Wills Flashcards
Intestate Succession: per capita at each generation
- First, find the first generation where there are children living
- 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
- 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
Intestate Succession: per capita with representation (majority rule)
- First, find the first generation where there are children living
- give one equal share to each living child and each deceased child of that generation who left surviving children
- 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
Intestate Succession: Classic per stirpes (minority view)
- one equal share is given to each living child of decedent and each predeceased child with surviving descendant/children
- 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
Validity of a Will requirements (6 reqs)
- will must be in writing
- signed by the Testator
- witnessed by 2 witnesses (will must be signed by T in Ws’ presence & Ws must sign in T’s presence)
- Testator must be 18+ (legal capacity)
- Testator must have the present intent that the document serves as his will (testamentary intent)
- Testator must have testamentary capacity
Testamentary Capacity
To form a valid will, the Testator must have the capacity to understand:
- nature of their act (i.e. that they’re executing a will)
- nature/extent of their property
- natural objects of their bounty (i.e. know who their family members/heirs are)
- 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
Holographic Wills
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
Holographic Wills requirements
- must contain the Testator’s signature
- the material portions are in the Testator’s handwriting
a holographic will is an unattested will
Revocation of a Will
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
Revocation by Physical Act
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
Dependent Relative Revocation
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
Slayer Statute
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
Dispensing power
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
Antilapse Statute
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
Ademption
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.)
Codicil
a supplement to a will that modifies, adds, explains, or revokes a will
Disclaimer
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
Living Wills vs. Durable Healthcare Powers
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
Undue Influence
to establish undue influence, the party contesting the will must establish that:
- the influence existed and was exerted
- effect of the influence was to overpower the mind and free will of the Testator
- 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
Presumption of Undue Influence - Confidential Relationships
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
Abatement
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
Life Insurance Policies
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
Incorporation by Reference
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
Revival of a Revoked Will (Common Law)
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
Revival of a Revoked Will (UPC and Modern View)
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
Inter Vivos Gift (satisfaction of gift in a will)
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
Interested Witnesses
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
