Wills Flashcards
Formalities Req
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
Three types of wills
1) Holographic
2) Attested
3) Nuncupative
Holographic Wills Reqs
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
Attested Wills reqs
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
Nuncupative
- When reduced to writing by witnesses shortly after death or in other limited circumstances
- Rare
Purging Statutes
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
Incorporation By Reference
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
Separate Writing
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
Codicils
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
Pros of Wills
- Revoked at any time before death
- Maintains control over property
- Portable and can be given legal effect if the testator moves to diff state
Cons of Wills
- 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
Facts of Independent Sign
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
Requirements of Sound Mind CL Rule
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
Undue Influence
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
Factors for finding undue influence
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
Mistake
- 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
Two ways fraud arises
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
Insane Delusions
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
Tortious Interference with Expectancy
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
In Terrorem Clauses
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
Lapse Rule
A devise lapses when a devisee dies between execution of a will and death of testator
Ways a gift can pass under CL if there is a lapse
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
Anti-Lapse Statutes
- 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
Void Devises
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
Ademption Rule & 2 Types
- 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
Specific Devise
- Particular item of property such as the wedding ring, 2008 toyota prius
- Ademption issues arise here
Specific Devise Ademption
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
General Devises
Devise of money
No ademption issues, but does raise abatement issues
Demonstrative Devise
- Cross between specific and general ex: 10K of proceeds from the sale of the house
Can cause ademption problems
2 Common Law Rules for Ademption
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
Change of Form Doctrine (ademption)
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
Abatement
Abatement is the process of reducing gifts given in a will because assets of estate are not sufficient to pay debts and distribute gifts
Abatement order under CL
Intestate
Residuary
General devises
Specific devises
UPC follows this unless it would defeat purpose of devise
Apportionment Clauses
- Clauses that direct how taxes should be paid
- In the absence of one the individuals who recieve property will pay their tax share
Disclaimer Rule
A disclaimer is when a beneficiary chooses to refuse a donative transfer causing it to lapse or pass to others
Time to disclaim
So long as they have not accepted any benefit from estate they can disclaim and pass along to others
UPC disclaimer
- 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,
Disclaimer Trust
- 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
Revocation by divorce
Every state has a law that revokes gift to a spouse once divorce occurs
Revocation by Testator 2 options
1) in writing or
2) physical act
Revocation in writing by testator
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
Revocation via physical act by testator
Destroying with intent and for purpose of revoking will is effective
In general - destroying a copy is not effective
When a missing will becomes revoked
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
Pretermission Statutes definition
Pretermission Statutes allow spouses/children to take share if excluded from will since it was executed before marriage/birth/adoption
Pretermission Statues - Maj state rules
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
Pretermission statutes - UPC Rule for S.S.
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
Pretermission statute UPC for children
- 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
