Wills

Question 1

Intestate succession with spouse

Answer 1

If survive only by a spouse and no descendants, the surviving spouse will inherit the entire estate.

**some states provide that a certain portion of the estate will be given to the decedent’s parents and the parents’ issues

Question 2

Intestate succession with spouse and descendants

Answer 2

Surviving spouse will inherit one-half or one-third of the decedent’s estate with the surviving descendants inheriting the rest. Under UPC, the surviving spouse will inherit the entire estate IF ALL of the descendants are descendants of the surviving spouse.

Question 3

Intestate succession no spouse

Answer 3

Decedent’s surviving descendants inherit the estate equally

Question 4

Intestate succession with no spouse or descendants

Answer 4

Surviving parents inherit the entire estate equally. If no surviving parents, the descendants of the decedent’s parents will inherit the estate

Question 5

child predeceases intestate parent

Answer 5

“A complicated issue arises when a child predeceases a parent who later dies intestate. Three rules address how to distribute an intestate estate under these circumstances.”

Question 6

Strict per stirpes

Answer 6

Estate is divided by the number of members in the first generation of children who are either alive or survived by descendants. Each member who is alive takes their share, and the shares of the deceased members drop to the next generation.

Question 7

Modern per stirpes

Answer 7

The modern per stirpes approach works exactly like the strict per stripes approach, except that the estate is divided equally among the living and deceased at the first generation that has a living taker.

Question 8

Per capita at each generation

Answer 8

Estate is divided at the closest generation to the decent in which one or more of the descendants are alive. However, shares of the deceased descendants on each level are added together and divided equally among all representatives of the deceased descendants in the next generation

Question 9

Inheritance rights of adopted children

Answer 9

same share as biological children

Question 10

Equitable adoption

Answer 10

A child may be informally adopted through adoption by estoppel when a person takes a child in and assumes parental responsibilities. If such a surviving child can establish an adoption by estoppel, equity holds that she can inherit from the decedent as if she were a legally adopted child.

Question 11

Determining adoption by estoppel

Answer 11

(1) parent’s bestowal of love and affection on the child; (2) parent’s performance of parental duties toward the child; (3) the child’s obedience and companionship toward the parent; (4) the child’s reliance on the relationship; AND. (5) the parent’s holding out the child as their own

Question 12

Adopted child right from bio parent?

Answer 12

Generally, adoption in fact or by estoppel terminates the adopted child’s right to inherit from her biological parents. However, a child adopted by stepparent may usually inherit from biological parent as well

Question 13

Non-marital children

Answer 13

May inherit from either parent so long as the facts establish a legal parent-child relationship (non-marital children inhering from a father must first establish paternity)

Question 14

Half-blood children

Answer 14

only full-blood children were entitled to inherit from an intestate decedent at common law; not anymore.

Question 15

Advancements

Answer 15

Gifts to heirs during testator’s lifetime were considered advancements at common law, now they are not unless: (1) decedent declared his intent to make the gift an advancement in contemporaneous writing; OR (2) the heir acknowledge the gift to be an advancement in writing

Question 16

Simultaneous death

Answer 16

Uniform Simultaneous Death Act (USDA): evidence of survivorship, no matter how brief in duration, is sufficient to establish a sequence of death.

Under UPC and RUSDA, a beneficiary is only treated as having survived the testator if there is clear and convincing evidence that the beneficiary survived the testator by 120 hours (5 days).

Question 17

Personal property jurisdiction

Answer 17

decedent’s domicile at death

Question 18

Real property jurisdiction

Answer 18

where real property is located

Question 19

Harmless error rule

Answer 19

Under the UPC, a will that is NOT properly executed will still be. valid if the part seeking to have it validated proves by clear and convincing evidence that the decedent intended the writing to be his will

Question 20

Will formalities

Answer 20

WASP: writing, attesting witnesses, signed by testator, in the presence of the witnesses and vice versa

Question 21

Interested witnesses

Answer 21

Under the common law, the signing of the will MUST be witnessed by two disinterested witnesses. However, every state has abolished this and now allow interested witnesses.

Question 22

Holographic will

Answer 22

Handwritten and not witnesses. Where recognized, only valid if the testator signs it personally.

Question 23

Integration of documents

Answer 23

Integration of documents usually arises when pages or portions of a will become separate.

A document will be integrated into the will if: (1) the testator intended the document to be part of the will; AND (2) the document was physically present at the time of the will’s execution

Question 24

Incorporation by reference

Answer 24

Incorporation by reference deals with the incorporation of extrinsic documents into the will (rather than pages or portions of the original will).

In most states, a document or writing may be incorporated into a will by reference if: (1) the testator intended to incorporate the document into the will; (2) the document was in existence at the time the will was executed; and (3) the document is sufficiently described in the will

Question 25

Acts or Facts of independent legal significance?

Answer 25

An act or fact of independent significance is something outside of a will which has a purpose other than disposing 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.

Question 26

Codicil

Answer 26

Supplement or addition to a will that is made after a will is executed. Can explain, modify, amend, or revoke provisions of an existing will. A codicil MUST satisfy the same formalities asa will in order to be valid

Question 27

Effect of a codicil

Answer 27

Original will is republished and is deemed to have been executed on the date the codicil is executed. Republication can cure defects in a will that might affect the validity of specific devises (e.g. in a jurisdiction that prohibits devises to interested witnesses, republication by a codicil that is properly witnessed could save). However, most courts hold that a codicil CANNOT republish an invalid will as a whole.

Question 28

Holographic codicil

Answer 28

In states that recognize holographic wills, a valid holographic codicil can validate a will that was not originally valid because it failed to meet statutory requirements. A valid holographic codicil revokes any earlier valid will to the extent it conflicts with the holographic codicil.

Question 29

Revocation by a physical act

Answer 29

three ways: (1) subsequent written instrument; (2) cancellation; (3) partial revocation

Question 30

Revocation by subsequent written instrument

Answer 30

Can be revoked by: (1) a subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR (2) a subsequent will/codicil containing a revocation clause or provisions that are inconsistent with those of the prior will (only revokes to the extent it conflicts with the prior will)

Question 31

Revocation by cancellation

Answer 31

Revoked if testator burns, tears, obliterates, or destroy the will WITH THE INTENT to do so.

Under the common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will. Under the UPC, words of cancellation need NOT touch any of the words of the will, but they must be somewhere on the will to validly revoke.

Question 32

specific devise

Answer 32

gift of a particular item of property distinct from all other objects in testator’s estate

Question 33

general legacy

Answer 33

Gift of general economic benefit

Question 34

demonstrative legacy

Answer 34

gift of a general amount to be paid from a particular source or fund

Question 35

Dependent relative revocation

Answer 35

(1) the valid revocation of a will may be ignored if the will was revoked under the testator’s mistaken belief of law or fact that the testator could revive an earlier will, or modify his disposition of property by codicil or new will

(2) DRR applies when the court can determine that the testator would have preferred the disposition in the revoked will over the disposition resulting from a finding that the testator died intestate

**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

Question 36

Revival of revoked wills

Answer 36

Testator executes valid Will 1, then executes valid Will 2 which expressly revokes Will 1, then Testator validly revokes Will 2. Is Will 1 revived?

UPC approach: 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. 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 intent to revive the provisions.

Automatic revival approach: Revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death.

No revival approach: In other states, a will, once revoked, is not revived when the subsequent will is itself revoked. The revocation clause is effective when executed like a revocation by physical act. The earlier will can be revived only if it is re-executed or republished by a validly executed codicil.

Question 37

Lapsed legacies

Answer 37

If a beneficiary named in a will predeceases the testator, absent an alternate disposition of the devise specified by the testator, the devise lapses into the estate’s residue UNLESS the jurisdiction’s anti-lapse statute can save it

Question 38

Anti-lapse statute

Answer 38

Devises will vest in the descendants of the predeceased beneficiary if the predeceased beneficiary: (1) is a blood relative of the testator AND (2) has a descendant who survives the testator

Question 39

Residue of a Residue

Answer 39

At common law, an invalidated residuary devise passed to the testator’s heirs through intestate succession. Under the modern view, if the residue is devised to two or more persons, an invalidated residuary devise will pass to the other residuary beneficiaries rather than the testator’s heirs

Question 40

Ademption

Answer 40

Under this doctrine, if the subject matter of a specific devise is NOT in the estate at the time of the testator’s death, the devise to the beneficiary adeems or fails.

Question 41

Common statutory exceptions to the ademption doctrine

Answer 41

(1) replacement property; (2) balance of the purchase price; (3) proceeds of condemnation award or insurance, or (4) proceeds from sale by guardian or conservator

Question 42

generic descriptions of will property

Answer 42

Any property described in generic terms is interpreted under the circumstances existing at the time of the testator’s death, rather than when the will is executed

Question 43

slayer statutes

Answer 43

A person who feloniously and intentionally kills the decedent is barred from claiming a share of the decedent’s estate as either an heir or a beneficiary under the decedent’s will. Generally, the decedent’s. estate is distributed as if the killer had predeceased the decedent

Question 44

Valid disclaimer

Answer 44

(1) be in writing and signed by the person making it; (2) describe the interest being disclaimed sufficiently and (3) be delivered or filed. Must be made within a reasonable amount of time, but under uPC, made at any time

Question 45

Abatement

Answer 45

If there are more claims against an estate from creditors than there are assets to cover, the devises abate. Creditors always have priority, then:

(1) property not disposed of by will
(2) residuary devises
(3) general devises
(4) demonstrative legacies
(4) specific devises

Question 46

Devises to classes

Answer 46

A testator may devise property to a class of individuals. A class may increase or decrease in number until the testator’s death. If a member of the class predeceases the testator, her share is split evenly among the remaining members of the class

Question 47

Class devise issue

Answer 47

If there is a devise to a group of individuals, and at least one predeceases the testator, then you must determine whether the group constitutes a class. If it does, the predeceased member’s share is split evenly among the remaining members of the class. If the group does NOT constitute a class, share lapses into the residue.

“20,000 to be divided among Ann, Beth, Chris, and Doug.” This can either be interpreted as a devise to a class or four separate individual devises of 5k. Analyze both on exam

Question 48

Pretermitted children

Answer 48

A child who is unintentionally omitted from a will. Commonly occurs when a child is born or adopted after the execution of a will, or is thought to be dead but is later found alive. Pretermitted children are entitled to the share that they would have received had the testator died intestate so long as the testator did NOT intent to omit toe child from his will

Question 49

Contractual wills

Answer 49

(1) a contract to make mutual or joint wills; (2) a contract to make a certain devise by will; (3) a contract not to revoke a will or a provision in the will; OR (4) a contract to refrain from executing a will.

Question 50

Capacity

Answer 50

Challenger has to prove that the testator did NOT know or understand: (1) the nature and extent of his property; (2) the person who are the natural objects of his bounty; or (3) the disposition he was making of his property.

Question 51

Undue influence

Answer 51

when a person exerts such control and influence over the mind of the testator as to overcome the testator’s free will. Must prove: (1) testator was susceptible to undue influence; (2) wrongdoer had the opportunity to exert undue influence over the testator; (3) the wrongdoer actively participated in drafting the will; and (4) the will evidences a result that appears to be the effect of undue influence

Question 52

Confidential relationship and undue influence

Answer 52

Generally, there is a rebuttable presumption of undue influence if a confidential relationship existed between the alleged wrongdoer and the testator such that the circumstances surround the drafting of the will were suspicious

Question 53

Fraud

Answer 53

A will is invalid if the will reflects the testator’s belief in false information arising from another person’s fraudulent misrepresentation. Contestant must prove:

(1) a misrepresentation of a material fact made to the testator;
(2) misrepresentation was made to induce reliance by the testator; AND
(3) the testator relied on the misrepresentation in disposing of his property by will

Question 54

Mistake

Answer 54

Most courts will permit a modification of a will to conform to the testator’s intent if there is clear and convincing evidence of mistake. Some courts may modify an unambiguous term to reflect the testator’s intent, however, most will NOT admit extrinsic evidence to do so

Question 55

Standing to contest a will

Answer 55

Person who is (1) a beneficiary; (2) should be a beneficiary; or (3) would benefit if the decedent died without a will

Question 56

Totten Trust

Answer 56

Created when a person opens a bank account for himself as trustee for another. Absent clear and convincing evidence of a different intent, the trustee is the sole owner of the account throughout his lifetime.

Revocable by will and during the trustee’s lifetime if the trustee: (1) withdraws all funds from the account; or (2) delivers a signed revocation in writing to the bank naming a new beneficiary

Question 57

Life Insurance

Answer 57

Life insurance is a contract made between a policyholder and an insurance company. Usually prohibits the change of a beneficiary under the policy by execution of a will. Most courts uphold such limitations, however. some courts permit a policyholder to change a beneficiary by will if his insurance company does not object

Question 58

Valid will

Answer 58

testamentary intent, capacity, statutory formalities

Question 59

“Effect of revocation on other testamentary instruments”

Answer 59

The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will

Question 60

Distribution of Lapsed Gifts

Answer 60

(1) the express terms of the will; (2) rule of law (such as an anti-lapse statute); (3) residuary clause; (4) intestacy

Question 61

Abatement split

Answer 61

Pro rata in ration of what they were supposed to get

Question 62

Jurisdictional validity of a will

Answer 62

Determined under the law of the state where the testator was domiciled at the time of his death. Under the UPC, a will is valid if it complies either with the law of the state in which it was executed or with the law of the place where the testator was domiciled when he signed his will or when he died.