Wills

Question 1

What explains how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition)?

Answer 1

Intestate Succession

Question 2

If the decedent’s spouse and parents do not survive the testator, what are the two available schemes to divide property among the decedent’s children?

Answer 2

Per capita at each generation: all cousins treated alike—find generation where there are issue living; give one share for each living issue and one share for each person in that generation who is dead but has issue surviving; combine the shares belonging to the dead people and distribute them equally at the next generational level.

Per capita with representation (per stirpes): child takes parent’s share. Same as above except instead of combining and dividing equally, simply pass each deceased person’s share on to her issues.

Question 3

Decedent dies without a will but gave a child a gift during her lifetime. Should the gift be deducted from what the child would inherit under the laws of intestate succession? (Advancements)

Answer 3

CL: lifetime transfer to an heir was treated as a down payment on the heir’s intestate share and was taken into account when computing the heir’s intestate share.

Majority: lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless evidence shows the decedent intended it to be an advancement.

Question 4

Decedent dies with a will but gave a child a gift during her lifetime. Should the gift be deducted from what the child would inherit under the laws of intestate succession?

Answer 4

(Ademption by satisfaction)

A lifetime gift is not a prepayment unless: (1) the will says so, (2) testator declares in a contemporaneous writing that the gift is to be deducted from the will, or (3) the devisee acknowledges in writing that the gift is satisfaction of the bequest.

Question 5

General rule to execute a valid will

Answer 5

In writing, signed by the testator, and witnessed by two witnesses.

Also that the testator is 18+ and intended that the document is his will.

Note: generally, any mark made with intent to adopt the will counts as a signature.

Question 6

Holographic wills.

Answer 6

Unwitnessed wills.

Majority: Valid if signed and in the testator’s handwriting.

Some states say holographic wills are not allowed.

Question 7

UPC Dispensing Power

Answer 7

A court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

Question 8

Incorporation by reference

Answer 8

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an (1) intent to incorporate the writing and the writing is (2) identified with reasonable certainty. This writing must exist at (3) the time the will is executed.

UPC: testator can dispose of tangible personal property by a signed memorandum.

Question 9

Revocation of a will by physical act—execution of a new will or cancellation/other writings on the will.

Answer 9

Must be done with the intent to revoke the will. Testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.

Question 10

Dependent relative revocation.

Answer 10

Under this doctrine, a first will isn’t revoked if a later will is found invalid.

If a testator revokes a will/bequest based on a mistaken assumption of law/fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.

Question 11

Divorce—revocation of a will.

Answer 11

Revokes gifts in favor of a spouse.

There actually needs to be a divorce/annulment, not just a filing of divorce.

Question 12

When a gift fails because the beneficiary is not alive:

Answer 12

If a beneficiary does not survive the testator, the gift will LAPSE or fail and fall into the residuary.

Anti-lapse statutes: if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.

Question 13

Slayer Statute.

Answer 13

An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate.

Voluntary manslaughter is a form of a felonious and intentional killing.

If a beneficiary accidentally kills the decedent, the slayer rule does not bar a gift, nor does it bar a gift if the slayer murdered someone other than the decedent.

Question 14

When a gift fails because the property no longer exists.

Answer 14

If specifically devised property is not in the testator’s estate when the testator dies, the bequest adeems—the gift fails.

Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property.

Question 15

Disclaimers.

Answer 15

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. An anti-lapse statute may apply; otherwise the gift will fall into the residuary.

Question 16

Abatement

Answer 16

When the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts.

Question 17

Mental capacity to execute a will

Answer 17

A testator must have capacity to execute a will.

The burden of proving the testator lacks mental capacity rests on the contestant. A testator meets this requirement if the testator knows (1) the nature and extent of his property, (2) the persons who are the natural objects of the testator’s bounty, (3) the nature of the instrument that the testator is signing, and (4) the disposition that is being made in the will.

Question 18

Undue influence.

Answer 18

Present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made.

The burden of establishing undue influence generally is on the will contestant who must show: (1) the testator was Susceptible to undue influence, (2) the alleged influencer had the Opportunity to exert undue influence (3) the alleged influencer had a Disposition to exert undue influence and (4) the will Appears to be a product of undue influence. (SODA)

Most courts only invalidate portions that are infected by undue influence.

Question 19

What if a portion of the will follows the testator’s signature?

Answer 19

If the clause is present at the time the will is executed: some states say anything below the signature is bad; most states say the will, including the clause, is valid.

If the clause is added after execution: will is still valid, but the addition is not.

Question 20

Presence Requirement for Witnesses

Answer 20

Scope of Vision Test (minority): T and witnesses are in each other’s presence only if they could see each other sign were they to look.

Conscious Presence Test (majority): T and witnesses are in each other’s presence if they are conscious of where each other is and what each other is doing.

Question 21

Interested Witnesses

Answer 21

Majority Rule: interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless: there were two disinterested attesting witnesses or witness-beneficiary would be an heir if there were no will (she takes lesser of given amount in will or intestate share).

UPC and modern trend: a will is not invalid because the will is signed by an interested witness.

Note: frequently raises undue influence issue.

Question 22

In most states, cancellations must:

Answer 22

Touch the language of the will.

“VOID” on the back of the will is insufficient revocation by physical act.

In the UPC: this will cancel the will.

Note: must be on the will itself, not a copy.

Question 23

What is the presumption if the will is in T’s possession from time of execution until death and found in mutilated condition after T’s death?

Answer 23

T did mutilating with intent to revoke.

Question 24

What is the presumption if the will was last seen in T’s possession and control not found after T’s death?

Answer 24

Reason it can’t be found is that T destroyed with intent to revoke.

Question 25

Revocation of a will by another person must be:

Answer 25

(1) at T’s direction and (2) in T’s conscious presence.

Question 26

Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are _____. But to the extent of any inconsistent provisions, ______.

Answer 26

Read together

The later document controls and thereby revokes by inconsistency the prior will.

Note: the same rule can apply when there are two wills and the second does not in terms revoke the first. If the second has no residuary clause, it is presumptively a codicil to the first. There is an implied revocation only for inconsistencies. If the second has a residuary clause it presumptively revokes the first in its entirety.

Question 27

Revocation of a will revokes ____. Revocation of a codicil to a will ____.

Answer 27

All codicils thereto.

Does not revoke the will.

Question 28

T’s typewritten will made a bequest of “$10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the $10,000 and wrote in above it $15,000. T signed his name in the margin.

Has the $10,000 bequest been revoked?
Can the interlineation ($15,000) be given effect?
Should Dependent Relative Revocation be applied?

Answer 28

The $10,000 bequest has been cancelled.

The $15,000 interlineation cannot be given effect unless (1) the will is re-executed or (2) the will is republished by codicil.

DRR allows us to disregard a revocation based on a mistake of law/fact if the court believes that, but for the mistake, T would not have made the revocation.

Question 29

When beneficiary named in the will dies before the testator:

Answer 29

The gift lapses UNLESS it is saved by the anti-lapse statute.

Note: antilapse statute says beneficiary’s issue, not who they put in their will.

Question 30

Class gift rule (“children”)

Answer 30

When there is a gift by will to a group of persons generically described as a class and some class member predeceases the testator and the lapse statute does not apply(to a friend), the surviving class members take.

Question 31

Lapse in residuary estate

Answer 31

If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue.

Question 32

UPC rule for ademption in a will executed before T declared incompetent

Answer 32

If specifically devised property is sold by the conservator, or if condemnation award or insurance proceeds relating to the property are paid to the conservator, the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds unless testator’s disability has been adjudicated to have ceased and testator survives the adjudication by one year.

Question 33

Under the UPC, rather than finding ademption, a specific devisee has the right to the remaining specifically devised property and:

Answer 33

• Any balance of purchase price owing from purchaser when contract is still executors at T’s death (equitable conversion doctrine).
• Any amount of condemnation award for taking of the property, to the extent unpaid at T’s death.
• Any amount of fire or casualty insurance proceeds unpaid at death.
• Any real or tangible personal property acquired as a replacement for other similar property.
• Property acquired as a result of a foreclosure of a security interest on specifically devised note.

Question 34

Stock splits vs. stock dividends

Answer 34

Common law: devisee gets all shares if it is a stock split; only gets specific shares if it was a stock dividend.

UPC: devisee gets all shares. A specific devisee takes any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.

Question 35

If a company is acquired by another and the latter gives shares of stock in the new company for shares of stock in the original:

Answer 35

Common law: specific devisee for original company’s stock is adeemed.

UPC: specific devisee is entitled to securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.

Question 36

“I bequeath MY 100 shares of Coronado stock to A; I bequeath 200 shares of Baker stock to B.” Thereafter, T sells all of her Coronado and Baker stock.

Answer 36

A’s gift is specific, so A is adeemed.

B’s gift is not specific. Executor will buy shares to fund the gift.

Question 37

“I give $5,000 to my nephew, John Paul Jones.” At the time T executed the will he had two nephews whose names were James Peter Jones and Paul Frederick Jones. T had never met either nephew, and no nephew named John Paul Jones ever existed. Who takes the $5,000?

Answer 37

This is a latent ambiguity. Extrinsic evidence is admissible to clear up a latent ambiguity. Gift fails if evidence doesn’t exist.

Question 38

T had a nephew named John Paul Jones who he hadn’t seen for ten years. After T’s death, Paul Frederick Jones says “There’s been a mistake! T told me on numerous occasions that he intended to, and that he had, left a legacy for me in the will.” The typist says “I goofed. I have the notes T gave me, from which I typed the will, and they show clearly that the legacy was supposed to have been given to Paul Frederick Jones, not John Paul Jones as it says in the will.” Is this evidence admissible?

Answer 38

Most states: No. Plain meaning rule: can’t disturb plain meaning of will with extrinsic evidence.

UPC: Yes. May reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by mistake of fact/law.

Question 39

Intestacy Rules for Decedent Survived by Spouse

Answer 39

1. If survived by spouse but not by issue or parent ENTIRE ESTATE
2. If survived by spouse and issue all of whom are also issue of spouse ENTIRE ESTATE
3. If survived by spouse and issue at least one of whom is not issue of spouse, the spouse is commonly given a fixed amount off the top and a fraction of any excess. For example, under the UPC, the spouse takes the first $100,000 and 1/2 of any excess.

Question 40

Intestacy Rules for Share not Going to Spouse (or all of estate if no spouse)

Answer 40

1. All to issue, if any
2. If no issue, to parents or survivor
3. If no issue or parents, to parents’ issue

Question 41

Majority rule for intestacy—dividing among issue.

Answer 41

Issue take per capita (equally) if all are of same degree of relationship; otherwise they take by representation.

Question 42

What is the probate estate?

Answer 42

The estate that could have been controlled by a will had T executed one. Does not include life insurance, property held in trust, right of survivorship property, securities/bank accounts registered in payable on death or transfer on death or property T did not own at death.

Question 43

What happens if a testator’s residuary estate is bequeathed to two or more beneficiaries and one of the beneficiaries’ shares lapses?

Answer 43

CL: that share does not pass to the remaining beneficiaries, but instead “falls out of the will” and passes by intestacy.

Most states have replaced this rule by statute, under which the lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue.

Question 44

When does a presumption of undue influence arise?

Answer 44

When (1) there is a confidential relationship between the testator and the beneficiary-influencer, (2) the beneficiary participated in procuring or drafting of the will, and (3) the provisions of the will appear to be unnatural and favor the person who allegedly

Question 45

Contesting testamentary capacity:

Answer 45

Burden of proof on the contestants.

(1) did T understand the nature of the act he was doing?
(2) did T know the nature and character of his property?
(3) did T know the natural objects of his bounty?
(4) did T understand the disposition he wished to make?

Question 46

Contesting a will due to undue influence

Answer 46

Burden of proof is on contestants.

(1) existence and exertion of the influence
(2) effect is to overpower the mind and will of the testator
(3) result is a will that would not have been executed but for the influence.

Question 47

Intestate succession: property divided in the absence of a will goes to…

Answer 47

Spouse; parents; children; then either: per stirpes (per capita by representation) or per capita by generation.

Question 48

Majority rule for advancements

Answer 48

Lifetime transfer is presumed to be a gift and is ignored in computing the heir’s interstate share unless evidence otherwise indicates.

Question 49

Ademption by satisfaction

Answer 49

(There is a will)

The doctrine of ademption by satisfaction provides for the situation in which a testator decides to change the timing of a gift in order to permit the beneficiary to enjoy the benefits of the gift before the testator’s death. If a pecuniary gift is given before the death of the testator, the same devise in the testator’s will is considered already fulfilled and is not given after his death.

UPC: lifetime gift is not a prepayment unless: (1) the will says so; (2) the testator declares in a contemporaneous writing; or (3) devisee acknowledges in a writing.

Question 50

Valid will requires:

Answer 50

In writing, signed by testator, witnessed by two witnesses

Testator is 18+ and intended the document to be his will.

Question 51

Holographic will

Answer 51

Unwitnessed will

To be valid, must be signed and all material portions in the testator’s handwriting (1/2 states recognize this)

Question 52

Incorporation by reference

Answer 52

A writing not valid as a will can be incorporated when the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty and exists at the time the will is executed.

Question 53

Revocation of a will

Answer 53

By physical act: action and intent to revoke the will

Question 54

Dependent Relative Revocation

Answer 54

A previous will is not revoked if a later will is found invalid.

Especially used if a testator revokes a will or bequest based on a mistaken assumption of law or fact. The testator would not have revoked the bequest had the testator had accurate information.

Question 55

Revocation on divorce

Answer 55

Revokes gifts in favor of a spouse

Question 56

Dead beneficiary

Answer 56

Gift lapses/fails and falls into the residuary unless saved by anti-lapse statute.

Question 57

Anti-lapse statute:

Answer 57

Beneficiary was related by blood to the testator and had issue who survived.

The beneficiary’s issue takes in lieu of the beneficiary
Can be used if a beneficiary disclaims a gift.

Question 58

Slayer statute

Answer 58

Someone who feloniously and intentionally kills, is convicted of abuse, neglect, or exploitation of decedent forfeits all benefits of decedent’s estate.

Accidental killings (even involuntary manslaughter) do not bar gifts.

Question 59

Abatement

Answer 59

Assets are insufficient to satisfy all gifts; they are reduced in order… intestate property, residuary gifts, general gifts, specific gifts.

Question 60

Mental capacity

Answer 60

A testator must have capacity to execute a will. Burden is on contestant.

Testator must know:

1. Nature and extent of his property;
2. The persons who are the natural objects of his bounty;
3. Nature of the instrument they are singing;
4. Disposition that is being made

Question 61

Undue influence

Answer 61

Burden is on the contestant to show (SODA):

• testator Susceptible to undue influence
• influencer had Opportunity to exert undue influence
• influence had a Disposition to exert undue influence
• will Appears to be a product of undue influence

Question 62

A presumption of undue influence arises when…

Answer 62

There was a confidential relationship between the beneficiary and the testator; the beneficiary participated in procuring/drafting the will; and provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence.

Once these elements are met, the burden shifts to the proponent to prove that it was not influenced by her.

Question 63

Life insurance proceeds are:

Answer 63

A non probate asset and pass to the beneficiary outside of the estate.

A life insurance policy is a contract, and the disposition of the proceeds is governed by the he terms of the contract.

Question 64

Latent ambiguity

Answer 64

language of the will, though clear on its face, is susceptible to more than one meaning when applied to the extrinsic facts.

Extrinsic evidence is admissible to clear it up.

Question 65

Patent ambiguity

Answer 65

Uncertainty on the face of the will.

Most states: Plain meaning rule: can’t disturb plain meaning of will with extrinsic evidence.

UPC: May reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by mistake of fact/law.