wills Flashcards
burdens of pro per and clear
Burden of production- burden to present evidence to avoid direct verdict
Burden of persuasion -preponderance of evidence standard more than 50
Clear and convincing without hesitancy of truth
valid will needs
will formalities
testamentary intent
testamentary capacity
testamentary capacity
18 or older or emancipated
testator has capacity if The natural objects of her bounty;
– The nature and extent of her property;
– (The disposition made;) and
– The relationships of these elements in forming a plan for
disposition.
presumed to have unless adjudicated
challenges to capacity
bop , in will challenge other than undue influence, burden on contestant
-Whole or portion whichever Is challenged will be void
-Physical or mental no affect if testator understands
-Adjudication of incomp shifts burden to the proponent
will formalities
writing, sig (testator or another person in the presence of testator) any mark, signed at the end, presence of two witnesses, witnesses sign in presence
witnesses
competent, presence line of sight / line of conscious (aware of sig)
attestation clause
recites facts of execution
used as evidence if witness unavailable
self proving affidavit
sworn statement at execution , subscribed by witnesses
permits will to be into probate with no further proof
proof of will
if spa no further needed , no spa oath of witness required if unavailable then personal rep may swear authenticity or dis interested person
electronic will
Qualified Custodian: The qualified custodian is the person or entity that
safeguards an electronic will after its execution.
Online Notary Public:RON must determine that the principal is not a “vulnerable adult.(ability to perform the normal activities of daily living or to provide for his or
her own care or protection is impaired due to a mental, emotional, sensory,
long-term physical,)
must ask : decision impaired drugs, mental or physical cond, assistance with care
if
the witnesses are not in the same location as the principal,
the RON must ask the principal the following questions:
Are you currently married? If so, name your spouse.
Please state the names of anyone who assisted you in
accessing this video conference today.
Please state the names of anyone who assisted you in
preparing the documents you are signing today.
Where are you currently located?
Who is in the room with you?
An electronic text document will satisfy the writing
requirement.
However, audio and video recordings will not suffice
presence could be audio look uip the rrest
look up presumption chat in slides
testamentary intent
present intent to create will (last will and test makes presumption)
Condition precedent not allowed but is allowed for devisee in will
Motive A will is effective if the court finds that conditional language merely shows the testator’s motive for executing will (i am executing this because chemo)
Insane illusion illogical belief
person believes nonexistent facts
Ib not grounds for test cap
Undue influence
- person exerts control over the mind of testator controlling free will , substituting will or making him do something he wouldn’t of
- presumption arises if person exerting control was sub beneficiary , had confidential relationship or actively involved in procuring will
- once presumption burden pro and per on beneficiary to explain
- More proof than explanation needed if test was mentally impaired
Carpenter Active Procurement Factors
Presence of the beneficiary at the execution of the will.
Presence of the beneficiary on those occasions when the testator
expressed a desire to make a will.
Recommendation by the beneficiary of an attorney to draw the will.
Knowledge of the contents of the will by the beneficiary prior to
execution.
Giving of instructions on preparation of the will by the beneficiary to the
attorney drawing the will.
Securing of witnesses to the will by the beneficiary.
Safekeeping of the will by the beneficiary subsequent to execution.
-no confidential relationship undue influence can be proves by suspicious circumstances with unnatural gift preferring stranger over blood relatives
Fraud in the factum
person doesn’t know what their executing
Fraud part void
Fraud in inducement
-fraud in the inducement exists when a person knows the nature of the document but is fraudulently induced to execute the will
-(testator makes large gift to person who thinks will care for children)
-if fraud leads to omission enforcement of will not affected if leads to inclusion court may impose constructive trust on defrauding party
-mistake in the inducement not grounds for voiding
- not void instead f a fraudulent inducement leads to an omission from a will,
enforcement of the will generally is not affected.
* However, if that fraud also leads to the inclusion of a gift to the
party who practiced the fraud, the court may impose a
constructive trust on the defrauding party.
if revocation also because of fraud etc then void
mistake
- in execution void (thinks signing something else )
- mistake in inducement - test drafted and signed will based on mistake of fact or law will is not void
- Something inconsistent with testators intent will is not void
- reform to intent - must prove clear and convincing evidence testators intent
- Court may reform in modern
Extrinsic evidence allowed for patent ambiguity (blackacfe to sue black acre to bob)
Latent ambiguity (my home , has two homes) ee allowed
negative will terreoum clause
not allowed says someone cant have intestate share
terroem clause says cant have interest if challenge not allowed
revocation by writing
if satisfies will formalities
By inconsistent subsequent will ( second one valid first revoked)
By physical act
by burning tearing defacing destroying
Can’t revoke partial by physical
By operation of law
unless will or divorce judgment divorce will relocate all provisions in wilL ( es spouse treated as predeceased
Remarriage will not revive provisions
Of codicil
revoke of will kill col
Revoke of cod doesn’t kill will
codocil
A codicil is a legal document used to make amendments or additions to an existing will without completely rewriting it.
Revival
republication generally required
-A will may be republished by execution of a codicil that refers to the
revoked will.
– However, if a will was partially revoked by a codicil that is
subsequently revoked, a presumption arises that the testator intended
to reinstate the first will
Incorporation by reference
writing may be incorporated to reference if exists at time of execution and will intends to incorporate and describes writing to id it
acts of independent significance
