Wills Flashcards
What is an Intestacy Statute?
It governs any property NOT passing by a valid will or by operation of law.The statute will dictate how the property will pass to heirs.Example: If a decedent leaves only a surviving spouse and no descendants, in most states the surviving spouse will receive the entire estate.Priority: HIGH
What are the Will Execution Formalities under the Uniform Probate Code (UPC)?
A will must be:1. In a writing;2. Signed by the testator; AND3. Either:* Signed by at least two individuals within a reasonable time after witnessing the signing; OR* Notarized.*A valid will requires intent by the testator to create the will.Priority: HIGH
Under the Harmless Error Rule, what needs to be proven to validate an improperly executed will?
For the Will to be validated, it must be proven:1. By clear and convincing evidence;2. That the decedent intended the writing to be his will.*The greater the departure from the necessary execution formalities, the harder it is to prove the testator’s intent.Priority: Medium
Under the Doctrine of Integration, when will a document be integrated into a Will?
If the testator:1. Intended it to be part of the will; AND2. The document was physically present at the will’s execution.*Integration may be proven by extrinsic evidenced or witness testimony.Priority: Medium
What is a Codicil?
An instrument made AFTER a will is executed that modifies, amends, or revokes portions of a will (a codicil MUST satisfy the same formalities as a will to be valid).*Execution of a codicil republishes the will.Priority: HIGH
What is a Holographic Will?What is a Holographic Codicil?
Holographic Will: A handwritten will that is NOT witnessed. Some states require that the writing be subscribed (signed at the end of the will) by the testator.Holographic Codicil: A handwritten alteration to a will that is NOT witnessed. A valid holographic codicil revokes any earlier will to the extent it conflicts with the codicil.Priority: HIGH
When will a document/writing be Incorporated by Reference into a Will?
If it:1. Was in existence at the time the will was executed;2. Is sufficiently described in the will; AND3. The testator intended to incorporate it into the will.*To incorporate into the will, it must be signed by the testator and describe the item and the recipients.Priority: HIGH
When is a Will revoked by a physical act?
If:1. Testator intended to revoke the will; AND2. The will is burned, torn, destroyed, or cancelled by the testator.*Cancellation by physical contact with the words of the will is required under common law, but not under the UPC.Priority: HIGH
When does Revocation by Subsequent Will or Codicil occur?
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).Priority: HIGH
What is the Dependent Relative Revocation Doctrine, and when does it apply?
It 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 would be valid.Priority: HIGH
Under the common law, an earlier Will was automatically revived if a subsequent Will was revoked.How does this differ from the modern view?
Under the modern view, a revival of a revoked will happens ONLY under two circumstances:* A will revoked by a physical act will be revived if a testator shows intent for its revival; OR* A will revoked by subsequent instrument can be revived if the testator republishes the will by a subsequent will or codicil that complies with will execution formalities.Priority: Medium
When are Contractual Wills enforceable?
The wills MUST expressly state that the parties intend their wills to be a binding contract between them.There must be a specific reference to the contract upon which the joint wills are based, and there must be specific, express intent that the parties desire the contract.Priority: Medium
What does Generically Described Property gifted in a will apply to?
It applies to property owned at the time of the decedent’s death matching the description in a will.*The gift applies to whatever item is owned at the time of death, regardless of the specific item that was owned at the time of the execution of the will.Priority: Low
Under the UPC and Modern View, when are gifts to heirs during a testator’s lifetime deemed Advancements?
When:* The will provides for deduction 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.Priority: Medium
What happens if there is a Simultaneous Death under the Revised Uniform Simultaneous Death Act?
If there is no proof by clear and convincing evidence that one person survived the other by 120 hours (5 days), then the property is distributed as if that person predeceased the other person.Priority: Medium
Under the Common Law, any residuary shares that were invalid passed to the Testator’s heirs via intestacy.How does the Modern View differ?
Under the Modern View, if the residuary is devised to two or more persons, any residuary beneficiary’s share that fails will pass to the other residuary beneficiaries.Priority: Medium
Generally, a condition in a Will or Trust that prohibits marriage is void. When may a restraint on marriage be upheld?
- If it is a restraint on remarriage; OR* The language of the bequest/gift indicates that it’s intended purpose is to take care of a person’s daily needs until they are able to obtain such support through marriage.Priority: Medium
What is an Anti-Lapse Statute?
When a beneficiary under a will predeceases the testator, the gift will vest in the issue of that predeceased beneficiary if:1. The predeceased beneficiary is a specified blood relative of the testator; AND2. The beneficiary leaves issue who survive the testator.Priority: HIGH
