Wills

Question 1

Formalities Req

Answer 1

1) In writing
2) Signed by testator
3) Signed by at least two witnesses who save or affirm
4) Witness credible and sometimes req disinterested
5) Testator must be of sound mind
6) Testator 18 or emancipated minor and
7) Testator must intend doc to be will

Question 2

Three types of wills

Answer 2

1) Holographic
2) Attested
3) Nuncupative

Question 3

Holographic Wills Reqs

Answer 3

A will that doesn’t comply with witnessed/notarized will req is still valid if the signature and material portions of the document are in the testators handwriting

Question 4

Attested Wills reqs

Answer 4

1) In writing and
2) Signed by the testator and
Or in the testators name by some other individual in the testators conscious presence and by the testators direction
3) Either
a)Signed by at least two individuals each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph 2 or the testators acknowledgement of that signature/will OR
b) Acknowledged by the testator before a notary or other individual authorized by law to make acknowledgements

Question 5

Nuncupative

Answer 5

• When reduced to writing by witnesses shortly after death or in other limited circumstances
• Rare

Question 6

Purging Statutes

Answer 6

States have adopted purging statutes to deal with the interested witness in 3 ways
1) Common law rule which disqualifies any interested witness rendering the will invalid if there were not a sufficient number of witnesses
a) Holding an entire will invalid because of witnesses is abolished in every state
2) Majority approach = allow a will to stand but void the gift to the interested witness
3) UPC approach is that witnesses do not need to be disinterested at all and can take whatever bequest is made to them in the will

Question 7

Incorporation By Reference

Answer 7

Doctrine that allows a separate writing that was in existence at the time the will was executed to be given dispositive effect IF:
1) The separate writing is identified in the will and
2) It was the intent of the testator to have that document control certain dispositions

Question 8

Separate Writing

Answer 8

Allows separate writings to be given dispositive effect even if created/changed after execution of the will so long as:
1) They are signed by the testator and
2) Referenced in the will and
3) Testator has the intent to have that document control dispositions

LIMITED TO TANGIBLE PERSONAL PROPERTY

Question 9

Codicils

Answer 9

Document used to amend or modify the will
- Once executed a will generally cannot be changed without executing a new will, or a codicil (amendment) to the will
- Republishes will at time of execution

Question 10

Pros of Wills

Answer 10

• Revoked at any time before death
• Maintains control over property
• Portable and can be given legal effect if the testator moves to diff state

Question 11

Cons of Wills

Answer 11

• Require probate
• Public
• Cumbersome in execution
• Invalidated if formalities are not followed
• Not flexible for those who want to change minds a lot, who acquire and transfer property frequently, multiple beneficiaries

Question 12

Facts of Independent Sign

Answer 12

Doctrine that allows testator to provide certain dispositions will be guided not by a written document but by acts or events that have independent significance beyond disposing of the testator’s property

Question 13

Requirements of Sound Mind CL Rule

Answer 13

Capable of knowing & understanding
- nature and extent of property
- natural objects of bounty
- disposition that they are making of that property
- rel between elements and disposition she making of property

Sound mind is of ability not actual knowledge

Any document executed without requisite mental capacity is void and of no effect

Question 14

Undue Influence

Answer 14

To find U.I the testator must be
1) deprived of own volition in making decisions about disposition of their property
2) because a wrongdoer has exerted influence and
3) caused them to make a donative transfer they would not have otherwise made

Question 15

Factors for finding undue influence

Answer 15

1) Confidential Relationship
2) Suspicious circumstances (donor weakened condition, wrongdoer’s participation, secrecy/haste, donor received independent advice, attitude toward others changing, the discrepancy between new and old will, disposition unnatural or unfair, continuity of purpose through wills)
3) Donor susceptible to influence because of weakened condition
4) Unnatural or unjust gifts
5) Unnatural or unjust gifts are the result of UI
6) Donor did/didnot have independent advice
7) Secrecy and haste
8) Change in decedent’s attitude towards others

Question 16

Mistake

Answer 16

• Historically courts would not reform
• UPC allows if true intent is proved
• Restatement allows if mistake was in expression/inducement and the donors intent is clear

Question 17

Two ways fraud arises

Answer 17

Fraud in execution = testators are defrauded about nature of documents or contents

Fraud in the inducement = testators are defrauded into making testamentary dispositions they would not otherwise make

Question 18

Insane Delusions

Answer 18

Belief in things impossible or so improbable that no person of sound mind could give them credence and

Such firm conviction by the testator as to the truth of the delusion that even the production of facts disproving the belief will not alter the testator’s conviction

Voids part/whole of will that was influenced

Question 19

Tortious Interference with Expectancy

Answer 19

Tort liability to deal with wrong done to intended beneficiary by someone who through fraud, duress, or undue influence causes testator to change a plan but other remedies cannot make intended beneficiary whole

Question 20

In Terrorem Clauses

Answer 20

Stop a person who challenges a will and loses to collect anything

Doesn’t apply if the will doesn’t conform to formalities then the clause and will are not enforceable

Most states follow 3 different approaches
1) Apply clause but strictly construe it to prevent forfeiture if possible to limit scope of clause only to testator’s intent
2) Apply clause to will challenge suits that actually construe the will provision itself but not to those seeking to construe will or determine true intent, mental capacity, or administrator’s actions
3) Enforce against will contest suits only if they lack probable cause or are brought in bad faith

Question 21

Lapse Rule

Answer 21

A devise lapses when a devisee dies between execution of a will and death of testator

Question 22

Ways a gift can pass under CL if there is a lapse

Answer 22

1) If gift was specific or general and no alternate taker the gift passes to residuary beneficaries
2) If was apart of a class gift then redistributed to surviving members of class
3) If part of residuary clause then pass by intestacy

Question 23

Anti-Lapse Statutes

Answer 23

• Attempt to better approximate testator’s desired outcome if no alternative provided in will
• Most states limit to selected family categories
• UPC allots to residue clauses

Question 24

Void Devises

Answer 24

A devise is void when the devisee died before execution of will

• At CL void and lapse are treated equal
• Could bring up issues of sound mind of testator

Question 25

Ademption Rule & 2 Types

Answer 25

• Ademption occurs when devised property is not in the estate at death
• Adeemed by satisfaction = bequest was made through inter vivos gift
• Adeemed by extinction = Not in estate because given to someone else or sold

Question 26

Specific Devise

Answer 26

• Particular item of property such as the wedding ring, 2008 toyota prius
• Ademption issues arise here

Question 27

Specific Devise Ademption

Answer 27

UPC saves certain common specific devises by 1) giving purchase price if owed at death, 2) condemnation award for taking of property unpaid at death 3) insurance pay out of property destroyed 4) property owned as a result of foreclosure or sale of property

Question 28

General Devises

Answer 28

Devise of money

No ademption issues, but does raise abatement issues

Question 29

Demonstrative Devise

Answer 29

• Cross between specific and general ex: 10K of proceeds from the sale of the house

Can cause ademption problems

Question 30

2 Common Law Rules for Ademption

Answer 30

1) Identity theory = if a specifically identified property is no longer in estate the bequest is extinguished and no replacement
2) Intent theory - replacement property or other should be used if the intent of testator was not to extinguish gift

Question 31

Change of Form Doctrine (ademption)

Answer 31

Some states employ CFD for ademption issues if the bequest can be traced to other property and it was the testator’s intent not to extinguish gift

Only applies if property changes form and not substance

Only works for money and securities really

Question 32

Abatement

Answer 32

Abatement is the process of reducing gifts given in a will because assets of estate are not sufficient to pay debts and distribute gifts

Question 33

Abatement order under CL

Answer 33

Intestate
Residuary
General devises
Specific devises

UPC follows this unless it would defeat purpose of devise

Question 34

Apportionment Clauses

Answer 34

• Clauses that direct how taxes should be paid
• In the absence of one the individuals who recieve property will pay their tax share

Question 35

Disclaimer Rule

Answer 35

A disclaimer is when a beneficiary chooses to refuse a donative transfer causing it to lapse or pass to others

Question 36

Time to disclaim

Answer 36

So long as they have not accepted any benefit from estate they can disclaim and pass along to others

Question 37

UPC disclaimer

Answer 37

• Disclaim in whole or part
• No time limit, or restriction
• Made by a written instrument that describes property/interest disclaimed, declares extent of disclaimer, signed
• Disclaimed prop will pass according to
  - terms of the instrument, as if disclaimaint did not exist/died,

Question 38

Disclaimer Trust

Answer 38

• Surviving spouse can disclaim all of a decedent spouse’s estate and it will pass in a disclaimer trust established by the decedent spouse’s will
• Surviving spouse can have access for health, education, maintenance, support + lifetime income interest
• Principal will pass at the survivors death without being considered part of their estate

To create you must establish upon a disclaimer by the surviving spouse:
I. Any property to pass into trust
II. Subject to particular limitations
III. Principal to pass to children or third parties

Question 39

Revocation by divorce

Answer 39

Every state has a law that revokes gift to a spouse once divorce occurs

Question 40

Revocation by Testator 2 options

Answer 40

1) in writing or
2) physical act

Question 41

Revocation in writing by testator

Answer 41

Executing a subsequent will that revokes previous will in part or whole either expressly or by inconsistency

Intended to replace if there is a complete disposition of estate; if not complete then assumption is a supplement

MUST FOLLOW WILL FORMALITIES

Question 42

Revocation via physical act by testator

Answer 42

Destroying with intent and for purpose of revoking will is effective

In general - destroying a copy is not effective

Question 43

When a missing will becomes revoked

Answer 43

Req
1) Testator was in possession of will shortly before death
2) Will was not found after death and
3) No other person with sufficient motive had access to will

Question 44

Pretermission Statutes definition

Answer 44

Pretermission Statutes allow spouses/children to take share if excluded from will since it was executed before marriage/birth/adoption

Question 45

Pretermission Statues - Maj state rules

Answer 45

Allow pretermitted heirs to an intestate share if they were born/married after will and not provided for elsewhere in will

UNLESS evidence they have been intentionally omitted

Question 46

Pretermission statutes - UPC Rule for S.S.

Answer 46

Entitled to an intestate share unless
a. Will was made in contemplation of the marriage
b. Intention to be effective notwithstanding a subsequent marriage
c. Left outside of the will with the intent it as in lieu of a testamentary provision
d. Marriage void
e. Prenup agreement

Question 47

Pretermission statute UPC for children

Answer 47

• Share they would receive if they had died intestate unless omitted child’s other parent has been devised all or substantially all of the estate
• If other children the omitted child should be given share equitable to that of the other children while preserving the character of the testamentary plan

Given nothing if
a. Omission was intentional
b. Provided for outside the will with intent to be in lieu of testamentary provision