Wills

Question 1

Valid will

Testator’s intent

Answer 1

For a will to be valid, the testator must intend that the instrument operate as his will. The testator must be of sound mind and reach the age of 18 years of age.

Sound mind factors: testator knows the nature and extent of his property, and understands natural objects of his bounty, i.e., T understands who will get the property, and understands the disposition he is making.

NOTE: Codicils must be executed with the same formalities.

Question 2

Validi will

writing/witness requirements

Answer 2

• will must be in writing
• signed by the testator and signed by two disinterested attesting witnesses.
• The testator must sign or acknowledge the will in the presence of each witness.
• The attesting witnesses must sign in the testator’s presence.
• Some states - witnesses must sign in each other’s presence.
• (Majority rule→ conscious presence Minority Rule →line of sight).

Question 3

Attestation Clause

Answer 3

Most wills contain an attestation clause and is prima facie evidence of what was recited in the will. But it is not a substitute for the testimony of the witnesses as to the facts (helps w/faulty or no memory).

Compare Self-proving affidavit - allowed in many states → proves the validity of will and it can be admitted to probate.

Question 4

Interested Witness Rule

Answer 4

Majority rule → gifts are voided and treated as though the interested witness predeceased the testator (purging statues). UPC abolished this rule.

Exceptions (1) This rule does not apply if there are at least 2 other disinterested Ws or→ the interested W establishes that the bequest was not inserted and that the will was not signed as result of fraud or undue influence. (2) if W-Beneficiary would have taken had the will not been admitted to probate.

Question 5

Harmless Error Rule

Answer 5

Minority Rule - Ignore harmless errors if there is clear and convincing evidence that the testator intended the document to be their will. This rule only applies if the jurisdiction has a statute that permits it. Example: if a will only has one witness instead of two

Question 6

Lack of Capacity

Answer 6

Testator must know the nature of his act, the objects of his bounty (children, spouse), the nature and extent of his property, and the scope and meaning of his disposition/will.

Question 7

Insane Delusion

Answer 7

A false conception about reality that produced a particular
testamentary disposition. Look for a causal connection between the insane
delusion and the result in the wil

Question 8

Undeue Influence

Answer 8

The following elements must be present: (1) existence and exercise of influence over testator; (2) the effect was to overpower will and mind of testator; and (3) the will is a product of the influence (will/gift would not have been made but for the influence).

Undue Influence is likely easier to prove when you have a confidential relationship (i.e., family relationship). Also, look to see if there is a fiduciary relationship between the T and the influencer!

Question 9

Mistake

Answer 9

A will cannot be modified or reformed because of a mistake. Under the UPC the will can be reformed if the testator’s intent is proven by clear and convincing evidence.

Mistake in Execution: Where the testator does not know they are a signing a will and thus a lacks testamentary intent. Extrinsic evidence is allowed to show that the testator did not know they were signing a will.

Mistake in Inducement: Where the testator writes a will based on inaccurate or a misunderstanding of fact or law, leading them to make a bequest they would not have made if they knew the truth (usually not grounds for modification, but some jurisdictions allow it).

Question 10

Holographic Wills

Answer 10

valid in a majority of states (soldier/sailor act also apply).

Mostly handwritten Signed Will by T.

T can handwrite a will and then later have it signed and witnessed → this is not a holographic will at all.

Question 11

Incorporation by reference

Answer 11

if the will refers to a separate document → the document must be in existence at the time of execution of will and be sufficiently described so that it can be identified in the will, and the will manifests and intent to incorporate the document into the will. → It cannot be subsequently revised unless the will formalities are followed.

Two exceptions where document does not have to be in existence at time will is created
* if a pour over trust is amended after the will
* Tangible Personal Property Memorandum (must be signed, describe with certainty)

Question 12

Abatement

Answer 12

A gift abates where the estate has insufficient. assets to satisfy all the gifts, debts, and expenses of the estate.

order of abatement:
1. property passing by intestacy
2. residuary estate
3. General legacies
4. demonstrative legacies
5. specific bequests and devises

Within a class gifts will abate pro rata according to will terms

Question 13

Types of Gifts

Answer 13

Specific - particular item

General - amount of money (unless specified source)

Demonstrative - amount of money from specified source (bank account)

Residuary - the rest of the estate after distributing the above.

Question 14

Ademption

Answer 14

If specific devise is gone it is adeemed by extinction. Most states follow “identity” approach whcih does not provide a substitute gift for the beneficiary. Other states they can prove the testators intent.

General or demonstrative devises are no adeemed by lack of cash or asset. They will be satisfied by selling other assets.

Property can be adeemed by satisfaction which happens via inter vivos transfer if testator intends it.

Question 15

Omitted Child Statute

Answer 15

“pretermintted child”

the omitted child must have been born or adopted after the execution of the will

the omttied child will take intestate share “forced share” or same share as other children

Question 16

Omitted Spouse

Answer 16

majority: If T marries after executing a will, the marriage has no effecct on the prior will and new spouse can take under elective share statute.

UPC or minority: If a person marries after will, and the spouse survives, the new spouse takes an intestate share.

The Statute does not apply if the:

	1.	Will was made in contemplation of marriage; or 
	2.	Will states that it should survive subsequent marriage; or 			
	3.	T provided for new spouse by transfer outside of the will (e.g. revocable trust)

Question 17

Anti-Lapse

Answer 17

When bene dies before T a lapsed gift is saved by statute if predeceasing bene is within specified degree of relationship to the T and left surviving descendants

UPC: saves gift if bene is stepchild, grandparent, or a descendant of grandparent

UPC: applies statute to trusts too

UPC: words of survivorship are not enought to negate the application of anti-lapse statute

Most states: words of survivorship constitute contrary provision

Question 18

Simultaneous death

Answer 18

If USDA applies → treat as if the spouses predeceased each other. If the facts indicate that a beneficiary survived the other, even if for only one minute → the beneficiary will not have been considered predeceased.

The Revised USDA applies the 120hour rule (½ the states follow this)

Question 19

Advancements

Answer 19

A lifetime gift is presumptively not an advancement unless shown to be one. The advancement is valued at the time of the gift.

Under the common law – lifetime gift presumed to be advancement – the presumption was rebuttable → this is now the minority rule.

UPC → No lifetime gift to a child or other heir is considered an advancement unless it is: (1) declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in writing by the donee (the donee’s writing need not be contemporaneous).

Question 20

No contest clauses

Answer 20

(in terrorem clauses). If applicable, the clause is usually given full effect unless the challenger had probable cause to challenge the will.

Question 21

Elective Share

Answer 21

A surviving spouse may waive a gift and elect to take a statutory share of the decedent’s net probate estate. The value of estate includes non-probate assets, including property placed into a revocable trust – UPC includes other lifetime transfers.

In most states, if the testator dies leaving issue, a surviving spouse is entitled to receive up to 1/3 of the net probate estate if the decedent is survived by issue and 1/2 if not survived by issue.

Question 22

Homestead Rights

Answer 22

A surviving spouse and children may continue living in the homestead until remarriage, death of the surviving spouse, or until the youngest child turns 18. Homestead automatically protected.

The principal place of residence (homestead) may not be sold to satisfy unsecured debts. The home is not protected from claims secured by the home (mortgages), taxes, and child support.

Question 23

Intestate spousal share

Answer 23

1. In most states → spouse takes 1/3 or 1/2 of the estate if decedent leaves descendants
2. UPC, if decedent leaves only spouses descendants → then the entire estate goes to the surviving spouse.
3. If most states, if no descendants → then the entire estate goes to the surviving spouse. In UPC states SS gets it all only if there nor other surviving descendants or parents.
4. Some states have statutes that give SS a $ amount + 1/3 of estate.

Question 24

Step child and foster child intestate share

Answer 24

generally, no inheritance right unless adopted.

adoption by estoppel permits a child to inherit when legal custody of a chilid is gained under an unfulfilled agreement to adopt.

Question 25

Per Stirpes

Answer 25

minority view. One share is created for each child and each deceased child who has surviving descendants. (vertical distribution start from the top and split if colum is alive)

Question 26

Per capita with representation

Answer 26

Majority view. Property is divided into equal shares at the first generational level at which there are living takers. Once at a row with living taker, divide equally and deceased columns pass down by represenation.

Question 27

Per capita at each generaltional level

Answer 27

Modern View. Property is divided at equal 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 takers at the next generaltional level.

Question 28

Non marital children

Answer 28

can inherit from mother and father in most states if the couple got married, paternity was established before father died, or at probate proceeding by clear and convincing evidence after death.

Question 29

Joint Wills

Answer 29

a single instrument executed by two or more testa- tors and intended to be the will of each. This highly unadvisable technique was frequently used by married couples in the past.

The mere execution of joint wills or mutual wills does not raise a presumption that the wills were executed pursuant to a promise by each party not to revoke.

Question 30

Reciprocal or mutual wills

Answer 30

separate wills executed by two or more testators that contain substantially similar provisions. These are often called “sweetheart wills.”

Question 31

Contractual will

Answer 31

a will executed or not revoked as the consider- ation for a contract. A contract to make, not to make, or not to revoke a will is valid.

Question 32

Breach of will contract

Answer 32

Generally no remedy during Ts life becuase T can comply up until death.

If T repudiates - promisee can seek damages, quantum meriut, equitable relief.

If T dies in breach or the first party dies in reliance and second party breaches, then a constructivev trust will be granted for benes.

Question 33

disclaimers

Answer 33

Must be in writing and filed within 9 months of the gift or interest in the trust. It can be used to defeat creditors except Fed tax lien. (disclaimer relates back to date of gift)

Question 34

How to revoke a will

Answer 34

1. by operation of law (marriage, divorce, omitted child
2. Physical act: burnign, tearing, canceling, or obliterating a material portion of the will with concurrent intent to revoke.
3. Proxy revocation in testator’s presence
4. Some states say partial revocation if sufficient evidence that testator made the change. Extrinsic allowed.
   * crosses out Bs name and puts Cs name = revokes gift to B but does not give gift to C unless act was done in ompliance with the will formalities and Bs gift is not revived.

Question 35

Dependent Relative Revocation

Answer 35

Saves a prior will where party is mistaken as to validity of a subsequent will (not everything is DRR!).

Example: Testator executes a valid first will leaving his estate to A. T then makes a 2nd will to A that is invalid.  T would not have made the 2nd will revoking the 1st will if he would have known that the 2nd will was invalid.  DRR revives the 1st will instead of sending the will to intestacy.

The more similar the provisions of the wills → courts more likely to use DRR

The more different the provisions of the will → courts less likely to use DRR

Question 36

Missing will or mutiliated will

Answer 36

When a will is traced to the testator’s possession or to where he had ready access to it and it is missing/mutilated → The law presumes that the testator destroyed it with the intent to revoke. The presumption is rebuttable.

Question 37

Republication

Answer 37

A will is treated as having been executed (republihsed) on the date of the last validy executed codicil.

If a will is not validly excuted it cannot be republished.

Question 38

slayer statute

Answer 38

One who feloniously and intentionally brings about the death of the decedent forfeits any interest inthe decedent’s estate. The propery passes through the killer as if they had predeceased.

Question 39

Valid Trust

Answer 39

To create a valid trust there must be
* A settlor
* who intends to create a trust
* for a valid trust purpose
* who delivers the trust property
* to the trustee
* to hold for beneficiaries benefit.

If there is no assets when instrument executed, trust arises when funded and intent remanifested.

Trust won’t fail for lack of trustee, court will apoint.

Question 40

Pour over will

Answer 40

• Trust must be in existence or executed at the time of the will (prevailling view, a will may devise property to a future trust if trust is executed before testators death)
• Pour over gifts are valid even if the trust is unfunded during the testator’s lifetime
• Trust must be clearly identifiable
• Trust amendments effeecting distribution of pour over assets doesn’t invalidate the pour over gift

Question 41

general power of attorney

Answer 41

A general power of attorney gives broad authority to the agent. The agent may thereafter make medical decisions, legal choices, or financial or business decisions for the principal. a power of attorney becomes invalid when the principal becomes mentally incompetent or dies.

Question 42

special power of attorney

Answer 42

a special power of attorney pertains to a limited authority to be exercised by the agent. The agent can only perform the specific tasks as stated in the power of attorney. a power of attorney becomes invalid when the principal becomes mentally incompetent or dies.

Question 43

durable power of attorney

Answer 43

a durable power of attorney pertains to an authority which subsists even if the principal becomes incapacitated. As compared to a general power of attorney and a special power of attorney, a durable power of attorney is not extinguished by the incapacity of the principal.