Wills

Question 1

Intestacy

Answer 1

No will
Only spouse - get all unless parents
Spouse + descendants - 1/2 or 1/3
Unless all descendants surviving Spouse (UPC)
No spouse nor descendants = parents
No patents then descendants or Parents

Question 2

Three approaches under intestacy

Answer 2

Strict per stirpes = equal at first generation alive then dropped by those dead to next generation

Modern = equal at first generation alive

Per capita = only difference is pooled at cousin level

Question 3

Intestacy children

Answer 3

Adopted (equitable adoption too - love, duties, reliance on relationship and holding out as own); terminates biological UNLESS stepparent

Out of wedlock inherit so long paternity established

Half-blood inherit

Step children = NO

Question 4

Advancements

Answer 4

Gifts intestate were considered advance on inheritance

Today, NO presumption UNLESS contemporaneous writing OR heir acknowledged in writing

Question 5

Simultaneous death

Answer 5

UPC - only treated as survived by clear and convincing evidence survived 5 days

Question 6

Wills - governing law

Answer 6

Testator domicile at death = personal prop

Real prop = where real prop located

Harmless error rule (not all
States) valid will by clear&conv intent to be will

Question 7

Will - due execution

Answer 7

Formalities = in writing, signed by testator, signed by at least 2 witnesses (conscious presence within reasonable amount of time) UPC allows notary

Traditional view = line of sight; modern = other senses

Question 8

Will - witnesses

Answer 8

Common law - disinterested

Majority = allow to be interested
Minority = if disinterested, forfeit inheritance UNLESS 2 additional disinterested parties

Question 9

Holographic wills

Answer 9

Handwritten NOT witnessed and signed personally. About half states allow it.

Question 10

Integration of will

Answer 10

Intent + physically present at time of wills execution

Question 11

Incorporation by reference

Answer 11

Extrinsic documents IF intent, in existence at time executed AND sufficiently described in the will

Question 12

Facts of independent significance

Answer 12

Court May give effect to events that change disposition IF those events have significance apart from change testamentary scheme (buy new car)

Unattested memos

Question 13

Codicils

Answer 13

Supplement; later testamentary document that must explain, modify, amend, or revoke will. Must satisfy same formalities. Republish will (not an invalid will as a whole though)

Revokes earlier valid will to extent conflicts

Question 14

Revocation

Answer 14

1. Subsequent written instrument
2. Cancellation intent + ACT (written on words OR not under UPC)
3. Partial revocation - presumption if in T possession (not all states)

Question 15

Dependent relative revocation

Answer 15

Valid revocation May be ignored if made Under mistaken belief of law or fact that T could revive earlier will (T intent)

Question 16

Revival

Answer 16

Common law - automatic revive if revoke subsequent will

Modern - intent or republish

Question 17

Lapse

Answer 17

Beneficiary named in will predeceases T. goes to residuary UNLESS anti-lapse statute (blood AND survive)

Question 18

Ademption

Answer 18

Specific devise NOT in estate.
(Identity theory) exception is guardian

INTENT THEORY: ONLY Adeem if T intended devise to fail. THEN entitled to replacement or monetary devise equal

Question 19

Slayer

Answer 19

Feloniousky and intentionally killed T

Question 20

Disclaimers

Answer 20

Valid must be in writing, describe the interest, AND be delivered or filed. Within reasonable amount of time

Question 21

Abatement

Answer 21

Intestacy —> residuary —- general and then specific

Question 22

Exoneration

Answer 22

Assumes mortgage today

Question 23

Stock splits and dividends for wills

Answer 23

Common law - can’t get additional shares (only by stock split and not divided)
Modern/UPC - entitled to new shares

Question 24

Devises to classes

Answer 24

Class May increase/decrease until T death. If member of class predeceases T, split evenly among rest of class. IF NOT CLASS then go to residuary and don’t forget anti-lapse

Question 25

Devises to children

Answer 25

Intentionally omitted child gets nothing.

Pretermitted (unintentional) share would have received equal to other children

Question 26

Contractual wills

Answer 26

Mutual or joint wills
Contract to make certain devise
Contract not to revoke
Contract to refrain from executing a will

Constructive trust

In writing

Question 27

Capacity

Answer 27

Nature and extent of prop, natural objects of his bounty and disposition he was making of his property

Question 28

Undue influence

Answer 28

Such control and influence over mind to overcome T free will. Must establish influence exerted, effect to overpower mind, and will not executed but for the influence

Presumption: confidential relationship, participates in will, and unnatural in favor of person

1. Susceptible 2. Opportunity 3. Actively participated in will (ONLY FOR PRESUMPTION) and 4. Evidence result that appears to be from UI

Question 29

Fraud

Answer 29

Misrepresentation of material fact, to induce reliance AND relied.

Inducement or execution

Question 30

Mistake will

Answer 30

Clear and convincing evidence

Question 31

No contest

Answer 31

Force to take gift or nothing (unenforceable if probable clause exists)

Question 32

Tottem trusts

Answer 32

Opens bank account as trustee - go to designated beneficiary on death

Question 33

Divorce effect on will

Answer 33

All provisions in favor of former spouse

UPC- also revokes bequests to relatives of former spouse