Wills Flashcards
In most states, if decedent leaves only a surviving spouse and no issue,
surviving spouse receives entire estate
Under UPC a will must be
- in writing
- signed by testator (or by some other indiv in the T’s conscious presence and by the T’s direction)
- AND either signed by at least 2 witnesses OR notarized.
A valid will requires ______by the testator to create the will.
Intent
Under majority view and UPC, will is signed in testator’s presence if it is signed within the…
“range of the testator’s senses”
Doctrine of Integration
Document will be integrated into will if the T,
1. intended it to be part of will
2. and the doc was physically present at will’s execution.
Is a will with an interested witness valid?
YES.
What is a codicil?
instrument made AFTER will is made that modifies, amends, revokes will.
What req to make codicil valid?
same as will. In writing, signed by T and 2 other witnesses.
What does an execution of codicil do to the original will?
Republishes it
Can a codicil republish an invalid will?
NO
What is a holographic will?
Handwritten will that is NOT witnessed
What do some states require of a holographic will?
That is is also signed at the end by Testator
A valid holographic will does what to any earlier valid will?
It revokes any earlier valid will to the extent it conflicts with the codicil
A bequest is valid if it meets…
the requirements to be incorporated into a will by reference
How can a document or writing be incorporated into will by reference?
- existence at time of will execution.
- sufficiently described in will
- and T intended to incorp
UPC permits doc/writing bequeathing tangible personal property to be incorporated into will if it
- signed by T
- and describes with reasonable certainty the items and devisees.
A will is revoked by physical act if:
- T intended to revoke the will
- and the will is burned, torn, destroyed, or cancelled by T (or someone at his direction and in his presence).
Are words of cancellation valid even without physical contact? (UPC)
Yes
Can a testator substitute a gift by words of cancellation?
NO. the revocation by cancellation may be valid but the substitution is not valid.
Can a Testator revoke a will by executing a subsequent valid will or codicil?
Yes.
What does the Dependent Relative Revocation Doctrine do?
it cancels a previous revocation that was made under a mistaken belief of law or fact by the testator.
What does the execution of a new will do to the old will?
It revokes the old will only to the extend that the old will CONFLICTS with the new will UNLESS the new will EXPRESSLY revokes the previous will in its entirety.
In per stirpes, each branch of the family receives an ______
equal share
UPC gift to heirs during T’s lifetime are advancements???
No. Unless, the will provides for dedcution of the gift; OR it was indicated in writing that the property was in satisfaction of a devise or that its value will be deducted from the value of the devise.
Modern Residue of a Residue rule
If a residue is devised to two or more persons, any residuary beneficiary’s share that fails will pass to the other residuary beneficiaries. This only applies if the anti-lapse statue does not produce a substitute taker for a beneficiary who fails to survive the testator.
Under CL, any gifts to beneficiaries who died before testator…
failed and passed to residuary estate or under intestacy.
A gift to a deceased beneficiary will not lapse if:
an anti-lapse statute applies
Anti-lapse statute provides
where bene under a will dies before (predeceases) the testator, the gift will vest in the issue of that predeceased bene IF
1. specified descendant of T
2. and bene leaves issue who survive the T
In most jdx today, a specific gift will adeem only if:
the testator intended the gift to fail
If the testator did not intend for a specific gift to fail, the beneficiary is entitled to:
- any real property or tangible personal property which the testator acquired as a replacement for the specific gift; or
- a monetary devise equal in value of the specific gift.
A person who was gifted securities (shares of stock) in a will is….
entitled to additional shares owned by the testator that were acquired as a result of stock splits or stock dividends.
Creditors of the estate always have…
priority to assets of the estate over beneficiaries
Absent provisions in the will, the order in which a testator’s property abates is:
- Property passing by intestacy,
- Residuary gifts
- general gifts
- specific gifts
What does abate mean?
reduced
An individual who feloniously and intentionally kills the decedent…
forfeits all benefits and entitlements to the decedent’s estate. (slayer statutes)
What is a disclaimer?
when a person renounces their legal right to inheritance.
An effective disclaimer must:
- be declared in writing.
- describe the interest or power disclaimed
- be signed by the person making the disclaimer,
- be delivered or filed
When is a person barred from disclaiming an interest?
if they accept or transfer the interest
What happens to an interest after it is disclaimed?
it either
1. passes according to any applicable terms of the will/trust,
2. passes as if the person had predeceased the testator. (lapses)
When is a class closed under the Rule of Convenience?
when any member of the class is entitled to possession of the gift.
What are the elements of testamentary capacity?
T must be capable of knowing and understanding
1. nature and extent of property
2. natural objects of his bounty
3. disposition that he is making of that property
4. ability to connect the above elements together to form a coherent plan
Prima facie case of undue influence is established if….
- T had weakness that made him susceptible to influence.
- wrongdoer had acces to T and opportunity to exploit.
- wrongdoer actively participated in drafting will,
- and there is an unnatural result.
