Wills

Question 1

Intestate Succession - Surviving Spouse’s Share

Answer 1

CL: spouse not an heir (not followed now)

Modern Law: spouse is an heir
- share of surviving spouse may vary depending on factors such as the number of children, whether the surviving spouse is the other parent of the deceased spouse’s children, and length of marriage

Spouse’s share if descendants also survive:
- in Most States, spouse takes one-third or one-half of the estate
- some states give the surviving spouse a specific dollar amount plus one-third or one-half of the estate
- UPC: the surviving spouse takes the ENTIRE estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse had no other surviving descendant

Spouse’s Share if no descendants survive:
- in Most States, the surviving spouse takes the ENTIRE estate
- UPC: spouse takes the entire estate only if decedent is not survived by descendants or parents

Question 2

Intestate Succession of Children and Other Descendants

Answer 2

Descendants are related to the decedent in a descending lineal line, such as children and grandchildren
- the portion of the estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes to the decedent’s children and descendants of deceased children

Equal Shares if All Children Survive
- if all of the decedent’s children survive the decedent (or all of the decedent’s predeceased children have no descendants who survive the decedent), each child receives an equal share
- a descendant from a younger generation (such as a grandchild) cannot take if the older generation (the grandchild’s parent) is still alive

Methods of Computing shares if at least 1 descendant predeceased the decedent and is survived by a descendant who survives the decedent:
(1) Classic Per Stirpes (Strict) - Common Law (division always at child level)
- 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 child’s descendants by representation
(2) Majority Rule - Per Capita with Representation (Modern Per Stirpes)
- property is divided into equal shares at the first generational level at which their are living takers
- each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by right of representation
- if all children are deceased and all property is going to the grandchildren, each grandchild takes an equal share rather than the share the parent would have taken had the parent survived
(3) Modern Trend - Per Capita at each Generational Level (UPC)
- 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
- thus, if some children are alive and others dead, each child will take an equal share, but the remaining property is pooled and each grandchild will receive an equal share

Question 3

Intestate Succession - Shares of Other Heirs

Answer 3

If the decedent is not survived by a spouse or descendants, the estate is distributed to ancestors (persons related in an ascending lineal line such as parents) and collaterals (persons related but not in a lineal line such as siblings, uncles, aunts, etc.)

The estate passes in the order below, proceeding down the list until takers are found:
(1) Parents or surviving parent
(2) Descendants of Parents (siblings or their descendants)
(3) Grandparents (or their descendants)
(4) Nearest Maternal Kin and/or Nearest Paternal Kin
(5) Escheats to state

Question 4

Intestate Succession - Special Cases: Adopted and Nonmarital Children

Answer 4

Adopted Children
- adopted children are treated the same as biological children of the adopting parents
- generally, there is no inheritance from biological parents
- most states make no distinction based on the age of the child at the time of the adoption

Stepchildren & Foster Children
- generally, no inheritance rights unless adopted by the stepparent or foster parent
- Adoption by Estoppel: permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them

Nonmarital Children
- A nonmarital child always inherits from the mother
- Generally, the child will inherit from their father if:
(1) the father married the mother after the child’s birth;
(2) the man was adjudicated to be the father in a paternity suit; or
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father

Question 5

Simultaneous Death

Answer 5

A person cannot take as an heir or will beneficiary unless they survive the decedent

USDA
- provides that when disposition of property (by will, intestacy, joint tenancy, etc.) 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
- USDA applies only if there is no sufficient evidence of survival, thus, if there is evidence that an heir or beneficiary survived the decedent by even minutes, the USDA does NOT apply

120-Hour Rule (UPC)
- to avoid the above result, many states and the UPC require that a person survive the decedent by 120 hours to take any distribution of the decedent’s property

Question 6

Disclaimers

Answer 6

An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc. cannot be forced to accept an inheritance or gift under a will
- the heir or beneficiary can disclaim an interest

Requirements:
- in most states, a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within 9 months of death (although the time period may vary)
- Can’t disclaim if the heir or beneficiary has accepted the property or any of its benefits
- Modern view: can disclaim at any time as long as no acceptance or use of benefits

Effect of Disclaimer
- the disclaimed property passes as if the disclaimant had predeceased
- the disclaimant cannot choose the recipient of the property

Question 7

Decedent’s Death Caused by Heir or Beneficiary

Answer 7

In nearly all states, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate
- the property passes as though the killer predeceased the victim
- this result is usually reached by the operation of a specific statute (“slayer statute”) or by imposition of a constructive trust

Proof of Killing - Evidentiary Standard
- a conviction of murder in any degree is conclusive for purposes of this type of statute
- Courts are divided on how to handle lesser degrees of killing - in the absence of a murder conviction, the court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before applying this forfeiture rule

Question 8

Advancement/Satisfaction

Answer 8

Advancement of Intestate Share
- an advancement is a lifetime gift to an heir with the intent that the gift be applies against any share the heir inherits from the donor’s estate
- at Common Law, a substantial lifetime gift to one of the decedent’s children was presumed an advancement
- Most courts now apply the doctrine to any heir, but reverse the presumption - a lifetime gift is NOT an advancement unless shown to be INTENDED as such
- UPC: goes further, finding an advancement only if it is:
(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)

Procedure if Advancement Found
- 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

*for wills = satisfaction

Question 9

Will Execution

Answer 9

Requirements for All Wills:
(1) Legal Capacity:
- testator must be at least 18 years old and of sound mind at the time they make the will
(2) Testamentary Capacity - T must have capacity to understand:
- the nature of their act (that they are signing a will)
- the nature and extent of their property
- the persons who are the natural objects of their bounty (family members)
- the above factors and be able to formulate an orderly scheme of disposition
(3) Testamentary Intent - T must have present intent to make a will
- promises to make a will in the future and ineffective deeds are not given effect as wills

Execution of Attested Wills - 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:
(1) Writing
(2) Signed by the testator, or by another at the testator’s direction and in their presence
(3) Two attesting witnesses
(4) Testator sign the will (or acknowledge their previous signature) in each of the witness’s presence; and
(5) Witnesses sign in the testator’s presence

Under UPC, a will is valid if either:
(1) it is attested by two competent witnesses, OR
(2) signed by a notary

Signature Requirement
- any mark made by the testator with the intent that it operate as their signature satisfies the signature requirement
- Proxy Signatures: the testator’s signature may be made by another person at the testator’s direction and in their presence (if the proxy signer signs their own name as well, they may be counted as an attesting witness)
- in Most States & UPC, a will is valid if signed anywhere on the instrument, not just at the end

Interested Witnesses
- Common Law: a witness who was also a beneficiary was not competent, and the will could not be probated unless there were two other competent witnesses
- ALL States: now provide that the will is still valid, but the bequest to the interested witness may be void under a “purging statute” unless they are supernumerary or would have taken a share as an heir if the will had not been probated
(however, under the UPC, gifts to interested witnesses are NOT purged)

Question 10

Holographic Wills

Answer 10

A holographic will is one that is entirely in the testator’s handwriting and has no attested witnesses
- UPC and Most States that recognize holographic wills accept a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material

To be valid:
(1) material portions must be in testator’s handwriting; and
(2) must be signed and dated (no witnesses)

Question 11

Republication by Codicil

Answer 11

Codicil = amendment to an existing will

Republication by Codicil
- a codicil modifies a previously executed will and must itself be executed with the same formalities
- under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution

Validation of Prior Invalid Will
- a validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will
- note that an invalid will technically cannot be republished, so even if the word “republish” is used in the codicil, the defective will is instead impliedly incorporated by reference

Question 12

Incorporation by Reference

Answer 12

Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference

Effect
- the effect of incorporation by reference is that the incorporated material is treated as if it were actually written out in full in the will
- it does not matter that the document, for example, lacked witnesses, is not signed, or was written under the influence

Requirements
- a document may be incorporated by reference into a will, provided:
(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
*the language of the will must refer to the extrinsic document in such a way that it may be reasonably identified, and the document must correspond to the description in the will

Separate Writing Disposing of Tangible Personal Property
- many states and the UPC have carved out an exception to the requirement that the document be in existence at execution
- these states permit the testator to refer in their will to a list specifying the distribution of items of tangible personal property and to write or alter that list after executing the will

Question 13

Acts or Facts of Independent Significance

Answer 13

An act of fact of independent significance is something outside of a will which has a purpose other than disposing of property at death
- a will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will

Examples:
(1) specific gifts of a general nature
(2) class gift designations
(3) gifts to “my spouse”
(4) gifts of contents

Example:
Testatrix’s will provides, “I leave the contents of my safe deposit box Number 657 at New York State Bank to Tony Stark.”
- even though Testatrix may change the contents of the box at any time after will execution, Tony will receive the contents of the box even if Testatrix does not execute w new will after changing the contents because the safe deposit box is a fact of independent significance

Question 14

Revocation by Operation of Law

Answer 14

Marriage Following Execution of Will
- in most states, marriage following execution of a will has NO EFFECT on the earlier will
- in some states and under the UPC, however, the new spouse takes an intestate share as an “omitted spouse” unless:
(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

Divorce or Annulment Revokes Provisions in Favor of Former Spouse
- in most states, divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse - the will remains valid and is read as if the ex-spouse predeceased the testator
- UPC and some non-UPC states extend the application of the rule to provisions in favor of the former spouse’s relatives who are not relatives of the testator

*the divorce must be final - and if the parties remarry, the revocation does not occur

Pretermitted Children Statutes (most states)
- The purpose is to 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
- under these statutes, if the testator fails to provide in their will for any child born or adopted after the execution of the will, the child takes a share computed using statutorily provided formulas (intestate share)

Question 15

Revocation by Written Instrument

Answer 15

All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will

Express Revocation
- the subsequent instrument may expressly revoke the earlier will

Revocation by Inconsistency
- if the new instrument COMPLETELY disposes of the testator’s property, the old will is completely revoked by inconsistency
- if the new instrument PARTIALLY disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions

Question 16

Revocation by Physical Act

Answer 16

Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke

Intent to Revoke
- the testator must have the intent to revoke, and the intent must be concurrent with the act
- if the will is destroyed accidentally or by mistake, no revocation occurs

Proxy Revocation
- the testator may direct someone else to destroy or cancel the will, but under the law of most states, the physical act must be done at the testator’s request and in the testator’s presence

Partial Revocation
- most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes
- extrinsic evidence is admissible to determine whether a partial or total revocation was intended
- some states give no effect to the changes and probate the will as originally written

Question 17

Effect of Revocation on Other Testamentary Instruments

Answer 17

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

When a will has been executed in duplicate, an act of revocation done to either copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last” will.
- however, destruction of an unexecuted copy with intent to revoke does not revoke the will

Question 18

Revival of Revoked Wills

Answer 18

Fact Pattern:
- testator executes valid will 1
- testator executes valid will 2, which expressly revoked will 1
- testator then validly revokes will 2
- is Will 1 revived?

UPC Approach - Look at Testator’s Intent
- Under the UPC and many states, if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked, unless it is evident from the circumstances or the testator’s statements that the testator intended to revive the previous will
- if the original will was only partly revoked, the revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intended to revive the provisions

Automatic Revival Approach
- in other states, revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death

No Revival Approach
- in some other states, a will, once revoked, is not revived when the subsequent will is itself revoked - the revocation clause is effective when executed just like revocation by physical act
- the earlier will can be revived only if it is re-executed or republished by a validly executed codicil

Question 19

Express Conditional Revocation

Answer 19

The testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event

Question 20

Dependent Relative Revocation (implied conditional revocation)

Answer 20

Fact Pattern
- testator executes valid will 1
- testator validly revokes will 1 (for example, by ripping it up)
- testator executes will 2, but will 2 is invalid (for example, because it was not properly witnessed)

DRR 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

To determine whether DRR applies, we ask the following questions:
(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 wills, the more likely the court will apply DRR
- the more different the wills, the more likely the testator would have preferred intestacy to will 1, so the court will not apply DRR

Question 21

Lapsed Gifts

Answer 21

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator because, for example, the beneficiary disclaimed or did not survive long enough

Distribution of Lapsed Gifts - who receives a lapsed gift is controlled by:
- the express terms of the will
- rule of law (such as an anti-lapse statute)
- Residuary clause
- intestacy

Question 22

Anti-Lapse Statutes

Answer 22

Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator (for example, descendant of the testator, the testator’s parent, or testator’s grandparent) and left descendants who survived the testator
- these descendants take by substitution
- the statute applies unless a contrary provision appears in the will

*In most states, words of survivorship are considered a contrary will provision, and the anti-lapse statute will not be applied
- under the UPC, however, mere words of survivorship are NOT sufficient to negate application of the anti-lapse statute

Question 23

Lapse in Residuary Gift

Answer 23

If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator (and the anti-lapse statute does not apply):
- Common Law: deceased beneficiary’s share passes by intestacy
- Modern Rule: most states have replaced this “no residue of a residue rule” with one allowing the surviving beneficiaries to divide the share in proportion to their interests in the residue

*Note that if the anti-lapse statute’s provisions are met, that statute takes precedence, and the deceased beneficiary’s descendants take)

Question 24

Class Gifts

Answer 24

If a will makes a gift to a class, only the class members who survived the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met

Question 25

Ademption

Answer 25

Ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death

Applies only to Specific Devises and Bequests
- most states follow the “identity” approach so that if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing

Common Statutory Exceptions
- Replacement Property: some states allow the beneficiary to receive replacement property if the testator replaced the gifted item with another similar item

Fill in others
If the testator became incompetent and the specifically devised
property was sold by a guardian, the beneficiary may be entitled to a
general pecuniary legacy equal to the amount of the proceeds.

Question 26

Increases to Property (Accessions)

Answer 26

Specific Gifts
- appreciation and depreciation of specifically gifted property between will execution and death is normally irrelevant

Securities Acquired After Will Execution
(1) Stock Splits and Stock Dividens
- At common law, a specific bequest of stock includes any additional shares produced by a STOCK SPLIT but does not include shares produced by stock dividend
- today, the UPC and nearly all states also include STOCK DIVIDENDS
- the beneficiary will also take an increase in securities caused by merger or corporate reorganization
(2) Newly Purchased Securities
- the beneficiary does not take new securities that have been purchased or acquired by the reinvestment of dividends

Question 27

Elective Share Statutes

Answer 27

Common law marital property states have elective share statutes that give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will

Amount of Elective Share
- typical amount is one-third of the net probate estate if the decedent is survived by issue and one-half if the decedent is not survived by issue
- some states and the UPC based the amount on the duration of the marriage

Property Subject to Election
- the share is usually calculated from the decedent’s net estate (probate estate minus expenses and creditors’ claims)
- some states, however, apply the share fraction to the decedent’s “augmented” estate, which includes certain lifetime transfers such as decedent’s share of jointly held property that passed by survivorship, bank accounts now payable to someone other than the surviving spouse, and life insurance proceeds not payable to the surviving spouse

Notice Must be Filed
- the surviving spouse must file a notice of election within a specified period (usually 6 months from admission of the will to probate)

Question 28

Undue Influence

Answer 28

A person can hound and badger someone to make a will - only if the influence is undue is there a problem

To establish UDI, the contestants must establish that:
(1) the influence 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)

Presumptions of UDI - a presumption of UDI arises when:
(1) there was a confidential relationship between the testator and a beneficiary; and
(2) that beneficiary was active in procuring, drafting, or executing the will
*once these elements are shown, the burden of proof shifts to the will proponent

Duress
- form of UDI but connotes violent conduct such as threat of physical harm

Question 29

Fraud

Answer 29

Elements of Fraud
(1) false representation made to the testator;
(2) knowledge of falsity by person making the statement
(3) the testator reasonably believed the statement; and
(4) the statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation

Fraud in the Execution (Fraud in Factum)
- in this case, there is a misrepresentation as to the identity or contents of the instrument - that is, the testator did not know the document was a will or what it contained (there was a lack of testamentary intent)

Fraud in the Inducement
- in this case, the 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 that fact
- the will or particular gifts affected by the fraud must be set aside

Question 30

Mistake

Answer 30

A mistake is an error that was not caused by evil conduct - no fraud or UDI, etc.

Mistake in Execution (mistake in the factum)
- testator is in error regarding the contents or identity of instrument
- Extrinsic evidence is admissible to show that a testator did not know that the instrument they were signing was a will, because the existence of testamentary intent is at issue

Mistake in Inducement - No Relief
- testator is mistaken as to some extrinsic fact and makes will based on that fact
- courts generally will not grant relief

Question 31

No-Contest Clauses

Answer 31

A no-contest clause (in terrorem clause) is a clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose

Majority Rule - No Forfeiture if Probable Cause for Contesting Will
- under the UPC and most states, a no-contest clause is valid and will be enforced UNLESS the beneficiary had probable cause for bringing the contest

Minority Rule
- some states give a no-contest clause full effect, regardless of whether there was probable cause for challenging the will

Question 32

Creditor’s Claims - Abatement & Exoneration of Liens

Answer 32

Abatement
- 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
- if the testator does not set out an order of abatement in the will, testamentary gifts 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 devises
*within a class, abatement is pro rate

Exoneration of Liens
- while the common law and some states follow the contrary view, the UPC and a large number of states provide that liens on specifically devised property are NOT exonerated (paid off with estate funds) unless the will so directs
- this means the beneficiary takes the property subject to the debt

Question 33

Powers of Appointment

Answer 33

A power of appointment is 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 person who shall take the property and the manner in which they shall take it

General v. Special Power of Appointment
- General power of appointment is a power exercisable in favor of anyone, including the donee themself, their estate, their creditors, or the creditors of their estate
- Special power of appointment is 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

Presently Exercisable vs. Testamentary Power
- A presently exercisable power of appointment is one exercisable by the donee during their lifetime
- a testamentary power is one that is exercisable only by the donee’s will

*Generally, creditors cannot reach appointive assets
- Under the theory that the donee does not own the appointive property, if the donee does not exercise their general power (whether presently exercisable or testamentary), the donee’s creditors cannot reach the property
- If, however, the donee exercises the power, even if the donee appoints to another person, the donee’s creditors can reach the appointive property as if the donee were the owner
- Also, if the donee of a general power is also the donor, the donee’s creditors can reach the appointive assets regardless of whether the donee exercises the power