Wills

Question 1

What are the five statutory requirements that must be satisfied to validly execute a will?

Answer 1

1. The testator must be 18 years of age or older;
2. The will must be written;
3. The will must be written with testamentary intent;
4. The testator must sign the will;
5. Two attesting witnesses who witness the testator signing the will must also sign.

Question 2

1. What counts as a valid signature when executing a will?
2. May another person sign for the testator? What are the 2 requirements?

Answer 2

1. Any mark, whether a namer, initials, or “X,” as long as the testator intended the mark to serve as a signature.
2. Another person may make the mark on behalf of the testator if the testator is present and so directs.

Question 3

When has a witness “been present” to witness the testator sign the will?

1. What test is used under the UPC and majority?
2. What test is used under the minority rule?

Answer 3

1. UPC & Majority: Under the Conscious Presence Test, the testator and witness are in each other’s presence if they are conscious of where the other is and of what the other is doing.
2. Minority: Under the Scope of Vision Test, the testator and witness are in each other’s presence if they could see each other sign were they to look.

Question 4

Under the Uniform Probate Code, under what circumstances can a defectively executed will be validated?

Answer 4

If the wills proponent establishes by clear and convincing evidence that the testator intended the document to be her will.

Question 5

Under the Uniform Probate Code, under what circumstances are no witnesses required to validly execute a deed?

Answer 5

When the will is signed by both the testator and a notary public.

Question 6

How does the placement of the signature affect the will’s contents?

1. Under the UPC and majority?
2. Under the common law and minority rule?

Answer 6

UPC & Majority: If the clause is present at the time that the will is signed, the signature’s placement does not matter.

CL & Minority: If the clause is present at the time that the will is signed, clauses above the signature are valid, and clauses below the signature are invalid.

Question 7

1. What is a “holographic” will?
2. What are its requirements:
   1) Under the UPC and half of states? (2 requirements)
   2) Under the other half of states? (1 requirement)

Answer 7

1) A holographic will is a handwritten will.

2) The effects under the:
1. UPC & Half of States: A holographic will is valid if
A) the will’s material provisions (the identity of property the beneficiaries to recieve that property) are in the testator’s handwriting
B) and the testator signed it.

2.Other Half: A holographic will is not entitled to probate unless it is signed by two witnesses.

Question 8

Under the UPC and majority, the laws of what 3 types of states applies in determining a will’s validity as applied to property in that state?

Answer 8

UPC and Vast Majority: The will is valid if it is valid in:

• The state in which the will was executed;
• The state in which the testator was domiciled when they died;
• The state in which the testator was domiciled when they executed the will.

Question 9

Interested Witness Rule

What is the Interested Witness Rule under:
1) The majority rule?
- What are the 2 requirements?

For the 2nd requirment and if the witness-beneficiary would be an heir if there were no will, the heir will take the lesser of what 2 things?

2) The UPC and minority?

Answer 9

1) Majority: The beneficiary-witness will NOT lose their legacy if:

1. There were two or more disinterested attesting witnesses; OR
2. The witness-beneficiary would be an heir if there were no will.

If they would be an heir if there were no will, then they will take the LESSER of:
(1) the amount given in the will, OR
(2) the intestate share.

2) UPC and Minority: Abolishes the interested witness rule.

Question 10

1. What is a self-proved will?
2. What is presumed for self-proving wills?

Answer 10

1. A testator may execute a self-proved will by properly executing a will and then, along with the witnesses, signing a self-proving affidavit under oath before a notary public.
2. The formalities of execution are conclusively presumed for self-proving wills.

Question 11

How may a will be revoked?

(4 methods.)

Answer 11

Revocation by . . .

1. Physical Act;
2. Proxy;
3. Inconsistency;
4. Operation of Law (Divorce);

Question 12

Revocation by Physical Act

1. A will is revoked by physical act when what 2 things are satisfied?
2. The physical act must be where?
   - Under the majority rule?
   - Under the UPC and minority rule?

Answer 12

Part 1: A will is revoked by physical act if the testator:
(1) intends to revoke the will and
(2) engages in a physical act that damages, destroys, or cancels the will.

Part 2:
Majority: The physical act must touch the language of the will.

UPC and Minority: The cancelation may appear anywhere on the will.

Question 13

1. What if the testator is found with a mutilated copy of their will at the time of their death?
2. What if the will was last seen in the testator’s possession and control, but it cannot be found after their death?

Answer 13

1. Presumed that the testator mutilated the will with the intent to revoke.
2. Presumed that the testator destroyed the will with the intent to revoke.

Question 14

Revocation by Proxy

1. What is revocation by proxy?
2. What are the 2 requirements for revocation by proxy?

Answer 14

1. Revocation of a will by a person other than the testator is valid.
2. It is valid only if the person revokes:
   (1) at the testator’s direction and
   (2) in the testator’s presence.

Question 15

Revocation by Inconsistency

1. What is a revocation by inconsistency?
2. Which document controls?

Answer 15

1. If there is a will and subsequent codicil and the will and a codicil are inconsistent, the two are read together to the greatest extent possible.
2. The later document controls with respect to inconsistencies that cannot be read together.

Question 16

Revocation by Inconsistency

What happens if the subsequent will does not revoke the first and
1. The subsequent will has no residuary clause?
2. The subsequent will has a residuary clause?

(Will and Subsequent Will)

Answer 16

If the subsequent will does not revoke the first and:

1. The subsequent will has NO residuary clause, treat the second will as a codicil to the first.
2. The subsequent will has a residuary clause, then the second will revokes the first.

Question 17

Revocation by Operation of Law (Divorce)

1. What happens under the UPC and majority rules?
2. What about separation?

Answer 17

1. UPC and Majority: If divorce follows the execution of the will, the divorce revokes all provisions in favor of the former spouse and the will is construed as if the former spouse were dead.
2. Mere separation does not affect a spouse’s rights unless the spouses have separated and completed a property settlement.

Question 18

Interlineation and the Dependent Relative Revocation

1. What is an interlineation?
2. An interlineation functions as what?
3. An interlineation is not one under what 2 exceptions?
4. How does the Dependent Relative Revocation (DRR) rule apply here?
   - What are the 2 requirements?
5. A) If the interlineated gift is larger, what happens?
   B) If the interlineated gift is small, what happens?

Answer 18

1. Interlineations are any handwritten changes or additions made to the original text of the will after it has been drafted and signed. These changes should be initialed by the testator (the person making the will) and witnesses to indicate that they are aware of and approve the alterations.
2. Generally, an interlineation functions as a revocation.
3. The interlineation is NOT a revocation if:
   A) The will is re-executed or
   B) The will is republished by codicil.
4. Under Dependent Relative Revocation, the revoked clause may be reinstated if:
   1) the revocation was based on a mistake of fact or law and
   2) but for the mistake, the testator would not have made the revocation.
5. A) If the interlineated gift is larger, reinstate the gift.
   B) If the interlineated gift is smaller, maintain the revocation.

Question 19

** Revival of a Revoked Will**

1) if revoke a subsequent will, the previous will is revived when under the UPC and some states?

2) What are the 3 requirements?
————————————
3) What happens if you revoke a will under the laws of other states?

4) How do you revive a will under the other states’ laws?

5) What law will be applied to determine to reinstate the subsequent will?

Answer 19

1) UPC and Some States: If the testator revokes a subsequent will, the previous will is revived if:

2)
A. The previous will still exists;
B. The testator wanted the previous will to be revived; and
C. The subsequent will was revoked by a physical act.
————————————
3) Other States: If a testator revokes a subsequent will, the previous will will not be revived.
4) The testator must re-execute the will or republish it by codicil.
5) The court will apply Dependent Relative Revocation to determine whether to reinstate the subsequent will if the testator would not have revoked the subsequent will had she known that the prior will would not have been revived.

Question 20

Incorporation by Reference

1. An extrinsic document may be incorporated into a will by reference if what 3 requirements are met?
2. For lists of tangible personal property, the incorporation by reference doctrine requires what 2 requirements for the incorporation to be valid?

Answer 20

1) An extrinsic document may be incorporated into a will by reference if:

1. The writing existed at the time the will was executed;
2. The will manifests the testator’s intent to incorporate the document; and
3. The will describes the writing sufficiently to identify it.

2) Many states and the UPC make a statutory exception for wills that reference a writing, like a list of tangible personal property:
a. That disposes of tangible personal property (not money) that isn’t disposed of in the will.
b. The writing must be signed by the testator and must describe the property with reasonable certainty.

Question 21

What are acts of independent significance?

Answer 21

Acts of independent significance refers to actions or events that have significance outside of the testamentary context, meaning they have legal effect regardless of their impact on the will or trust.

Acts that have an independent lifetime motive may impact a will. This isn’t a problem so long as they have an independent lifetime motive.

⇒ For example: “I devise my car to Olive.” Then I sell my car and replace with a much nicer one. Olive gets the new car.

Question 22

Lapse

1. What is the general lapse rule?
2. What is the anti-lapse rule under the UPC?
3. The UPC anti- lapse rule applies when? (2 requirements)
4. This is the rule unless what?

Answer 22

1. When a beneficiary named in the will dies before the testator, the gift to the beneficiary lapses unless it is saved by the state’s anti-lapse statute. Lapses means it fails and does not pass to the deceased beneficiary’s heirs. Instead, it becomes part of the residuary estate (if there is one) or is distributed according to the laws of intestacy if there is no residuary clause in the will.
2. Under the UPC, the anti-lapse rule prevents the gift from lapsing (failing) in certain circumstances and allows it to pass to the deceased beneficiary’s descendants (children or grandchildren) instead.
3. The UPC anti-lapse rule applies when:
   a) The deceased beneficiary is a close relative of the testator, such as a spouse, child, grandchild, parent, or sibling.
   b) The deceased beneficiary leaves behind descendants (children or grandchildren).
4. Unless the will provides otherwise.

Note the the beneficiary’s will, if she has one, doesn’t matter

Question 23

Lapse

1. What is the lapse rule for class gifts?
2. If the class member is covered by the anti-lapse statute and leaves issue, which statute applies? (Lapse or anti-lapse rule?)

Answer 23

1. When there is a gift by will to a class of persons and some class member predeceases the testator and the lapse statute does not apply, the rest of the class shares that member’s gift.
2. If the class member is covered by the anti-lapse statute and leaves issue, the anti-lapse statute controls.

⇒ Remember to apply the lapse statute first.

Question 24

Lapse

What is the lapse rule for residuary gift under:
1. The UPC and majority rule?
2. Common law?

Answer 24

UPC and Majority Rule: 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 UNLESS the state’s anti-lapse statute applies.

CL: If a residuary beneficiary predeceases the testator, then their share “falls out of the will” and passes by the laws of intestacy.

Question 25

Abatement - Types of Gifts

1. What is abatement?
2. What’s the order for abatement for different types of gifts?
3. Does abatement apply when the testator is partially insolvent?

Answer 25

1) Abatement refers to the reduction or decrease in the value of a bequest or inheritance under a will or trust when the estate does not have enough assets to fulfill all of the testamentary gifts or obligations.

2) To abate: start from the bottom and work up!
1. Specific Devise - A gift of a specific asset.
2. Demonstrative Legacy - A gift of a specific pecuniary amount with funding instructions.
3. General Legacy - A gift of a pecuniary amount with no funding instructions.
4. Residuary Bequest - A gift of the residue.
5. Intestate Property - Property that is intestate for some reason.

3) Yes, abatement applies when the testator’s estate is partially insolvent.

Question 26

Ademption

1. What is the ademption rule for common law and majority of states?
2. What are the 2 UPC exceptions?

Answer 26

1) Common Law and Majority: At common law and in the majority of states, a gift is adeemed (fails) if the item is not in the testator’s possession at the time of her death. The testator’s intent is immaterial.

2) UPC Exceptions

1. If the testator executes a will and is subsequently declared incompetent, then proceeds relating to a specific devise (sale by conservator, condemnation award, insurance proceeds) must be paid to the specific devisee as a general legacy.
2. Specific devisee has right to remaining property and:
   
   • Any purchase price owing at the testator’s death;
   • Any unpaid condemnation award;
   • Any unpaid fire or casualty insurance;
   • Any real or tangible property acquired as a replacement for similar property;
   • Property acquired as a result of a foreclosure of a security interest on speficially devised note.

Question 27

Increases to Property After Will Execution

1. What are the rules for stock splits and stock dividends:
   1) Under the common law?
   2) Under the UPC?
2. What are the rules for mergers:
   1) Under the common law?
   2) Under the UPC?

Answer 27

Splits and Dividends

• Common Law: If the stock splits, the devisee gets all the resulting stock. If the increase is a dividend, the devisee only take the original stock.
• UPC: Whether the additional stock results from a split or a dividend, the devisee takes all of the stock.

Mergers - Shareholder stock replaced after merger with new stock.

• Common Law: A specific devisee is not entitled to securities of another entity owned by the testator as a result of a merger or similar action initiated by the original entity.
• UPC: A specific devisee is entitled to securities of another entity owned by the testator as a result of a merger or similar action initiated by the original entity.

Question 28

Devise of Encumbered Real Property

Is a specific devisee of encumbered property is entitled to have the encumbrance paid out of the residuary estate:

1. Under the UPC and majority? What is the exception?
2. Common law and minority?

Answer 28

1. UPC and Majority: A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate…
   Unless the will shows such intent. Moreover, a general direction in the will to pay debts does not show such an intent.
2. Common Law and Minority: The devisee may demand that the executor pay off the indebtedness so that it passes to her free and clear.

Question 29

What kind of words are used that allows you to tell whether a gift of stock or securities is specific?

Answer 29

• “My 100 shares of XYZ stock” → Specific. If the testator sells prior to her death, then the gift is adeemed.
• “100 shares of XYZ stock” → Not specific. The personal representative will buy shares to fund the gift.

Question 30

Is extrinsic evidence admissible to clear up a latent ambiguity?

What happens if the ambiguity can’t be resolved?

Answer 30

• Yes, extrinsic evidence is admissible.
• If the ambiguity isn’t resolved by extrinsic evidence, then the gift fails.

Question 31

Is extrinsic evidence admissible to resolve a mistake?

1. Under the majority rule?
2. Under the UPC?

Answer 31

Majority: The Plain Meaning Rule applies and bars the use of extrinsic evidence to disturb a will’s plain meaning.

UPC: Yes. If extrinsic evidence demonstrates the testator’s intent by clear and convincing evidence, then the court may reform the terms of a will even if those terms are unambiguous.

Question 32

Intestacy Rules: What does a decedent’s spouse get?

Under the following circumstances:
1. Survived by spouse, no issue, no parents?
2. Survived by spouse, issue who are spouse’s issue?
3. Survived by spouse, at least one issue who is not spouse’s issue?

Answer 32

1. Survived by spouse, no issue, no parents → entire estate;
2. Survived by spouse, issue who are spouse’s issue → spouse takes first $225k + 1⁄2 of remainder;
3. Survived by spouse, at least one issue who is not spouse’s issue → spouse gets a fixed statutory amount, or $150,00 + 1/2 of remainder under the UPC.

Question 33

Intestacy Rules

How does the share not going to the spouse get distributed:
1. If there are issues?
2. If no issue?
3. If no issue or parents?

Answer 33

1. All to issue, if any;
2. If no issue, to parents or to surviving parent;
3. If no issue or parents, then to parents’ issue.

Question 34

What proportion of the estate do the issue take?
1. Under the common law?
2. Under the majority rule?
3. Under the UPC and modern trend?

Answer 34

Common law - Per stirpes: Divide by children or deceased children who have living descendants. Then their issues split equally among themselves.

Majority - Per capita with representation: Divide not children, but living takers. Then their issues split equally among themselves.

UPC and Modern Trend - Per capita at each generation: Divide per living takers focus but children treated same. Combine all shares from the dead into a big pot and dropping it down to be equally shared by members of the next generation.

Question 35

1. What is the probate estate?
2. What does a “probate estate” include?
3. What does a “probate estate” not include?

Answer 35

1. The probate estate is the estate that the intestacy statute applies to.
2. It includes the estate that the decedent could have controlled by a will had the decedent execute a will.
3. It does not include:
   * Life insurance;
   * Property held in trust;
   * Property subject to a right of survivorship;
   * Securities or bank accounts registered in payable on death or transfer on death form.

Question 36

Intestacy Rules

How are non-marital children treated if:

1. Just mother’s child?
2. Father’s child, mother and father don’t marry?
3. Mother and 3P marry?

Answer 36

1. Mother’s child → inherits from mother.
2. Father’s child, mother and father don’t marry → doesn’t inherit from father unless: (1) father and mother marry or (2) paternity is adjudicated before father’s death.
3. Mother and 3P marry → doesn’t inherit from 3P unless 3P adopts or there is an unperformed agreement to adopt (adoption by estoppel).

Question 37

Intestacy Rules

How are adopted children treated under the majority rule?
1. Can adopted children inherit from adopting parents?
2. Can adopted children inherent from biological parents?

Answer 37

Majority:

1. Child can inherit from adopting parents, and they can inherit from her.
2. Child can’t inherit from biological parents, and they can’t inherit from her.

Question 38

Simultaneous Death

1. What is the rule under the Original Simultaneous Death Act?
2. What is the rule under the Revised Simultaneous Death Act and UPC?
3. What happens if the language of the will contradicts the relevant simultaneous death statute?

Answer 38

1. Original Simultaneous Death Act: A person is deemed to have survivrd another person if they survive the decedent by any length of time.
2. Revised Simultaneous Death Act and UPC: A person is deemed to have survived another person if they survive the decedent at least 120 hours, or 5 days.
3. The language of the will controls if it contradicts the relevant simultaneous death statute.

Question 39

Advancement

1. What are the 2 options for getting an advancement under majority rule and UPC?
2. What is the advacment rule under the minority rule and common law?

Answer 39

Majority and UPC: There is no advancement unless:

1. The decedent declares the gift to be an advancement in a contemporaneous writing; OR
2. The heir acknowledges the gift to be an advancement in a writing.

Minority and Common Law: Any lifetime gift to a child by or descendant is presumed to be an advancement, to be taken into account in distribution of the intestate’s estate. The child has the burden of proof to show that the gift was an absolute gift.

Question 40

What are the three rights that most states give to surviving spouses by statute?

Answer 40

1. Homestead. The right to live in the home for as long as the spouse chooses.
2. Exempt Property. Household furniture, automobile, appliances, and personal effects, up to a fixed dollar amount.
3. Family Allowance. A reasonable allowance from the estate for maintenance of family during the administration of the estate.

Question 41

Pretermitted Spouse

1. What is a pretermitted spouse?
2. What is the effect of the rule under the:
   - Majority rule?
   - UPC?

Answer 41

1. A pretermitted spouse is a spouse who doesn’t appear in the will.
2. The result:

• Majority: No effect on will.
• UPC: Pretermitted spouse gets intestate share UNLESS:
  1) the will indicates that the ommission was intentional; or
  2) the testator provided for the spouse outside of the will and statements by the testator indicate that the provision was in lieu of provision in the will.

Question 42

Elective Share

1. What is the rule regarding elective shares?
2. The surviving spouse may claim the elective share by doing what?
3. The surviving spouse gets how much elective shares in most states?
4. The surviving spouse gets how much elective shares in UPC states?
5. The elective share is in addition to what?

Answer 42

1. In all states, the survivng spouse may claim a elective share from the net testimentary estate, which is the probate estate minus exempt property, family allowance, funeral expenses, and expenses of administration, and allowable creditors’ claims.
2. The surviving spouse may claim the elective share by filing an election within a period of the spouse’s death.
3. In most states, they get a fixed share of 1/3.
4. In UPC states, they get up to 1/2, vesting at 3 percent per year of marriage.
5. The elective share is in addition to exempt property, family allowance, and homestead.

Question 43

Pretermitted Children

1. What are pretermitted children?
2. A pretermitted child is NOT entitled to an intestate share if what 3 elements are met?

Answer 43

1) A pretermitted child is a child born or adopted after the testator executed the will and who does not appear in the will.

2) A pretermitted child is NOT entitled to an intestate share if:
1. It appears that the omission was intentional;
2. The testator left substantially all of her estate to the other parent of the pretermitted child; OR
3. The testator provided for the child by a transfer outside the will and intended the transfer to be in lieu of a provision in the will. Extrinsic evidence may be used to show intent.

Question 44

What happens if a child thought to be dead is left out of the will?
1. Under the common law?
2. Under the UPC and some states?

Answer 44

1. Common Law: Nothing happens, unless the words of the will itself indicate that the testator made the omission because of a mistake. (“Nothing to A, because A is dead.”)
2. UPC and Some States: Treat child as pretermitted if the testator failed to provide for the child because she believed the child to be dead.

Question 45

Renunciation

1. When can an heir or devisee renounce their interest?
2. What results if they renounce their interest?

Answer 45

1. An heir or devisee may renounce her interest in whole or in part by doing so in writing within 9 months after the decedent’s death.
2. The result: the property is treated as if the heir or devisee predeceased the decedent.

Question 46

Living Will

1. What is a living will?
2. How do you execute a living will?
3. How do you revoke a living will?

Answer 46

1. A statement of an adult individual’s desires with respect to life-sustaining procedures if they should become terminally ill or enter a vegetative state.
2. Execution - In writing, signed by an adult testator with two witnesses.
3. Revocation - By any manifestation of intent to revoke at any time without regard to physical or mental condition.

Question 47

Durable Healthcare Power

1. What is a durable healthcare power of attorney?
2. Who is an eligible agent?
3. How do you execute a durable healthcare power of attorney?
4. How do you revoke a durable healthcare power of attorney?

Answer 47

1. Allows one person to appoint an agent to make healthcare decisions for them should they lose capacity.
2. Eligibility of Agent. Anyone except an unrelated person associated with the principal’s healthcare facility.
3. Execution. In writing, signed by the principal, with two adult witnesses. Usually, the agent can’t be a witness.
4. Revocation. By written or oral notice to the agent or the principal’s healthcare provider.

Question 48

Requirements and Test Applicable to Will Contests

1. What is the standing requirement for contesting a will?
2. What 4 questions should you ask for testing lack of testamentary capacity?
3. Is being frail, old, or absentminded enough?

Answer 48

1. Standing. A person has standing to contest a will if they would take more as an heir or as a beneficiary under a prior will.
2. Test for lack of testamentary capacity:
   
   1. Did the testator understand the nature of the act she was doing?
   2. Did the testator understand the character and nature of her property?
   3. Did the testator know the natural objects of her bounty;
   4. Did the testator understand the disposition she wished to make.
3. Note that just being frail, old, or absentminded isn’t enough.

Question 49

Undue Influence

What 3 things should you show to prove that there was undue influence?

Answer 49

Contestants have the burden of showing:

1. Existence and exertion of the influence;
2. The influence overpowered the mind and will of the testator;
3. The result is a will that would not have been executed but for the influence.

Question 50

Undue Influence

1. A presumption of undue influence arises when what 3 things are evident?
2. The presumption shifts the burden from whom and to whom?

Answer 50

1) A presumption of undue influence arises when:

1. A confidential relationship existed between the beneficiary accused of exerting undue influence and the testator;
2. The beneficiary participated in the procuring or drafting of the will;
3. The provisions of the will appear to be unnatural and in favor of the beneficiary accused of undue influence.

2) Burden then shifts to the beneficiary to show that there was no undue influence.

Question 51

Undue Influence

If a will would not have been executed but for undue influence, what happens if a gift is invalidated for undue influence:

1. If only part of a will was procured by undue influence?
2. If a will would not have been executed but for undue influence?
3. What should you consider for finding undue influence?

Answer 51

1. If only part of a will was procured by undue influence, then only that part of the will is void;
2. If a will would not have been executed but for undue influence, then the entire will is void.
3. Consider what the testator would have done in the absense of the undue influence. Would the testator have executed a will at all?