Wills Flashcards
Wills
What is a tenancy in common?
The dec’d’s share passes via dec’d’s will or under intestacy
No survivorship rights; thus probate is not avoided
Wills
What is a joint tenancy?
The dec’d’s share passes to the surviving joint tenant and not via intestacy or under the decedent’s will
So your will can say I leave everything to Toby, but when you die, it’ll go to Frank, who was your joint tenant
Wills
What is the most widely used will substitute?
Life insurance - it’s a contract, and the disposition of the policy’s proceeds is governed by the terms of the contract
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What is a Totten trust?
A Totten trust is a deposit of money in a bank account in “trust” for another person
The depositor retains complete control over the account during their lifetime, and the transfer is complete only upon their death
Totten trusts are accounts; they are not true trusts
Wills
Property may pass by intestate succession when:
A decedent dies without having made a will or their will is denied probate (“total intestacy”)
A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”)
Wills
Who owns the property if the dec’d was married at the time of death?
We use the law of the domicile (the common law marital property system or the community property marital property system) at the time the property was acquired. The marital rights do not change as the couple moves from one state to another.
Wills
For succession rights, which state’s intestacy law applies?
For personal property, we use the law of the decedent’s domicile at death
For real property, we use the law of the situs of the property (location of the land)
Wills
What is the modern view on the surviving spouse’s intestate share?
The spouse is an heir
If children:
In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes 1/3 or 1/2 of the estate
In states adopting the UPC, the surviving spouse takes the entire estate if the dec’d is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other surviving descendants
If no children:
In most states, if the dec’d is survived by a spouse but no descendants, the surviving spouse takes the entire estate
In UPC states, however, the spouse takes the entire estate only if the dec’d is not survived by descendants or parents
Wills
What are descendents?
Persons related to dec’d in descending lineal line such as children and grandchildren
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What is an heir?
Persons who take by intestacy
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What is the distribution if all of the dec’d’s children survive the dec’d (or the dec’d’s predeceased children had no surviving children)?
Each child receives an equal share
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What is the classic/strict per stirpes distribution?
One share is created for each child and one share for each dec’d child who has at least one surviving descendant
Each child receives one share and one share passes to a dec’d child’s descendants by representation
Method divides into shares at the child generation even if no child survives the intestate
Ex: Intestate had three children, Son One, Son Two, and Daughter. Son One predeceased Intestate, survived by two children of his own, Arthur and Brenda, both of whom survive Intestate. Son Two also predeceased Intestate, but Son Two had no surviving descendants. How would Intestate’s property be distributed applying a per stirpes distribution?
Exp: Divide estate into shares at first generation below decedent
Create one share for each surviving child and one share for each perdeceased child who left living descendants
Give each surviving child one share
Give share created for predeceased child to child’s descendants
So 1/2 to D, 1/4 to A and B
Wills
What is the per capita with representation distribution?
Majority rule
Divide estate at first generation with surviving members
Each living person at that level takes a share
Share of each dec’d person at that level passes to issue
Ex: Intestate had two children, Son and Daughter. Son predeceased Intestate survived by two children, Arthur and Brenda, both of whom survived Intestate. How would Intestate’s property be distributed applying a per capita with representation distribution?
Exp: D gets 1/2, A and B get 1/4 each
Ex: Using the same facts as in the prior hypo, assume that Daughter also predeceased Intestate survived by her only child, Charles, who survived Intestate. How would Intestate’s property be distributed applying a per capita with representation distribution?
Exp: A, B, and C each get 1/3
Wills
Intestate had three children, Son One, Son Two, and Daughter. Son One predeceased Intestate, survived by two children of his own, Arthur and Brenda, both of whom survive Intestate. Son Two also predeceased Intestate, but Son Two had no surviving descendants. How would Intestate’s property be distributed applying a per stirpes distribution?
Divide estate into shares at first generation below decedent
Create one share for each surviving child and one share for each perdeceased child who left living descendants
Give each surviving child one share
Give share created for predeceased child to child’s descendants
So 1/2 to D, 1/4 to A and B
Wills
Intestate had two children, Son and Daughter. Son predeceased Intestate survived by two children, Arthur and Brenda, both of whom survived Intestate. How would Intestate’s property be distributed applying a per capita with representation distribution?
Exp: D gets 1/2, A and B get 1/4 each
Wills
Intestate had two children, Son and Daughter. Son predeceased Intestate survived by two children, Arthur and Brenda, both of whom survived Intestate. Assume that Daughter also predeceased Intestate survived by her only child, Charles, who survived Intestate. How would Intestate’s property be distributed applying a per capita with representation distribution?
A, B, and C each get 1/3
Wills
Intestate had four children, Arthur, Brenda, Charles, and Doris. Both Arthur and Brenda died before Intestate. Arthur was survived by one child, Edward, and Brenda was survived by two children, Fran and George. How would Intestate’s property be distributed using a per capita with representation distribution?
Intestate’s property is divided into shares at the first generation with survivors, that is, children. The initial division is into quarters— one share for each of the surviving children and one share for each of the deceased children who left surviving descendants. Charles and Doris as surviving children will each receive one of the quarters. Edward takes all of Arthur’s share because Edward is Arthur’s only child. Fran and George divide Brenda’s share equally. Although Edward, Fran, and George are equally related to Intestate as grandchildren, they take different shares because their parents did not have equal numbers of children who outlived Intestate.
E takes 1/4; F and G each take 1/8; and C and D each take 1/4
Wills
What is the per capita at each generational level distribution?
Divide estate into shares at first generation w survivors
Pool shares of lower generation, so each person receives equal share
Persons in the same degree of kinship to the dec’d always take equal shares
So if some children are alive and others dead, each child will take an equal share (as w per capita by rep), but the remaining property is pooled and each grandchild will receive an equal share
Wills
Intestate had four children, Arthur, Brenda, Charles, and Doris. Both Arthur and Brenda died before Intestate. Arthur was survived by one child, Edward, and Brenda was survived by two children, Fran and George. How would Intestate’s property be distributed using a per capita at each generation approach?
Intestate’s property is divided into shares at the first generation with survivors, that is, children. The initial division is into quarters— one share for each of the surviving children and one share for each of the deceased children who left surviving descendants. Charles and Doris as surviving children will each receive one of the quarters. The shares created on behalf of the predeceased children, Arthur and Brenda, are pooled and then divided pro rata among their children, Intestate’s grandchildren. The two shares created for the descendants of Arthur and Brenda total one-half of the estate. There are three descendants, each of whom is equally related to Intestate. Thus, each grandchild takes one-third of one- half of the estate, or one-sixth. Under this form of distribution, all equally related heirs receive the same portion of Intestate’s estate (each child receives one-quarter and each grandchild receives one-sixth).
C and D get 1/4; E, F, G gets 1/6
Wills
What is the general family order for things passing through intestacy?
Spouse and/or descendants
If none, to parents
If none, to descendants of parents (siblings or their descendants)
If none, to maternal grandparents or descendants and/or paternal grandparents or descendants
If none, to nearest maternal kin and/or nearest paternal kin
If none, to the state (escheats to the state)
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What are ancestors?
Persons related in ascending line such as parents and grandparents
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What are collaterals?
Persons related but not in a lineal line such as siblings, aunts, and uncles
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How are adopted children treated in intestate succession?
Treated the same as biological children with their adoptive parents - goes up and down tree like normal
Generally, there is no connection with biological family so they don’t go up and down tree there anymore - you belong to one family
Wills
How are stepchildren and foster children treated in intestate succession?
Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or the foster parent
But doctrine of adoption by estoppel, however, permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them
Wills
What is doctrine of adoption by estoppel?
Permits a stepchild or foster child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them
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How are nonmarital children treated in intestate succession?
A nonmarital child will always inherit from mother
Generally, child will inherit from their father if:
(1) the father married the mother after the child’s birth;
(2) the man was adjudicated to be the father in a paternity suit; or
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father
Wills
How are half bloods and whole bloods treated in intestate succession?
UPC and most states make no distinction between half bloods and whole bloods - they inherit equally, like normal children
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How are posthumous children treated in intestate succession?
A posthumous child is a child born after the death of their parent
If a person is in gestation at the time of the intestate’s death, most states will allow that person to be an heir
Other times, sometimes defined by statute
Wills
What happens with will disinheritance provisions and property passing through intestacy?
Generally, a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy
That is, the will must dispose of everything to effectively disinherit an heir
Wills
What is an advancement of your intestate share?
An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
A lifetime gift is presumptively not an advancement unless shown to be intended as such
UPC states go further, finding an advancement only if it is: (1) declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir (which need not be contemporaneous)
If something is found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share
Heir need not return the amount of an advancement in excess of the value of their intestate share
Wills
What do you do when something is found to be an advancement?
If something is found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share
Heir need not return the amount of an advancement in excess of the value of their intestate share
Wills
What are the two main methods of determining survival?
USDA: when disposition of property depends on the order of death and you can’t tell who died first, the property of each decedent is disposed of as if they had survived the other
120-Hour rule: to avoid the above, many states and UPC require that a person survive the decedent by 120 hours to take any distribution of the dec’d’s property
Should discuss both on exam when the question is about people dying on or about the same time
Wills
What are the requirements for a disclaimer?
In most states, disclaimer must be written, signed by disclaimant, acknowledged before a notary, and failed with approprirate court within 9 months of death
For federal tax purposes, disclaimer must be in writing, irrevocable, and filed within 9 months of the decedent’s death or beneficiary’s 21st birthday
In general, an interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits
Wills
What is the effect of a disclaimer?
The disclaimed property passes as if the disclaimant had predeceased the decedent
Disclaimant can’t choose the recipient of the property
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What happens if heir or beneficiary kills decedent?
A person who feloniously and intentionally brings about the death of a dec’d forfeits any interest in the dec’d’s estate
Property passes as though the killer predeceased the victim
Slayer statutes preclude killer from inheriting or benefitting from dec’d
Killer also loses the benefit of the right of survivorship in any property so held with the dec’d, although the killer doesn’t forfeit their own share
Wills
What type of conviction is needed for slayer statute to go into effect?
Conviction of murder in any degree is conclusive for purposes of this type of statute
In absence of murder conviction, court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before applying forfeiture rule
Wills
What is a will?
A will is an instrument executed with certain formalities that usually directs the disposition of a person’s property at death
Revocable during the testator’s lifetime and operative at their death
Wills
What is a codicil?
A codicil is a supplement to a will that modifies it
Must itself be executed w same formalities as a will
A validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will
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What is a codicil?
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What laws govern the real property and personal property in a will?
Real property - law where the property is located
Personal property - law of the testator’s domicile at the time of death
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What legal capacity is required to make a will?
Testator normally must be at least 18 years old and of sound mind at the time the testator makes a will
Wills
What testamentary capacity is required to make a will?
Must simply have the capacity to understand:
(1) what the testator is doing - that they’re making a will
(2) the nature and extent of property
(3) the persons who are the natural objects of their bounty (family members)
(4) the above factors and be able to formulate an orderly scheme of disposition; ability to do the above at the same time
And testator must have had capacity when the will was executed - so evidence of shortly before and after will execution is admissible too
Wills
What is the testamentary intent needed for will execution?
Testator must have present intent that the instrument operate as their will
Promises to make a will in the future and ineffective deeds are not given effect as wills
Parol evidence is admissible to show that an instrument was not meant to have any effect
When it’s not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator: (1) intended to dispose of the property
(2) intended the disposition to occur only upon his death; and
(3) intended that the instrument in question accomplish the disposition
Wills
When it’s not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator:
(1) intended to dispose of the property
(2) intended the disposition to occur only upon his death; and
(3) intended that the instrument in question accomplish the disposition
Wills
What are the usual formal requirements for a valid will?
(1) In writing
(2) Signed by the testator, or by another at the testator’s direction and in their presence (usually doesn’t matter where the signature is)
(3) Two attesting witnesses
(4) Testator signing the will in each of the witnesses’ presence; and
(5) Witnesses sign in the testator’s presence
Some states require additional things like: signing at the end of the will; “publishing” the will; and requiring witnesses to sign in the presence of each other
Wills
What type of signature is required for a will?
Any mark made by the testator w the intent that it operate as their signature satisfies the signature requirement
Testator’s signature may be made by another person at the testator’s direction and in their presence
Order of signing isn’t critical as long as it’s done as part of a single contemporaenous transaction
Most states don’t care where on the will it’s signed
Wills
What are the requirements for the witnesses of a will?
Two competent witnesses
Competency - at time will is executed, witness is mature enough and of sufficient mental capacity that they could testify in court on these matters
Differ on whether witnesses need to know they are signing a will; no need to know contents of will
At CL, a witness who was also a beneficiary was not competent, and will couldn’t be probated until there were two other competent witnesses - but modern view is that the will is vaild, but the witness beneficiary may not get their bequest - but under UPC, gifts to interested witnesses are not purged
Some states require testator to sign in the witnesses’ presence, and the witnesses to sign in the testator’s presence
Most courts use the “conscious presence” test - the presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties
Minority of courts use “scope of vision” test, where requirement is satisfied only if the person was in such close proximity that they could have seen the signing had they looked
Wills
What are the two tests for the presence requirement for witnesses and wills?
Most courts use the “conscious presence” test - the presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties
Minority of courts use “scope of vision” test, where requirement is satisfied only if the person was in such close proximity that they could have seen the signing had they looked
Wills
Does a phone call or computer call satisfy the presence requirement for witnesses and wills?
No, this doesn’t satisfy the presence requirement unless the state has specific e-will legislation
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What is an attestation clause?
An attestation clause recites the elements of due execution and is prima facie evidence of those elements
Not required, but is useful if a witness forgets or misremembers the facts surrounding the execution
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What is a self-proving affidavit?
Self-proving affidavit recites that all the elements of due execution were performed
Sworn to by the testator and witnesses before a notary public
Functions like a deposition and eliminates need to produce the witnessses in court years later - so probate is faster and cheaper
Common practice to use a self-proving affidavit with all wills
Majority view is that signatures on the affidavit can serve as the signatures needed on the will itself
Wills
Can harmless errors in wills be ignored, so the will can still be valid?
Yes, under the UPC
UPC gives court authority to ignore harmless errors
Defectively executed will can be given effect if the will proponent establishes by clear and convincing evidence that the testator intended the document to be their will
Wills
What is a holographic will and its requirements?
Holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses
UPC and most states that recognize holographic wills accept a will that contains some typed text as long as the portion not in the testator’s handwriting is not material
Must contain the testator’s signature but need not be at the end of the will
Most states that recognize holographic wills give effect to handwritten changes made by the testator after the will is completed
With typed wills, changes in beneficiaries, amounts, etc. made after the execution of an attested will are usually not given effect, and may be a revocation
But in jursidictions that recognize holographic wills, if the requirements are met, often these changes are construed as a valid holographic codicil
Wills
What may be the difference between interlineation changes made in a typed vs holographic will?
With typed wills, changes in beneficiaries, amounts, etc. made after the execution of an attested will are usually not given effect, and may be a revocation
But in jursidictions that recognize holographic wills, if the requirements are met, often these changes are construed as a valid holographic codicil
Wills
Are oral wills acceptable?
Most states and UPC don’t recognize oral wills
Small number of states that do only allow them for disposition of personal property and only if made by:
(1) soldiers or sailors, or
(2) any person during their last sickness or in contemplation of immediate death
Two or more witnesses to the spoken words are often needed
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What is a devise?
A gift of real property
Recipient of a devise is a devisee
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What is a bequest?
Bequest is a gift of personal property
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What is a legacy?
A legacy is a gift of personal property not sufficiently described to be specific in a will, usually of money
Recipient is called a legatee
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What is a specific devise or legacy?
Gift of a particular item of property distinct from all other objects in the testator’s estate
Ex: I leave behind my Sony computer Model XYZ with serial number 123 to Joe
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What is a specific bequest?
Personal property distinguishable from rest of testator’s estate
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What is a specific bequest of a general nature?
Personal property not distinguishable from the rest of the testator’s estate until the testator dies
Ex: I leave my computer to Walter Bishop
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What is a
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What is a general legacy?
A general legacy is a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment
A gift of “100 shares of XYZ stock” or “100 acres of property in Smith County” can also be general legacies if the testator never owned those items and intended the executor to purchase them for the beneficary
Ex: I leave $10K to Walter Bishop
Wills
What is a demonstrative legacy?
A gift of specific sum of money payable out of designated fund
Hybrid - treated as a specific legacy to the extent the source of payment is available and a general legacy to the extent of any shortfall of that source of payment
If designated fund is insufficient, the balance will usually be paid from other assets of the estate
Ex: I leave $10K to Walter Bishop from my account at Superior State Bank
Wills
What is the residuary estate and a residuary gift?
Residuary estate, and hence a gift of the residue, consists of the balance of the testator’s property after paying:
(1) debts, expenses, and taxes; and
(2) specific, general, and demonstrative gifts
Residuary gift: gift of remainder of estate after all debts and other gifts are paid
Wills
What is ademption?
Ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death
Applies only to specific devises and bequests
Most states follow “identity” approach so that if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing
Neither general nor demonstrative legacies are adeemed by an absence of cash or the specific asset in the estate - they will be satisfied by selling other assets
Wills
What happens if a gift is adeemed?
Most states follow “identity” approach so that if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing
Beneficiary doesn’t take substitute gift nor the value of it; can’t trace the proceeds of the sale of the gift even if they are identifiable; will not look at testator’s intent
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What is partial ademption?
A gift may be partially adeemed, as where the testator devises a large tract of land and then conveys a portion of the tract during their life
Beneficiary takes the remaining portion
Will
Can general or demonstrative legacies be adeemed?
Neither general nor demonstrative legacies are adeemed by an absence of cash or the specific asset in the estate - they will be satisfied by selling other assets
To avoid admeption, a court will attempt to construe a gift of securities as a general legacy, unless the testator specifically stated, for ex, “MY 200 shares of Acme stock”
Wills
What are four common exceptions to ademption doctrine?
Replacement property: if testator sold the specific property but bought something similar, the beneficiary may be able to receive the similar gift (ex: original gift was Computer 123 but they sold that and bought Computer 456 - beneficiary may get Computer 456)
Balance of purchase price: If testator sold gifted item and purchaser still owes money to the testator, some states allow beneficiary to receive the remaining money
Condemnation or insurance proceeds: sometimes allow the B to receive a condemnation award paid after the testator’s death or casualty insurance proceeds for the loss of the property if they are paid after the testator’s death
Proceeds from sale by guardian: if testator became incompetent and the specifically devised property was sold by a guardian, B may be entitled to a general pecuniary legacy equal to the amount of the proceeds
Wills
What is ademption by satisfaction?
When the B receives gifted property before testator’s death - can satisfy gift by inter vivos transfer after execution of the will if the testator intends to have that effect
Most states require a writing or specific instructions in the will before the gift is deemed a satisfaction
Intent has to be at the time the gift was made - intent that it is part of the gift in the will - and usually has to be in writing
So you can’t give $10K, and then months later say oh yeah that $10K was supposed to be part of the $20K I’m leaving you in my will - need to have the intent at the time of the gift and be in writing
Wills
How do we deal with specific bequests of stock when it changes?
At CL, a specific bequest of stock includes any additional shares produced by a stock split but doesn’t include shares produced by a stock dividend
Today, UPC and most states also include stock dividends
Beneficiary will also take an increase in securities caused by a merger or corporate reorganization
But B doesn’t take new securities that have been purcahsed or acquired by the reinvestment of dividends
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Are liens on specifically devised property exonerated?
CL and some states: liens are exonerated even if will doesn’t specifically say so
UPC and other states: liens on specficially devised proeprty are not exonerated (not paid off with estate funds) unless the will so directs - means B takes property subject to the debt
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What is abatement?
Process of reducing gifts when estate assets aren’t sufficient to pay all claims against the estate and satisfy all bequests and devises
If testator doesn’t set out an order of abatement in will, testamentary gifts will usually abate in this order:
- Property passing by intestacy
- Residuary estate
- General legacies
- Demonstrative legacies
- Specific bequests and devises
To extent that they can be satisfied from the designated source, demonstrative legacies are treated as specific legacies for abatement purposes
To extent the fund is insufficient, demonstrative legacies are treated as general legacies for abatement purposes
Wills
If the will doesn’t specify, what is the general order of abatement?
- Property passing by intestacy
- Residuary estate
- General legacies
- Demonstrative legacies
- Specific bequests and devises
To extent that they can be satisfied from the designated source, demonstrative legacies are treated as specific legacies for abatement purposes
To extent the fund is insufficient, demonstrative legacies are treated as general legacies for abatement purposes
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When does a gift lapse?
A gift lapses if the B predeceases the testator or if the B is treated as not surviving the testator, for ex, the B disclaimed or didn’t survive long enough
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What controls who receives a lapsed gift?
Express terms of the will
Anti-lapse statutes
Residuary clause
Intestacy
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What are anti-lapse statutes?
They operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator
Descendants take by substitution
Statute applies unless a contrary provision appears in the will
In most states, words of survivorship are considered a contrary will provision, and statute won’t apply
But under UPC, mere words of survivorship are not sufficient to negate application of the anti-lapse statute
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What happens if there is a lapse in a residuary gift?
If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator (and the anti-lapse statute doesn’t apply)…
CL: don’t allow surviving residuary beneficiaries to divide the dec’d B’s share among them - instead, passes by intestacy - no residue of a residue rule
But modern rule: allows surviving residuary Bs to divide the share in proprtion to their interests in the residue
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How does lapse play into class gifts?
If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met
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When there is no evidence of the testator’s intent, the courts resort to the following rules of construction:
Fact that there is a will means testator didn’t want to die intestate - favor construction that avoids intestacy
Conflicting provisions in a will = use one closest to testator’s death, at the end of the will
Construe will as a whole
Give ordinary words their ordinary meaning
Give technical words their technical meaning
Give effect to all language in the will
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What is a patent (obvious) ambiguity?
A patent ambiguity exists if a provision is ambiguous on its face, that is, it fails to convey a sensible meaning
Traditional view: extrinsic evidence not allowed to correct a PA
Modern view: extrinsic evidence is admissible
But extrinsic evidence can’t be used to fill in blank spaces or supply omitted gifts
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What is a latent (hidden) ambiguity?
Language is clear on its face but cannot be carried out without further clarification
Ex: To my sister Pat - but testator has a brother named Pat; I leave my car to Juanita - but testator has two cars, etc.
Court will consider extrinsic evidence to resolve ambiguity
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What if a will provision is clear on its face and can be carried out as written, but a beneficiary thinks the testator made a mistake?
Plain meaning rule/traditional approach: extrinsic evidence can’t be used to disturb the clear meaning of a will; testator can rest assured that the words chosen will take effect as written
Modern rule: extrinsic evidence can be permitted; evidence is significant and assist court to carry out testator’s intent
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What is incorporation?
Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference
Effect is that the incorporated material is treated as if it were actually written out in full in the will
Doesn’t matter if the document wasn’t signed, didn’t have witnesses, or was written under the influence
A doc may be incorporated by reference into a will, provided:
(1) the will manifests an intent to incorporate the document;
(2) the document is in existence at the time the will is executed; and
(3) the document is sufficiently described in the will
Slight exception: testator’s will may refer to written list to dispose of tangible personal property, even if list was not in existence at time of will execution
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A document may be incorporated by reference into a will, provided:
In short: intent, existence, sufficiently described
(1) the will manifests an intent to incorporate the document;
(2) the document is in existence at the time the will is executed; and
(3) the document is sufficiently described in the will
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What is the effect of incorporation?
Effect is that the incorporated material is treated as if it were actually written out in full in the will
Doesn’t matter if the document wasn’t signed, didn’t have witnesses, or was written under the influence
Wills
What is the exception to the incorporation requirement that the document must exist at execution?
Testator’s will may refer to written list to dispose of tangible personal property, even if list was not in existence at time of will execution
Can write or alter the list after executing the will
Wills
What is an act or fact of independent significance?
Something outside of a will that has a legal reason for existing other than the disposition of property at death
A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will
Ex: specific gifts of a general nature; class gift designations; gifts to “my spouse”; gifts of contents
Ex: “I leave the contents of my safe deposit box Number 657 at NY State Bank to Joe” - even though testator may change the contents of the box at any time after will execution, Joe will receive the contents of the box even if testator doesn’t execute a new will after changing the contents because the safe deposit box is a fact of independent significance
Wills
What is a conditional will?
Will that is to operate if certain event does or does not occur
Courts construe wills as general, not conditional, if possible
Court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition doesn’t occur
Parol evidence is NOT admissible to show that a will absolute on its face was intended to be conditional
Ex: “I have just been dx with cancer and therefore I am writing this will.” Testator dies in car accident. Will is not conditional on dying from cancer; the dx was a mere inducement; will is valid.
Ex: “I have just been dx with cancer and this will is to be effective if I die from this cancer.” Testator dies in car accident. Will is conditional on dying from cancer and this is not effective.
Wills
What is republication by codicil?
Under this doctrine, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution
Wills
What is republication by codicil?
Under this doctrine, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution
Wills
What is a pour-over provision?
A provision in a will that leave property to inter vivos trust
Trust can be created before or after the testator executes the will
Trust does not have to be previously funded
Wills
What is the requirement of integration?
Person probating the will must be able to show that all pages present at the time of will execution are the same as pages prsent at the time of probate
Physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present adn intended to be part of the will when it was executed
Can also be proven with extrinsic evidence
Wills
What is a joint will?
A single instrument executed by two or more testators adn intended to be the will of each
Highly unadvisable
Wills
What are reciprocal or mutual wills?
Separate wills executed by two or more testators that contain substantially similar provisions
Often called sweetheart wills
Wills
What is a contractual will?
A will executed or not revoked as the consideration for a contract
A contract to make, not to make, or not to revoke a will is valid
Ex: Testator agrees to leave entire estate to Mary if Mary takes care of Testator in Testator’s old age
At CL, all relevant extrinsic evidence can establish contractual nature of will
Modern law requires a writing (specifically laying out contract in the will itself)
Can be revoked by agreement bt the parties while they are both alive
If revoked by one person while both alive, other person can change will
If revoked by one person after other dies, injured beneficiaries may sue to impose constructive trust on property they should have received
Wills
Matt and Lisa executed a joint will with an express statement
of intent. The will stated that each of their assets are to go to whomever survives the other, and upon the survivor’s death, the assets would be divided equally among their children, Chris, Jill and Karen. Matt predeceased Lisa. Lisa remarried, had more children, and executed a new will changing the beneficiaries from her children with Matt to her children with Steve (Husband 2), along with other assorted dispositions. Who inherits upon Lisa’s death?
New will is valid; but the new will is a breach of contract; so the court is likely to impose a constuctive trust remedy on the property in favor of the three original beneficiaries, the original kids
Wills
What is a power of appointment?
An authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creater of the power, the persons who shall take the property and the manner in which they shall take it
In short: owner of property (donor) transfers to the donee the power to appoint the new owner of the property
General power of appointment: power exercisable in favor of anyone, including donee, their estate, their creditors, or creditors of estate
Special power of appointment: power exercisable in favor of limited class of appointees, not including donee, their estate, their creditors, or creditors of estate
Presently exercisable power of appointment: exercisable by donee during lifetime
Testamentary power of appointment: exercisable only by donee’s will
Wills
What is a general power of appointment?
power exercisable in favor of anyone, including donee, their estate, their creditors, or creditors of estate
Wills
What is a special power of appointment?
power exercisable in favor of limited class of appointees, not including donee, their estate, their creditors, or creditors of estate
Wills
What is a presently exercisable power of appointment?
exercisable by donee during lifetime
Wills
What is a testamentary power of appointment?
exercisable only by donee’s will
Wills
How can creditors reach appointive assets?
If donee doesn’t exercise their general power (whether presently exercisable or testamentary), the donee’s creditors cannot reach the property
But if the donee exercises the power, even if the donee appoints to another person, the donee’s creditors can reach the appointive property as if the donee were the owner
Also, if the donee of a general power is also the donor, the donee’s creditors can reach the appointive assets regardless of whether the donee exercises the power
Wills
How does a person holding power of appointment exercise that power?
In most states, a residuary clause, by itself, doesn’t exercise any power of appointment held by the testator
But if state has enacted RUPC, a will’s residuary clause exercises a general (but not special) power of appointment unless:
(1) the donor’s will called for its exercise by a specific reference to the power, or
(2) the donor’s will provides for a gift in default of appointment
If a person holding a testamentary power executes a will that devises “all the rest and residue of my property, including any property over which I may have a power of appointment,” this “blanket” exercise of any power of appointment will be given effect unless the creator of the power called for the power’s exercise by an instrument that specifically referred to the power
Courts will find that a power of appointment (whether general or special) was exercised by implication when the donee purports to dispose of property subject to the power as though it were the donee’s own, meaning that the disposition can be given effect only when it is treated as an exercise of the power
Wills
Does a residuary clause exercise any power of appointment held by the testator?
In most states, a residuary clause, by itself, doesn’t exercise any power of appointment held by the testator
But if state has enacted RUPC, a will’s residuary clause exercises a general (but not special) power of appointment unless:
(1) the donor’s will called for its exercise by a specific reference to the power, or
(2) the donor’s will provides for a gift in default of appointment
Wills
What is the effect of marriage following execution of a will?
In most states: marriage has no effect on prior will
Some states and UPC: spouse receives intestate share as “omitted spouse” unless:
(1) will makes provision for the new spouse
(2) the omission was intentional, or
(3) the will was made in contemplation of the marriage
Wills
What is the effect of divorce or annulment on execution of a will?
All provisions in favor of the former spouse are void/revoked
Will remains valid and is read as if the ex-spouse predeceased the testator
Voiding occurs upon final divorce
UPC and some states extend all this to family members of the ex-spouse
Wills
What is done about pretermitted children and executed wills?
Most states have pretermitted child statutes
Idea is that testator would have made provision for the child had the testator thought about it
If testator fails to provide in their will for any child born or adopted after the execution of the will, the child takes a share computed using statutorily provided formulas
Wills
How can a will be physically revoked?
A will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will w the intent to revoke
Requirements for revocation by physical act:
(1) intent to revoke - intent must be concurrent with act - if accidentally destroyed, no intent and no revocation
(2) mental capacity
(3) physical act: burning, tearing, ripping, writing, “void” across will, etc.
Proxy revocation permitted if done at testator’s request and in testator’s presence
Partial revocation: most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes; extrinsic evidence is admissible to determine whether a partial or total revocation was intended
Wills
Are proxy revocations permitted?
Proxy revocation permitted if done at testator’s request and in testator’s presence
Wills
How do courts handle partial revocation?
Partial revocation: most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes; extrinsic evidence is admissible to determine whether a partial or total revocation was intended
Wills
When a will has been executed in duplicate, do you have to revoke both copies?
When a will has been executed in duplicate, an act of revocation done to either copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last” will
Wills
Does destruction of an unexecuted copy of a will revoke it?
No, destruction of an unexecuted copy with intent to revoke does not revoke the will
Wills
Can a will be revoked by a subsequent instrument?
All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will
Wills
How does a subsequent instrument expressly revoke the earlier will?
Must be executed with same formalities as a will
And has to say something like “I hereby revoke all prior wills and codicils”
Something like “this is my last will” isn’t sufficient to revoke everything prior
Wills
How is a will revoked by inconsistency of a subsequent document?
If new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistently
If new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions
Wills
When is there a presumption of no revocation?
If will is found in normal location and there are no suspicious circumstances, presumption that testator didn’t revoke it
Wills
When is there a presumption of revocation?
Will was in testator’s possession or control but can’t be produced after testator’s death = rebuttable presupmtion that testator revoked it
Extrinsic evidence is admissible to overcome presumption of revocation
Wills
How is a lost or destroyed will admitted to probate once presumption that it was revoked is overcome?
May be admitted to probate if the following can be proven:
(1) valid execution;
(2) the cause of nonproduction (that is, proof that the will was not revoked); and
(3) the contents of the will
Contents are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will
Wills
What is the typical fact pattern involving the revival of revoked wills?
Testator executes valid Will 1
Testator executes valid Will 2 which expressly revokes Will 1
Testator then validly revokes Will 2
Is Will 1 revived?
Wills
What are the three main revival approaches?
UPC Approach: look at testator’s intent; if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive the previous will (restore to effectiveness); if the original will was only partly revoked, the revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions
Automatic Revival Approach: revival is automatic because revoking will never took effect because it was revoked prior to the testator’s death
No Revival Approach: revocation by subsequent writing takes effect immediately when signed; a will, once revoked, is not revived when the subsequent will is itself revoked; revocaiton clause is effective when executed just like a revocation by physical act; earlier will can be revived only if it is re-executed (re-signed and witnessed), or republished by a validly executed codicil
Wills
What is the UPC Approach to will revival?
Look at testator’s intent
If a will (Will 2) that wholly revoked a previous will (Will 1) is thereafter revoked, the previous will (Will 1) remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive the previous will (Will 1) (restore to effectiveness)
If the original will (Will 1) was only partly revoked, the revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions
Wills
What is the automatic revival approach?
Revival is automatic (Will 1) because revoking will (Will 2) never took effect because it was revoked prior to the testator’s death - so just goes back to Will 1
Wills
What is the “no revival” approach?
Revocation by subsequent writing (Will 2) takes effect immediately when signed
A will (Will 1), once revoked, is not revived when the subsequent will (Will 2) is itself revoked
Revocation clause (Will 2) is effective when executed just like a revocation by physical act
Earlier will (Will 1) can be revived only if it is re-executed (re-signed and witnessed), or republished by a validly executed codicil
Wills
What is an express conditional revocation?
Testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happing) of a named event
Wills
What is the fact pattern involving dependent relative revocation (DRR)?
Testator executes valid Will 1
Testator validly revokes Will 1 (for ex: by ripping it up)
Testator executes Will 2, but Will 2 is invalid (for ex: because it was not properly witnessed)
Need to ask:
Was the revocation of Will 1 impliedly conditioned on the validity of Will 2?
Would testator have preferred Will 1 over intestacy?
Wills
When does doctrine of DRR apply?
When a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will
The more similar the provisions of the two wills, the more likely the court will apply DRR
The more different the wills, the more likely the testator would have preferred intestacy to Will 1, so the court will not apply DRR
Wills
When will the court apply or not apply DRR?
The more similar the provisions of the two wills, the more likely the court will apply DRR
The more different the wills, the more likely the testator would have preferred intestacy to Will 1, so the court will not apply DRR
Ex: Testator executed valid Will 1. This will left all of Testator’s estate to Friend. On May 1, 2015, Testator tore up Will 1 and executed Will 2. This will made a $40,000 gift to Nephew and left the rest of Tes- tator’s million dollar estate to Friend. Will 2 is invalid because of a glitch with the execution formalities. Testator dies in 2021 survived by his children.
At first glance, it would seem that Testator died intestate and
the children would receive his estate. However, there is a good chance the court would apply the doctrine of DRR. This doctrine would imply a condition on Testator’s revocation by physical act of Will 1, that is, Testator revoked Will 1 based on the assumption that Will 2 was valid because the terms of the wills are identical except for the additional gift to Nephew; he would not have wanted his estate to pass by intestacy. Because Will 2 is not valid, the condition was not satisfied, and thus the revocation of Will 1 is ineffective. Accordingly, Testator’s estate passes under the terms of Will 1.
Ex: Assume in the prior example that Will 2 had read, “I leave $40,000 to Nephew and the remainder of my estate to my children.” A court is likely to conclude that Testator meant to revoke the gift to Friend regardless of the effectiveness of Will 2. The disposition plans of the two instruments are so far apart that it would not be appropriate to assume that Testator would have preferred Will 1 to intestacy.
Wills
Does UPC’s harmless error statute apply to attempted revocation or alteration of a will?
Yes, proponent must establish by clear and convincing evidence that the dec’d intended the document which does not meet the technical requirements for a valid will to be a partial or complete revocation of a will or an alteration of the will
Wills
What are elective share statutes?
CL marital property states have elective share statutes that give the spouse an election to take a statutory share of the dec’d’s estate in lieu of taking under the dec’d’s will
Wills
What is the amount of an elective share in states that have elective share statutes?
Amount varies
But typical amount is 1/3 of net probate estate if dec’d is survived by issue and 1/2 if the decedent is not survived by issue
Some states and UPC base amount on duration of marriage and/or number of children
Share is usually calculated from the dec’d’s net estate (probate estate minus expenses and creditors’ claims)
But some states: apply the share fraction to the dec’d’s “augmented” estate
Augmented estate includes certain lifetime transfers such as the dec’d’s share of jointly held property that passed by survivorship, bank accounts now payable to someone other than the surviving spouse, and life insurance proceeds not payable to the surviving spouse
Wills
With elective share, what is the augmented estate?
Share spouse gets is usually calculated from the dec’d’s net estate (probate estate minus expenses and creditors’ claims)
But some states: apply the share fraction to the dec’d’s “augmented” estate
Augmented estate includes certain lifetime transfers such as the dec’d’s share of jointly held property that passed by survivorship, bank accounts now payable to someone other than the surviving spouse, and life insurance proceeds not payable to the surviving spouse
Wills
Common law marital property states have have elective share statutes. What do community property states have?
No elective share statutes because spouse is protected by owning half of community property
Dec’d spouse can give away only separate property and their half of community property
Wills
Can descendants of a spouse file an notice of election?
No, only the surviving spouse can file (within a specified period), or the guardian of an incapacitated spouse
Wills
What is the effect of election on the testamentary plan?
Elective share is paid first from the assets that, but for the election, would have passed to the surviving spouse
Beyond that, abatement rules apply
Wills
What if a testator fails to provide in their will for a living child just because they mistakenly believe they’re dead?
Many states and UPC: if testator fails to provide in their will for a living child solely because the testator mistakenly beleived the child to be dead, the child shares in the estate as though they were an omitted afterborn or after-adopted child
Wills
How do jurisdictions determine the shares for a pretermitted child?
Many states: pertermitted child takes an intestate share of the dec’d’s estate
UPC and some states: if testator had other children at time will was executed and will makes a provision for one or more of those children, the portion of the estate to which the pretermitted child is entitled is limited to the provisions made to the other children
Bequests to the other children are reduced, but no other beneficiary’s bequest is reduced
Pretermitted child takes what he would have taken if he’d been included like the other children
Wills
What are the three situations where many states withhold a pretermitted child’s forced share?
(1) testator had other children at time the will was executed and devised substantially all of their estate to the other parent of the omitted child
(2) omission was intentional
(3) testator provided for omitted child by a transfer outside the will instead of including them in the will
Wills
Can republication of a will result in a change in a child’s status?
Yes, a republication of a will by codicil can result in a change in a child’s status with respect to pretermission
A child born before the republication is not considered pretermitted and is not entitled to the protection of the statute (because they should have included the new child)
Wills
What is a homestead protection?
Statutes that protect the family residence or farm from creditors’ claims by exempting a certain amount of land
Often provide that the dec’d’s spouse or dependent children are entitled to occupy homestead for as long as they choose dispite the disposition of the residence in the dec’d’s will
Wills
What is a family allowance protection?
Provides support during probate administration
Usually takes precedence over all claims other than funeral and administration expenses
In addition to the amount passing by will, intestacy, or elective share
Wills
What is an exempt personal property protection?
A surviving spouse or minor children are usually entitled to petition to set aside certain items of tangible personal property as exempt from claims against the estate except for perfected security interests on the items themselves
These items are in addition to the amounts passing by will, intestacy, or elective share
Wills
What is an exempt personal property protection?
Wills
What are the timing and notice requirements of a will contest?
Timing varies from state to state - could be a few months or a few years
All legatees under the will and all intestate heirs are necessary parties and are entitled to notice
Wills
Who has standing to contest a will?
Only interested parties have standing
This is those whose interests would be adversely affected by the admission of the will
Includes heirs and sometimes beneficiaries of prior wills
Creditors, executors, and testamentary trustees are not interested parties
Wills
Who has the burden of proof for a will contest?
Will contestant has the burden to prove the will is invalid
Wills
Can a will fail partially or would the whole will fail?
If only a portion of a will is found to have been procured by undue influence, fraud, duress, or mistake, only that part is void and the remainder is given effect
Rare to have only a partial failure
Wills
What are the seven grounds for challenging the validity of a document offered for probate?
(1) defective execution
(2) revocation
(3) lack of testamentary capacity
(4) lack of testamentary intent
(5) undue influence or duress
(6) fraud
(7) mistake
Wills
What is insane delusion?
Insane delusion is a persistent belief in facts that are against all evidence
Belief in facts that do not exist and that no rational person would believe existed
Destroys testamentary capacity only if there is a connection bt the insane delusion and the property disposition
May invalidate the whole will or only a particular gift
Ex: I could believe you are an alien who has come to earth but it doesn’t affect my will because I leave everything to Margaret, my wife; but if I believe Margaret is an alien and thus do not leave her my property, then the insane delusion voids the will
Wills
How do you establish undue influence?
(1) the influence existed and was exerted;
(2) the effect of the influence was to overpower the mind and free will of the testator (so will reflects desires of influencer and not testator); and
(3) resulting testamentary disposition would not have been executed but for the influence (causation)
Things that do not constitute undue influence: begging, pleading, nagging, cajoling, threatening
Free will of the testator must be destroyed
Wills
What are important factors for determining if there was undue influence?
Unnatural dispositions, such as cutting out close family
Opportunity or access to testator
Confidential or fiduciary relationship between parties
The ability of the testator to resist
The beneficiary’s involvement with the drafting or execution of the will
Etc., etc., etc.
Evidence that’s insufficient to influence the testator alone: opportunity to influence the testator, susceptibility of the testator to influence due to age or poor health, an unnatural disposition favoring some of the testator’s relatives over others
Wills
When does a presumption of undue influence arise?
(1) when there was a confidential relationship between the testator and a beneficiary (testator placed an unusual amount of confidence in the beneficiary, and relied on the beneficiary); AND
(2) that beneficiary was active in procuring, drafting, or executing the will
Some states add third requirement: (3) that the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence
Once these are met, the burden of proof shifts to the will proponent
Wills
When does a presumption of undue influence arise between spouses?
Although husband and wife share a confidential relationship, presumption of undue influence doesn’t arise between the spouses unless the spouse exerted influence over the testator in such a manner that it:
(1) overpowered the free will of the testator, and
(2) resulted in a disposition reflecting the desires of the spouse exerting the influence
Wills
What is duress?
Duress is a form of undue influence but connotes violent conduct such as the threat of physical harm
Wills
A successful contest on grounds of fraud requires that the testator have been willfully deceived as to:
(1) the character or content of the instrument,
(2) extrinsic facts that would induce the will or a particular disposition, or
(3) facts material to a disposition
Wills
What happens if a testator is fraudulently prevented from making a will?
Some courts will impose a constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made
Wills
What are the elements of fraud?
False representation made to the testator
Knowledge of falsity by person making the statement
Testator rsbly believed the statement
Statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation
Wills
What is fraud in the execution (fraud in the factum)?
Testator is deceived as to identity or contents of the instrument
Didn’t know what the document contained or didn’t know it was a will
Wills
What is fraud in the inducement?
Testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact
Wills
What is a mistake (just a general mistake)?
A mistake is an error that was not caused by evil conduct - no fraud or undue influence
Wills
What is a mistake in the execution (mistake in the factum)
Testator is in error regarding contents or identity of instrument
Thus lacks testamentary intent
Extrinsic evidence is admissible to show that a testator didn’t know they were signing a will
Courts will grant relief where the nature of the mistake is obvious
Wills
What is mistake in the inducement?
Testator is mistaken as to some extrinsic fact and makes will based on that fact
Courts generally will not grant relief
Ex: has two children; was erroneously informed daughter deserted military service, so dad left everything in his will to his son; that turns out not to be true; court will likely not grant relief and everything will go to son
Wills
What are no-contest clauses?
A clause in a will providing that a B forfeits their interest in the estate if they contest the will and lose
Majority rule: (UPC and some states) a no-contest clause is valid and will be enforced unless the B had probable cause for bringing the contest
Minority rule: (some states) give no-contest clause full effect, regardless of whether there was probable cause for challenging the will
Wills
What does “probate” mean?
Proceeding in which an instrument is judicially determined to be the will of the dec’d or in which a dec’d’s heirs are determined
Wills
What is a personal representative?
The person appointed to carry out the estate administration
If named in will, called the executor
If not named, the administrator
Wills
Where is primary probate jurisdiction?
The state of the dec’d’s domicile at the time of death
Ancillary jurisdiction may be wherever the dec’d’s assets are located
Wills
What are some of the duties of the personal representative?
(1) give notice to devisees, heirs, and claimants against the estate;
(2) discover and collect the dec’d’s probate assets and file an inventory;
(3) manage the assets of the estate during administration;
(4) pay expenses of administration, claims against the estate, and taxes; and
(5) distribute property
Wills
What is the order in which claims are generally paid?
(1) administration expenses
(2) funeral expenses and expenses of the last illness
(3) family allowance
(4) debts given preference under federal law
(5) secured claims
(6) judgments entered against the dec’d during his lifetime (unsecured claims), and
(7) all other claims (heirs and beneficiaries)
