Wills

Question 1

Abatement

Answer 1

When the assets are insufficient to cover debts or satisfy the devices, the gifts abate in a specified order unless otherwise provided:
1. Intestate
2. Residucary
3. General
4. Specific

Priorities of Abatement
1) Abatement in category pro-rata
2) Favor spouse/relative over gifts in same category
3) nonprobate does not abate

Question 2

Ademption by Extenction

Answer 2

C/L: When a specific gift no longer exists at the time of death of the testator, the gift adeems
CA: Specific gift adeems only if T intended it to adeem

Courts will try to avoid ademption at times by classifying a specific gift as general

Statutory exceptions:
If adeemed, beneficiary is entitled to balance of purchase price owing from purchaser of property or insurance from damaged gift

Question 3

Ademption by Satisfaction

Answer 3

Gift may adeem because it was satisfied through an inter-vivos gift. May be adeemed in whole or in part. The intent of the Testator controls, and in CA must be in writing by both testator and transferee

Question 4

Dependent Relevant Revocation

Answer 4

DRR cancels revocation that was made under mistaken belief of law or fact by testator.

Test: T would not have revoked will but for the mistaken belief that the other will would be valid

Question 5

Undue Influence: Traditional v. CA

Answer 5

Undue influence is the excessive persuasion that causes another to act or refrain from acting by overcoming that person’s free will and that results in inequity

Traditional: (SMOC)
1) Susceptibility
2 Motive
3) Opportunity
4) Causation

CA Approach (VACE)
1) Vulnerability
2) Influencers Apparent Authority
3) Influencers Conduct
4) Equity of Result

Will invalidate in whole or in part

Question 6

Undue Influence C/L Confidential Relationship Presumption

Answer 6

1) Principal beneficiary has confidential relationship with testator (att./client; physician; clergy)
2) Principal Beneficiary Participated in Drafting Will
3) Gift is Unnatural

Burden shifts to beneficiary to show by clear and convincing evidence that such influence was not exercised.

Treated as pre-deceasing Testator

Question 7

CA Statutory Presumptions of Undue Influence

Answer 7

Gift to
1) Person who drafted the will
2) Care/Custodian of Testator who is dependant
3) Person in fiduciary relationship with T
4) Spouse/Partner to the above
5) Partner/Employee @ law firm that drafted will

Rebutted by C&CE

Doesn’t apply to will reviewed by independent att. who counseled T outside presence of beneficiary