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
Where the testator had other children at the time of the will’s execution, the pretermitted child takes
the lesser of an equal amount to the largest bequest made to any of the testator’s other children, or an intestate share.
A transfer on death deed or TODD allows a real property owner to
designate a beneficiary to receive title to certain residential real property on the owner’s death, without probate proceeding or trust administration
a transfer on death deed supercedes
a provision in the will related to the specific real property
While Virginia recognizes that a document written in the testator’s handwriting (i.e., a holographic will) may be a valid will, one of the requirements is that
the testator sign the document
while an attested will must be witnessed by at least two witness to be valid, the requirements for a holographic will
dispenses with the need for witnesses.
testimony of two witness that the document is in the testator’s handwriting is a requirement for
a valid holographic will
Virginia has statutorily adopted the __________ ______ doctrine regarding satisfaction of the requirements for a valid will.
harmless error doctrine
harmless error doctrine
1) a document not otherwise satisfying the requirements of an attested or holographic will
2) must be treated as if it had been executed in compliance with the requirements if
3) the proponent of the document establishes by clear and convincing evidence that
4) the decedent intended the document to constitute her will.
this doctrine generally may not be used to excuse compliance with any requirement for a testator’s signature.
harmless error doctrine
Under Virginia’s Dead Man statute, Va. Code Ann. § 8.01-397
an interested witness is not automatically disqualified; if his testimony is corroborated, it is admissible.
The proponent of the will bears the burden of proving
testamentary capacity
The proponent of the will can create a presumption of capacity by showing
that the testator complied with the formal requirements of execution.
This presumption of capacity by the proponent of a will shifts to the contestant the burden of
going forward with evidence (i.e., burden of production)
the burden of persuasion always remains with
the proponent
The standard of proof with regard to the issue of testamentary capacity is
a preponderance of the evidence.
the child to a beneficiary under a will does not have standing to challenge a will where she has
an expectancy interest
a clause in a will that penalizes a beneficiary who contests the will (i.e., a no contest clause) is generally
enforceable in Virginia.
If a decedent dies intestate, then Virginia law directs the distribution of property among descendants as
per capita with representation
When the intestate is survived by a spouse, the spouse’s share of the intestate’s estate is 1/3 if
the intestate was survived by any children or descendants who are not children or descendants of the surviving spouse
The remaining two-thirds of intestate’s estate will pass to
the children or descendants of the intestate by representation
an adopted child’s inheritance rights from his adopted family are
the same inheritance rights from his adopted family as a natural child
When the intestate is survived by children, the remaining two-thirds of an intestate’s estate is initially divided so that
there is one share for each child who survived the intestate and one share for each child who, while predeceasing the intestate, also left descendants who survived the intestate.
a “gift causa mortis” means:
a gift in contemplation of death
a gift causa mortis of a check is completed when
the check is chased at the bank
as a gift causa mortis, the gift is revoked if
the donee dies before the donor.
a gift causa mortis is not required to be
executed with the formalities to make a will
the delivery of a check to a donee is not sufficient to create a gift; the gift only occurs when
the check is cashed
An inter vivos gift (while the donor lives) requires:
(i) the donor’s present intent and mental capacity to make the gift,
(ii) delivery, and
(iii) acceptance.
intent to gift demonstrated by
a desire to immediately part with control and dominion over the personal property.
A specific devise or bequest is a
gift of specific property.
If the specific property is not in existence or has been disposed of prior to the testator’s death, then that devise is
“adeemed,” and the devisee does not have an interest in the subject of the devise.
Proper agents of the donor or the grantee may
stand in the shoes of their principals.
Control of the gift—and the opportunity to take it back—
does not pass from the donor until it passes also from the donor’s agent.
Because there was no delivery by agent, donor retains the ability to
take back a contemplated gift
A person who manages a decedent’s estate is known generally as
a “personal representative.”
When the decedent dies with a will and the will names a person to manage the decedent’s estate, the personal representative is known as
an “executor.”
When a will fails to name an executor or the named executor is unable or unwilling to serve, the court will
appoint a personal representative for the estate; known as an “administrator cum testamento annexo”
court appointed administrator aka
administrator c.t.a.
an administrator c.t.a. is selected from
a residual or a substantial beneficiary under the will
when selecting an administrator, in all cases, the court or clerk must be satisfied that
1) the administrator meets the qualifications for competency and suitability for the office and
2) may deviate from statutory guidelines if necessary to support the best interests of the estate.
If the decedent dies intestate, the court will appoint
an administrator to manage the decedent’s estate.
under intestacy, The administrator is selected from among
the decedent’s heirs
An administrator must be
1) legally competent
2) 18 or older.
If there are multiple heirs, one heir can serve as administrator with
the consent of the others
If the heirs cannot agree as to who will serve as administrator
the court may appoint an heir or other suitable person.
Heirs are
all lineal descendants
A decedent’s personal estate 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.
property that passes according to an instrument other than a will is
not included in a decedent’s personal estate
property that passes according to an instrument other than a will includes:
life insurance proceeds, retirement accounts, and property held in trust.
a personal representative must file an inventory of all estate assets with
the commissioner of accounts
a personal representative must file an inventory of all estate assets within
four months of qualification
inventory of all assets should include:
(i) the entirety of the personal estate under the personal representative’s supervision and control,
(ii) the decedent’s interest in any multiple party account in any financial institution,
(iii) all real estate over which the personal representative has the power of sale, and
(iv) any other real estate that is an asset of the decedent’s estate, whether or not situated in the Commonwealth.
For joint property held with a right of survivorship, survival must be by
120 hours (5 days).
Because wife had a right of survivorship in the bank account and the home, and because she survived decedent husband by 120 hours, wife-
continues to own the account and the home, and they are not part of decedent husband’s estate.
the inventory of assets must still include the decedent’s interest in
any multiple party accounts in a financial institution
Property that passes according to an instrument other than a will is
not included in a decedent’s personal estate.
Because the property of the trust will pass according to the terms of the trust instead of decedents will, the trust principal is
not included in decedents estate
as decedent is the sole beneficiary of the trust income, the undistributed income payment is
included in decedent’s estate and must be in the inventory
for a vehicle that is titled solely in decedents name, and owned outright by him
it is included in his estate and included in the inventory of assets
Upon the death of a joint tenant or a tenant by the entirety, the interest
terminates and automatically goes to the surviving joint tenants
The rules of intestacy apply to the disposition of probate assets in
the absence of a will.
If the intestate left no surviving spouse, and the intestate is survived by descendants, the descendants will take
100% of the intestate’s estate
Virginia follow’s a system of distribution known as
per capita with representation.
Under per capita w/ representation: If the intestate is survived by any children, then the estate is initially divided so that there is
one share for each child who survived the intestate and one share for each child who, while predeceasing the intestate, also left descendants who survived the intestate.
Under the doctrine of repugnancy, when a life estate is conveyed to a life tenant with the absolute power to consume, assign, or dispose of the property, any subsequent remainder is considered
“repugnant” to the free alienability of estates, and therefore void.
Life estate to “Wendy to do with as she pleases.”
conveyance to life tenant with absolute power to consume, assign, or dispose of property= any subsequent remainder is considered repugnant to free alienability of estates, and thus void
Although at common law the doctrine of exoneration of liens gave a recipient of specifically-devised property generally a right to
demand that any liens or other encumbrances on the property be paid out of the residue of the estate
The common law doctrine of exoneration of liens in Virginia
has been abolished by statute
a recipient of specifically-devised real property under a will probated in Virginia takes the property
subject to any liens or other encumbrances, unless the will clearly expresses a contrary intent.
if specifically devised real property which is subject to lien, can the will satisfy the lien in other ways
yes by providing in the will that the lien is satisfied by the residue
Property that passes according to an instrument other than a will, such as a life insurance policy, is
not included in the decedent’s personal estate.
specific devises of bonds and certificates are
not part of testators estates residue
In Virginia, a divorce or annulment revokes any provision in the testator’s will
in favor of the former spouse; The will is instead interpreted as if the former spouse predeceased the testator.
a car is considered what kind of property
tangible personal property
A will can be revoked to the extent that it is
inconsistent with the terms of a later writing that meets the requirements of an attested or holographic will.
Because this bequest is inconsistent with the first will, the later holographic will
revokes the bequest with regard to the car and controls the disposition of the car.
a gift to a deceased beneficiary is said to
lapse.
Virginia has an anti-lapse statute that will save a gift to a deceased beneficiary who
(1) is a descendant of a grandparent of the testator, and (2) leaves surviving descendants.
A lapsed gift will become part of
the testator’s residuary estate.
If a residuary gift lapses, or if there is no residuary estate, the lapsed gift passes by
intestacy.
In Virginia, if the intestate is survived by descendants but not a current spouse, then
the descendants take the entire estate.
Virginia vests jurisdiction over the probate of estates in
its circuit courts.
Venue for probate of estates is given to the circuit court of the Virginia county or city where, in descending order, the decedent
(i) had a house or known place of residence, (ii) owned real property; or (iii) died or had personal property.
There is a rebuttable presumption that moving into a nursing home does not change
the decedent’s place of legal residence.
Contracts to devise or bequeath property by a will are
enforceable under the same terms as other contracts (i.e., offer, acceptance, consideration, and no defenses).
in order to be enforceable the contract to devise or bequeth property by will must, among other things, be
certain and definite.
a contract to devise of real property by will must be
in writing to satisfy the statute of frauds
a prior contract to devise of property is specifically enforceable despite being
contrary to later will’s provisions
where there is a valid contract for the devise/ bequeth of property before the execution of a valid will, the will should be probated with the contrary contract provisions decided in favor of
the contract
where a contract devises property one way, and will does so in another way for the same property, and the contract controls disposition of the property; Equity will impose
a constructive trust on the subject property to ensure performance.
The standard method for will execution is
a signed and witnessed written instrument – an “attested will.”
An attested will must be
(i) in writing,
(ii) signed by the testator (or a proxy at the testator’s direction and in the testator’s presence),
(iii) signed or acknowledged by the testator in the presence of at least two competent witnesses present at the same time, and
(iv) the witnesses must subscribe the will in the testator’s presence.
An attestation clause is
a provision at the end of a will that is
1) signed by the witnesses
2) stating that the testator had capacity to execute the will
3) and the will was executed in compliance with the statutory formalities.
The attestation clause serves as
prima facie evidence of the will’s execution with the formalities recited therein in the absence of the subscribing witnesses.
Virginia permits ________ _______ wills.
self-proving
for a self proving will
A self-proving affidavit is attached to the will and signed by the testator and witnesses.
a self proving affidavit recites what/certifies what?
a self proving affidavit recites the facts of the will’s proper execution and certifies that the statutory requirements have been met.
A self-proving affidavit permits the will to be
probated without needing the witnesses to testify as to the execution of the will.
If there is no self-proving affidavit, the proponent must
present testimony from the witnesses verifying the authenticity of their signatures and establishing the requisites for due execution
when no self proving affidavit, proponent of will must
appear before clerk of circuit court
present evidence from attesting witnesses to will
evidence presented by proponent of will without self proving affidavit, through attesting witnesses who
1) verify authenticity of their signatures
2) establish testator signed or acknowledged will
3) in the presence of both witnesses
4) and they subscribed will in presence of testatrix
Virginia law allows for proponents of a will to offer depositions of the attesting witnesses if
for good cause, they can’t personally testify before the clerk of court
If a nonresident of Virginia is appointed to serve as executor, she must
consent to service of process in Virginia and post security (even if waived by the will), unless a Virginia resident serves as a co-fiduciary.
executor must be
legally competent and atleast 18
to serve as executor the named person must
1) appear in the circuit court where will is to be probated, and present will for probate
2) take an oath that (a) she will perform her duties faithfully/ (b) to the best of her judgment/ and (c) the will offered for probate is the testator’s true last will
3) and post bond and surety on the bond
If a decedent’s marriage is judicially dissolved prior to his death, then any designation made by the decedent prior to the dissolution providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is
void
A decedent’s sole heir is entitled to inherit
the property that the decedent owned outright at death.
For a gift to be valid, the donor must have
1) the mental capacity to make a gift,
2) the donor must have a present intent to make a gift,
3) the gift must be delivered to the donee or his agent,
4) and the donee must accept the gift.
when a donee is asserting that a gift was made to them, the burden is on
the donee to establish the existence of the elements of a valid gift, by clear and convincing evidence.
Prima facie evidence of the donor’s intent to convey ownership of stock exists if
the donee’s name appears as the owner in the corporate records.
When stock ownership is represented by a stock certificate, this prima facie evidence may be rebutted by evidence showing that
there was actual or constructive delivery of stock to the donee or his agent.
an endorsement of a certificated security, whether special or in blank, does not constitute a transfer until
delivery of the certificated security on which it appears.
The only distinction between an inter vivos gift and a gift causa mortis, other than the requirement that the latter be made under the apprehension of death, is that a gift causa mortis is
revocable by the donor.
present intent to make a gift is required for
an inter vivos gift
testator expressing he wants someone to have a gift when he dies is not
an inter vivos gift
If a decedent’s marriage is judicially dissolved prior to his death, decedent’s interest in the asset then passes as if the decedent’s former spouse
predeceased the decedent
the divorce dissolved the marriage, meaning that the proceeds of the life insurance contract will pass as if
Winona had predeceased Hank
Intestate property only escheats to the state if
there are no other takers
Among the requirements for an attested will is that the testator must either sign the will or acknowledge the will in the presence of
at least two competent witnesses, present at the same time
an individual who does not see the testator sign the will may nevertheless be a witness if
the testator acknowledges the will in that individual’s presence.
although each witness must subscribe the will in the presence of the testator, Virginia has adopted the
conscious presence test
conscious presence test
allows witnesses to be “present” even if they are out of the testator’s sight, as long as the testator is aware of their presence and what they are doing, and the testator would be able to see them if he exerted some effort.
a witness is not rendered incompetent by reason of
any interest in the will or estate of the testator.
A person who is convicted of murder or manslaughter of the decedent is
barred from taking property because of the decedent’s death.
If the slayer held joint property with rights of survivorship with the decedent, then the property
vests 100% in the estate of the decedent
Unless the will provides otherwise, a person must survive the decedent by 120 hours before he can
inherit as an heir in intestacy or as a beneficiary under a will.
A “pour-over” devise, in which the distribution of a decedent’s assets upon her death is effectively determined by
the terms of a trust rather than a will
A “pour-over” devise is permissible if
the trust is sufficiently identified in the will, and if the terms of the trust are set forth in a written instrument other than the will.
a valid pour-over devise is not invalid if the settlor of the trust reserves the right to
amend the trust and then exercises that right.
there is no requirement that the pour-over trust receive any property before
the settlor’s death.
For a gift to be valid, the donor must
have the mental capacity to make a gift, the donor must have a present intent to make a gift, the gift must be delivered to the donee or his agent, and the donee must accept the gift.
The burden is on the donee of a gift to establish the existence of valid gift elements by
clear and convincing evidence
Because a donor drawee retains the ability to make a gifted check valueless until it has been drawn upon, the full transfer is not complete until
the donee takes the check to the bank and cashes it or the bank deposits the funds into the donee’s account.
A third party can revoke a will on behalf of the testator as long as
the revocation is at the testator’s direction and in the presence of the testator.
Theresa was not present when the will was destroyed at her direction, so the revocation is
ineffective
If a testator’s will fails to provide for a surviving spouse who married the testator after the execution of the will, the omitted spouse receives
an intestate share of the testator’s estate (either 100% or one-third) unless it appears from the will or from the provisions of a premarital or marital agreement that the omission was intentional.
Under the intestacy statute, if an intestate decedent is survived by a spouse, but no lineal descendants, the intestate’s estate passes
entirely to the surviving spouse.
For decedents dying on or after January 1, 2017, the amount of the elective share is
one-half of the value of the marital-property portion of the augmented estate.
The value of the elective share does not depend on
whether the deceased spouse is survived by any children, regardless of whether the child is also the child of the surviving spouse.
in determining the amount of Dick’s augmented estate for purposes of calculating the elective share,
property owned by the decedent immediately before death that passed outside probate, such as property that passed by a right of survivorship, must be included.
the proceeds from a life insurance policy payable to a person other than the decedent’s probate estate should be included when determining
the amount of Dick’s augmented estate for purposes of calculating the elective share.
The value of the marital-property portion of the augmented estate is equal to
the value of the augmented estate multiplied by a percentage that increases based on how long the decedent and the surviving spouse were married to each other.
Since the will did not name an alternative taker of any disclaimed interest, the devise would become part of
the residuary estate were it not for the Virginia anti-lapse statute.
Pursuant to this statute, if the deceased beneficiary is a grandparent or descendant of a grandparent of the testator, then a gift is
presumed in favor of the deceased beneficiary’s descendants who survive the testator in accord with the per capita with representation scheme for intestacy distribution.
Virginia recognizes the validity of
a “transfer on death” deed.
To qualify as a “transfer on death” deed, the deed must
1) be properly executed,
2) name the beneficiary who is to take the property on the death of the current owner, and
3) be recorded with the circuit court where the property is located.
the grantor may revoke a
“transfer on death” deed
By statute, Virginia permits tangible personal property to be disposed of by a written statement or list, even though
the written statement or list is not itself executed with the formalities required of a will and is prepared or amended after the will is executed.
For the writing, which is sometimes referred to as a “gift list” or a “legal list,” to have testamentary effect, the following requirements must be met—
(i) the will must refer to the writing;
(ii) the writing must describe both the items of personal property and the identity of the recipients with reasonable certainty,
(iii) the writing must be signed by the testator, and
(iv) the property must not otherwise be devised in the will.
The anti-lapse statute applies not only to a devise to an individual but also
to a class gift
For inheritance purposes, an adopted person becomes
the child of the adopting parent and is generally no longer the child of the biological parents.
In determining who are a decedent’s heirs, Virginia follows the system generally known as
“modern per stirpes” or “per capita with representation.”
“modern per stirpes” or “per capita with representation” under this system if the intestate is survived by any children, then we
initially divide the estate so that there is one share for each child who survived the intestate and one share for each child who, while predeceasing the intestate, also left descendants who survived the intestate.
A testator may revoke his will at
any time prior to death
A will can be revoked by the express terms of
a later writing that meets the requirements of an attested or holographic will.
A will may be revoked by a physical act of the testator, such as
cutting, tearing, burning, obliterating, cancelling, or destroying with the present intent to revoke.
Virginia allows a will to be revoked by another on the testator’s behalf as long as
the physical act is at the testator’s direction and in the testator’s presence
A signed writing that does not satisfy the requirements for a will or codicil can revive a revoked will if
it can be shown by clear and convincing evidence that the testator intended the writing to revive the will.
A specific devise or bequest is one of
specific property
Under the doctrine of ademption by extinction, if the specific property is
not in existence or has been disposed of prior to the testator’s death, then that devise is adeemed, and the devisee does not have an interest in the subject of the devise
An equivocation exists when
the words in the will describe equally well two or more persons or things.
when an equivocation exists in a will, what is admissible to resolve it?
facts and circumstances evidence, along with statements by testator as to testamentary intentions
A will is an ambulatory document and construed as if
it had been executed immediately before the death of the testator unless a contrary intention appears from the will.
A gift under a will to a deceased beneficiary is
said to lapse
Virginia has an anti-lapse statute if
the predeceased beneficiary is a grandparent or descendant of a grandparent of the testator
A lapsed gift other than one of the residue becomes
part of the residue
anti-lapse statute prevents
the gift from lapsing and allows the deceased beneficiary’s descendants to take the gift
Proper execution of a will requires that
(i) the will is in writing;
(ii) it is signed by the testator or by a proxy at the testator’s direction and in her presence;
(iii) the testator signs or acknowledges the will in the presence of at least two competent witnesses, present at the same time; and
(iv) the witnesses subscribe the will in the presence of the testator.
The proponent bears the burden of proving
testamentary capacity by establishing compliance with the statutory requirements for a validly executed will.
After it has been determined that the will was validly executed, the contestants bear the burden of
presenting evidence that the testator lacked capacity.
The burden of persuasion always remains with
the proponent.
For testamentary capacity to exist at the time the testator executed his will, he must have been
1) capable of recollecting his property,
2) the natural objects of his bounty, and their claims upon him, and
2) know the business about which he was engaged and
3) how he wished to dispose of his property.
if elements of testamentary capacity exist at time of execution of will, then legal incompetence and appointment of a guardian will
not deprive the testator of capacity
Being placed under guardianship is
not prima facie evidence of a lack of capacity.
A class gift is
one given to a group of persons, designated by a general name, such as “all my brothers.”
If a testator makes a class gift and one member of the class predeceases the testator
Virginia’s anti-lapse statute might apply.
If a testator makes a class gift and one member of the class predeceases the testator, and the anti-lapse does not apply, then
the remaining members of the class share in the gift.
The anti-lapse statute can be defeated by
a showing of contrary intention in the will
an express condition of survivorship on the gift qualifies as
a contrary intention and is sufficient to prevent the application of the anti-lapse statute
Holographic wills are
recognized in Virginia
A holographic will must be wholly in
the testator’s handwriting
The testator must sign the will on
its face or have someone in her presence sign the instrument at her direction
A handwritten document might contain the testator’s name. The testator must intend that the name constitute
a signature
A holographic will must manifest the testator’s intent of
making a last and final disposition of her property
