Wills Flashcards
Will Requirements?
- Writing
- Signed by T, or in her presence at her direction (acknowledgement of signature)
- Signed by two witnesses
- Witnesses know it’s T’s will
- Witnesses (at same time) see T sign or see T ackknowledge signature.
Holographic Will Requirements?
- T’s signature
- Material provisions in T’s hadnwriting
- Invalid if no date and unclear which will controls
Capacity/Intent Issues
- 18 years old
- Sound mind/competent
- Fraud in execution (forgery)
- Fraud in the inducement (misrepresentation)
- Fraud preventing execution or revocation
- Undue influence
Common Law Undue Influence (SOUP)?
SOUP
* Excessive persuasion
* Opportunity to influence
* Unnatural disposition
* Procuring disposition by active beneficiary
Cal Undue Influence (Every Powerful CAR Operates From Inside VIA An Ignition)?
Every Powerful CAR Operates From Inside VIA An Ignition
* Excessive
* Persuasuion
* Causing another to
* Act or
* Refrain
* Overcomes
* Free will resulting in
* Inequity
Circumstancial Evidence to Prove:
* Vulnerability
* Influencer’s Authority
* Actions of Influencer
Presume Fraud/Undue Influence If Devise Is To:
- Drafter
- One in fiduciary relationship with T or transcriber
- Care custodian within 90 days
- Employees or cohabitant of any above
Exceptions for blood relative, less than $5,000, or attornery consulted
Wills - Conflict of Laws?
Valid if complies with laws of state of:
* Execution
* Place of Death; OR
* Domicile
Integration Requirements?
- Present at time of will
- T’s intent
Extrinsic evidence allowed
Incorporation by Reference Requirements?
- Existed at time of will
- Will show’s T intent
- Sufficiently described
Acts of Independent Legal Significance?
Acts or events separate from effect in will.
Codicil?
- Amendment to will
- Republishes will as of date of codicil
- Same formalities as will or holographic will
Pour-Over Will Requirements?
- Identifies trust in will
- Terms set forth in document other than will
- Trust executed before or at will execution
Will Revocation?
- Physical act (presumed destroyed if last will with T and now gone)
- By subsequent will (express or implied)
- By operation of law (omitted child, spouse, partner except if express ommission, transfer outside of will, spouse waived, or child’s other parent takes
Dependent Relative Revocation?
- T revokes first will
- T mistakenly believes second will valid but is not
- If T knew second will invalid, would not have revoked
- First will probated anyways
Will revival?
- If first will revoked
- Then second will revoked
- First will revived if T intended to revive
- Extrinsic evidence allowed
Four Classification of Gifts?
- Specific gift (identifiable property, stocks/dividends to beneficiary)
- General gift
- Demonstrative gift (general but from specific property/fund)
- Residuary - what is left
Ademption by Extinction?
- Gift no longer exists
- Look at T’s intent to see if beneficiary still takes or nothing
Ademption by satisfaction?
Given to beneficiary during life
Abatement?
Gifts reduced to pay all debts in following order:
1. Property not disposed of
2. Residuary
3. General - nonrelative
4. General - relative
5. Specific - nonrelative
6. Specific - relative
Exoneration
If will requires property subject to encumberance to be paid off, other specific gift of property is not abated to pay off.
Lapse/Anti-Lapse?
- Predeceased beneficiary gift lapses to residual
- If beneficiary kindred, anti-lapse, so goes to issue
- Simultaneous death? Apply lapse or anti-lapse
Survivor’s Rights?
- Spouse elects to take under will or statutory share
- Spouse can set aside transfer of CP or QCP
- Omitted heirs take intestate share unless exceptions met
Two Bars to inheritence?
- No-contest clauses - only allowed if probable cause
- Killers treated as predeceased
Intestate Succession?
- Heir must survive 120 hours
- All CP and QCP to surviving spouse
- All SP to spouse if no child; otherwise 1/2 if one child or 1/3 if two or more
- If no spouse or partner, then to:
1. Issue
2. Parents
3. Issue of Parents
4. Grandparents
5. Issue of Grandparents
6. Issue of predeceased spouse
7. Next of kin
8. Parents of predeceased spouse
9. Issue of parents of predeceased spouse
10. Escheat to state
Per Capita - Generation?
- First generation with living
- Each living gets one share
- Share of all deceased split equally between next generation with living
Example: Three children, A, B, and C. Only B lives. B take 1/3. Remaining 2/3 evenly split among A and C children or next living generation.
Per Capita - Representation?
- First generation with living
- Each living gets one share
- Share of deceased goes to issue equally
- If deceased has no issue, goes back to all at that level.
Strict Per Stirpes?
- First general with living or deceased with issue
- Each living or deceased issue gets one share
Adopted and Step-/Foster Children?
- Adopted treated as natural
- Step/Foster only if started during child’s minority, continued through life, and legal barrier to adoption.
Contrac to make a will, not make a will, or revoke a will established by:
- Material provisiosn of contract in will
- Reference in will to contract and extrinsic evidence
- Writing signed by decedant
- Clear and convincing evidence
Joint or mutual wills not presumption of contract. Breach of contract for wills is constructive trust.
