Wills Flashcards
Will requirements for validity and admissibility in probate
(1) legal capacity
(2) testamentary capacity
(3) testamentary intent
(4) formalities
legal capacity exists when
at the time of will drafting, the testator is over 18 and of sound mind
testamentary capacity exists when
at the time of will execution, testator had the capacity to understand
(1) nature of the act of executing a will
(2) nature and extent of their property gifting
(3) who is the natural objects of their bounty, i.e., their family
(4) able to create a scheme of distribution
old, ill, addict, adjudicated insane are evidence of lack of testamentary capacity, but not conclusive
testamentary intent exists when
testator has the present intent of the document operating as a will.
when testamentary intent is uncertain, courts determine whether
(1) testator intended to dispose of their property as a gift to take effect on their death
(2) the document in question was intended to accomplish that disposition.
Will formalities of due execution
(1) in physical writing, or some allow e-wills
(2) two competent, usually disinterested attesting witnesses
(3) testator signature in the physical presence of each witness
(4) witnesses’ sign in the testator physical presence
(5*) sign at the end, publish to the witnesses “this is my will”, witnesses sign in each other’s presence
UPC Will formalities
same but allows for notary witness signature
UPC Harmless Error in Execution
If the will fails the formalities, the UPC allows the proponent to establish by clear and convincing evidence that the testator intended the document to be their will.
Holographic Will
a will written entirely in the testator’s handwriting with no attesting witnesses
Attested wills with holographic changes
if the jurisdiction does not recognize holographic wills, then the change will not be effective and may be a revocation.
If the jurisdiction recognizes, then the change will be given effect as a holographic codicil
A bequest is
a gift of personal property, not in a will. Ex. “$20,000 to A.”
A legacy is
a gift of personal property, usually money, in a will. Ex. “$20,000 to A on my death.”
A devise is
a gift of real property
A specific devise is
a gift of a particular item of real property distinct from other estate property “I leave Scotsdale located at 4444 Vaquero Drive to Thomas.”
A specific legacy is
a gift of a particular item of personal property distinct from other estate property “I leave my Razerblade Stealth 2013 13inch to Ben.”
A specific bequest but of a general nature is
a gift of a property that is not distinguishable from the rest of estate property until death. Ex. “I leave my computer to Ben.”
A general legacy is
a gift of general economic benefit payable out of the general assets of the estate without naming the asset
Ex. 100 shares of XYZ stock but T never owned those during his lifetime. Intended for estate to purchase and gift
A demonstrative legacy is
a gift of a general amount of economic benefit from a particular fund
Under the identity theory, Ademption by Extinction is
when a specific devise or bequest is not identifiable in the estate at death, the gift is adeemed and the intended beneficiary takes nothing.
Statutory Exceptions to ademption by extinction
(1) replacement property with another similar item that the beneficiary could reasonably be intended to receive
(2) purchaser of the adeemed property still owes money, beneficiary gets the remaining proceeds
(3) proceeds from condemnation, insurance, or guardian sale
Ademption of Gift by Satisfaction,
is like advancement intestacy, testator gives a testamentary gift after the execution of the will intending it to satisfy their inheritance. Requires
(1) a writing in the will.
(UPC) says satisfaction in the will, testator has contemporaneous writing, or the devisee acknowledges in writing
If it is specifically devised property that was advanced and the same property is in the will, then there is no writing requirement, thus an ademption and a satisfaction of the gift.
Accessions in Property Devised
After execution, special rules for beneficiary taking or not taking probate property
Specific property’s change in value is irrelevant
Income from land goes to the estate, improvements go to specific devisee
Purchasing new stocks goes to residuary
Receipt of bequeathed stocks by dividend goes to residuary, UPC goes to specific beneficiary
Exoneration of Liens
Common law, specific devised property have liens exonerated by the estate funds.
UPC and modern, beneficiary takes subject to, unless the will says otherwise
Abatement of Testamentary Gifts
reducing classes of testamentary gifts pro rata in an order when the estate cannot pay all the claims. Reduction order
(1) intestacy shares
(2) residuary estate
(3) general legacies
(4) demonstrative legacies
(5) specific bequests and devises
Lapse of Testamentary Gift
beneficiary predeceases by death, disclaimer, slayer, divorce, annulment
No residue of a residue
common law, when anti-lapse statute does not apply, the other residuary beneficiaries do not share a predeceased residuary beneficiaries share because it passes by intestacy.
Modern law, when anti-lapse statute does not apply, they may share the predeceased residuary beneficiaries share.
If anti-lapse statute applies, then the residuary beneficiaries descendants take the share and the other residuary do not share the share.
Class gifts
only the surviving members of the class take a share of the gift, unless will says otherwise or the anti-lapse statute applies.
Patent Ambiguity
on it’s face, no sensible meaning
CL, no extrinsic evidence
Modern, extrinsic admissible to provide meaning, NOT fill in
Latent Ambiguity
on its face, meant something, but in fact is ambiguous and needs meaning
extrinsic evidence
Not ambiguous, but Mistake
CL, words are clear, application is clear, plain meaning rule bars extrinsic evidence of mistaken intent
Modern, allows extrinsic to carry out true intent.
Will incorporates another document
requires
(1) intent to incorporate document into the will
(2) doc in existence at time of will execution *UPC allows for will stating later list of tangible personal property to be incorporated
(3) doc is sufficiently identified, referenced, and described in will.
Acts or Facts of Independent Significance
Permits the testator to change the disposition of his property without changing the will if there is a valid purpose for avoiding the will formalities.
The property owned and the beneficiaries under the will at the time of execution may validly change because the testator’s later acts have independent legal significance other than avoiding the will formalities
Applies to:
(1) specific gifts of a general nature, my car to A then sells and buys a nicer car
(2) class gifts, my money to my employees and then fires employees
(3) gifts to “my spouse”
(4) gifts of contents, my safety deposit box then takes everything out
Republication of Valid Will by Codicil
Codicil must have valid formalities, but the will and the codicil combine to speak from the date of the last codicil’s execution
Validation of Defective Will by Valid Codicil
Old will is not republished but validated by incorporating the defective will as a document incorporated by reference if so intended, and sufficiently identified referenced and described in will.
Contractual Wills
the execution or nonrevocation as such is the consideration for a contract. K law applies, which means SoF applies, which means the K is in a signed writing and the Will must reference the K
Revocation of Will requires
(1) Testamentary Capacity
(2) Before Death
(3) By operation of law, subsequent instrument, or physical act,
Revocation by Operation of Law
(1) Marriage after Execution - CL, no effect. UPC, omitted spouse intestate share unless terms intended or made in contemplation
(2) Final Divorce or Annulment after Execution - revokes all gifts and rights from ex, UPC goes far to family of ex.
(3) Omitted Child - revoked as if abated from residue share *unless all given to parent
Revocation by Operation of Law
(1) Marriage after Execution - CL, no effect. UPC, omitted spouse intestate share unless terms intended or made in contemplation
(2) Final Divorce or Annulment after Execution - revokes all,
Intestate Share for Surviving Spouse
Most states, 1/2 or 1/3 if had children and all if no children
UPC, all if had children and all if had no children and no parents
Intestate Share for Nonmarital Children
They always inherit from mother
May inherit from father if (1) marries mother (2) paternity test
Intestate Share of Half-blood
Most states and UPC, no distinction from full blood so inherit equally
Intestate Share of Posthumous Children
Most states allow person to be an heir
Some states have a statutory birth deadline
Intestate Share of Stepchildren
Generally, don’t inherit from stepparent unless adopted.
But adoption by estoppel may allow inheritance if prove they promised to adopt.
Intestate Share of Adopted Children
Generally, they are treated the same as biological children taking and giving through the adoptive parents.
Some states, varying, cut off inheritance from the biological parents.
