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BAR EXAM > Wills > Flashcards

Wills Flashcards

1
Q

Why do we require strict compliance with wills formalities?

A

Because there is no constitutional right to exercise dead hand control - it is a privilege.

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2
Q

What are some common will substitutes, and why would you use them?

A

They avoid the costs and inconvenience of probate. Examples include:
-inter vivos outright gifts
-inter vivos living trusts
-future interests
-co-ownership of property (joint tenancy has right of survivorship)
-life insurance
-bank arrangements (Totten trusts, joint or survivor accounts, POD designations)
-Deeds

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3
Q

What are the two forms of intestacy?

A
  1. Total intestacy - decedent dies without a will or their will is denied probate
  2. Partial intestacy - will does not dispose of all property (gift failed, no residuary clause)
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4
Q

What is intestate succession?

A

Distributes property to people who society views as “proper” after the intestate’s debts and taxes are paid. Distribution scheme cannot be altered to fit decedent’s intent.

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5
Q

What law applies for intestate succession?

A

If decedent was married, use the law of the domicile at the time the property was acquired.

Otherwise, use law decedent’s domicile at death for personal property and law of the situs of the property for real property.

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6
Q

What is the intestate share of the surviving spouse?

A

Common law: widow gets dower (life estate in 1/3 of real property husband owned during marriage), widower gets curtesy (life estate in all wife’s real property if child was born to marriage).

Modern law: spouse is heir (amount they take varies by state, but they will often take entire estate if there are no descendants or if the only descendants are also descendants of the surviving spouse).

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7
Q

What is the intestate share if all children survive?

A

Equal shares of the portion of the estate that does not pass to the surviving spouse.

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8
Q

What are the methods of computing shares if at least one descendant predeceased the decedent?

A
  1. Classic Per Stirpes: one share created for each child and one share for each deceased child who has at least one surviving descendant.
  2. Per capita with representation (majority rule): property divided into equal shares at first generation where there are living takers. Each living person at that level takes a share, and the share of a deceased person at that level passes to their issue.
  3. Per capita at each generation (modern trend): make initial division of shares at first generation where there are living takers. Pool shares of lower generations so each person receives an equal share.
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9
Q

What is the intestate succession order under a typical statute?

A

Proceed down list until takers are found:
-Spouse and/or descendants
-Parents
-Descendants of parents (siblings and descendants)
-Maternal and/or paternal grandparents & descendants (aunts, uncles, cousins, etc.)
-Nearest maternal and/or paternal kin
-the state

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10
Q

How are adopted children treated for purposes of intestate succession?

A

Same as biological children of adopting parents. Generally no inheritance in either direction between adopted children and biological parents, unless a biological parent marries an adopting parent.

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11
Q

How are stepchildren and foster children typically treated for purposes of intestate succession?

A

No inheritance rights unless adopted.

Exception: adoption by estoppel permits a children to inherit from or through stepparent or foster parent when legal custody is gained under an unfulfilled agreement to adopt.

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12
Q

How are nonmarital children treated for purposes of intestate succession?

A

Mother: child always inherits
Father: child will inherit if father married mother after child’s birth, man was determined to be father in paternity suit, or man is proved by clear and convincing evidence to be father during probate

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13
Q

How are half vs. whole blood siblings treated?

A

UPC/majority rule: no distinction, they inherit equally
Minority: half bloods have half shares or are cut out entirely if whole blood siblings exist

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14
Q

How are posthumous children treated for purposes of intestate succession?

A

Most states: if person is in gestation at the time of the intestate’s death, they can be an heir

Some states: child who is born within statutory period can inherit under specified circumstances.

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15
Q

How are disinheritance clauses treated for intestate succession?

A

Common law/majority rule: will provision expressly disinheriting is ineffective as to property passing by intestacy

UPC/minority rule: testator may exclude right of individual to succeed to property passing by intestate succession.

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16
Q

What is an advancement?

A

A lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate. If an advancement is found, the gift’s value is added back into the estate to calculate shares, then subtracted from the recipient’s share (hotchpot)
Common law: a substantial lifetime gift to a child was presumed an advancement
Modern: lifetime gift presumptively not an advancement unless shown to be intended as such (UPC requires a writing)

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17
Q

What happens in the case of simultaneous deaths?

A

USDA: disposition depends on order if death; if order cannot be established, property of each decedent is disposed of as if they had survived the other.
UPC (120 hour rule): A person must survive decedent by 120 hours to take any distribution of the decedent’s property.

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18
Q

How does disclaiming work?

A

An heir or beneficiary may disclaim their interest (can’t be forced to accept an inheritance). Most states require disclaimer to be written, signed by disclaimant, acknowledged before notary, and filed within 9 months of death.

Effect: property passes as if the disclaimant had predeceased the decedent.

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19
Q

What happens if the decedent’s death is caused by heir or beneficiary?

A

Majority rule: a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate.

Occurs through a slayer statute or the imposition of a constructive trust.

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20
Q

What is the difference between a will and a codicil?

A

A will is an instrument executed with formalities, revocable during lifetime and operative at death. A codicil is a supplement to a will that modifies it.

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21
Q

What is the applicable law to determine the validity and effect of a will?

A

Real property: state where property is located
Personal property: state where testator is domiciled at time of death
Savings statute (majority rule/UPC): will is admissible to probate if executed in accordance with law of that jurisdiction, state where will was executed, testator’s domicile when will was executed, or testator’s domicile at death.

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22
Q

What is the required legal capacity to make a will?

A

Must be 18 and of sound mind

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23
Q

What are the requirements of testamentary capacity?

A

Testator must understand at the time the will was executed:
1. Nature of act
2. Nature and extent of their property
3. Persons who are natural objects of their bounty
4. All of the above in order to formulate an orderly scheme of disposition

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24
Q

What is the requirement of testamentary intent?

A

Testator must have present intent that the instrument operate as their will. Promises and ineffective deeds are not given effect.

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25
Q

What are some of the common formalities for wills?

A

-in writing
-signed by testator (or by someone else at the testator’s direction and in their presence)
-2 attesting witnesses
-testator signs will in the presence of witnesses
-witnesses sign in testator’s presence

Other requirements may include: signing at the end of the will, publishing the will, witnesses signing in the presence of each other

UPC requires two competent witnesses OR signature by notary

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26
Q

Can a witness to a will be interested?

A

Common law: witness who was beneficiary was not competent
Modern: will is valid, but bequest to interest witness may be void under purging statute unless the witness was supernumerary

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27
Q

What is a self-proving affidavit?

A

Recites that all elements of will execution were performed and is sworn to by testator and witnesses before a notary. Functions like a depo so witnesses don’t have to show up in court later.

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28
Q

What is a holographic will?

A

One that is entirely in the testator’s handwriting with no attesting witnesses.

UPC and majority of states require that at least the material portions be in the testator’s handwriting.

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29
Q

Do most states and the UPC recognize oral (noncupative) wills?

A

NO

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30
Q

What is the difference between a devise, a bequest, and a legacy?

A

Devise: gift of real property
Bequest: gift of personal property
Legacy: gift of personal property in a will

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31
Q

What is a specific devise or legacy?

A

Gift of a particular item of property distinct from all other objects in the testator’s estate.

32
Q

What is a specific bequest of a general nature?

A

One that is not distinguishable from the rest of the testator’s estate until the testator dies (i.e. my car, my computer)

33
Q

What is a general legacy?

A

A gift of general economic benefit payable out of the general assets of the estate without requiring any particular source of the payment?

34
Q

What is a demonstrative legacy?

A

A gift of a general amount that is to be paid from a particular source or fund. If the particular source is insufficient, the balance will usually be paid from other assets of the estate.

35
Q

What is the residuary estate?

A

The balance of the testator’s property after paying debts, expenses, taxes, and specific, general, and demonstrative gifts.

36
Q

What is ademption by extinction, and what sort of gifts does it apply to?

A

Failure of a gift because the property is no longer in the testator’s estate at the time of their death. Applies only to specific devises and bequests. The beneficiary will not take a substitute gift or the value of the gift, even if the proceeds are identifiable.

If only partially adeemed, the beneficiary will take the remaining portion.

37
Q

What are some common exceptions to ademption?

A

-Replacement property
-Balance of purchase price
-Proceeds of condemnation award or insurance
-Proceeds from sale by guardian or conservator

38
Q

What is ademption by satisfaction?

A

A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect. Must have intent at the time of gift and a writing to that effect.

39
Q

What happens if property increases after the execution of will?

A

-Appreciation and depreciation of specifically gifted property is irrelevant
-At common law, specific bequest of stock includes additional shares produced by stock split
-UPC/majority rule: additional shares from stock dividends and stock split are included

40
Q

What is abatement, and in what order will testamentary gifts abate?

A

Reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises.
Order:
1. Property passing by intestacy
2. Residuary estate
3. General legacies
4. Demonstrative elgacies
5. Specific bequests and devises

41
Q

What is an anti-lapse statute?

A

Operates to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator if there is no contrary provision in the will. Descendants will take by substitution.

Words of survivorship will negate the anti-lapse statute under the common law, but not under the UPC.

42
Q

What are the rules about lapses in residuary gifts?

A

Common law: no residue of a residue (deceased beneficiary’s share passes by intestacy)
Modern: surviving beneficiaries can divide the share in proportion to their interests in the residue.

43
Q

What is a patent ambiguity, and how is it treated?

A

When a provision is ambiguous on its face (fails to convey a sensible meaning). Modern view is that extrinsic evidence is admissible to correct.

44
Q

What is a latent ambiguity, and how is it treated?

A

Exists when the language of the will is clear on its face but cannot be carried out without further clarification. The court will consider extrinsic evidence to resolve.

45
Q

What happens when there is a mistake in a will (provision is clear, but interested person thinks there is error)?

A

Traditional: extrinsic evidence cannot be used to disturb the clear meaning of a will (promotes predictability)
Modern: use of extrinsic evidence to help court carry out testator’s intent

46
Q

What is incorporation by reference?

A

A testator may incorporate an extraneous document into the will by reference if:
1. the will manifests an intent to incorporate the document;
2. the document is in existence at the time the will is executed; and
3. the document is sufficiently described in the will.

Exception: UPC and many states allow a person to refer to a list of tangible personal property that is written or altered after the will is executed.

47
Q

What are acts or facts of independent significance?

A

Something outside of a will that has a purpose other than disposing of property at death. A will can dispose of property by referencing such acts and events.

48
Q

What is a conditional will, and how is it treated?

A

One that provides that it is to be operative only if a certain event occurs or does not occur. Courts will construe as general, not conditional, if possible.

49
Q

What is the effect of a codicil?

A

Codicils must be executed with the same formalities as wills. The will and the codicil will be treated as one instrument speaking from the date of the last codicil’s execution.

50
Q

What is a pour-over provision?

A

A provision in a will making a gift to an inter vivos trust that is created before or after the testator executes the will.

51
Q

What are contractual wills, and are they valid?

A

A will executed or not revoked as the consideration for a contract. Yes, they are valid, and they are governed by contract law. If one party breaches, constructive trust may be a remedy.

52
Q

What is a power of appointment?

A

The authority granted to a person to designate, within the prescribed limits, the persons who shall take the property and the manner in which they will take it. It can be presently exercisable or testamentary.
-General: power exercisable in favor of anyone, including the donee.
-Special: exercisable in favor of a limited class of appointees not including the donee.

53
Q

How might a will be revoked by operation of law?

A

-Marriage following will (new spouse may take intestate share)
-Divorce or annulment revokes provisions in favor of former spouse & relatives
-Pretermitted children (testator fails to provide for any later-born or adopted children)

54
Q

When is a revocation of a will effective?

A

When the testator has the intent to revoke concurrent with the revoking act. This may be done by proxy, but usually must occur within the testator’s presence.

55
Q

What is the effect of a will revocation on a codicil and vice versa?

A

Revoking a will revokes all codicils, but revoking a codicil does not revoke the entire will.

56
Q

What are the presumptions related to revocation:

A
  1. Will is found in a normal location with no suspicious circumstances: presumed no revocation
  2. Will was last seen under testator’s control and cannot be found/is found in mutilated condition: rebuttable presumption of revocation
57
Q

When can a lost or destroyed will be admitted to probate?

A

If the rebuttable presumption of revocation is overcome, it will be admitted if the following is proven: valid execution, cause of nonproduction, and contents.

58
Q

What is the fact pattern for a revived will?

A

Testator executes valid Will 1
Testator executes valid Will 2 which expressly revokes Will 1
Testator then validly recovers Will 2

59
Q

What are the approaches to revival?

A

-UPC: previous will remains revoked unless it is evident from circumstances that testator intended to revive
-Automatic: revoking will did not take effect because it was revoked prior to testator’s death
-No revival: the earlier will can only be revived if it is reexecuted or republished by a valid codicil

60
Q

What is the fact pattern for dependent relative revocation?

A

Testator executes valid Will 1
Testator validly revokes Will 1
Testator executes Will 2, but Will 2 is invalid

61
Q

When does the doctrine of dependent relative revocation apply?

A

When a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for that mistaken belief, the testator would not have revoked the will. The more similar the provisions of the two wills, the more likely the court will apply DRR.

62
Q

What are some of the protections for families?

A

-Statutory elective share for spouses in lieu of taking under the will
-pretermitted child statutes (children that are born or adopted after will was executed)
-Homestead exemption (family residence or farm despite disposition in will)
-Family allowance (provides support during probate administration, in addition to what they take under will)
-Exempt personal property (tangible personal property, in addition to what they take under the will)

63
Q

What are the exceptions from the pretermitted child statute?

A

-testator had other children and devised substantially all of their estate to the other parent of the omitted child
-omission appeared to be intentional
-testator provided for some child outside of the will

64
Q

Who has standing to challenge a will, and who has the burden of proof?

A

Only interested parties - includes heirs, possibly beneficiaries of prior wills

The challenger will bear the burden of proof

65
Q

What are the general grounds for challenging a will

A

Defective execution, revocation, lack of testamentary capacity, lack of testamentary intent, undue influence/duress, fraud, mistake.

66
Q

What is an insane delusion?

A

Belief in facts that do not exist and that no rational person would believe existed. Destroys testamentary capacity only if there is a nexus between the insane delusion and the disposition.

67
Q

What are the elements of undue influence?

A

-Influence existed and was exerted;
-Effect of influence was to overpower the mind and free will of the testator; AND
-resulting disposition would not have been executed but for the influence (causation)

Since direct evidence is usually unavailable, court will consider different factors. There is a presumption of undue influence in confidential relationships (except spouses).

68
Q

What are the elements of fraud?

A

-False representation made to testator
-Knowledge of falsity by person making statement
-Testator reasonably believed statement
-Statement caused testator to execute a will or make a particular disposition that they would not have made but for the misrepresentation.

69
Q

What are the two types of fraud?

A
  1. Fraud in the execution (misrepresentation as to identity or contents of the instrument
  2. Fraud in the inducement (testator knows they are executing a will and what it contains, but is deceived as to some extrinsic fact and makes the will or gift based on that fact)
70
Q

What are the two types of mistake?

A
  1. Mistake in the execution - relief where mistake is obvious (testator is in error regarding the identity or contents of the instrument and thus lacks testamentary intent)
  2. Mistake in the inducement - no relief (testator is mistaken as to some extrinsic fact and makes their will based on that erroneous fact)
71
Q

How does the UPC treat mistake?

A

A court may reform a will, even if the will is unambiguous, to conform to testator’s intent if it is proven by clear and convincing evidence that testator’s intent and terms of the will were affected by a mistake of fact or law.

72
Q

What is an in terrorem clause?

A

A no-contest clause - provides that a beneficiary forfeits their interest in the estate if they contest the will and lose. Valid and enforceable under the UPC and in most states unless the beneficiary had probable cause for bringing the contest.

73
Q

What is the difference between an executor and an administrator?

A

An executor is named in the will, while an administrator is appointed by the court.

74
Q

What is a living will?

A

States individual’s desires regarding life-sustaining procedures, artificial nutrition/hydration, and treatment to alleviate pain

75
Q

What is a durable healthcare power?

A

Appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal is incapacitated.

76
Q

How do you create a living will or durable healthcare power?

A

Most states require a writing signed by the declarant and witnessed by two adult witnesses.

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