all gifts in a will were conditioned on the beneficiary surviving the testator. Any gifts to beneficiaries who did not survive the testator FAILED and passed to the residuary estate or under intestacy.
With an anti-lapse statute, what happens to a gift where the beneficiary predeceased the testator in a jurisdiction with an anti-lapse statute?
Priority: High
Under the majority of anti-lapse statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.
What happens when the assets of an estate are insufficient to pay all gifts and creditors?
Priority: High
Gifts by will are abated, or reduced, when the assets of the estate are insufficient to pay all debts and legacies.
Creditors of the estate always have priority to assets of the estate over beneficiaries.
How are gifts abated absent a provision in the will?
Priority: High
Absent provisions in the will, gifts are abated in the following order: (1) property passing by intestacy; (2) residuary gifts; (3) general gifts; (4) specific gifts.
Each category must be fully abated before moving onto the next category
Abatement within each category is in proportion to the amounts of property each of the beneficiaries would have received
Who has standing to challenge a will?
Priority: Low
Only an interested party with a financial interest may challenge a will, which is a person that is adversely affected by the will being admitted to probate.
What is the mental capacity requirement?
Priority: Medium
In order to validly execute a will, a testator must have mental capacity.
Mental capacity is presumed.
When does a testator have the mental capacity to execute a will?
Priority: Medium
A testator has mental capacity if they know (1) the nature and extent of their property, (2) the natural objects of their bounty (people with the highest interest to the property), (3) the disposition they are attempting to make, and (4) the ability to connect these elements to form a coherent plan.
Under common law what is required for a will to be valid?
Priority: Medium
At common law, strict compliance with the formal requirements of a state’s law is required.
When will courts probate a non-compliant will under the UPC approach?
Priority: Medium
A minority of jurisdictions and the UPC have granted courts the power to probate a non-compliant will in situations when there is clear and convincing evidence that the decedent intended for the document to serve as their will and has substantially complied with the statutory formalities.
How is the validity of a will determined?
Priority: Low
At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.
Under the UPC, validity is determined under the law of the place where (1) the will was executed, or (2) the testator is domiciled, has a place of abode, or is a national at the time of death.
How is the validity of a will determined?
Priority: Low
At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.
Under the UPC, validity is determined under the law of the place where (1) the will was executed, or (2) the testator is domiciled, has a place of abode, or is a national at the time of death.
How is the validity of a will determined?
Priority: Low
At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.
Under the UPC, validity is determined under the law of the place where (1) the will was executed, or (2) the testator is domiciled, has a place of abode, or is a national at the time of death.
Can a will be conditional?
Priority: Medium
The validity of a will can be conditioned on a particular event or circumstance.
However, whenever possible, the court will construe excess language as a mere explanation or instruciton, rather than a barrier to admitting the will to probate as a valid instrument.
What does a court consider to determine whether a will was conditional?
Priority: Medium
The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will.
The court considers factors such as where the will was stored after the purported “condition” lapsed, whether setting the will aside would result in intestacy, and whether effectuating the will would result in an inequitable distribution.
When, and how, is a will construed/interpreted?
Priority: Medium
Under the general rule of construction, a will “speaks” as of the time of death.
Courts are reluctant to disturb the plain meaning of a will regardless of mistake.
How will courts resolve ambiguities in a will?
Priority: Medium
If there is an ambiguity, courts allow extrinsic evidence to resolve it.
Traditionally, courts distinguished between patent and latent ambiguities; however, many states no longer make this distinction
What would happen to a gift if the beneficiary predeceased the testator under common law?
Priority: Medium
Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition.
What would happen to a gift if the beneficiary predeceased the testator under common law?
Priority: Medium
Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition.
What are pretermitted heir statutes?
Priority: High
Pretermitted heir statutes allow children of a testator to claim a share of the estate even though they were omitted from the testator’s will.
What happens when a child is born after the execution of a will?
Priority: High
While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will.
If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.
What rights does a child have if they are left out of a will?
Priority: Medium
Generally, a child has no rights to their parent’s estate if the parent chooses to leave him or her out of the will.
The only time a child will have rights when omitted from a will, is if the child is a pretermitted child.
