Wills Flashcards
2-507 Revocation
If testator purports to revoke a will upon mistaken assumption of law or fact, then revocation is ineffectual if testator would NOT have revoked had he known truth
b. Expressly in writing
c. Implication- inconsistency in subsequent writing. But if subsequent will does not make complete disposition of entire estate, view as supplementary codicil. Property not disposed of in new will follows prior will.
d. Physical Act: destructive in nature (burning, tearing, etc). Does not revoke a will unless testator does it herself, or in conscious presence of testator at testator’s direction. UPC requires only that the destructive act affect some part of the will. Thompson v. Royall.
Revocation by Presumption
i. If will last in testator’s possession and cannot be found among personal effects after testator’s death, a rebuttable presumption arises that the testator revoked the will by act
ii. Can still be probated if you prove: due execution; non production does not equal revocation; content
iii. BUT if lost will was last in possession of adversely affected individual, burden shifts to individual to prove revocation
ii. Harrison v. Bird: The destruction of the will by the attorney not in her presence did not result in a valid revocation.
1. However, the fact that the pieces of the will were not found in the decedent’s possessions upon her death raised a presumption that the testatrix had revoked the will by destroying it.
1. The revocation of one original copy revokes all copies
iv. Note: Revocation is NOT presumed for missing TRUST documents
Dependent Relative Revocation
Where the intention to revoke is conditional and where the condition is not fulfilled, the revocation is not effective.
i. Courts tend to apply the doctrine only if (1) there is a failed testamentary scheme, or (2) if the mistake is set forth in the writing that revoked the will and the mistake is beyond the testator’s knowledge.
ii. Tendencies
1. Where revocation is by act, mistake of law in that testator attempted a new will or codicil that is invalid
2. Where revocation is by writing, mistake of fact that must then be set forth in the valid revoking instrument
3. But, revocation by writing where mistake of law, mistake still has to be set forth in the writing: New gift fails because violates RAP, public policy, etc
2-509 Revival
Proving intent to revive: the key to proving the testator’s intent to revive is how the testator revoked will #2.
- If the testator wholly revoked will #2 by act, the courts take almost any evidence of testator’s intent to revive will #1, even the testator’s own alleged statements. UPC § 2-509(a).
- Partly revoked § 2-509(b).
a. Will #2 as will vs. codicil: where wholly revoked, must do something to revive, but where partially revokes, the part of will #1 that was revoked is presumed to be automatically revived and the burden is on the party trying to prove that the testator did not intend to revive the revoked provisions of will #1 - If the testator revoked will #2 by writing a new will, the intent to revive will # 1 must be set forth in the new will. UPC § 2-509(c).
2-804 Revocation by Divorce
i. Divorce automatically and irrebuttably revokes all provisions in a testator’s will in favor of the ex-spouse, unless the will expressly provides otherwise
ii. Also applies to will substitutes
iii. Revokes provisions also in favor of ex-spouses relatives
iv. One caveat- does not apply to federally ensured pension plans, ERISA
2-510 Incorporation by Reference
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
2-513 Tangible Property List
Will may refer to written statement/list to dispose of items of tangible personal property not otherwise disposed, other than money. Must be SIGNED BY TESTATOR and DESCRIBE ITEMS with reasonable certainty
i. Writing can be create after execution, as long as will expressly states such an intent
ii. Available for limited assets (not money, property, stocks, etc.)
2-512 Acts of Independent Significance
a. A will may dispose of property by reference to acts outside of the will (the referenced act can control either who takes or how much a beneficiary takes) as long as the referenced act has significance independent of its effect upon the testator’s probate estate.
b. Cash has no independent significance
c. Writing as independent act: the creation of a writing, even a testamentary writing (especially if it is someone else’s testamentary instrument), qualifies as an act of independent significance as long as the referred writing has its own independent significance apart from its effect on the will.
2-514 Contracts concerning Succession
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate . . . may be established only by:
i. Provisions of a will stating material provisions of the contract,
ii. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or
iii. A writing signed by the decedent evidencing the contract.
b. Must meet standard contract requirements: offer, acceptance, and consideration
c. Note - The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
d. Person may enter into contract to make a will or contract not to revoke – contract law applied. Will can be probated, but beneficiary is entitled to remedy of constructive trust for broken contract.
Mental Capacity
TESTAMENTARY CAPACITY at the moment of the testamentary act
a. Must be at least 18 years old
b. Sound mind requires the testator to have the ability to know:
i. The nature and extent of his or her property
ii. The natural objects of his or her bounty
iii. The nature of the testamentary act he or she is performing
iv. How all of these relate together to constitute an orderly plan of disposing of his or her property
i. Mere appointment of conservator doesn’t undermine capacity
ii. No actual knowledge required, just ability to know
d. Marriage < Will < Contract
e. Presumption of capacity 3-407 and Wilson v. Lane: once proponent offers prima facie proof that a will was duly executed, it creates a rebuttable presumption the testator has testatmentary capacity; contestant has ultimate burden of persuasion
f. Remedy: court will strike as much of the will as was caused by the defect
Insane Delusion
i. Definition: a false sense of reality to which a person adheres despite all evidence to the contrary
ii. Majority: rational person test,
iii. Minority view: any factual basis to support test, if any basis, not an insane delusion
iv. Causation prong:
1. Majority: insane delusion materially affects the disposition that is being challenged. Breedon v. Stone
2. Minority: might have been affected the disposition.
v. In re Stritematter: The court framed the issue as whether her hatred of men demonstrated insanity and, if so, did that insanity cause her to leave her estate to the NWP. Irrational hatred of men, basis in fact is that her father beat her.
Undue Influence Definition
a. Undue influence if overcame donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made. Presumption is strengthened if donee is not a “natural” object of donor’s bounty.
b. Typical remedy is to invalidate any gifts procured by UI or to invalidate the entire will if the particular gift would defeat the scheme of distribution
c. If transfer is procured by undue influence, but donor would have made anyway, no issue
Undue Influence Test
d. Four part test
i. Donor was susceptible to undue influence
ii. The alleged wrongdoer had an opportunity to exert undue influence
iii. The alleged wrongdoer had a disposition to exert undue influence
iv. There was a result appearing to be the effect of undue influence
e. Presumptions and Burden Shifting- Majority View (Minority- no suspicious circumstances)
i. Confidential Relationship +
ii. Suspicious Circumstances=
iii. Presumption of Undue Influence
iv. Resulting in Burden Shifting to Proponent to demonstrate that the Will represents Testator’s free, unfettered intent.
2-805 Reformation of Wills
Even if it’s unambiguous, the doc may be reformed if the transferor’s intent can be proved by clear and convincing evidence the transferor intended
415 Reformation of Trusts
The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlors intention if the person requesting reformation proves by clear and convincing evidence that both the settlors intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.
