Wills Flashcards
Any part of decedent’s estate not effectively disposed of by will passes by _____________ to decedent’s heirs.
Intestate succession
Whose statutes govern intestate succession?
State
Under the laws of all states, _______ take to the exclusion of their own descendants.
An intestate’s children
In states that recognize community property, what does an intestate decedent’s surviving spouse take?
100% of decedent’s 1/2 share of community property
In other words, they have 100% of total community property
In states that recognize separate property, the spouse will receive 100% of property if:
- No descendants or parents survive OR
- All surviving descendants also descendants of surviving spouse
In states that recognize separate property, what does the spouse receive if there is no descendant but a parent survives?
$300K + 3/4 of remaining estate
In states that recognize separate property, what does the spouse receive if the surviving spouse has other descendants who are not descendants of the decedent?
$225K + 1/2 of remaining estate
In states that recognize separate property, what does the spouse receive if the decedent has other descendants who are not descendants of the surviving spouse?
$150K + 1/2 of remaining estate
Any part of the intestate estate not passing to a decedent’s surviving spouse passes in the following order to individuals who survive the decedent:
- Descendants by representation
- Parents
- Siblings (and their descendants)
- Grandparents (and their descendants)
- Descendants of predeceased partner
- State
Under the UPC, distribution “by representation” means ________
The estate is divided into as many equal shares as there are:
1. Surviving descendants in the generation nearest to the decedent which contains living heirs AND
2. Deceased descendants who left surviving issue
The result of per capita at each generational level is that ________.
Every person in the same generational level will always take an equal share
“By representation” is also known as _____________
Per capita at each generation
When parents receive the decedent’s property, how is the property split up?
Each parent gets half. If only one survives, that parent gets 100%
When going through the order of recipients of an intestate share, if there is even one person in a category, then _________.
We stop there and give everything to that person
When it comes to distribution schemes, most states are split between ______ and ______.
Per stirpes
Per capita with representation
Under the UCC, the default distribution scheme is _______.
per capita at each generation
If all takers are equally closely related to decedent, all distribution schemes see what scheme applied?
Per capita
What is “per capita at each generation”?
Every person in the same generational level will always take an equal share
Modern per stirpes is also known as _________.
Per capita with right of representation
Describe the modern per stirpes distribution scheme
All heirs in the first level where there is a living heir receive one share; if an heir is deceased, their share passes down with the same rules.
What is traditional per stirpes?
Distribution allocates at first level of heirs even if everyone at this level is dead, so long as at least one of them has living heirs
State laws generally provide that the word “children” in a will should be interpreted consistently with the definition of “children” used in _____
Determining rights to intestate succession
State laws generally provide that the word “children” in a will should be interpreted consistently with the definition of “children” used in _____
Determining rights to intestate succession
For purposes of intestate succession, how are adopted children treated at modern law?
The same as natural children
For purposes of intestate succession, how are adopted children treated at common law?
Only blood relatives take
Which parent does an adopted child inherit from, adoptive or natural parent?
Adoptive parent
What is the idea of severance when it comes to adoption?
Adoption severs the inheritance relationship between child and natural relatives
What is the exception to severance of an adopted child?
Step-parent adoption
Can children born out of wedlock inherit from their fathers?
As long as one statutorily defined method of establishing paternity is satisfied:
1. Father married mother after child’s birth
2. Adjudicated to be the father in paternity suit
3. After death and during probate; proven to be father by clear/convincing evidence
Statutes that allow a child of unmarried parents to inherit from their mothers but not their fathers violate _____________.
The Equal Protection clause of the 14th Amendment
Stepchildren and foster children have no inheritance rights unless ______ applies.
Doctrine of equitable adoption
What is the doctrine of equitable adoption?
Children who weren’t technically adopted are equitably adopted based on certain factors:
1. The adopting parent’s bestowal of love/affection on the child
2. The adopting performance of parental duties toward the child
3. The child’s obedience to and companionship toward the adopting parent
4. The child’s reliance on an adoptive relationship
5. The adoptive parent’s holding out the child as his child
Under most states, how are half-bloods treated?
Treated the same as if they were of whole blood
Can posthumous heirs inherit?
Only if they:
1. Are in gestation at decedent’s death AND
2. Live for 120 hours after birth
What is the burden of proof for showing that an individual in gestation at the decedent’s death lived 120 hours after birth?
Clear & convincing evidence
The survival rule for posthumous heirs is not applicable if _______.
Application of the survival rule would result in the escheat of property to the state
A child of assisted reproduction concieved after the individual’s death is treated as if gestated at individual’s death if:
- In utero no later than 36 months after individual’s death OR
- Born not later than 45 months after individual’s death
Inter vivos gifts made by an intestate are deducted from the recipient’s intestate share if __________.
So intended by donor.
Under a typical advancement statute, lifetime gifts are not an advancement absent evidence that ___________.
The transferor intended them as such
Under common law, ______ is presumed to be an advancement.
Property the decedent gave during the decedent’s lifetime to an heir
Under the UPC, if an individual dies intestate, property the decedent gave during the decedent’s lifetime to an heir is treated as an advancement only if:
- Inter vivos gift AND
- Intent of advancement express in writing
What is a proper writing showing intent for something to be an advancement under the UPC?
- Contemporaneous writing by intestate OR
- Written acknowledgment by the heir
How is property valuated for the purposes of advancements?
Valued as of the time:
1. The heir came into possession/enjoyment of the property OR
2. Of decedent’s death
…whichever occurs first
How is property valuated for the purposes of advancements?
Valued as of the time:
1. The heir came into possession/enjoyment of the property OR
2. Of decedent’s death
…whichever occurs first
Under common law, an advancement is generally binding on __________.
Successors of the deceased advancee
Under common law, an advancement is generally binding on __________.
Successors of the deceased advancee
Under modern law, an advancement is charged only against _____.
Intestate share of the actual recipient
Under modern law, an advancement is charged only against _____.
Intestate share of the actual recipient
What is the “hotchpot” concept for advancements?
Any advancements recieved by actual heirs are added to the value of the intestate’s estate; then shares are calculated.
The advancements are then deducted from the heir’s intestate share down to 0.
What happens if there is a simultaneous death?
The simultaneous decedent does not take as an heir
When is a death simultaneous?
Does not survive decedent by 120 hours
What is a “death” for purposes of simultaneous death issues?
- Irreversible cessation of circulatory & respiratory functions OR
- Irreversible cessation of all brain functions
The rule of simultaneous death won’t apply if ___________.
Application of the 120-hour survival requirement would result in the escheat of property to the state.
What is a “death” for purposes of simultaneous death issues?
- Irreversible cessation of circulatory & respiratory functions OR
- Irreversible cessation of all brain functions
What happens if there is a simultaneous death?
The simultaneous decedent does not take as an heir
When is a death simultaneous?
Does not survive decedent by 120 hours
A valid will requires:
- Testator with capacity
- Present testamentary intent AND
- Valid compliance with the applicable formalities
When does an individual have capacity to make a will?
- At least 18 AND
- Of sound mind
When does an individual have capacity to make a will?
- At least 18 AND
- Of sound mind
When does someone have sound mind?
- Knows nature/situation of property
- Understands her relations to those whose interests are affected by the will AND
- Understands nature of testamentary act
What are the primary challenges relating to capacity?
- Insane delusion
- Fraud
- Undue influence
If a testary lacks capacity, then _________.
Any part of the will affected by their lack of capacity is invalid
If a later will is stricken for lack of capacity, a _________ can be probated.
Prior valid will
A testator must have present testamentary intent that __________________.
The instrument operate as her will at the time the will is executed
What is the test for present testamentary intent?
Did the testator intend to make a disposition of property that would be:
1. Governed by the instrument in question AND
2. Become effective on the testator’s death
What happens if there is a simultaneous death?
The simultaneous decedent does not take as an heir
Whether the testator had present testamentary intent is a question of _____.
Fact
When is a death simultaneous?
Does not survive decedent by 120 hours
Whether a testator had present testamentary intent is a question of fact to be determined by:
Examining:
1. The will
2. The circumstances surrounding the will
Formal wills are also known as ______ wills.
Attested
What are the will formalities under the UPC?
The will must be:
1. In writing
2. Signed by the testator (or in the testator’s presence by her direction) AND
3. Either attested to by 2+ witnesses or acknowledged by a notary
What is the strict-compliance doctrine?
If the execution of a will didn’t strictly adhere to formalities, the will is invalid
Which is the common law approach, strict-compliance doctrine or substantial doctrine?
Strict-compliance doctrine
What is the substantial compliance approach?
The will is valid as long as it substantially complies with most will formalities
Which will formality must almost always be met, even under substantial compliance?
The will must be in writing
What counts as a signature when it comes to will formalities?
Anything intended to be dipositive
Where must a testator sign a will in order for the signature to be valid?
In most states, anywhere; rarely, at the end.
A testator need not see the actual signing by a designated individual but must only __________.
Be conscious of the individual’s presence and the act of signing
What is the “line-of-sight” test?
The testator should be capable fo seeing the witnesses and the person who is signing the will on the testator’s behalf actually sign the will
Under the UPC, a testator may sign the will outside the presence of the witnesses if _________.
She later acknowledges to the witnesses that:
1. The signature is hers OR
2. The document is her will
When must witnesses sign a will in order to meet will formalities?
Within a reasonable time after witnessing the testator sign the will or acknowledge her signature
An individual is competent as a witness to a will if __________.
An individual is generally competent to be a witness
Can the “reasonable time” requirement be satisfied if the testator dies?
Yes
Under the UPC, there is no requirement that the witnesses sign in the presence of _____ or ______.
The testator
Each other
Under non-UPC, must be acknowledged in testator’s presence
At common law or UPC law, signing of a will by an interested witness will make it invalid.
Which one?
Common law
Under modern law, a will is valid even if there is an interested witness, but __________.
Any gift in excess of the interesteed will’s intestate share:
1. Is purged AND
2. Will pass through the residuary clause (or intestate succession if there is no such clause)
What is an attestation clause?
Recites the elements of due execution
An attestation clause is prima facie evidence of ______.
Due execution
Although no state requires that a will contain an attestation clause, the use of one is desirable because _________.
It raises a rebuttable presumption of the truth of the recitals
A harmless error in executing a will may be excused if ______.
The proponent establishes by clear and convincing evidence that the decedent adopted the document as her will
A court may validate a will not executed in accordance with the statute of wills if ___________.
Evidence is clear and convincing that the testator intended the document to be a will
Under the “harmless error” doctrine of the UPC, a document not executed in compliance with the due execution requirements of the UPC will nevertheless be treated as a valid, formal will if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to constitute:
- Decedent’s will
- Partial/complete revocation of the will
- Addition/alteration of the will OR
- Partial/complete revival of her formerly revoked will/portion of the will
Holographic-will statutes allow the testator to dispense with _____ entirely.
Attestation
Under holographic will statutes, an unwitnessed will is validly executed if:
- Written in testator’s handwriting AND
- Signed by the testator
Under the UPC, how much of a holographic will must be in testator’s handwriting to be valid?
Material portion of the document only
In addition to being in the testator’s handwriting and signed by the testator, holographic wills must sometimes include ______.
Date in testator’s handwriting
After a testator signs a holographic will, the testator may validly __________ without re-signing the document.
make a handwritten alteration
What is a holographic codicil?
In jurisdictions that permit holographic will, the testator may also validly make and sign a handwritten alteration
What is integration?
Doctrine that permits separate papers to become a single will
Under the UPC, what documents may be integrated?
- Actually present at time of execution AND
- Intended to be part of the will
Intent of the testator to integrate a document as part of the will imay be inferred from:
- Physical connection (e.g. staples) OR
- Logical connection (e.g. internal coherence)
What is a codicil?
A testamentary instrument that:
1. Modifies
2. Amends
3. Revokes
…a pre-existing will
Codicils must be executed in compliance with _______.
Will formalities
A will is treated as if it were executed when its most recent codicil was executed unless ______
The effect of so treating it would be inconsistent with the testator’s intent
A document that is not _____ cannot be republished by codicil.
A valid will
What is republication via codicil’s curative effect?
Can cure defects that might otherwise affect the validity of bequests made under a will
If a testator executes a will, then a codicil, and then there is a revocation. of the codicil, there is a rebuttable presumption that ________.
Only codicil is revoked
If a testator executes a will, then a codicil, and then there is a revocation. of the will, there is a rebuttable presumption that ________.
Both will and all codicils are revoked
A holographic codicil is valid when:
- All material provisions are in the testator’s handwriting AND
- Testator signs it
A writing that is not valid as a will but exists when a will is executed may be incorporated by reference into the will if:
- The will manifests an intent to incorporate the writing AND
- The writing to be incorporated is identified with reasonable certainty
A document or other writing does not have to be _____ to be incorporated by reference
Valid
In order to be included by reference, a writing must be identifiable with ________.
Reasonable certainty
In some states, intent of the testator to incorporate a document by reference is presumed if ________.
Other requirements (1. clearly identifiable document AND 2. in existence at the time of will execution) are satisfied
A will may dispose of property by reference to acts/events that ___________-
Have significance apart from their effect upon the dispositions made by the will
What is the principle behind the doctrine of “facts of independent significance”?
The possibility of undue influence or fraud is reduced when the change in beneficiary has significance apart from the change in testator’s will
An external fact has independent significance if ____________.
It is one that would naturally occur or be done for some reason other than the effect it would have on the testamentary disposition
When must facts of independent legal significance occur to be considered as part of the will?
May be past or future
Who must act in order for their act to be significant?
May be anyone
What is the test for whether an act of independent significance will be relevant to a will?
Does the fact have independent significance apart form the will?
If yes, it will be upheld, since the parol evidence is trustworthy
What is a pour-over will?
Provision in settlor’s will that devises part/all of her estate to the trustee of an inter vivo trust created during settlor’s lifetime
An inter vivos trust and pour-over will are validly incorporated by reference if:
- Trust instrument is in writing
- Trust instrument in existence when will created
- Trust instrument identified with reasonable certainty AND
- Will must manifest intent to incorporate the trust
What validates a pour-over will?
- Incorporation by reference
- Facts of independent significance OR
- Uniform testamentary additions to trusts act
What is the requirement for validation of a pour-over will and inter vivos trust via the doctrine of “facts of independent significance”?
Inter vivos trust must be more than nominally funded
How does the Uniform Testamentary Additions to Trust Act apply to pour-over wills?
If there is a valid trust in existence:
1. Before the will was executed OR
2. At the time of execution
…the pour-over provision is valid by statute
Conditional wills only go into effect when ________.
A certain act/condition happens
A will may be made conditional by clear language indicating that ________.
The will is to take effect only if some particular event happens
A court will probate a conditional will only if _______ has been satisfied.
the doncition
Should a conditional will be a formal or holographic will?
Can be either
To invalidate a will for lack of testamentary capacity, the contestant must show that the testator lacked at least one of the following:
- Ability to know nature/extent of the property
- Ability to know relation to natural objects heirs and whose interests are affected by the terms of the instrument
- Ability to understand the nature of the testamentary act
What is the age requirement of capacity to create a will?
At least 18 years old
What are the elements of insane delusion?
- Testator suffers from a mental disorder
- Causing delusion/hallucination resulting in false belief
- Resistant to contrary evidence AND
- Delusion must have affected will
What is the effect of successfully showing that insane delusion existed?
Only the part of the will affected by testator’s insane delusion will be invalidated
A donative transfer is procured by undue influence if _______.
The wrongdoer exerted such influence that it:
1. Overcame the donor’s free will AND
2. Caused the donor to make a donative transfer that she would not have otherwise made
What are the elements of a prima facie case of undue influence?
- Susceptible testator
- Opportunity to influence
- Disposition or motive to exert influence AND
- Unnatural result
Who is a susceptible testator?
Susceptible due to:
1. Psychological
2. Financial
3. Physical OR
4. Any other weakness
There is a presumption of undue influence where there is _________ and ________.
Confidential relationship
Suspicious circumstances
A confidential relationship exists, causing a presumption of undue influence, in what cases?
- Attorney/client
- Doctor/patient
- Guardian/ward
- Penitent/clergy
- Trustee/beneficiary
A confidential relationship does NOT exist to cause a presumption of undue influence in what case?
Husband/wife (or other domestic partners)
Suspicious circumstances exist, causing a presumption of undue influence, in what situation?
- Active participation in procuring a will AND
- Unnatural result
What is the effect of undue influence?
Only part of the will affected by undue influence is held invalid
What are the court’s options where undue influence has been found to exist?
- Residuary clause
- If no residuary clause, then intestate succession OR
- Constructive trust
What happens if fraud is found?
Any provision resulting from fraud will be invalidated
What are the elements of fraud?
- Misrepresentation of material fact
- Known to be false by the wrongdoer
- For the purpose of inducing action/omission AND
- Actually induces the desired action/omission
What is fraud in execution?
- Forging testator’s signature on a will OR
- Testator signs document under the belief that it is non-testamentary in nature
What is the effect of fraud in execution?
Entire will is invalid; goes to intestate or prior valid will
What is fraud in inducement?
Wrongdoer’s misrepresentations of material fact affect contents of the will
What is the affect of fraud in inducement?
Only part affected is invalid
What options does the court have for dealing with a part of a will that is invalidated by fraud in the inducement?
- Residuary clause
- If no residuary clause, intestate succession OR
- Constructive trust
What is fraud in prevention of revocation?
Wrongdoer’s misrepresentations of material fact prevent the testator from revoking the will
What is the effect of fraud in prevention of revocation?
No probate; creates constructive trust
What happens if there is fraud in prevention of will executing?
Courts in some states will impose a constructive trust against the intestate beneficiaries in favor of beneficiaries who would have taken if the will had been executed
A donative transfer is procured by duress if ______
The wrongdoer threatened to perform/did perform a wrongful act that coerced the donor into making a donative transfer she wouldn’t have otherwise made
A mistake in execution occurs when __________.
The testator signs the wrong document
A mistake arises in one of two situations:
- Testator signs under mistaken belief that instrument is non-testamentary
- Reciprocal wills or mutual wills and parties mistakenly sign each other’s wills?
