Wills Flashcards
When does property pass by instate succession?
a decedent dies without having made a will or their will is denied probate (total Intestacy)
decedents will does not dispose of all of the decedents property, either because a gift has failed or because the will contains no residuary clause (partial intestacy)
Can the intestacy distribution scheme be altered to fit the decedents intent?
No, regardless of evidence of decedents intent
Classic Per Stirpes
Minority rule
one share is created for each child and one share for each deceased child who has at least one surviving descendant. Each child receives one share and one share passes to a deceased Childs descendants by representation.
Per capita with representation
Majority Rule
property is divided into equal shares at the first generational level at which there are living takers
Divide at first level with member who outlived intestate
Per capita at each generational level
Modern trend and UPC
initial division at first level of living takers. shares at the next level are combined and divided equally among the takers at the subsequent level. Persons in the same degree of kinship to the decedent always take equal shares
Advancement: Common law vs UPC
Common law:
substantial lifetime gift to one of the decedents children was presumed an advancement
UPC: advancement only if:
(1) declared as such in contemporaneous writing by donor; or
(2) acknowledge as such in a writing by the heir (need not be contemporaneous)
When does USDA apply?
When disposition of property (by will, intestacy or joint tenancy) depends on the order of death, and the order cannot be established, the property of each decedent is disposed of as if they had survived the other.
If it can be shown one survived even by minutes it will not apply.
Requirements for disclaimer
in writing
signed by disclaiming party
before a notary
filed with appropriate court within 9 months of death
Requirements of testamentary capacity
testator must have capacity to understand:
The nature of their act–they are executing a will
the nature and extent of their property
the person who are the natural object of their bounty (family members)
be able to formulate an orderly scheme of disposition
**the above is determined at the time of will execution
Factors to find testamentary intent
1) testator intended to dispose of the property;
2) intended the disposition to occur only upon death; and
3) intended the instrument inquisition accomplish disposition
Requirements for a valid will
1) the will or codicil must be in writing
2) must be signed by the testator, or by another at the testators direction and in there presence
3) two attesting witnesses
4) testator signs will, or acknowledges signature or will in presences of each witness; and
5) witnesses sign in testators presence
conscious presence test
satisfied if each party was aware of where the parties were and what they were doing and the act of signing took place within the general awareness and cognizance of the other parties.
majority rule
scope of vision test
satisfied if person was in such close proximity they could have seen the signing had they looked
Minority rule
scope of vision test
satisfied if person was in such close proximity they could have seen the signing had they looked
Minority rule
Holographic will
Entirely in the testators handwriting and has no attesting witnesses.
Must contain a signature from the testator.
UPC and most states allow partial handwriting if the material terms are in testators handwriting.
Can you make changes to beneficiaries or amounts in an attested will after execution?
Generally no, unless the JDX where the changes are made recognizes holographic wills
What is a devise?
A gift of real property.
Recipient is the devisee
What is a bequest?
A gift of personal property
What is a legacy?
A gift of personal property in a will, usually money.
Recipient is a legatee.
Specific devise or legacy
a gift of a particular item of property distinct form all other objects in the testators estate
General legacy
a gift of general economic benefit payable out of the general assets of the estate without requiring any particular source of payment.
Demonstrative legacy
a gift of a general amount that is to be paid from a particular source.
It is a specific legacy to the extent the source of payment is available. It is a general legacy to the extent of any shortfall of that source of payment.
What does ademption apply to?
Only specific devises and bequests.
it does not apply to general or demonstrative legacies.
Statutory exception to ademption
Replacement property
Balance of purchase price
proceeds of condemnation award or insurance. If paid after testators death
proceeds from sale by guardian or conservator
ademption by satisfaction requirements
writing or specific instruction if the will
UPC:
Nestor must provide for satisfaction in the will or contemporaneous writing; or
the devisee acknowledges in writing, the gift is a satisfaction.
**writing not required if testator gives specifically described property the the beneficiary.
Does a devisee take property subject to outstanding liens?
Yes, most states holds that the lien is not exonerated through estate funds unless the will so directs.
What is abatement?
The process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims of the estate and satisfy all bequests and devises.
Order of abatement if not specified in will
Property passing by intestacy–first to be abated
residuary estate
general legacies
demonstrative legacies
specific bequests and devises–last to be abated
Anti Lapse Statutes
Attempt to save a gift if
the beneficiary predeceases the testator;
was in a specified degree of relationship, such as descendant of the testator; and
is left descendants who survived the testator.
Can anti lapse statutes apply to class gifts?
Yes, if requirements of statute are met
Tools for will interpretation
Favor the construction that avoids intestacy
among two or more contradictory provisions in a will, the last one prevails
the will is construed as a whole, not isolated parts out of context
words are given ordinary meaning unless clear that testator intended otherwise
technical words given technical meaning, unless clear that testator intended otherwise
attempt to give effect to all words included
Patent ambiguity
provision is ambiguous on its face.
Common law: not extrinsic evidence to correct
Modern view: extrinsic evidence admissible
Latent ambiguity
language is clear on its face but cannot be carried out without further clarification
extrinsic evidence admissible
How to address alleged mistake in will?
Plain mean rule: traditional approach that extrinsic evidence cannot be used to disturb the clear meaning of the will.
Modern rule: evidence permitted if clear and convincing and assist court in carrying out the testators intent.
Requirements for incorporation by reference
the will manifests an intent to incorporate the document
the document is in existence at the time the will is executed; and
the document is sufficiently described in the will
is a parol evidence admissible to show a will absolute of its face was intended to be conditional?
No, court may even interpret a condition as a mere motive to make a will
What is a codicil and when is it effective?
A codicil modifies a previously executed will. Must be executed with same formalities as a will.
Under the doctrine of republication by codicil, the will and codicil are treated as on instrument speaking from the date of the last codicils execution.
Can an attested will be altered after it has been singed and attested?
No, unless:
they will is reelected with property formalities; or
changes qualify as a holographic codicil
Does marriage impact a previously executed will?
Most states: No
UPC: new spouse take an intestate share as an “omitted spouse” unless:
will makes provision for the new spouse
the omission was intentional; or
the will was made in contemplation of marriage
What is the purpose of pretermitted child statutes?
Provide a share for a left out child on the assumption that the testator would have made provision for the child had the testator thought about it
Does revocation of a codicil revoke the entire will?
No
Does revocation of a will revoke all codicils?
yes
Revival of revoked wills: 3 approaches
UPC, Automatic revival approach, no revival
Revival of revoked wills: UPC
UPC: If new will wholly revoked a previous will and that will is revoked, the previous will remains revoked. If will only partly revoked, the partly revoked terms are revived. Look to testator intend to revive will
Revival of revoked wills: Automatic revival
revival automatic since revoking will did not take effect because it was revoked prior to testators death
