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Wills Flashcards

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1
Q

What is the Classic Per Stirpes method of distribution?

A

One share is created for each child and one share for each deceased child WHO has at least one surviving descendant.

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2
Q

What is the Per Capita with Representation method of distribution?

A

A decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are living takers.

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3
Q

What is the Per Capita at Each Generational Level method of distribution?

A

The initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Persons in the same degree of kinship to the decedent always take equal shares.

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4
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.

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5
Q

What is the presumption for an Advancement under common law?

A

A substantial lifetime gift to one of the decedent’s children was presumed an advancement.

However, most courts now apply the doctrine to any heir, but reverse the presumption.

A lifetime gift is presumptively not an advancement unless shown to be intended as such.

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6
Q

UPC States, go further, finding an advancement only if it is:

A

1) Declared as such in a contemporaneous writing by the donor; OR

2) Acknowledged as such in a writing by the heir (which need not be contemporaneous)

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7
Q

What is the procedure if advancement is found?

A

If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.

The advancement goes into the “hotchpot”

The heir need not return the amount of an advancement in excess of the value of their interstate share.

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8
Q

Under the UPC, a person cannot take as an heir or will beneficiary unless they survive the decedent. Does the UPC follow the Uniform simultaneous death act or the 120-hour rule?

A

120-hour rule (5 days)

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9
Q

What is a disclaimer?

A

A recipient (heir, Will beneficiary, surviving joint tenant, etc.,) can disclaim an interest

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10
Q

What are three reasons for why an heir or beneficiary would disclaim their interest?

A

1) Burdensome - for example, the fear of liability if property contains a toxic waste dump

2) Tax - Disclaimed property is not treated as a gift from the disclaimant to the eventual recipient.

3) Avoid creditors - In many States, disclaimed property cannot be reached by the disclaimant’s creditors (however, a disclaimer cannot be used to defeat a federal tax lien).

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11
Q

What is the Slayer Statute?

A

A person who feloniously or intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate.

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12
Q

What is a Will?

A

An instrument executed with certain formalities that usually directs the disposition of a person’s property at death.

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13
Q

What is a Codicil?

A

A testamentary supplement to a Will that modifies it.

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14
Q

What State law is applied for real property in the Will?

A

Where the property is located.

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15
Q

What State law is applied for personal property in the Will?

A

Testator’s domicile at the time of death.

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16
Q

What is the legal capacity that a testator must have?

A

Testator normally must be at least 18 years old and of sound mind at the time the testator makes a Will.

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17
Q

What is the testamentary capacity a testator must have?

A

A testator need not have the higher level of capacity required for contracts. A testator simply must have the capacity to understand:

1) The nature of their act - that is, that the testator is executing a Will;

2) The nature and extent of their property;

3) The persons who are the natural objects of their bounty (family members);

4) The above factors and able to formulate an orderly scheme of disposition.

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18
Q

The testator must have present intent that the instrument operate as their Will.

Testamentary intent will be found only if it is shown that the testator:

A

1) Intended to dispose of the property;

2) Intended the disposition to occur only upon his death; AND

3) Intended that the instrument in question accomplish the disposition.

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19
Q

To be valid and admissible to probate, a Will must meet the formal requirements of due execution imposed by the statutes of the appropriate State.

Most States require that:

A

1) The Will or Codicil must be in writing;

2) The Will or Codicil be signed by the testator;

3) There be two attesting witnesses;

4) The testator sign the Will in each of the witness’ presences; AND

5) The witnesses sign in the testator’s presence.

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20
Q

Under the UPC, a Will is valid if either:

A

1) It is attested by two competent witnesses; OR

2) It is signed by a notary.

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21
Q

What is a holographic Will?

A

It is entirely in the testator’s handwriting and has no attesting witnesses.

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22
Q

Do Most States and the UPC recognize oral Wills?

A

NO

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23
Q

What is a Devise?

A

A gift of real property

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24
Q

What is a Bequest?

A

A gift of personal property

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25
Q

What is a legacy?

A

A gift of personal property in a Will (usually money) and the recipient is called a Legatee

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26
Q

What is a Specific Devise or Legacy?

A

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

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27
Q

What is a General Legacy?

A

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

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28
Q

What is a Demonstrative Legacy?

A

A gift of a general amount that is paid from a particular source or fund.

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29
Q

What is the residuary estate?

A

Consists of the balance of the testator’s property after paying:

1) debts, expenses, and taxes; AND

2) Specific, general, and demonstrative gifts.

30
Q

What is Ademption by Extinction?

A

The failure of a gift because the property is no longer in the testator’s estate at the time of their death.

31
Q

When does Ademption apply?

A

ONLY to specific devises and bequests.

32
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.

UPC requires testator to provide for satisfaction in the Will or in a contemporaneous writing, OR the devisee acknowledges (in writing) the gift as one in satisfaction.

33
Q

Under the UPC, are liens on specifically devised property exonerated (paid off with estate funds)?

A

Yes, unless the Will so directs.

This means the beneficiary takes the property subject to the debt.

34
Q

What is Abatement?

A

The process of 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.

Testamentary gifts (unless contracted otherwise) will usually abate in the following order:

1) Property passing by intestacy
2) Residuary estate
3) General Legacies
4) Demonstrative Legacies
5) Specific bequests and devisees

35
Q

What is a lapsed gift?

A

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator.

36
Q

Who receives a lapsed gift is controlled by:

A

1) The express terms of the Will
2) Rule of law (such as an anti-lapse statute)
3) Residuary clause
4) Intestacy

37
Q

Who raises interpretation and construction issues?

A

1) The personal representation who wants to do the right thing and thus avoid liability for improper administration

2) Beneficiaries or heirs who would take under various Will interpretations.

38
Q

When there is no evidence of the testator’s intent, the courts resort to the following rules of construction:

A

1) If the Will exists (especially if it has a residuary clause), it indicates an intent not to die intestate.

2) Among two or more contradictory provisions in a Will, the last one prevails

3) The Will is construed as a whole, not from isolated parts out of context

4) Words are given their ordinary and grammatical meaning unless it is clear from the Will that the testator intended otherwise

5) Technical words are given their technical meaning unless it is clear from the Will that the testator intended otherwise

6) Attempt to give effect to all words the testator included in the Will

39
Q

What is a Patent (obvious) Ambiguity?

A

A patent ambiguity exists if a provision is ambiguous on its face. It fails to convey a sensible meaning.

Traditional view - no extrinsic evidence to correct it

Modern view - extrinsic evidence is find to correct it; cannot be used to fill in blank spaces or supply omitted gifts.

40
Q

What is a Latent (hidden) Ambiguity?

A

A latent ambiguity exists when the language of the Will is clear on its face but cannot be carried out without further clarification.

Court will consider extrinsic evidence to resolve the ambiguity

41
Q

No Apparent Ambiguity - Mistake.

Under the plain meaning rule:

A

Extrinsic evidence cannot be used to disturb the clear meaning of a Will. The rule enhances predictability for both the testator and the testator’s attorney because a testator can rest assured that the words chosen will take effect as written.

42
Q

No Apparent Ambiguity - Mistake

Under the Modern Rule:

A

Courts permit the use of extrinsic evidence.

Evidence is significant and assists the court to carry out the testator’s intent.

43
Q

What is incorporation?

A

Instead of writing something in the Will, a testator may incorporate an extraneous document into the Will by reference. It is treated as if it were actually written out in full in the Will.

44
Q

What are the requirements for incorporation? A document may be incorporated by reference into a Will if:

A

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.

45
Q

What is a Conditional Will?

A

It is to be operative only if a certain event occurs or does not occur.

Parol evidence is not admissible to show that a Will absolute on its face was intended to be conditional.

46
Q

What is the doctrine of Republication by Codicil?

A

The Will and codicil are treated as one instrument speaking from the date of the last codicil’s execution. The prior will must be valid.

47
Q

What is a power of appointment?

A

An authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.

48
Q

What is a General Power of Appointment?

A

A power exercisable in favor of anyone including the donee, their estate, their creditors, OR the creditors of their estate.

49
Q

What is a Special Power of Appointment?

A

A power exercisable in favor of a limited class of appointees, which class does NOT include the donee, their estate, their creditors, or the creditors of their estate.

50
Q

In general, a person with testamentary capacity may revoke their Will at any time prior to death. A Will may be revoked by:

A

1) Operation of law

2) By subsequent instrument OR

3) By physical act

51
Q

In most States, marriage following execution of a Will has NO EFFECT on the earlier Will.

Under the UPC, the new spouse takes an intestate share as an “omitted spouse” UNLESS:

A

1) The Will makes provision for the new spouse;

2) The omission was intentional; OR

3) The Will was made in contemplation of the marriage.

52
Q

What happens to an earlier Will when a divorce happens?

A

Divorce revokes all gifts and fiduciary appointments in favor of the former spouse.

53
Q

What are Pretermitted Children?

A

The testator failed to provide in their Will for any child born or adopted after the execution of the Will.

54
Q

How does a testator revoke by physical act?

A

The testator must have the intent to revoke and then physically destroy the Will.

55
Q

What is the typical fact pattern involving the revival of revoked Wills?

A

1) Testator executes valid Will 1

2) Testator executes valid Will 2 which expressly revokes Will 1

3) Testator then validly revokes Will 2

4) Is Will 1 revived?

56
Q

There are three methods to determining the revival of a revoked will:

A

1) UPC Approach - look at testator’s intent

2) Automatic revival approach

3) No revival approach

57
Q

What is a typical fact pattern involving dependent relative revocation (“DRR”)?

A

1) Testator executes valid Will 1

2) Testator validly revokes Will 1 (i.e., ripping it up)

3) Testator executes Will 2, but Will 2 is invalid (i.e., it was not properly witnessed)

58
Q

When does the DRR apply?

A

It applies when a testator revokes their Will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the Will.

If the other disposition fails, the revocation also fails and the Will remains in force.

59
Q

To determine whether DRR applies, we ask the following questions:

A

1) Was the revocation of Will 1 impliedly conditioned on the validity of Will 2?

2) Would Testator have preferred Will 1 over intestacy?

The more similar the provisions of the two Will, the more likely the court will apply DRR.

The more different the provisions of the two Wills are, the more likely the court will NOT apply DRR.

60
Q

A Will contest challenges the validity of document offered for probate. Grounds for challenge are:

A

1) Defective executive;

2) revocation;

3) Lack of testamentary capacity;

4) Lack of testamentary intent;

5) Undue influence or duress;

6) Fraud; and

7) Mistake.

61
Q

To establish undue influence, the contestants must establish that:

A

1) The influence existed and was exerted

2) The effect of the influence was to overpower the mind and free will of the testator; AND

3) The resulting testamentary disposition would not have been executed BUT FOR the influence (causation).

62
Q

A successful contest on grounds of fraud requires that the testator have been willfully deceived as to

A

1) the character or content of the instrument;

2) Extrinsic facts that would induce the Will or a particular disposition; OR

3) Facts material to a disposition.

63
Q

What is a fraud in the execution?

A

There is a misrepresentation as to the identity or contents of the instrument. The testator did not know the document was a Will or what it contained.

64
Q

What is a fraud in the inducement?

A

Testator knows they are executing a Will and what it contains, but the testator is deceived as to some extrinsic fact and makes the Will or a gift based on the fact.

65
Q

What is a mistake in execution?

A

The testator is in error regarding the identity or contents of the instrument and thus lacks testamentary intent. (i.e., testator signs the wrong Will)

66
Q

What is a mistake in inducement?

A

The testator is mistaken as to some extrinsic fact and makes their Will based on that erroneous fact (appears on the face of the Will)

67
Q

What are no-contest clauses?

A

A clause in a Will providing that a beneficiary forfeits their interest in the estate if they contest the Will and lose.

68
Q

Under the UPC and most States, does a specific bequest of stock includes any additional shares produced by a stock split and stock dividend?

A

YES

69
Q

What is the well-recognized exception to the ademption doctrine?

A

If a guardian or conservator is appointed for the testator after the Will is executed and the bequeathed property is sold by the guardian/conservator, the beneficiary is entitled to the sale proceeds.

70
Q

What effect does a divorce have on a validly executed Will in the UPC?

A

A divorce revokes all bequests to the former spouse and to the relatives of the former spouse.

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