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TRUSTS & WILLS > WILLS > Flashcards

WILLS Flashcards

1
Q

at death

A
  • person’s property passes either by WILL or INTESTACY
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2
Q

will substitutes / probate avoidance

A
  • not all property will pass under intestacy or via will!
  • when you distribute decedent’s estate, you must first distribute these items per their terms BEFORE distributing rest under intestacy or under a will
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3
Q

inter vivos outright gifts

A

decedent has already given property away

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4
Q

inter vivos living trusts

A

property that decedent already transferred into an inter vivos trust will not pass through decedent’s estate – passes under terms of the trust

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5
Q

co-ownership of property (tenancy in common and joint tenancy)

A
  • tenancy in common (no survivorship rights): decedent’s share passes via decedent’s will or under intestacy
  • joint tenancy (survivorship rights): the decedent’s share passes to the surviving JT
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6
Q

life insurance

A
  • most widely used will substitute — is a K and how policy is distributed is based on the terms
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7
Q

when does property pass by intestate succession?

A

intestate succession involves the distribution of decedent’s assets that aren’t disposed of by will

  • decedent dies without a will
  • will is denied probate
  • decedent’s will does not dispose of all the decedent’s property (e.g., gift failed)
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8
Q

applicable law
marital rights

A

who OWNS property if the decedent was married at time of death?

  • LAW OF THE DOMICILE when the property was BOUGHT to help us determine that
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9
Q

applicable law
succession rights

A

Which state’s intestate law applies?
- for personal property, we use law of DECEDENT’S DOMICILE when he died
- for real property (land), we use law of the situs (location) of property

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10
Q

intestate share of surviving spouse (how most states distribute assets that don’t pass by will upon decedent’s death)

descendants/children also survive

A
  • if decedent leaves children and surviving spouse, spouse takes 1/3 or 1/2 of estate
  • UPC states: surviving spouse takes ENTIRE estate (if decedent’s kids are also the surviving spouse’s kids)
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11
Q

intestate share of surviving spouse
no descendants/children survive

A
  • if the decedent is survived by a spouse but no descendants, surviving spouse takes ENTIRE estate
  • UPC states: a portion goes to decedent’s parents (if they are alive)
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12
Q

intestate share of children and other descendants

A
  • estate that doesn’t go to the surviving spouse, or the entire estate if the decedent didn’t have a wife/wife is dead —> goes to the guy’s children and grandkids
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13
Q

methods of computing shares – when

A
  • all children died and all we have is grandchildren to take
  • or some children alive, some deceased but grandchildren is still alive
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14
Q

classic per stirpes

A
  • one share is created for each living child
  • one share created for each deceased child who has at least one surviving kid
  • no shares for deceased child with no kids

level of children is always used b/c it’s first level below that of intestate - it’s determined at first level even if no living takers

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15
Q

per capita with representation

(majority rule)

A
  • property is divided into equal shares at the first level at which there are living takers
    SITUATION ONE
  • each living person at that level takes a share
  • share of each deceased person at that level (children who’ve died) passes to their descendant/the grandkids
    SITUATION TWO
  • if ALL children are dead and all property is going to grandchildren (nearest generation to intestate with survivors), each grandchild takes equal share — based on how many grandkids there are
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16
Q

per capita at each generational level

A
  • property is divided into equal shares at the first level at which there are living takers
  • shares of deceased persons at that level (children of decedent) are COMBINED and then divided equally among takers at the next level (all grandchildren will get an equal share)
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17
Q

if decedent is not survived by any spouse or any children

A
  • decedent’s surviving PARENTS inherit entire estate
  • if no surviving parents, decedents SIBLINGS inherit
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18
Q

intestate succession under a typical statute

A
  • passes to spouse and/or children
  • if none, to parents
  • if none, to siblings
  • if none, grandparents
  • if none, nearest maternal and paternal kin
  • if none, to the state
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19
Q

children’s inheritance rights
adopted children

A
  • adopted children are like biological children of the adopting parents
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20
Q

children’s inheritance rights
stepchildren and foster kids

A
  • generally, no inheritance rights
  • adoption by estoppel: child can inherit from stepparent when stepparent adopts them
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21
Q

children’s inheritance right
non-marital kids

A
  • always inherits from the mother
  • inheritance from father is allowed if paternity is established
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22
Q

children’s inheritance rights
posthumous children (born after death of their parent)

A
  • if mom is pregnant with the child and then mom dies, the child can inherit
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23
Q

advancement

A
  • gifts made during testator or decedent’s LIFE with INTENT that gift be applied against any share the heir inherits from decedent/testator’s estate
  • lifetime gift is not advancement UNLESS shown to be intended as such
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24
Q

modern requirement re advancements under UPC

A

gifts to beneficiary/heir during testator/decedent’s life are advancements only if:
- decedent declared her INTENT to make gift advancement in a contemporaneous writing, or
- beneficiary/heir acknowledged the gift to be advancement in writing

^rules generally apply to gifts that pass by will as well

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25
Q

if advancement found

A
  • gift’s value when given is added back into estate for purpose of calculating shares and then subtracted from reipient’s shares

example: Parent has 2 kids: Ben and Andrew. Parent makes a 10k advancement to Andrew and then dies with 20k estate.

From estate, Andrew gets 5k as he has the 10k advancement.
From estate, Ben gets 15k.

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26
Q

simultaneous death

A
  • in order to take as heir or will beneficiary, you need to die after the decedent!!!
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27
Q

2 approaches re: simultaneous death (issue where a decedent and heir/beneficiary pass at or about the same time)

A
  • USDA: property passes as though beneficiary/heir died BEFORE the decedent unless there’s evidence that beneficiary died after the decedent (if there is evidence that beneficiary/heir died after the decedent by even minutes, USDA doesn’t apply)
  • 120 hour rule: states and UPC require that a person outlive decedent by five days to take any distribution of decedent’s property
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28
Q

disclaimers

A
  • an heir or will beneficiary cannot be forced to accept an inheritance or gift under a will; they can disclaim interest
  • the disclaimed property passes as if the disclaimant had predeceased the decedent; disclaimaint can’t choose the recipient of property
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29
Q

requirements of disclaimer

A

for federal tax purposes, disclaimer must be in writing, irrevocable, and filed within 9 months of decedent’s death

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30
Q

beneficiary or heir kills decedent

A

a person who brings about death of decedent foreits interest in decedent’s estate; property passes as though killer predeceased victim/decedent (slayer statute or constructive trust)

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31
Q

WILLS

what is a will?

A
  • only way to avoid intestacy = leave valid will disposing of all probate property
  • will: instrument executed with certain formalities that directs where your property goes at death
  • will can be revocable during testator’s lifetime and is operative at their death (beneficiary has only expectancy until testator’s death)
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32
Q

applicable law re: real property

A

validity of will re: real property – determined by law of state where PROPERTY IS LOCATED

*note that these rules apply only to determine whether the will is admissible to probate; once will is admitted to probate, local law governs re the will’s provisions

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33
Q

applicable law re: personal property

A

determined by law of testator’s domicile @ time of death

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34
Q

testator must have capacity to understand:

A

testator must have had capacity (18 years old at least and a sound mind) when will was executed

  • nature of their ACT
  • nature and extent of their PROPERTY
  • family members
  • nature of disposition (how the above 3 relate and form a scheme of distribution)

***physical ailments or drug addiction does not raise presumption of incapacity

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35
Q

testamentary intent

A
  • testator must have PRESENT INTENT that instrument operates as their will
  • patrol evidence is admisisble to show that instrument was not meant to have any effect (e.g., that it was a sham will)
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36
Q

execution of attested wills (3 main requirements)

A
  • will/codicil must be in WRITING
  • will/codicil must be SIGNED by TESTATOR (any mark intended to be a signature suffices; testator’s signatuare can be made by another person at testator’s direction and in their presence)
  • 2 attesting competent WITNESSES (must see testator sign the will and must sign as witnesses in testator’s presence in a reasonable time)

***competent means that witness must be mature enough and they can testify in court on these matters

***licensed notary satisfies this requirement in many states

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37
Q

attestation clause

A

receites the elements of due execution and is prima facie evidence of those elements

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38
Q

interested witnesses (witness who is also beneficiary)

A
  • at CL: a witness who was also a beneficiary was not competent (will couldn’t be probated unless there were 2 other competent witnesses)
  • all states now provide that will is still valid
  • under UPC: gifts to interested witnesses are fine
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39
Q

holographic wills

(recognized by UPC and most states)

A
  • will that is entirely in testator’s handwriting and has no attesting witnesses
  • must contain testator’s signature and must have material portions in testator’s handwriting
  • most states that recognize holographic wills give effect to handwritten changes made by testator AFTER will is completed (changes in beneficiaries, amounts, etc. made after execution of an attested will are usually not given effect and may work a revocation – watch where these changes are made to attested will in jdx that recognizes holographic wills; if requirements are met, often these changes are a valid holographic codicil!)
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40
Q

codicils

A
  • an amendment, modification, or alteration to a previously executed will
  • same formalities required (e.g., in writing, signed by testator, with sufficient witnesses)
  • when codicil is validly executed, the original will is treated as republished and deemed to have been executed on date the codicil was executed
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41
Q

questions regarding alterations on face of the will

A
  • any addition, alteration or deletion made AFTER will has been signed and attested is INEFFECTIVE to change the will…
  • UNLESS the will is reexecuted with proper formalities or the changes qualify as a holographic codicil where such codicils are recognized
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42
Q

validation of prior invalid will and codicil

A
  • validly executed codicil is viewed as impliedly incorporating a defective will by reference, thus validating the will (proof of codicil acts as proof of the will!!!!)
  • enhanced chance of validation if original doc was INTENDED TO BE A WILL
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43
Q

oral wills

A
  • most states and UPC do not permit oral wills
  • small # of states that permit oral wills do so only for disposition of personal property
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44
Q

classification based on type of property

A
  • devise: gift of real property and recipient of a devise is a devisee
  • bequest is a gift of personal property
  • legacy: gift of personal property in a will (usually of money) and recipient is a legatee
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45
Q

specific devise or legacy

A

specific devise or legacy is a gift of a particular item of property distinct from all other objects in testator’s estate

“I leave my Sony Comp Model XXX with serial number 123 to Walter”

46
Q

specific bequest of general nature

A

not distinguishable from the rest of testator’s estate until testator dies (I leave my computer to Walter)

47
Q

general legacy

A
  • gift of general economic benefit payable out of general assets of the estate without requiring source of payment (I leave 10k to Walter)
48
Q

demonstrative legacy

A
  • gift of a general amount that is paid from specific source/fund
  • if designated fund is insufficient, the balance is paid from other assets of estate
  • “I leave 10k to Walter from my account at Superior State”
49
Q

residuary estate
(gift of the residue)

A

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

50
Q

ademption by extinction

A
  • refers to failure of a gift b/c the property is no longer in the testator’s estate at time of their death
  • applies only to specific devises and bequests
  • if bequeathed property is not in testator’s estate at death, the bequest is adeemed and beneficiary takes nothing
51
Q

ademption by extinction does not apply to general or demonstrative legacies

A
  • neither are adeemed by absence of cash or the specific asset in estate; they will be satisfied by SELLING OTHER ASSETS
  • to avoid ademption, a court will construe gift of securities as a general legacy unless testator stated specifically, e.g., “my 200 shares of Acme stock”
52
Q

common statuory exceptions to the ademption doctrine

A
  • replacement property: some states permit beneficiary to receive replacement property if the testator replaced the gifted item with another similar item
  • proceeds from sale by conservator/guardian: if testator became incompetent and the specifically devised property was sold by a guardian, the beneficiary may be entitled to $$$ equal to the property
53
Q

ademption by satisfication

A
  • testamentary gift may be satisfied in whole/in part by inter vivos transfer from testator to beneficiary after execution of the will (if testator intends transfer to have that effect)
54
Q

exoneration of liens

A
  • UPC and many states provide that liens on specifically devised prop are not exonerated (paid off with estate funds) unless the will so directs
  • this means beneficiary takes property subject to the debt
55
Q

abatement

A
  • reducing testamentary gifts (selling them off) in cases where estate assets aren’t enough to pay all claims against the estate and satisfy all bequests/devises
  • testator’s will itself may set out order of abatement – if not, most statutes provide for order of abatement setting priority re which categories of property in estate will be sold off first
56
Q

testamentary gifts will usually abate in the following order

A
  • property passing by intestacy (there is no will!)
  • residuary estate (portion that would remain after all gifts and bequests have been made)
  • general legacies
  • demonstrative legacies
57
Q

lapsed gifts and anti-lapse statutes

A
  • gift lapses if the beneficiary dies before testator OR if the beneficiary is treated as not surviving the testator b/c the beneficiary disclaimed
58
Q

who receives a lapsed gift is:

A

controlled by
- express terms of will
- anti-lapse statute
- intestacy

59
Q

anti-lapse statute

A
  • nearly all states have these statutes that operate to save the gift if predeceasing beneficiary was in a certain degree of relationship to testator (e.g., son of testator) and left descendants (e.g., grandchildren if the predeceasing beneficiary was testator’s son) who survived the testator
  • these descendants take by substitution

Example:
“I leave 20k to my brother, Bruce, and rest of my estate to my best friend Perry.”
Bruce predeceases Testator survived by his 2 kids and his wife, all of whom survive Testator.
Unless Testator’s will says otherwise, each of Bruce’s kids are likely to get 10k b/c of applicable anti-lapse statute.

60
Q

anti-lapse statute and words of survivorship (e.g., “if he survives me”)

A
  • in most states, words of survivorship are a contrary will provision (e.g., “I leave 20k to my brother if he survives me….”) and the anti lapse statute won’t be applied; NOT the case under UPC
  • absent application of an anti-lapse statute, the gift will go back into residue of testator’s estate
61
Q

lapse in residuary gift

A
  • will devises residuary estate to two or more beneficiaries and one of beneficiaries predeceases the testator – most states allow surviving residuary beneficiaries to divide the share in proportion to their interests in the residue

E.g., “I leave the residuary of my estate to my friends, A, B, and C.”
A predeceases/dies before Testator. B and C each get 50%.

62
Q

class gifts

A
  • if a will makes a gift to a class, only class member beneficiaries who SURVIVE testator take share of gift (unless anti-lapse statute requirements are met)
63
Q

Will Interpretation and Construction
who raises these issues?

A
  • personal representative who wants to do right thing
  • beneficiaries who would take under various interpretations
64
Q

patent ambiguity

A
  • exists if provision is ambiguous on its face
  • modern view: extrinsic evidence is admisisble
65
Q

latent ambiguity

A
  • exists when language of will is clear on its face but can’t be carried out without further clarification
  • court will consider extrinsic evidence to resolve ambiguity
66
Q

no apparent ambiguity - mistake

A
  • will provision is clear on its face… but beneficiary or other interested person thinks testator made a mistake
  • modern rule – adopts liberal rule that permits use of extrinsic evidence
67
Q

incorporation by reference

A
  • instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference (“I devise all my jewelry to persons named in a list inside my safe deposit box”)
  • the incorporated material is treated as if it were actually written out in full in the will itself
68
Q

requirements for incorporation by reference

A

a document may be incorporated by reference into a will, provided:
- will manifests intent to incorporate the document
- doc is in existence at time will is executed, and
- doc is sufficiently described in the will

69
Q

separate writing disposing of tangible personal property

A
  • exception to the requirement that the document exist at execution
  • permits testator to refer in their will to a list specifying distribution of items of tangible personal property and to write or that list AFTER executing the will
70
Q

acts or facts of independent significance

A
  • a will may dispose of property by reference to acts and events

examples:
- gifts to my spouse (go outside will to find out who that is);
- “I leave the contents of my safe deposit box to Tony Stark”
Testraix may change the contents of box at any time after will execution; Tony will get the contents of box even if testatrix does not execute a new will after changing contents b/c safe deposit box is a fact of independent significance

71
Q

conditional wills

A
  • courts will construe wills as general (not conditional) if possible
  • court might interpret what appears to be condition as expressing the motive for making the will (and may give will effect even if condition doesn’t occur)

Example of conditional will: “I’ve been diagnosed with cancer and this will is to be effective if I die from this cancer.” Testator dies from car accident. Not effective!

72
Q

pour over gift to inter vivos trust

A
  • provision in a WILL where testator makes a GIFT to an inter vivos trust (the trust can be created before or after testator executes the will)
  • most states allow testator to make a gift to a trustee of an inter vivos trust despite that the trust may be changed after execution of the will
73
Q

integration

A
  • person probating the will must show that pages present at time of execution are those present at time of probate
  • physical attachment, internal coherence of pages can raise presumption that pages were present and intended to be part of the will when it was executed
74
Q

combination wills
joint wills
mutual wills

A
  • joint will: single instrument executed by 2 or more testators and intended to be the will of each (admissible to probate upon death of either testator)
  • mutual will: separate wills executed by 2 or more testators that contain very similar provisions
75
Q

contractual will

A
  • a contract to make, not to make, or not to revoke a will is valid! (E.g., testator agrees to leave entire estate to Mary if Mary takes care of Testator when Testator gets old — a will executed pursuant to a contract)
  • modern law requires that THESE CONTRACTS BE IN WRITING OR BE MENTIONED IN THE WILL
76
Q

no presumption of contract

A

mere execution of joint wills or mutual wills does NOT RAISE A PRESUMPTION that the wills were executed per a promise by each party not to revoke

77
Q

revocation of contract

A
  • contractual will can be revoked by agreement b/w the parties while they are both alive
  • K becomes irreovcable upon first testator’s death
78
Q

breach of contract

A
  • if testator repudiates the K after substantial performance by promisee, the promisee can seek damages, etc
  • if testator dies in breach, usual remedy is for court to grant constructive trust for benefit of the promisee
79
Q

breach of K not to revoke

A
  • A and B enter into K not to revoke their wills (both wills provide for disposition of a specific item of property)
  • situation one: A dies in compliance (no revocation); B attempts to dispose of the property covered by agreement (result is constructive trust imposed on property in favor of beneficiary of contractual will)
  • situation two: A dies in compliance (no revocation); B then revokes, makes new will, dies (result is new will probated, but constructive trust imposed in favor of beneficiary of the contractual will)
80
Q

powers of appointment

A
  • authority granted to a person (donee), enabling that person (donee) to designate the persons who shall take the property and the manner in which they shall take it
  • e.g., T’s will leaves “my property to C to give to anyone that C chooses” (C has a power of appointment)
81
Q

general v. special power of appointment

A
  • general power: donee can exercise her power in favor of anyone, including herself, etc.
  • special power: exercisable in favor of a limited class of appointees (does not include donee, their estate, their creditors, etc)
82
Q

presently exercisable v. testamentary power

A
  • presently exercisable power of appointment: one exercisable by donee during their lifetime
  • testamentary power: one that is exercisable only by donee’s will (e.g., T leaves “all to C and on C’s death … to those C has appointed in his will”; C’s exercise of her power of appointment is limited to her will)
83
Q

residuary clause in will and appointment power

A
  • in nearly every state, a residuary clause by itself doesn’t exercise any power of appointment that was held by testator
84
Q

revocation of wills in general

A
  • a person with testamentary capacity CAN REVOKE their will at any time before death
  • can be revoked by operation of law, by subsequent instrument, or physical act

NOTE: a will that testator has contractually agreed not to revoke can be revoked, but beneficiares can have a breach of K action against estate

85
Q

revocation by operation of law
marriage following execution of will

A
  • most states: marriage following execution of a will has no effect on earlier will
  • under UPC, where person marries AFTER executing a will and new spouse survives testator, new spouse will take a share of decedent’s estate equivalent to what their INTESTATE share would be
  • not applicable if (1) will provides for the new spouse; (2) will was made in contemplation of marriage; or (3) makes clear that omission was intentional on part of deceased spouse
86
Q

revocation by operation of law
divorce following execution of a will

A
  • FINAL divorce following execution of a will revokes all gifts in favor of the former spouse (all provisions in favor of a former spouse are revoked!)
  • remainder of the will remains valid
  • will is treated as if the former spouse died before testator
  • UPC: extend application of rule to provisions in favor of the former spouse’s RELATIVES (like a mother in law)
87
Q

revocation by physical act; revocation by proxy

A
  • will may be revoked in most states by burning, tearing, or destroying the will
  • testator must have (1) intent to revoke and (2) intent must be concurrent with the act
  • revocation by proxy – person other than testator may revoke will by physical act if done at testator’s direction and in testator’s presence
88
Q

partial revocation

A
  • revocation may be accomplished by making marks of cancellation on the will (crossing out provisions) in most states
89
Q

effect of revocation on other testamentary instruments

A
  • revocation of will revokes all codicils to it
  • but revocation of a codicil to a will does not revoke the entire will

NOTE: when a will has been executed in duplicate, act of revocation done to either copy revokes the will

90
Q

revocation by written instrument

A
  • all or part of a will can be revoked or altered by a subsequent instrument that is executed with same formalities as a will

E.g., Testator’s will contains a provision stating: “I hereby revoke all prior wills and codicils.” This revokes all prior testamentary instruments.

91
Q

revocation by inconsistency

A
  • if the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency

E.g., Testator executes will that says “I leave my coin collection to Fred.” Two years later, he executes a new will that doesn’t contain revocation language but says “I leave my coin collection to Mary.” Fred’s gift is revoked by inconsistency.

92
Q

lost or destroyed wills

A

if a will is lost/destroyed, it may be admitted to probate if the following can be shown:

  • valid execution
  • proof that will wasn’t revoked, and
  • contents of the will
93
Q

presumption of no revocation / presumption of revocation

A
  • if a will is found in normal location [filing draw, etc] and there are no suspicious circumstances, there is a presumption that tesator did NOT revoke it
  • if a will last seen in the testator’s possession cannot be found after death, rebuttable presumption arises that testator revoked it
94
Q

revival of revoked wills fact pattern

A
  1. testator executes valid will 1
  2. testator executes valid will 2, which revokes will 1
  3. testator then revokes will 2
  4. is will 1 revived?
95
Q

revival rule

A

3 APPROACHES
1) testator’s INTENT approach
- original will stays revoked unless testator said he intended to revive
- if original will was only partly revoked, revoked provisions are revived unless testator intends otherwise

2) automatic revival approach (revoking will [will 2] didn’t take effect b/c it was revoked before testator’s death)

3) no revival approach

96
Q

implied conditional revocation (dependent relative revocation)

A

hypo looks like this:
1. testator executes valid will 1
2. testator validly revokes will 1 (e.g., rips it up) —> IF HE KNEW WILL 2 WAS GONNA BE INVALID, HE WOULDN’T HAVE REVOKED WILL 1!
3. testator executes will 2, but will 2 is invalid (e.g., not properly witnesses)

  • doctrine of dependent relative revocation 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 wouildn’t have revoked the will
  • if other disposition fails (will 2), the revocation also fails and the will remains in force (so WILL 1 REMAINS IN FORCE)
97
Q

to determine whether DRR applies, ask:

A

1) was the revocation of will 1 impliedly conditioned on validity of will 2?
2) would testator have preferred will 1 over intestacy?

more similar the provisions of the two wills, the more likely court will apply DRR

98
Q

elective share statutes (protection of surviving spouse)

A
  • give spouse an election to take a statutory share of the decedent’s estate in lieu of taking under decedent’s will
99
Q

pretermitted child (child omitted from will) statutes

A
  • these statutes protect children from being accidentally omitted from will; get a forced share if they were born after will was executed
  • many states withhold child’s forced share if:

1) testator gave most of their estate to the other parent of the child
2) omission was intentional (“I make no provision for any child who may be born after”)
3) testator provides for the child by a transfer outside of the will (e.g., names the child as beneficiary of life insurance)

100
Q

will contests
standing

A
  • only interested parties have standing to contest will
  • this includes heirs (b/c they would receive estate by intestacy if will is invalid)
101
Q

grounds for contest

A
  • will contest challenges the validity of a document offered for probate
  • grounds include: defective execution; lack of testamentary capacity; lack of testamentary intent; undue influence or duress; fraud; mistake; will offered has been revoked
102
Q

undue influence

A
  • person can hound someone to make a will
  • to establish undue inflience, contestants must show:
  1. influence was exerted
  2. effect of influence was to overpower mind and free will of testator; and
  3. resulting testamentary setup wouldn’t have been executed but for the influence (causation)
103
Q

presumpton of undue influence

A
  • presumption of undue influence arises if:
    1. there was a confidential relationship b/w testator and beneficiary; and
    2. beneficiary was active in procuring, drafting the will

once established, burden goes to proponent of the will (usually beneficiary) to prove the will was not induced by undue influence

104
Q

fraud

A
  • where a will or one or more of its provisions are the result of fraud, the will/provision is invalid

must be shown that:
1) testator has been intentionally deceived as to: (a) character/content of that will [MISREPRESENTATION AS TO IDENTITY OF INSTRUMENT!], and/or (b) facts extrinsic to the will that would induce will or a particular provision/disposition in the will [TESTATOR WAS TRICKED ABOUT SOME FACT AND MADE THE WILL/GIFT BASED ON THAT FACT]
2) testator acted in reliance on the misrepresentation (i.e., he wouldn’t have made the gift or executed the will if he knew the facts)

105
Q

mistake

A
  • mistake in execution: testator is in error re: identity or contents of instrument and lacks testamentary intent (extrinsic evidence is admissible to show that testator did not know that the instrument they were signing was a will); court will grant relief where nature of mistake is obvious — the will would be invalid

e.g., testator had several documents on his desk and in a hurry, he signed the will instead of the other paper…

  • mistake in inducement (no relief): testator is mistaken as to some extrinsic fact and makes their will based on that wrong fact; relief usually not granted but look for fraud
106
Q

no-contest clauses

A
  • clause in a will providing that beneficiary forfeits their interest in estate if they contest the will and lose
  • majority rule: no forfeiture of interest if beneficiary challenges in good faith and on basis of probable cause
  • minority: no contest clauses given full effect regardless of challenging benficiary’s cause/intent
107
Q

administration in general

A
  • will has no effect to transfer property until you get a court order saying it’s valid
  • property for intestacy doesn’t go to heirs until you get a court order determining who heirs are
108
Q

probate

A

proceeding in which an instrument is determined to be the will of the decedent OR in which a decedent’s heirs are determined

109
Q

personal representative

A
  • appointed to carry out estate administration and distribute property
  • if named in will, the personal rep is an EXECUTOR (any person with capacity to contract can be a personal representative–mentally competent and not a minor)
  • if not so named, they’re an administrator
110
Q

creditors’ claims

A
  • personal representative must give notice of administration to creditors of the estate!
  • creditors then have to file their claims within a certain time or the claims may be barred

TRUSTS & WILLS (2 decks)

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