wills Flashcards
For a gift to be valid
1) the donor must have the mental capacity and present intent to make a gift,
2) the gift must be delivered to the donee or his agent,
3) and the donee must accept the gift.
to prove the validity of a gift by a donor, the burden is on
the donee to establish the existence of gift validity elements by clear and convincing evidence.
The delivery requirement for a gift exists so as to provide
clear manifestation of the donor’s intention to divest himself of title and possession.
sufficient method of delivery of gift by writing of donor requires:
1) donor clearly expresses written intent to give a gift,
2) clearly describes the subject being gifted,
3) signs the document, and
4) passes the writing out of his control with
5) the intent that it reaches the grantee
The acceptance of a gift by the donee is
presumed
when the elements of a gift are satisfied, a delay in the physical transfer of the property until the death of the donor does
not invalidate the gift.
If a child born out of wedlock seeks to inherit from a deceased biological parent and the deceased’s parentage has not been previously established, the child (or someone acting for the child) must
file an affidavit in the circuit court and seek an adjudication of parentage within one year after the death of the parent.
Paternity is established by
clear and convincing evidence.
Virginia statute enumerates acceptable evidence of paternity, such as
1) evidence that the father openly cohabited with the mother during 10 months prior to the child’s birth,
2) permitted the child to use his surname,
3) claimed the child as his own on a government document,
4) voluntarily admitted the child was his in writing under oath, or
5) by scientifically reliable genetic testing.
written agreement to provide support for child out of wedlock, signed by the alleged father, and honoring such agreement is evidence of
parentage
The administrator of an intestate’s estate must first pay
1) any expenses and costs incurred in administering the estate
2) then any claims for the family allowance, a personal property exemption, and a homestead allowance to the surviving spouse
family allowance exemption amount
not to exceed $24,000, payable either in a lump-sum or no more than $2,000 a month for one year
personal property exemption amount
$20,000
homestead allowance amount
$20,000
Under intestacy, expenses and exemptions are paid, the administrator generally should distribute
one-third of the remaining estate to the intestate’s surviving spouse if the intestate is survived by any children or descendants who are not children or descendants of the surviving spouse
After 1/3 intestacy distribution to surviving spouse, the remaining two-thirds should be distributed to
the children or descendants of the intestate by representation
if there are no children of the intestate only, but children of intestate and surviving spouse together, then surviving spouse is entitled to
100 percent of the remaining estate.
If, the surviving spouse elected the homestead allowance, that spouse is not entitled to
a distribution from the intestate’s estate.
a surviving spouse may choose to take an elective share of the intestate’s augmented estate, which for a surviving spouse who was married to the intestate for at least 15 years, would be
one-half of the full value of the augmented estate.
A surviving spouse who chooses the elective share is entitled to
the homestead allowance in addition to the elective share.
Depending on the size of the augmented estate, Eliza may find it to her benefit to take an elective share of that estate because
based on the length of her marriage to Alex, she would be entitled to one-half of the augmented estate.
The standard method for will execution is
a signed and witnessed written instrument – an “attested will.”
An attested will must
1) be in writing and
2) signed by the testator (or a proxy at the testator’s direction and in the testator’s presence).
for an attested will, the testator must sign (or attest to her signature) in the presence of
1) at least two competent witnesses
2) present at the same time, and
3) the witnesses must subscribe the will in the testator’s presence.
In Virginia, a testator has sufficient testamentary capacity if, at the time will was executed, the testator was
at least 18 years of age and of sound mind.
A testator is of “sound mind” if, at the time the will was executed, he
1) is capable of “recollecting his property and the nature of his bounty” and
2) knew the “business about which he was engaged and how he wished to dispose of his property.”
The proponents of the will have the burden of proving mental competence by
a preponderance of the evidence.
with regard to mental competence, the testator need not
retain all the force of intellect that he once had and may even be legally incompetent to transact business
evidence of sickness or impaired intellect at other times is insufficient, standing alone, to
render a will invalid.
being placed under a guardianship is not prima facie evidence of
a lack of capacity.
demonstrated his recollection of the natural objects of his bounty and their claims upon him by
noting his friends and relatives and his personal and/or family relationship to each.
evidenced his recollection of his property by
describing his diversified assets in detail.
demonstrated his knowledge of the business about which he was engaged and how he wished to dispose of his property by
discussing the probable outcome of his death (i.e., his heirs and potential beneficiaries squabbling over his estate).
Virginia does not recognize common law _____________
marriage; but it does recognize common marriages contracted in other jurisdictions where such unions are recognized.
If the decedent is not survived by a spouse or children, then we initially divide the estate at the generation where
there is a surviving descendant
If a decedent is not survived by a spouse or descendants
the intestate’s parents take.
If there is no surviving parent, the property passes to
the intestate’s brothers and sisters (and their descendants by representation).
Virginia has a distinctive rule that gives half-blood kin
one-half the share of a similar full-blood relation.
Even where a beneficiary receives a gift under the will, if there is partial intestacy, if the beneficiary would be entitled to an intestate share, he would get both.
he would get both, in other words, receiving a gift under the will does not cut you off from intestate inheritance.
At common law, a party with a financial interest in the outcome could not testify in a civil case about
a communication with a person whose estate is a party to the case.
Virginia’s Dead Man statute allows the testimony of an interested witness only if
the witness’s testimony is corroborated.
If the decedent had possession of his original will before his death, but the will is not found among his personal effects after death, there is a rebuttable presumption that
the decedent destroyed the will with the intent to revoke it.
where theres a rebuttable presumption that the decedent destroyed the will with the intent to revoke it the burden is on
the proponent to prove the will’s existence by clear and convincing evidence.
where a will cannot be found, but there is a photocopy of the will, if sufficient evidence is presented to establish the existence of the will, then the photocopy
will be used to determine the distribution of his estate.
“inheritance” is used exclusively in the context of
intestacy
Under Virginia’s intestacy statute, the decedent’s spouse and descendants are
the preferred recipients of the decedent’s estate.
If the decedent dies without leaving a surviving spouse or descendants,
then the decedent’s parents take the estate
If there are no surviving parents, the property passes to
the decedent’s brothers and sisters (and their descendants by representation).
In Virginia, a decedent’s personal estate generally includes
property owned outright by the decedent at the time of his death.
Property that passes automatically by law upon death, such as property held jointly with the right of survivorship, is
not included in a decedent’s personal estate.
Typically, in order to inherit a decedent’s property or for a transfer upon death to occur, a person must survive
the decedent by 120 hours
if co-tenants die within a 120-hour period, the property is
divided among them.
a joint back account with right of survivorship
normally fall outside of probate assets, and passes automatically to co-tenant through right of survivorship
A gift to a predeceased beneficiary lapses. But if an alternative beneficiary is named,
then they will take the gift.
gift is to be allocated “per stirpes,” meaning
estate is divided by the total number of decedents children who survive or leave surviving issue.
under “per stirpes”
The surviving children take the share their parent would have received in equal portions.
If a person dies without a will
Virginia intestacy statues will govern the distribution of the intestate’s property
If an intestate has surviving descendants but no surviving spouse
the decedents will inherit the intestate’s entire estate.
If no child has predeceased the intestate, the estate will be allocated in
equal shares to the intestate’s children
Unless a contrary intention appears from the will itself, a will is construed as if executed
immediately before the death of the testator.
f a will is found to be ambiguous, then evidence of
the facts and circumstances is admissible to assist the court.
Virginia does not distinguish between
latent and patent ambiguities
A patent ambiguity is one
apparent from the face of the will
Extrinsic evidence of facts and circumstances, such as
the state of the testator’s property, his relations to persons, his opinions, and his habits of thought and of language are always admissible to help explain ambiguities or the meaning of the words used by the testator.
Conditions that unreasonably limit the ability of beneficiaries to marry are generally
struck down as against public policy.
because the restriction does not bar all marriage, but only marriage to a particular individual, the condition is
valid
Virginia applies the
cy pres doctrine to wills
If a will makes a gift to a charitable organization that is no longer in existence (or if the specific purpose of the gift cannot be achieved), it is possible that
a court would invoke the doctrine of cy pres to reform the gift.
The cy pres doctrine allows the court to
reform the gift in a manner necessary to carry out the general intent of the testator.
a testator may create a
testamentary trust.
create a testamentary trust
testator must evidence an intent to create a trust, name one or more beneficiaries of the trust, indicate the duties that the trustee must perform, and fund the trust.
While generally the beneficiary of a trust must be a person, Virginia recognizes a trust may be created for
the care of an animal who is alive when the settlor dies provided the amount place in trust is not excessive.
When a person who is named as a trustee cannot or will not serve and trust makes no provision for another trustee, the trust is
not terminated but instead the court can appoint a replacement trustee.
Virginia law requires a person to survive the decedent by 120 hours to
inherit as an heir in intestacy or a beneficiary under a will.
A gift under a will to a deceased beneficiary
lapses (fails).
if the deceased beneficiary is a grandparent or descendant of a grandparent of the testator, the Virginia anti-lapse statute
presumes a gift in favor of the deceased beneficiary’s surviving descendants to save the gift.
a lapsed gift if not saved under the Virginia Anti-lapse statute will
become part of the residue of the estate.
A holographic will is valid under Virginia law if
the document is wholly written in the testator’s handwriting, manifests the testator’s intent of making a last and final disposition of her property, and is signed on its face by the testator.
There are no rules regarding exactly how a testator must sign
a holographic will, only that the document is signed in such a way as to show the person intended it to constitute a signature.
under a holographic will
two disinterested witnesses must be able to identify the handwriting as that of the testator.
A testator may revoke her will
at any time prior to death
In Virginia, a testator who intends to completely revoke her will may do so by
either properly executing a later writing or by a physical act—i.e., cutting, tearing, burning, obliterating, cancelling, or otherwise physically destroying the instrument.
A codicil is
an amendment to a prior will and must be executed with the same formalities as a will.
Under Virginia law, if a testator revokes her only will, the testator can revive that will by executing a
codicil to it, which has the effect of republishing and re-executing the will.
testator must also establish her intent to revive the revoked will.
If the will does not contain a residuary clause and fails to make a complete disposition of the testator’s property, then
the laws of intestacy control who inherits the lapsed residuary gift.
if there is a parol contract to convey land by will, which is prevented under SOF, the party seeking enforcement should bring
an equitable action, either:
1) specific performance (unavailable if testator is dead); or
2) move the court to impose a constructive trust on the property for the benefit of the moving party, and compel descendants to surrender title of house to her.
In Virginia, there is a three-part test to determine whether to enforce an oral promise to
transfer land by will.
the moving party seeking to enforce an oral promise to transfer land by will needs to show that
(i) the agreement is certain and definite in its terms,
(ii) the party seeking enforcement, performed pursuant to the agreement, and
(iii) the failure to enforce the agreement would amount to a fraud on the party seeking enforcement.
if the three part test for enforcing an oral promise to transfer land by will is satisfied, the property is
subject to equities in favor of party seeking enforcement, and the party who has succeeded to legal title, can be treated as holding the title under a constructive trust in favor of the party seeking enforcement.
a court in equity may enforce a constructive trust resulting from an oral promise to transfer land by will by
decreeing a transfer of title to the party seeking enforcement
When one party confers a benefit on another and has a reasonable expectation of compensation, allowing the benefitted party to
receive the benefit without any cost would be unjust.
A court may allow restitutionary recovery if
(i) the plaintiff has conferred a measurable benefit on the defendant;
(ii) the plaintiff acted without gratuitous intent; and
(iii) it would be unfair to let the defendant retain the benefit because the defendant had an opportunity to decline the benefit but knowingly accepted it, or the plaintiff had a reasonable excuse for not giving the defendant such opportunity (e.g., because of an emergency).
In Virginia, a claim for quantum meruit arises when
one party requests a service be performed by the other, but there was insufficient discussion of the terms to create an express contract.
under quantum meruit, the law implies
the existence of a contract, and the performing party can seek reasonable compensation for the services provided.
Where there are insufficient funds to satisfy a bequest in a will, ademption does not apply to
general or demonstrative legacies
a general legacy
a bequest of a dollar amount that is payable out of the general assets of the estate, and provides no claim on any particular source of payment
when there is a general legacy, but not sufficient money left to satisfy the gift after administration, remaining payment can come from
remaining property in the residue sold to satisfy the general legacy, or the personal representative can make a distribution in kind- distribution of assets valuing the amount the beneficiary is still entitled to from the estate
Under the doctrine of ademption by extinction
when a specifically bequeathed property is no longer owned by the testator at death) either from destruction, sold, given away, or lost during testator’s lifetime) the bequest fails or is adeemed.
Ademption only applies to
specifically bequeathed or devises
specifically bequeathed or devises
are particularly designated and only satisfied by receipt of the specific property described under the terms of the will.
The general rationale behind ademption is that
if a testator bequests property in his will to a particular person, and thereafter sells that property, and does not amend his will to reflect an intent to replace with a cash gift in lieu of the property; this is to be treated as the decedents intent to give that property no longer existed.
a beneficiary who’s gift adeems, is not entitled to
any compensation in lieu of the gift
Courts in Virginia construe a bequest of securities as
a general legacy if possible so as to avoid ademption
where the will bequests using the language of “my” this is generally construed as
a specific bequest of shares and if at the time of the testator’s death, they no longer own those shares specifically named, ademption will apply and the beneficiary will take nothing.
exception to this rule of ademption; where shares of stock are specifically devised by will to a named beneficiary
the beneficiary is entitled to the shares resulting from a merger, consolidation, reorganization.
Under Virginia law, after a will is admitted to probate, the court will
issue letters to the personal representative who administers the estate.
A personal representative who is named in the will is
an executor
if the representative is appointed by the court, they are an
administrator.
By statute in Virginia, there is an order of priority for appointing administrators within
the first 30 days after following the decedents death
if offered for probate within those 30 days the court will appoint a
sole distributee or his designee, or a voluntary distributee or his designee who provides written waivers of their right to qualify from all other competent potential distributees.
when a named executor predeceases the testator, the appointment is
void; court will appoint an administrator to manage the estate
minority is a disability that precludes
appointment as distributee under va statute
the corpus of a trust is not included in
the testators estate, because he was the beneficiary without legal title since the trustee holds legal title
without legal title to trust assets
they are not subject to probate following testators death
undistributed income from a trust, which has accrued
considered to be one of testators assets, and is subject to probate as part of the estate
car titled only in testators name
will be included in his estate at death
property passing to survivor by operation of law and outside of probate are
inventoried, and become part of surviving spouses estate
Incorporation by reference operates to treat the content of an extraneous document as though
it was written into the will itself, even without the formalities of being witnessed or if its informally written.
in order for incorporation by reference to be effective
1) the referenced document must have been in existence at the time of the will’s execution;
2) the will must refer to the document as being in existence; and
3) the will must identify and describe the document with reasonable certainty.
In Virginia, the 120 rule applies equally to
all donative transfers including wills
Where a testator’s child is not provided for or mentioned in the will, this is known as
a pretermitted child
In Virginia, the pretermitted child statute applies to children who are
born after the execution of a will
