Wills

Question 1

Intestate Succession: per capita at each generation

Answer 1

1. First, find the first generation where there are children living
2. Give one equal share to each living child in that generation and to each deceased child of that generation that left surviving children of their own
3. Combine all of the shares of the deceased persons of that generational level, then divide them equally at the next generational level

key is that every individual at each generational level is treated alike

Question 2

Intestate Succession: per capita with representation (majority rule)

Answer 2

1. First, find the first generation where there are children living
2. give one equal share to each living child and each deceased child of that generation who left surviving children
3. The children of the deceased take the exact share that their deceased parents would have

key is that individuals at each generational level may not be treated alike

Question 3

Intestate Succession: Classic per stirpes (minority view)

Answer 3

1. one equal share is given to each living child of decedent and each predeceased child with surviving descendant/children
2. each child of the first generational level receives one equal share

this method divides into shares at the first generation of decedent’s children, even if no child survives the intestate decedent

Question 4

Validity of a Will requirements (6 reqs)

Answer 4

1. will must be in writing
2. signed by the Testator
3. witnessed by 2 witnesses (will must be signed by T in Ws’ presence & Ws must sign in T’s presence)
4. Testator must be 18+ (legal capacity)
5. Testator must have the present intent that the document serves as his will (testamentary intent)
6. Testator must have testamentary capacity

Question 5

Testamentary Capacity

Answer 5

To form a valid will, the Testator must have the capacity to understand:

1. nature of their act (i.e. that they’re executing a will)
2. nature/extent of their property
3. natural objects of their bounty (i.e. know who their family members/heirs are)
4. be able to formulate an orderly scheme of disposition (i.e. be able to understand the above all together)

testamentary capacity is not as high a level of capacity as required for Ks. Testamentary capacity is also determined only at time of will execution, and T can have “lucid intervals” that satisfy capacity

Question 6

Holographic Wills

Answer 6

a holographic will is one that is entirely in the Testator’s handwriting and has no attesting witnesses (some states accept a holographic will with other handwriting/text as long as all material portions are written by T)

most states that allow holo wills allow for handwritten changes to be made by the T after the will is completed

Question 7

Holographic Wills requirements

Answer 7

1. must contain the Testator’s signature
2. the material portions are in the Testator’s handwriting

a holographic will is an unattested will

Question 8

Revocation of a Will

Answer 8

A person with testamentary capacity may revoke their will at any time prior to death. Partial revocation also allowed in some states

Revocation can happen 3 ways:
1. revoked by operation of law (e.g. a final divorce - not just filing for divorce)
2. by subsequent instrument (i.e. a new will)
3. by physical act

Question 9

Revocation by Physical Act

Answer 9

a will can be revoked by a physical act (e.g. burning, tearing, cancelling, etc.) a material portion of the will

this must be done with the intent to revoke the will. If the physical act is by accident, then NO revocation

a T may direct someone else to destroy the will for revocation, BUT the physical act must be done at the T’s request and in the T’s conscious presence

Question 10

Dependent Relative Revocation

Answer 10

DRR allows a court to disregard the revocation of a will when it appears that the Testator revoked the will bc of a mistake of law/fact that another disposition of property was effective

If a Testator revokes their first will based on mistaken assumptions of law/fact, the revocation of the will is ineffective if it appears that the Testator would not have revoked had he had accurate information

the more similar the provisions of the two wills, the more likely a court will apply DRR to save first will. If the provisions are more different, a court is more likely to find that T would have preferred intestacy over the first Will and DRR will NOT apply

Question 11

Slayer Statute

Answer 11

under a slayer statute, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate

Pay attention to if the killing was actually felonious and intentional (voluntary manslaughter counts as felonious/intentional; involuntary manslaughter does NOT count)

the property passes as though the killer predeceased the victim/decedent

Question 12

Dispensing power

Answer 12

Under the Uniform Probate Code, courts may use their dispensing power to save an invalid will so long as there is clear and convincing evidence that the decedent intended the document to be their will

Question 13

Antilapse Statute

Answer 13

Under an anti-lapse statute, if a beneficiary dies before the Testator and was related to the Testator by blood (spouses do NOT count under majority view) and had issue who survived the Testator, then the gift to the beneficiary is saved from lapsing (i.e. failing and going to residuary) bc the beneficiary’s issue will take the gift in lieu of the deceased beneficiary

In most states, words of survivorship (i.e. “B takes if he survives me”) are considered a contrary will provision and the anti-lapse statute will NOT be applied

Question 14

Ademption

Answer 14

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

If devise is adeemed, then the beneficiary takes nothing

some exceptions though (e.g. proceeds from sale of property by guardian/conservator of T; replacement property; etc.)

Question 15

Codicil

Answer 15

a supplement to a will that modifies, adds, explains, or revokes a will

Question 16

Disclaimer

Answer 16

to reject a gift, usually for tax purposes

any party may disclaim a gift by filing an instrument of disclaimer w/in 9 months of decedent’s death.

A disclaimed interest passes as though the disclaiming party predeceased the decedent

look out for an anti-lapse statute. If the disclaiming party has a kid, that kid may get the gift from the will under anti-lapse

Question 17

Living Wills vs. Durable Healthcare Powers

Answer 17

Living will: describes an adult’s desires regarding medical treatment when they cannot give informed consent

Durable healthcare power: a principal’s appointment of an agent to make healthcare decisions for them

Question 18

Undue Influence

Answer 18

to establish undue influence, the party contesting the will must establish that:

1. the influence existed and was exerted
2. effect of the influence was to overpower the mind and free will of the Testator
3. and the resulting disposition would not have been executed but for the influence (i.e. causation)

common evidence
- unnatural dispositions
- opportunity/access to T
- confidential relationship b/w B and T
- T’s ability to resist
- B’s involvement with drafting will

Question 19

Presumption of Undue Influence - Confidential Relationships

Answer 19

presumption of undue influence arises when:
1. there was a confidential relationship b/w the T and Beneficiary, AND
2. that beneficiary was active in procuring, drafting, or executing the will

presumption does not arise for spouses

if attorney drafting the will is a beneficiary, many states will void the gift

Question 20

Abatement

Answer 20

when an estate’s assets are not sufficient to pay all claims and satisfy all bequests/devises, then gifts abate

Abatement = the process of reducing gifts. If there is still insufficient funds but multiple devises left, the funds will abate pro rata

Unless the Testator specifies an order of abatement, gifts abate in the following order:
1. intestate property
2. residuary estate
3. general legacies
4. specific devises/bequests

Question 21

Life Insurance Policies

Answer 21

life insurance proceeds are a non probate asset that passes to the policy’s beneficiary outside of the estate

life insurance policies are a contract and the disposition of its proceeds are governed by the contract terms

a will cannot change the beneficiary designation unless the K allows it

Question 22

Incorporation by Reference

Answer 22

a document that is not present when the will is executed may be incorporated into the will by reference and considered part of the will if:
1. it was in existence at the time the will was executed
2. the will sufficiently describes the document
3. and the will manifests an intent to incorporate the document

Question 23

Revival of a Revoked Will (Common Law)

Answer 23

At common law, if a Testator writes a will and that will gets revoked by a subsequent new will, and THEN the new will gets revoked before T’s death, then the original will be be put back in effect

Some jurisdictions permit revival of a revoked will only if the will was:
1. re-executed with proper formalities or acknowledged by T, or
2. republished by a validly executed codicil

Question 24

Revival of a Revoked Will (UPC and Modern View)

Answer 24

Fact order:
1. original will is made
2. new will is made, revoking the original will
3. new will is revoked

the original will may then be revived if that was the Testator’s intent when he revoked the new will

Intent may be established by the Testator’s statements and reference to all circumstances

Question 25

Inter Vivos Gift (satisfaction of gift in a will)

Answer 25

An inter vivos gift made subsequent to a will’s execution is generally deemed to be in satisfaction of the gift in the will IF the Testator intended the gift to be in satisfaction

UPC states do not consider a transfer to be in satisfaction unless the T provides so in the will or other contemporaneous writing, or unless the devisee acknowledges in writing that the gift was in satisfaction

Question 26

Interested Witnesses

Answer 26

For a will to be valid, it generally must be attested to by 2 witnesses

An attesting witness who is also a beneficiary under the will is an “interested witness”

At common law, an interested witness was not a competent witness, and if one of the 2 required witnesses was such a beneficiary, then the will was denied probate

Modern view now holds that when an attesting witness a beneficiary, the will is still valid. But some states will hold that the interested witness loses their gift under the will

Exceptions made if:
(1) there are extra witnesses, or
(2) the interested W would have taken under intestacy or an earlier will

UPC view: abolished interested witness rule and hold that a gift to an interested W is not purged