Wills

Question 1

Ademption

Answer 1

Ademption is the failure of a specific bequest because the bequeathed property is not owned by the testator at death.

Well-recognized exception to ademption doctrine: if a guardian/conservator is appointed for the testator after the will is executed and the bequeathed property is sold by them, the beneficiary is entitled to the sale proceeds (at least to the extent they have not been expended for the testator’s care).

Under the identity theory applied in most states, the redemption doctrine is an objective test that does not take into account the testator’s probable intent.

Question 2

Effects of divorce on will

Answer 2

It is as if the former spouse predeceased the testator. In most states only gifts to the former spouse are revoked, not gifts to anyone else. However, under the UPC, a divorce revokes bequests to the former spouse and any relatives of the former spouse who are not also relatives of the testator.

Question 3

Intestate order

Answer 3

Typical scheme - spouse, descendants parents and/or siblings (and children of deceased siblings).

Question 4

Per capita with representation distribution

Answer 4

Majority Rule. Property is divided at the first generational level at which there are living takers. Each living person takes a share and the share of each deceased person at that level passes to their issue by right of representation.

Question 5

Per capita at each generational level

Answer 5

A growing number of states + the UPC use this. 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.

Question 6

Per stirpes

Answer 6

Shares are always determined at the first generational level (the child level) regardless of living takers. One share is created for each child and one share for each deceased child who has at least one surviving descendant.

Question 7

Grounds for will contest

Answer 7

Lack of capacity, undue influence, and fraud.

Question 8

Testamentary capacity

Answer 8

At the time of the will execution, the testator must: (I) understand the nature of their act (that they were writing a will), (ii) know the nature and character of their property, (iii) know the objects of their bounty, and (iv) relate these factors to formulate a disposition of property according to a plan.

Capacity is presumed and burden to prove otherwise is on the contestant.

Question 9

Undue Influence

Answer 9

The burden of proof is on the contestant and they must show that: (I) specific acts of influence were exerted, (ii) the effect o the influence was to overpower the mind and free will of the testator, and (iii) the product of the influence was the will or gift that would not have been made but for the influence.

Question 10

Fraud

Answer 10

The burden of proof is on the contestant and they must show that: (I) there was a knowingly false representation of material fact; (ii) the representation was made to induce the testator to write a will in a particular way; and (iii) the testator reasonably believed and relied on the statement in making the will.

Question 11

No-contest Clause

Answer 11

In most states and the UPC, a no-contest clause is enforceable, but the beneficiary will not forfeit the legacy if the court finds that they challenged the will in good faith and on the basis of probable cause.

Question 12

Republication

Answer 12

A will is treated as having been executed (republished) on the date of the last validly executed codicil. However, to be republished there must have been a validly executed will.

Question 13

Incorporation by Reference

Answer 13

A document that is not present when a will is executed may be incorporated into the will by reference if: (I) the document was in existence at the time the will was executed, (ii) the language of the will sufficiently describes the writing to permit its identification, and (iii) the will must manifest an intention to incorporate the document.

Question 14

Slayer statute

Answer 14

One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the decedent.

Question 15

Stock splits/dividends

Answer 15

Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend. Under the UPC and the statutes of many states, a specific bequest of stock includes stock dividends.

Question 16

A presumption of undue influence arises when:

Answer 16

(1) there is a confidential relationship between the testator and the beneficiary-influencer, (2) the beneficiary participated in procuring or drafting the will, and (3) the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence

Question 17

What happens when there is a lapsed residuary gift?

Answer 17

At common law and in some states, if a testator’s residuary estate is bequeathed to two or more beneficiaries and one of the shares lapses, that share “falls out of the will” and passes by intestacy.

Most states have replaced this rule by statute, under which the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue.

Question 18

Integration

Answer 18

the process of embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution

The will proponent must show that the pages were present when the will was executed and were intended by the testator to be part of the will

Witness testimony and other extrinsic evidence is admissible to prove integration requirements

Intent and presence are presumed when: there is a physical connection of the pages, there is an internal coherence by provisions running from one page to the next, or the pages, when read together, set out an orderly dispositive plan

Question 19

Codicil

Answer 19

a later testamentary instrument that amends, alters, or modifies a previously executed will; it does not need to be a separate document and may appear on the same piece of paper as the will it amends

Question 20

Doctrine of Dependent Relative Revocation

Answer 20

A court may disregard a revocation if the revocation was premised on a mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of his property was valid

The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed, to do than would an intestate distribution.

Question 21

Adopted children

Answer 21

treated the same as a natural child of his adopting parents for purposes of intestate succession and will

Question 22

Nonmarital Children

Answer 22

All states permit a nonmarital child to inherit from his mother, and most states also permit inheritance from his father if paternity is established

Question 23

Establishing paternity

Answer 23

In most states, paternity can be established by: the father’s marriage to the mother after the child’s birth; adjudication in a paternity suit; or proof in the probate proceedings (usually by “learn and convincing evidence”)

Question 24

Is extrinsic evidence admissible in most courts to show that a provision contained in the will is not what the testator intended?

Answer 24

Not in most states

Question 25

It is presumed that the testator understood and approved the terms of the will when he signed it absent evidence of…

Answer 25

fraud, duress, or suspicious circumstances.