Wills Flashcards
Revocation by Divorce
If a testator is divorced after making a will, all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator.
In most states, a bequest to former spouse’s relatives remains in full force regardless of the relationship of the parties. Under the Uniform Probate Code, however, a divorce revokes bequests not only to the former spouse but also to the relatives of former spouses.
ExamTip: This is a revocation by operation of law.
Ademption
Under the common law identity theory, a specific gift is adeemed if it cannot be identified at the time of the testator’s death or the testator does not own it at the time of death. This can occur when the testator makes a specific gift, but the property is later destroyed or sold before their death. The ademption doctrine is an objective test that does not take into account the testator’s probable intent.
Intestacy: Rules of Distribution of Shares
- Strict Per Stirpes: Under the common law strict per stirpes approach, the estate is divided by the number of members in the first generation of children who are either alive or survived by descendants. Each member who is alive takes their share, and the shares of the deceased members drop to the next generation. This process is repeated for the next generations until every share is taken.
- Per Capita With Representation (majority): The estate is divided equally among the living and deceased at the first generation that has a living taker.
- Per Capita at Each Generation: Under the UPC per capita at each generation approach, the estate is divided at the closest generation to the decedent in which one or more of the descendants are alive (similar to modern per stirpes). However, shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generation level (shares are dropped by “pooling” method).
Requirements for a Valid Will
(1) Legal Capacity (i.e.,18 years, and of sound mind)
(2) Testamentary Capacity
(3) Testamentary Intent (i.e., present intent to create a will)
(4) Compliance with Formalities of Will Execution
Testamentary Capacity
A testator must have the capacity to understand: (1) the nature of their act of executing a will; (2) the nature and extent of their property; (3) the persons who are the natural object of their bounty (family members); and (4) ability to formulate an orderly scheme of disposition.
Will Execution Formalities
To be valid, a will must (1) be in writing; (2) signed by the testator; and (3) attested to in the testator’s presence by two disinterested witnesses (or notarized).
ExamTip: A will with an interested witness is VALID, but the witness’ share will be ‘purged’. However, if two disinterested witnesses were present, the gift will be valid.
Meaning of “Signed in Testator’s Presence”
Under the “conscious presence test” (majority rule), a will signed within the range of the testator’s senses is valid.
Under the minority view, a will must be signed within the testator’s line of sight.
Doctrine of Integration
A document will be integrated into a will if the testator (1) intended it to be part of the will AND (2) the document was physically present at the will’s execution.
Codicils
A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. Codicils must satisfy the same formalities.
A valid codicil republishes the will and can cure any interested witness issues if disinterested witnesses are used.
ExamTip: A codicil CANNOT republish an invalid will.
Holographic Wills
A holographic will is a handwritten will that is NOT witnessed. In states that recognize holographic wills, some require that the will be “subscribed to by the testator”.
Incorporation by Reference
A document or writing may be incorporated into a will by reference if (1) it was in existence at the time of execution of the will;
(2) it is sufficiently described in the will; AND
(3) the testator intended to incorporate it into the will.
Acts of Independent Significance
A court may use an act of independent significance to fill in any gaps of a will. Acts of independent significance are those with significance outside of the will-making process.
Revocation by Physical Act
A will is revoked by physical act if: (1) the testator intended to revoke the will; AND (2) the will is burned, torn, destroyed, or cancelled by the testator (or someone at his direction and in his presence).
ExamTip: Cancellation by crossing out is OK, but Testator CANNOT pencil in substitutes.
Revocation by Subsequent Will or Codicil
A testator may revoke a will by executing a subsequent valid will or codicil. Execution of a new will revokes a previous will only to the extent that the previous will conflicts with the new will UNLESS the new will expressly revokes the previous will in its entirety.
Dependent Relative Revocation
The Dependent Relevant Revocation Doctrine (DRR) cancels a previous revocation that was made under a mistaken belief of law or fact by the testator. The doctrine applies when the testator would not have revoked his original will or bequest but for the mistaken belief that another will he prepared would be valid.
ExamTip: DRR ONLY applies when the court can determine that the testator would have preferred the disposition in the revoked will over the disposition resulting from a finding that the testator died intestate.
