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Wills Flashcards

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1
Q

To be valid, a will is required to be created by:

A

(1) Signed writing by testator with:
(2) Testamentary intent, and
(3) Testamentary capacity

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2
Q

A will may be revoked when?

A

Any time prior to death

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3
Q

A will may be revoked by one with three ways:

A

(1) Operation of law
(2) Subsequent written instrument
(3) Physical act

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4
Q

A will be contested by _____, usually on the grounds of:

A

(a) any interested party

-Lack of capacity
-Undue influence
-Fraud
-Mistake

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5
Q

Intestacy rules apply in four situations:

A

(1) No will
(2) Will fails (denied probate)
(3) Will doesn’t dispose of all property (for the undisposed of property)
(4) Will specifies intestate distribution

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6
Q

When a will does not dispose of all of the probate rule, what rules apply to the property?

A

The disposed-of property is subject to the will, and the undisposed-of property is subject to intestacy rules.

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7
Q

In intestacy, what does the surviving spouse take if no descendants survive?

A

The surviving spouse takes the entire intestate estate if no descendants survive.

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8
Q

In intestacy, what does the surviving spouse take if descendants DO survive?

A

If there are surviving descendants, the surviving spouse takes either 1/2 or 1/3 of the estate (depending on state)

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9
Q

What does the UPC provide the surviving spouse if there are surviving descendants who are NOT the surviving spouse’s descendants?

A

If the surviving descendants are not the surviving spouses, the UPC provides for a dollar amount + 1/2 or 1/3

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10
Q

What does the UPC provide the surviving spouse if there are surviving descendants who ARE the surviving spouse’s descendants?

A

If the surviving descendants are also the surviving spouse’s descendants, the surviving spouse takes the entire estate.

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11
Q

What part of the estate do surviving descendants take?

A

Descendants take the share of the estate not passing to the surviving spouse.

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12
Q

The majority rule for the division of the state among surviving descendants is:

A

Per capita with representation

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13
Q

The modern trend for division of the estate among surviving descendants is:

A

Per capita at each generation

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14
Q

The minority rule for division of the estate among surviving descendants is:

A

Strict per stirpes (division always at child level)

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15
Q

If no descendants survive, the intestate estate first passes to:

A

If no descendants survive, the intestate estate first passes to parents.

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16
Q

If no parents survive, the intestate estate then passes to:

A

If no descendants or parents survive, the intestate estate then passes to descendants of the parents.

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17
Q

If there are no descendants of the deceased’s parents, the intestate estate then passes to:

A

If no descendants, or parents or their descendants, the intestate estate passes to the grandparents of the deceased, or those grandparents’ descendants

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18
Q

If there are no grandparents or their descendants, the intestate estate is then:

A

If no descendants, parents or their descendants, or grandparents or their descendants, the intestate estate is divided into maternal and paternal shares and passes to the nearest kin.

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19
Q

What is escheat?

A

Escheat: If there is no relative capable of taking the estate, the estate passes to the state.

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20
Q

How are adopted children treated in the passage of estates?

A

Adopted children are treated the same as natural children in the adoptive family.

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21
Q

Do adopted children have inheritance rights in the family of their natural parents?

A

No - adopted children are treated the same as natural children in their adoptive families, so their inheritance rights from their natural parents are cut off.

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22
Q

What is the laughing heir statute?

A
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23
Q

Do stepchildren and foster children have inheritance rights?

A

Stepchildren and foster children do not have inheritance rights unless adopted.

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24
Q

What is adoption by estoppel?

A
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25
Q

Do posthumous children have inheritance rights?

A

A child in gestation at the decedent’s death has regular inheritance rights as if born in decedent’s lifetime

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26
Q

In what three cases can non-marital children inherit from their father?

A

(1) When father and mother married after child’s birth

(2) When the man is named the father in a paternity suit

(3) If man is proved to be father after he dies

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27
Q

How is the inheritance divided for siblings of half blood and siblings of whole blood?

A

In most jurisdictions, siblings of the half blood and the whole blood inherit equally.

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28
Q

What is the majority rule for disinheritance clauses?

A

For the majority, disinheritance clauses are ineffective if there is partial intestacy.

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29
Q

What is the minority and UPC rule for disinheritance clauses?

A

For the minority and under the UPC, disinheritance clauses are given their full effect. The heir is treated as though he hd disclaimed his intestate share.

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30
Q

What is the Uniform Simultaneous Death Act?

A

Under the USDA, property of each person passes as though he survived the other person.

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31
Q

What does the USDA apply to?

A

The Uniform Simultaneous Death Act applies to probate and nonprobate transfers: wills, trusts, insurance

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32
Q

What is the 120-hour rule?

A

In a simultaneous death situation, one party must survive the other by 120 hours to take as a beneficiary or heir and avoid application of the USDA.

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33
Q

is the USDA absolutely mandatory or can the governing instrument make different provisions for simultaneous death?

A

The governing instrument can make different provisions for simultaneous death.

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34
Q

How does property that has been disclaimed pass?

A

Disclaimed property passes as though the disclaimant predeceased the decedent.

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35
Q

What are the four requirements for a valid disclaimer of property?

A

The disclaimer must:
(1) Describe the property
(2) Be in writing
(3) Be signed by the disclaimant
(4) Be filed within 9 months

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36
Q

What is estoppel of disclaimer?

A
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37
Q

What happens when an heir or beneficiary feloniously and intentionally causes the death of a decedent?

A

When an heir or beneficiary wrongfully causes the death of a decedent, property passes as though the killer predeceased the decedent.

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38
Q

Does wrongfully causing the death of a decedent sever joint tenancy?

A

Yes.

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39
Q

Every jurisdiction requires valid wills to be executed with these three:

A

(1) Writing
(2) Signature of the testator
(3) At least two witnesses

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40
Q

Only some jurisdictions require valid wills to be executed with these three stipulations:

A

(1) Will be declared to witness
(2) Testator ask witnesses to sign
(3) Testator signs will at the end

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41
Q

What if a jurisdiction prohibits holographic wills?

A

Handwritten wills may still be valid if they satisfy all of the will requirements

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42
Q

Does an interested witness have to validate the will?

A

NO - this used to be true but is now not the rule anywhere.

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43
Q

What are the two situations where lifetime gifts are either advancements of intestate share or satisfaction of gift under will?

A

(1) Intent is shown by contemporaneous writing by the donor or a will provision

(2) There is a written acknowledgement by the donee

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44
Q

Are lifetime gifts presumptively advancement of intestate shares or gifts under will?

A

NO - lifetime gifts are presumptively NOT intestate or will transfers unless specifically indicated

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45
Q

What are the requirements for formal attested will?

A

(1) All of the regular will requirements (signed writing + intent + capacity)
(2) Two attesting witnesses (or notary under UPC)

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46
Q

What two rules do testators and witnesses follow for formal attested wills?

A

(1) Testator must acknowledge will or signature in witness’s presence
(2) Witnesses must sign in testator’s presence

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47
Q

What is nonprobate property?

A

Property transferred gratuitously that does not pass through probate and is not governed by will or intestacy

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48
Q

Are nonprobate properties removed before or after you apply intestacy or will rules?

A

Nonprobate properties must be removed BEFORE you apply intestacy or will rules

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49
Q

Are inter vivos gifts nonprobate properties? What about properties that have been placed in a living trust?

A

Yes - both inter vivos gifts and properties that has been placed into an inter vivos trust are nonprobate properties.

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50
Q

What kind of transfers are remainder interests and executory interests?

A

Remainder interests and executory interests are nonprobate properties

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51
Q

Do remainder interests and executory interests pass through the decedent’s estate?

A

Remainder interests and executory interests pass to the designated remainder beneficiary, NOT through the decedent’s estate.

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52
Q

Does tenancy in common property pass through the decedent’s estate?

A

YES - A tenancy in common has no survivorship rights, and therefore, the decedent’s share of tenancy in common property does NOT avoid probate and DOES pass through the estate.

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53
Q

Does joint tenancy property pass through the estate?

A

NO - The property transfers to the other joint tenant through the right of survivorship, NOT through the estate.

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54
Q

What are pay on death/transfer upon death properties?

A

Bank accounts, corporate securities, and properties like this that transfer upon death to designated beneficiaries.

There are also transfer on death real property deeds and motor vehicle titles.

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55
Q

What kind of contracts call for a transfer on death property?

A

Life insurance
Pension Plans
IRAs and 401ks
Annuities
Any contract-like document where a death benefit is paid

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56
Q

Distinguish total intestacy from partial intestacy.

A

Total = Person died without a will
Partial = The will did not dispose of ALL of the property

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57
Q

What is the basic, bare bone idea of intestate succession?

A

Property remaining after debts are paid goes to the heirs

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58
Q

Do living people have heirs?

A

NO! Only dead people have heirs. Living people have heirs apparent

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59
Q

What is a an heir?

A

An heir is a person who takes by intestacy - they do NOT have to be a person’s children

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60
Q

What can be done to alter the scheme of intestacy if there’s evidence of what the person who died without a will wanted?

A

Not jack shit! Regardless of the evidence of what the decedent would have wanted, there is no way to alter the scheme of intestacy to grant those wishes if they died without a will.

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61
Q

What is the inception of title rule?

A

In marital rights, it is the law of the spouses’ domicile when property was acquired that determines who owns the property.

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62
Q

What jurisdiction’s intestacy laws apply to to the disposition of personal property? Real property?

A

Personal property = Law of decedent’s domicile at death controls
Real property = Law where the land is located controls

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63
Q

Whose share should you remove first in intestacy?

A

You should remove the surviving spouse’s share first, if there is a surviving spouse.

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64
Q

Is a spouse an heir?

A

Yes! Spouses are heirs

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65
Q

How is the surviving spouse’s share determined?

A

(1) Sometimes a percentage like 1/2 or 1/3
(2) Share may vary depending on the length of marriage or if there are children

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66
Q

Whose share is removed after the surviving spouse’s?

A

If there is property remaining after the removal of the surviving spouse’s share, the next group that takes is the decedent’s descendants.

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67
Q

How are descendants’ shares divided if all the children are alive?

A

If all the children survive the decedent, intestacy dictates that they each receive equal shares (per capita).

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68
Q

Can a grandchild take in intestacy if their parent is still alive?

A

NO - Lower generations can only take in intestacy succession if the generation above them has died.

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69
Q

What 2 kinds of situations exist where -at least one descendant -predeceased the intestate -and is survived by a descendant -who also survives the intestate?

A

(1) All children have died and only grandchildren can take from intestate

(2) Some children are alive and some are dead, and the dead ones have children (grandkids of intestate) that will take

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70
Q

What are the three methods in the U.S. to determine how to distribute intestate property to multiple generations of descendants?

A

(1) Per stirpes distributio
(2)
(3)

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71
Q

The oldest approach at common law to property division among descendants, which is now a minority view in the U.S., is Per stirpes distribution. How is property divided per stirpes, or by representation?

A

(1) Divide estate into equal shares at first generation below the descendant = One for each child, dead or alive

(2) Give the surviving children each 1 share and give each share created for the dead children to their descendants

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72
Q

Intestate has 2 sons and a daughter.
One son predeceases with no descendants.
One son predeceases with 2 kids: A and B.
Daughter is still alive.
How is the property divided per stirpes?

A

1/2 to Daughter
1/4 to A
1/4 to B.

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73
Q

Intestate has two sons and a daughter.
All three children predecease.
One son leaves no descendants.
One son leaves 2 kids: A and B
Daughter leaves 1 kid: C
How is the property divided per stirpes?

A

1/2 to C
1/4 to A
1/4 to B

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74
Q

What is the per capita with representation, or as some SLOPPILY call it, modern per stirpes?

A

Under a per capita with representation approach:
(1) Divide at the first generation with surviving members
Effect: In the event that all children are dead, grandchildren take equal shares, rather than splitting the share their parent would have had

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75
Q

How does the modern approach, per capita at each genaration, work?

A

(1) Divide at the first generation with surviving members
(2) Pool the lower generations’ shares to ensure they each get equal shares
(2a) So give the living descendants their shares. Then add together the predeceased shares and then divide that evenly among the grandchildren.

76
Q

Who does property pass to if there is no surviving spouse or descendants?

A

(1) Ancestors: Before you in the familial line
(2) Collaterals: Related to you but not in line - siblings, aunts and uncles, cousins, etc.

77
Q

What order does the estate pass in if there are no surviving spouses or descendants - parents then siblings or siblings then parents?

A

(1) Parents
(2) Sibling

78
Q

What are the two ways a state might divide an estate if there are at least one parent and at least one sibling surviving?

A

(A) Some states give parent the entire estate to the parent
(B) Other states give one-half to the parent and one-half to siblings

79
Q

Who does the estate pass to if there are no parents or siblings?

A

If there are no parents or siblings, the estate will then pass to grandparents and their descendants (your aunts, uncles, and cousins)

80
Q

Is it true that some states allow adopted children to inherit from both their adoptive families and their biological families?

A

Yes, this is the minority view, but some states do permit adopted children to inherit from both sets of parents.

81
Q

When can the biological parents of an adopted child inherit through the adopted child’s estate?

A

NEVER - biological parents cannot inherit from the estates of the children they gave up from adoption, even in jurisdictions where those children may inherit from the biological parents.

82
Q

Is it possible to be an adopted child without an official adoption?

A

Yes, this is adoption by estoppel, or equitable adoption.

83
Q

What is required for adoption by estoppel?

A

In some states, if there is a sufficient relationship surrounding an unformed agreement to adopt, they may qualify for adoption by estoppel

84
Q

Does it matter what age a person was when they were adopted, for intestacy inheritance purposes?

A

In most states, a person’s age at adoption is not relevant to their intestacy inheritance.

85
Q

How are nonmarital children treated in intestacy inheritance with regard to the mother?

A

Nonmarital children will always inherit from the mother because the mother was for sure there when the child was born

86
Q

What is an advancement?

A

An advancement is a lifetime gift intended by the donor to be a prepayment for an intestate share

87
Q

What must the advancee do if they want to share from the estate?

A

If the advancee wants to share in the estate, they must account for the advancement

88
Q

How are advancements calculated into the posthumous distribution of the estate?

A

Advancements are added on to the estate before distribution is made to avoid redistributing the portions already received.

Ex: Will leaves $15k to both A and B. Gives A an $10k inter vivos advancement and dies with $20k estate. A received 10 already so will take $5k and B will take $15k.

89
Q

What is the modern view for when in time a party must make a disclaimer of inheritance?

A

The modern view is that the party can disclaim at any time, as long as they have not accepted the gift.

90
Q

Do any states require witnesses to know the contents of a will?

A

NO - No states require witnesses to know the contents of a will.

91
Q

In most states, where must witnessing of the will take place?

A

The witnessing of a will must happen in the conscious presence - in the line of sight - of the testator.

92
Q

What is a self-proving affidavit?

A

A self-proving affidavit is when the testator and witnesses swear in the affidavit to things they would swear to during probate proceedings

93
Q

Can self-proving affidavits substitute in-court testimony of the witnesses to the will?

A

YES - If the witnesses to the will execute a self-proving affidavit, it will substitute their in-court testimony

94
Q

Are witnesses needed for a holographic will?

A

No - witnesses are not needed for holographic wills.

95
Q

Must a holographic wills be in the testator’s handwriting?

A

Yes! Holographic wills must be in the testator’s handwriting

96
Q

Are the pages present at the execution of a will considered part of the will?

A

Yes - pages present at the execution of the will are integrated into the will if so intended

97
Q

What is the purpose of the codicil?

A

The codicil republishes the will

98
Q

What formalities are required for a codicil?

A

The same formalities required for a will:
(1) Writing signed by testator
(2) Testamentary intent
(3) Testamentary capacity

99
Q

Does the revocation of a will revoke the codicil?

A

YES - revocation of the will revokes the codicil

100
Q

Does the revocation of a codicil revoke the will?

A

NO - Revocation of the codicil does not revoke the will.

101
Q

What are the requirements for a document to be incorporated by reference?

A

A document can be incorporated by reference only if the document:
(1) Was in existence at the time the will was executed
(2) Sufficiently described in the will
(3) and The will shows an intent to incorporate the document

102
Q

Is a signed list of tangible personal property valid if it is made or altered after a will’s execution?

A

YES - a signed list of tangible personal property is valid even if it’s made or altered after the will’s execution.

103
Q

Can wills identify beneficiaries by reference to acts of independent significance?

A

Yes! Wills may identify beneficiaries by references to acts or events that have significance apart from the will

104
Q

Can wills identify property by reference to acts of independent significance?

A

Yes - wills may identify property by referencing acts or events that are significant apart from the will

105
Q

Are pour-overs to inter vivos trusts valid if the trust was amended after the will’s execution?

A

YES - pour-overs into inter vivos trusts are valid even if the trust was amended after the will was executed

106
Q

Does a trust need to be in existence at the will’s execution, under the Uniform Testamentary Additions to Trusts Act?

A

No - Under the UTATA, the trust does NOT need to be in existence at the execution of the will

107
Q

Can the general power of appointment be exercised in favor of a donee?

A

Yes - the general power of appointment can be exercised in favor of a donee

108
Q

Can the special power of appointment be exercised in favor of a donee?

A

NO - the special power of appointment CANNOT be exercised in favor of a donee

109
Q

Is appointive property subject to elective share?

A

No - appointive property is not subject to elective share

110
Q

Is appointive property subject to creditors?

A

No - appointive property is not subject to creditors

111
Q

Does the residuary clause exercise testamentary power by itself?

A

No, the residuary clause does not exercise testamentary power by itself - the power must be mentioned.

112
Q

Must the residuary clause be mentioned to be exercised?

A

Yes! The residuary clause must be mentioned to be exercised.

113
Q

Is a blanket exercise of power permissible?

A

Yes - a blanket exercise of power IS permissible.

114
Q

When you see “including all property over which I have a power of appointment,” what should you think of? And is that allowed?

A

“Including all property over which I have a power of appointment” = Blanket exercise of power -> YES this is allowed!

115
Q

Is a contract to exercise testamentary power ever valid?

A

NO, a contract to exercise testamentary power is INVALID

116
Q

Can nonprobate assets be disposed of by will?

A

No! Nonprobate assets cannot be disposed of by will

117
Q

Remind me of the three types of nonprobate assets??

A

(1) Life insurance
(2) Property passing by the right of survivorship
(3) Property in trust

118
Q

When does marriage have an effect on will?

A

Marriage has an effect on a will ONLY when there is an omitted spouse statute

119
Q

What is an omitted spouse statute?

A

A statute that omits the spouse, which effectively revokes the extent of the spouse’s share

120
Q

Does divorce revoke all the will provisions favoring the ex-spouse? Does annulment?

A

Yes - divorce and annulment revoke all provisions in favor of the former spouse (and their relatives if it’s UPC)

121
Q

Can burning, tearing, obliterating, or canceling suffice to revoke the will?

A

Yes, IF there is INTENT to revoke, then physical acts like burning, tearing, obliterating, or canceling will suffice to revoke

122
Q

Is partial revocation of a will possible?

A

Yes! A will can be partially revoked.

123
Q

What is the presumption if a will is not found at the testator’s death?

A

If a will is not found at the testator’s death, it is presumed to be revoked!

124
Q

Is there any recourse if the contents of a will were accidentally lost or destroyed?

A

Accidentally lost or destroyed wills may be proven with other evidence

125
Q

Can a revoked will be revived?

A

Yes, revoked wills can be revived!

126
Q

When are revoked wills always revived?

A

Wills are always revived if they are:
(1) Re-executed with formalities
OR
(2) Republished by codicil

127
Q

Can you revive a will by destroying the revoking instrument?

A

Yes! Destruction of a revoking instrument presumptively revives a revoked will unless the testator didn’t intend it to - so tear that shit up today!

128
Q

In what three situations may the court disregard the revocation of a will?

A

(1) When revocation is premised on a mistake of law or fact
(2) When revocation would not have occurred but for the mistaken belief that another disposition was valid
(3) When the results from disregarding revocation comes closer to the testator’s intent

129
Q

Will the court disregard the revocation of a will because disregarding it is closer to what the testator would’ve actually wanted?

A

Yes! The court will disregard revocation if it seems like the testator would want the revocation disregarded.

130
Q

If a testator revokes their will because they made a mistake about the law, or the facts, or another disposition, will the court disregard their revocation later?

A

Yes! The court will disregard revocation of a will if the testator revoked it based on a mistake of law, fact, or about another disposition

131
Q

Does the UPC harmless error provision apply to defective revocation?

A

Yes - the UPC harmless error provision applies to defective revocations

132
Q

What is the UPC harmless error provision?

A
133
Q

Can a contract be made to make a will? What about a contract to not revoke a will? Can a contract to die intestate be made?

A

Yes, yes, and another yes! Welcome to the wild west; that’s the freedom to contract

134
Q

What are the 3 ways to establish a contract to make a will, not revoke a will, or die intestate?

A

(1) Provisions in the will state the terms of the contract, or
(2) An express reference in the will to the contract, plus evidence of contract terms
(3) Or a writing signed by the decent evidencing the contract

135
Q

Are provisions in the will that state the terms of a contract sufficient to establish a contract to make or not revoke a will?

A

Yes! Stating the terms of the contract in the will is sufficient to establish the existence of the contract.

136
Q

Can you establish a contract to make or not revoke a will by express reference in the will to the contract?

A

Yes! Express reference in the will to the contract, PLUS evidence of the contract terms, is sufficient to establish a contract

137
Q

Will a writing signed by the decedent be sufficient to establish a contract to die intestate?

A

Yes! A writing signed by the decedent evidencing the contract is sufficient to establish a contract to die intestate.

138
Q

What are the two remedies for breach of a contract to make a will/not revoke a will/die intestate?

A

(1) Damages after decedent’s death
(2) Constructive trust after decedent’s death

139
Q

What is the remedy for breach of a contract to make a will/not revoke a will/die intestate that the promisee can get during the promisor’s lifetime?

A

NONE - there is no remedy for breach during the promisor’s lifetime.

140
Q

Are mutual wills presumed contractual?

A

NO - mutual wills are not presumed contractual

141
Q

What are mutual wills?

A

Mutual wills are separate wills by two or more testators that contain substantially similar provisions

142
Q

What are joint wills?

A

A joint will is a single will executed by two or more testators and intended as the will of each testator

143
Q

Are joint wills presumed contractual?

A

Joint wills are not PRESUMED contractual, but many courts TREAT them as contractual

144
Q

What’s the difference between a devise and a bequest?

A

Devise = Gift of real property
Bequest = Gift of real property

145
Q

What is a specific bequest?

A

A specific bequest is distinguishable from property from the rest of the testator’s estate at the time of will execution

“I leave my cat Fury to his Aunt Anna” (Fury is age 3 at home as I write ths)

146
Q

What is a specific bequest of a general nature?

A

A specific bequest of a general nature specifies the recipient but not the property

“I leave any pets I own to my friend Anna”
(may in future include more than just Gatsby and Fury, unclear at present)

147
Q

What is a legacy gift?

A

A legacy is a gift of personal property that’s not sufficiently described to be specific. It is usually money.

148
Q

What is a demonstrative legacy?

A

A demonstrative legacy is a gift of a specific sum of money payable out of a designated fund

149
Q

What is a residuary gift?

A

Residuary gift is the gift of the remainder of the estate after all the debts and other gifts are paid.

So specific bequests are made and anything not accounted for is part of the residuary gift.

150
Q

What is ademption?

A

Ademption is wen the gift of an item fails becuaes the property is no longer in the testator’s state?

151
Q

What is the identity rule for ademption?

A

If the item is no longer part of the testator’s estate, the beneficiary doesn’t receive anything! Oh well!

152
Q

What is a replacement property exception?

A

RARE exception!! In an ademption situation, if the testator replaced the gifted item with a similar item, the beneficiary may in a few states be entitled to the similar item.

Ex: You are left a specific computer but they trade it in then kick the bucket. You get the new computer instead.

153
Q

What is the balance of the purchase price exception?

A

RARE exception! If the testator no longer has possession of the item because they sold it and they are still owed money for the item at death, the beneficiary gets the proceeds owed to the testator

154
Q

What is ademption by satisfaction?

A

Ademption by satisfaction is when the beneficiary receives the gifted properrty before the testator’s death

155
Q

What is the most important requirement for an ademption by satisfaction?

A

A writing!! When there is a gift that the testator assigns in the will that is given before death, there needs to be a writing indicating intent for it to be taken from the bequest

156
Q

What happens if a beneficiary is left an item that is of significantly less value than at the time of will execution?

A

Nothing, this doesn’t matter at all. Don’t be fooled.

157
Q

What should we make of corporate securities

A

Beneficiairy receives increased number of shares from stock splits or stock dividends, but not newly acquired securities

158
Q

What is abatement?

A

Abatement is the process of reducing gifts when the estate property is inadequate to satisfy the gifts and the debts

159
Q

What is the order of Abatement?

A

(1) Property passing by intestacy
(2) Residual gifts
(3) General gifts
(4) Demonstrative gifts
(5) Specific gifts

160
Q

Can a beneficiary disclaim the property left by bequest?

A

Yes! We will treat disclaiming beneficiaries as predecedents

161
Q

What is lapse?

A

Lapse is when the gift fails because the beneficiary fails to survive the testator or is legally treated as not surviving the testator

162
Q

What are the 4 ways lapsed property is distributed?

A

(1) By the will’s terms
(2) By anti-lapse statute, possibly
(3) Residuary clause
(4) Intestacy

163
Q

What do anti-lapse statutes do?

A

Anti-lapse statutes prevent lapse by substituting descendants of predeceased beneficiaries for the predeceased beneficiary

I leave estate to Fury. Fury dies of old age. I subsequently die of a broken heart. My estate goes to Fury’s (imaginary) litter.

164
Q

How can parties dissolve marriages that are invalid due to an impediment at the time of the marriage?

A

Marriages that are invalid due to an impediment at the time of marriage can be annulled

165
Q

What are the two ways that valid marriages can be dissolved?

A

Valid marriages can be dissolved by either a (1) fault-based or (2) no-fault divorce

166
Q

What does the court do with the couple’s property when a marriage is dissolved?

A

When a marriage is dissolved, the court will:
(1) divide the couple’s property, AND
(2) determine whether to award any form of spousal support

167
Q

Are property division orders typically final? What about spousal support awards?

A

Property division orders = Typically final

Spousal support awards = CAN be modified if there is a substantial change of circumstance

168
Q

If divorcing spouses have children, how will the court decide custody and visitation issues, generally?

A

If the spouses have children, the court will decide child custody and visitation issues based on the best interests of the child

169
Q

Can child support be modified if there is a substantial change of circumstances (like spousal support can)?

A

Yes! Child support, like spousal support, can be modified if there is a substantial change of circumstances

170
Q

What are the four requirements for two people to get married?

A

People are allowed to get married if:
(1) They are a both of a minimum age (18 unless otherwise indicated)
(2) They are not too closely related
(3) They both have capacity to consent
(4) Must not be in a current valid marriage

171
Q

What are the two procedural requirements for a marriage?

A

(1) License
(2) Solemnization

172
Q

What are the three requirements for a common law marriage?

A

(1) An exchange of consents between two people with capacity
(2) Cohabitation
(3) A holding out publicly of living together as spouses

173
Q

What are the four requirements for an enforceable premarital contract?

A

(1) The agreement must be entered into voluntarily
(2) Contract is in writing signed by party to be charged
(3) Both parties make a full and fair disclosure of their financial worth
(4) The economic provisions must be fair and reasonable

174
Q

What three grounds for annulment will make the marriage void automatically?

A

(1) Bigamy or polygamy
(2) Consanguinity
(3) Nonage, depending on state

175
Q

What 5 grounds for annulment make the marriage VOIDABLE, but not automatically void?

A

(1) Incurable physical impotence
(2) Mental incompetence
(3) Lack of assent
(4) Duress
(5) Fraud involving the essentials of marriage

As they say…The Impotent are in Duress and the Incompetent commit Fraud; yet both Lacked my assent

176
Q

What are two big kahuna grounds for no-fault divorce?

A

(1) The marriage is irretrievably broken (irreconcilable differences or incompatibility)
(2) The parties have ben living apart for a specified time

177
Q

What are the five main grounds for a fault divorce?

A

(1) Adultery
(2) Willful desertion for a specified time
(3) Extreme physical or mental cruelty
(4) Drug addiction or habitual drunkenness
(5) Mental illness

178
Q

What are 4 big traditional defenses to fault grounds for divorce?

A

(1) Collusion
(2) Connivance
(3) Condonation
(4) Recrimination

179
Q

What is collusion?

A

Collusion is an agreement between the spouses to simulate grounds for divorce or to forgo raising a valid defense.

180
Q

Is collusion a defense against a request for a fault divorce?

A

Yes - collusion is a traditional defense to fault grounds for divorce

181
Q

What is connivance?

A

Connivance is the willing consent by one spouse to the other spouse’s misconduct.

182
Q

Is connivance a defense against a request for a fault divorce?

A

Yes - Connivance is a traditional defense to fault grounds for divorce

183
Q

What is condonation?

A

Condonation is the forgiveness of marital offenses with full knowledge of their commission

184
Q

Is condonation a defense against a request for a fault divorce?

A

Yes - Condonation is a traditional defense to fault grounds for divorce

185
Q

What is recrimination?

A

Recrimination is when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted

186
Q

Is recrimination a defense against a request for a fault divorce?

A

MBE (8 decks)

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