Wills Flashcards
Intestate Succession
Society then developed a fixed set of rules which dictate where a deceased’s property goes upon death based on degree of relationship, sex, age, etc.
Wills
Society allowed a person during life to determine where property was to pass upon death. There is no constitutional right to exercise dead hand control.
Probate Avoidance Techniques/Will Substitutes
Some property will pass outside of the probate process, for example, because of an inter vivos trust, survivorship rights, or other contractual rights. When you distribute a decedent’s estate, you must first distribute these items according to their terms before distributing the rest under intestacy or under a will.
–> always look for this first when deciding how to divide estate
Will substitutes include ____
life insurance, joint tenancies or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, and inter vivos gifts, including gifts causa mortis.
Will substitutes may enable individuals to
____
avoid taxes and eliminate the cost and inconvenience of probate.
Property governed by a probate avoidance technique does not pass through probate and thus is not governed by the testator’s will or by intestacy. These assets must be _____
removed from the decedent’s estate before distributing property under a will
or via intestacy.
INTER VIVOS OUTRIGHT GIFTS
If the decedent has already given the property away, it obviously will not pass under the decedent’s will or by intestacy.
INTER VIVOS “LIVING” TRUSTS
Property the decedent has already transferred into an inter vivos trust will not pass through the decedent’s estate. Instead, it passes under the terms of the trust.
Future interests, such as a remainder or executory interest, pass to ____
the named beneficiary (out of probate)
TIC: The decedent’s share passes via _____
JT: The decedent’s share passes ____
decedent’s will or under intestacy. There are no survivorship rights; thus probate is not avoided.
to the surviving joint tenant and not via intestacy or under the decedent’s will.
Life insurance is the most widely used will substitute. It is a contract, and the disposition of the policy’s proceeds is governed by ____
the terms of the contract.
A Totten trust is a _____. The ____ retains complete control over the account during their lifetime, and the transfer is complete only upon their death. Totten trusts are ____; they are not true trusts.
deposit of money in a bank account in “trust” for another person
depositor; accounts
A bank account deposit in the name of two or more persons “with right of survivorship” is generally effective to ____
give the survivor the absolute right to all of the money.
Under the UPC, creditors can reach the money in a joint account, to the extent that ______, if the other estate assets
are insufficient to satisfy their claims.
Even at common law, creditors can reach the joint account if _____.
the decedent deposited money in the account
it was opened for the decedent’s convenience and no survivorship feature was intended
-> In many states, evidence is admissible to show that the joint account was set up merely as a convenience for paying the depositor’s bills, and no gift to the survivor was intended.
Bank accounts and corporate securities may be held in ____ form, so the property passes to the designated person upon the owner’s death.
“payable on death”
A deed deposited in ____, with delivery conditioned upon the grantor’s death, may be a valid nontestamentary transfer.
Similarly, if a deed, which by its terms is _____, a court may sustain the
transfer as nontestamentary by construing the deed as a present transfer of a future interest, subject to a life estate in the grantor.
escrow
effective only upon the grantor’s death,
has actually been delivered to the grantee
Property may pass by intestate succession when:
- A decedent dies without having made a will or their will is denied probate (“total intestacy”)
- A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”)
Under intestate succession (also called descent and distribution), property remaining after ____ passes to the intestate’s heirs (also called distributees).
the intestate’s debts and taxes are paid
The intestate distribution scheme cannot be altered to fit ____ regardless of evidence that shows the decedent would not have wanted their property to pass the way intestacy provides.
the decedent’s intent
Who owns the property if the decedent was married at the time of death?
We use the law of the domicile (the common law marital property system or the community property marital property system) at the time the property was acquired. The marital rights do not change as the couple moves from one state to another.
Which state’s intestacy law applies?
For personal property = we use the law of the decedent’s domicile at death.
For real property = we use the law of the situs of the property.
INTESTATE SHARE OF SURVIVING SPOUSE - Common Law (OLD RULE)
At common law, the surviving spouse was not an heir. A widow received dower, which is a life estate in one-third of the real property her husband owned during marriage, regardless of whether the property was still owned by her husband at the time of his death. A widower received curtesy, which was a life estate in all of his wife’s real property provided a child was born to the marriage
INTESTATE SHARE OF SURVIVING SPOUSE - General MODERN LAW
Under modern law, the spouse is an heir. Dower and curtesy have been eliminated or greatly altered. The share of the surviving spouse depends on factors such as the number of children and whether the surviving spouse is the other parent of the deceased spouse’s children.
INTESTATE SHARE OF SURVIVING SPOUSE - Modern (non-UPC) law where descendants also Survive
- In most states, if the decedent leaves descendants as well as a surviving spouse, the spouse takes one-third or one-half of the estate.
- Some states give the surviving spouse a specific dollar amount plus one-third or one-half of the estate
INTESTATE SHARE OF SURVIVING SPOUSE - UPC law where descendants also Survive
The surviving spouse takes the entire estate if the decedent is survived by descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other surviving descendant (sweet heart rule)
INTESTATE SHARE OF SURVIVING SPOUSE - Modern (non-UPC) law where NO descendants also Survive
In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate.
INTESTATE SHARE OF SURVIVING SPOUSE - Modern UPC law where NO descendants also Survive
The spouse takes the entire estate only if the decedent is not survived by descendants or parents.
Descendants are related to the decedent in a ____, such as children and grandchildren.
descending lineal line
The portion of the estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes to ____
the decedent’s children and descendants of deceased children.
In most states parents and collateral kin (brothers, sisters, aunts, uncles) never inherit if _____
the intestate is survived by children or more remote descendants.
If all of the decedent’s children survive the decedent (or all of the decedent’s predeceased children have no descendants who survive the decedent), each child receives ____.
A descendant from a younger generation (such as a grandchild) cannot take if ____
an equal share
the older generation (the grandchild’s parent) is still alive.
Methods of Computing Shares if at least one descendant predeceased the decedent and is survived by a descendant who survives the decedent:
- Classic per stirpes
- Per Capita with Representation (majority rule)
- Per Capita at Each Generational Level (modern trend)
Classic Per Stirpes
- One share is created for each child and one share for each deceased child who has at least one surviving descendant.
- Each child receives one share and one share passes to a deceased child’s
descendants by representation.
Classic per stirpes divides into shares
at the child generation even if _____
no child survives the intestate.
Per Capita with Representation
- A decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are living takers.
- Each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by right of representation.
Per Capita with Representation: If all children are deceased and all property is going to the grandchildren, each grandchild takes ___
an equal share rather than the share (or part of the share) the parent would have taken had the parent survived.
What method does the UPC use for calculating shares if at least one descendant predeceased the decedent and is survived by a descendant who survives the decedent:
Per Capita at Each Generational Level
Per Capita at Each Generational Level
- A growing number of states and the UPC make the initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.
- Persons in the same degree of kinship to the decedent always take equal shares.
Under Per Capita at Each Generational Level if some children are alive and others dead, each child will take ____, but the remaining property is pooled and each grandchild will receive ____
an equal share (as with per capita by representation); an equal share.
INTESTATE SUCCESSION UNDER TYPICAL STATUTE (descending order if none are found at a certain levle)
- Spouse and/or descendants
- Parents or surviving parent
- Descendant’s of parents (siblings or their descendants) (+some variance in rules)
- Half and half to maternal and or paternal grandparents or descendants (both halves to one side if there are no takers on the other side)
- Half and half to Nearest maternal/paternal kind (all to one side if there are no kin on the other side)
- Failing all of the above, the estate escheats to the state.
If the decedent is not survived by a spouse or descendants, the estate is distributed to ancestors (persons related in _____) and collaterals (persons related but ____ such as siblings, uncles, aunts, etc.).
an ascending lineal line such as parents; not in a lineal line
If one parent and at least one sibling survive, the UPC and some states give _____. Other states give _____.
the entire estate to the surviving parent
one-half to the surviving parent and one-half to the sibling or siblings
For purposes of intestate succession, adopted children are treated ____.
the same as the biological children of the adopting parent
An adopted child inherits from and through ____, and the adopting parents _____.
the adopting parents and their kin; take from and through the
adopted child
Most states make no distinction based on the ____ at the time xof the adoption.
age of the child
Although jurisdictions vary, generally there is no inheritance in either direction between adopted children and their _____, except where one of the biological parents ____
biological parents; marries an adopting parent, or the child is adopted by a close relative.
Generally, ____ children have no inheritance rights unless adopted by the stepparent or foster parent.
stepchildren and foster
The doctrine of _____, permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt them. However,
if ____, many states prohibit the stepparent or foster parent from inheriting.
adoption by estoppel; the child dies
A non-marital child always inherits from the ____. Generally, the child will inherit from their ____ if:
mother; father
(1) the father married the mother after the child’s birth;
(2) the man was adjudicated to be the father in a paternity suit; or
(3) after his death and during probate proceedings, the man is proved by clear and convincing evidence to be the father.
The UPC and most states make no distinction between ____ and whole bloods; they inherit equally. However, some jurisdictions give half bloods ____
half bloods
half shares or cut them out from inheriting entirely if whole-blood siblings exist.
If a person is in gestation at the time of the intestate’s death, most states will ____. Some states will allow a child of the intestate who was not in gestation but who is ____ to inherit under specified circumstances.
allow that person to be an heir; born within a statutorily stated period of time (for example, two years)
At common law and in most states, a will provision expressly disinheriting an heir is _____.
ineffective as to any property passing by intestacy (that is, the will must dispose of everything to effectively disinherit an heir)
Under the UPC and statutes in several non-UPC states, a testator may _____. If the person survives the decedent, their intestate share passes as though they had disclaimed it.
exclude the right of an individual to succeed to property passing by intestate succession (a “negative” will provision)
An advancement is ____
a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
At common law, a substantial lifetime gift to one of the decedent’s children was presumed an advancement. Most courts now apply the doctrine to any heir, but _____.
reverse the presumption (A lifetime gift is presumptively not an advancement unless shown to be intended as such)
UPC states, as well as many non-UPC states, go further, finding an advancement only if it is:
(1) declared as such in a contemporaneous writing by the donor, or
(2) acknowledged as such in a writing by the heir (which need not be contemporaneous).
If found to be an advancement, the gift’s value when given is _____. (The advancement goes into the “hotchpot.”) The heir need not return the amount of an advancement in ____
added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share
excess of the value of their intestate share.
Generally, an advancement is binding upon those who succeed to the estate of the advancee if _____.
In UPC states, however, an advancement is not binding on the advancee’s successors unless ____.
the advancee predeceases the intestate
the required writing states that it is
A person cannot take as an heir or will beneficiary unless they survive the decedent. Because it is sometimes difficult to determine whether one person survived another (for example, in a situation where both persons are fatally injured in the same accident), nearly all states have adopted a version of the _____
Uniform Simultaneous Death Act (“USDA”).
About one-half of the states have enacted the ____, and the other half have enacted the ____, also known as the “120-hour rule.”
traditional USDA; Revised Uniform Simultaneous Death Act
For determining survival the UPC follows the ____
120-hour rule.
The USDA provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if ____
they had survived the other.
The USDA applies only if ____.
there is no sufficient evidence of survival
-> Thus, if there is evidence that an heir or beneficiary survived the decedent by even minutes, the USDA does not apply.
Many states and the UPC require that a person survive the decedent by ___ hours to take any distribution of the decedent’s property.
120
Neither the USDA or the Revised Uniform Simultaneous Death Act applies if ____
the decedent’s will or other instrument makes a different provision regarding survival.
Disclaimers
An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc., cannot be forced to accept an inheritance or gift under a will. The heir or beneficiary can disclaim an interest.
Why would an heir or beneficiary forego free property?
- Burdensome: for example, the fear of liability if property contains a toxic waste dump
- Tax: Disclaimed property is not treated as a gift from the disclaimant to the eventual recipient
- Avoid creditors: In many states, disclaimed property cannot be reached by the disclaimant’s creditors (however, a disclaimer cannot be used to defeat a federal tax lien)
Requirements of Disclaimer
In most states, a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death (although the time period may vary).
To be effective for federal tax purposes, the disclaimer must be ____. Note that for federal tax purposes, a surviving joint tenant may disclaim their interest only within nine months from the _____, and the holder of a future interest may disclaim only within nine months after ____.
in writing, irrevocable, and filed within nine months of the decedent’s death or the beneficiary’s 21st birthday
other joint tenant’s death; the interest was created
A disclaimer may be made by a guardian on behalf of an infant or incompetent, or a personal representative on behalf of a decedent if ____
the court finds that it is in the best interests of those interested in the estate of the beneficiary and is not detrimental to the best interests of the beneficiary.
An interest cannot be disclaimed if the heir or beneficiary has ____
accepted the property or any of its benefits.
The disclaimed property passes as if the disclaimant had ____. The disclaimant cannot ____
predeceased the decedent; choose the recipient of the property.
Because the interest passes as though the disclaimant predeceased the decedent, the disclaimer of a life estate accelerates the ____.
remainder
DECEDENT’S DEATH CAUSED BY HEIR OR BENEFICIARY
In nearly all states, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim. This result is usually reached by the operation of a specific statute (called a “slayer statute”) or by imposition of a constructive trust.
Transfers effected by slater statutes
All types = This rule disqualifies the killer from taking any interest or benefit, including insurance proceeds, family allowance, etc. The killer also loses the benefit of the right of survivorship in any property so held with the decedent, although the killer does not forfeit their own share.
Proof of Killing—Evidentiary Standard
- A conviction of murder in any degree is conclusive for purposes of this type of statute.
- Courts are divided on how to handle lesser degrees of killing:
–> In the absence of a murder conviction, the court must generally find that the killing was unlawful or intentional by a preponderance of the evidence before applying this forfeiture rule.
A will is revocable during ____ and operative at ____.
the testator’s lifetime; their death
A codicil is ____
a supplement to a will that modifies it
A will is an instrument executed with certain formalities that ____, although an instrument that merely appoints a personal representative or revokes an earlier will can be a will.
usually directs the disposition of a person’s property at
death
Most states require ____, with all requirements for a valid will.
However, the UPC permits the court to excuse _____ test.
exact compliance, rather than substantial compliance
minor errors using a substantial compliance
Because a will is not operative until the testator’s death, a beneficiary has merely an ____ until that time.
expectancy (not a property interest)
The validity and effect of a will with respect to real property are determined by the law of ____
the state where the property is located.
With respect to personal property, the validity and effect of a will are determined by the law of _____
the testator’s domicile at the time of death.
Out-of-State and Foreign Wills = Most states and the UPC have a “savings statute,” that is, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of:
(1) that jurisdiction,
(2) the state where the will was executed, (3) the testator’s domicile at the time of the will’s execution, or
(4) the testator’s domicile at death.
The savings statute for out of state and foreign wills apply only to determine whether the will is ____. Once the will is admitted to probate, local law governs the construction and application of the will’s provisions.
admissible to probate
The testator normally must be at least ____ at the time the testator makes a will. Some states allow testators under 18 to execute a will if, for example, they are ____
18 years old and of sound mind; married or in the military.
Testator Capacity
- The nature of their act—that is, that the testator is executing a will
- The nature and extent of their property
- The persons who are the natural objects of their bounty (family members)
- The above factors and be able to formulate an orderly scheme of disposition
The testator must have had capacity when _____; thus, all circumstances existing at that time are admissible, as well as evidence of the testator’s state of mind shortly before and shortly
after the will’s execution.
the will was executed
The fact that the testator was old, ill, possessed a failing memory, or was an alcoholic or drug addict ____ they lacked testamentary capacity.
does not mean (A mentally challenged individual can make a will as long as they meet the requirements above.)
An adjudication of insanity or an appointment of a guardian or conservator is ____. A person adjudicated incompetent may be able to execute a will during a ____.
evidence of a testator’s lack of capacity, but is not conclusive
“lucid interval.”
Testator Intent - Generally
The testator must have present intent that the instrument operate as their will. Promises to make a will in the future and ineffective deeds are not given effect as wills. Parol evidence is admissible to show that an instrument was not meant to have any effect (for example, that it was a sham will).
When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator:
(1) intended to dispose of the property;
(2) intended the disposition to occur only upon his death; and
(3) intended that the instrument in question accomplish the disposition.
To be valid and admissible to probate, a will must meet the ____ imposed by the statutes of the appropriate state.
formal requirements of due execution
The formalities required vary from state to state, but most states require that:
- The will or codicil must be in writing (at least 10 states permit wills to be in electronic form (“e-wills”) without any physical document)
- The will or codicil be signed by the testator, or by another at the testator’s direction and in their presence
- There be two attesting witnesses
- The testator sign the will (or acknowledge their previous signature or acknowledge the will) in each of the witnesses’ presence; and
- The witnesses sign in the testator’s presence
Some states impose one or more of the following additional requirements for execution of a will:
- The testator must sign at the end of the will
- The testator must “publish” the will (that is, declare to the witnesses that the document is the testator’s will); and
- The witnesses must sign in the presence of each other
Under the UPC a will is valid if either:
(1) it is attested by two competent witnesses, or
(2) it is signed by a notary.
Testator’s Signature requirement
Any mark made by the testator with the intent that it operate as their signature satisfies the signature requirement.
Proxy Signatures
- The testator’s signature may be made by another person at the testator’s direction and in their presence.
- If the proxy signer signs their own name as well, they may be counted as an attesting witness
Order of signatures
The order of signing is not critical as long as the signing is done as part of a single contemporaneous transaction.
Location of signatures
- In most states and under the UPC, a will is valid if signed anywhere on the instrument, not just at the end.
- Where the signature is required to be “at the end” and the testator signs elsewhere, some states hold the will is
void, while others uphold the will as valid but disregard everything following the signature.
Most states require that the will be attested by ____ competent witnesses.
two
Competency means that, at the time the will is executed, the witness is ____. Some states impose a ____.
mature enough and of sufficient mental capacity that they could testify in court on these matters
minimum age
States vary regarding whether the testator must ____ the will by informing the witnesses that the document is the testator’s will and regarding whether the witnesses must know they are witnessing a will. No state requires the witnesses to ____
“publish”; know the contents of the will.
At common law, a witness who was also a beneficiary was not competent, and the will could not be probated unless there were two other competent witnesses.
All states now provide that the will
is still valid, but the bequest to the interested witness may ____
be void under a “purging statute” unless they are supernumerary or would have taken a share as an heir if the will had not been probated.
Under the UPC gifts to interested witnesses are ____.
not purged
Creditors, fiduciaries under the will (for
example, trustees), and attorneys are not interested, and are not disqualified from ____
collecting debts or serving the
estate because they or their employees witnessed the will.
Some states require the testator to sign the will in the witnesses’ presence, and the witnesses to sign in the testator’s presence. To determine when a person is in another’s presence, most courts use
the ____ test.
Under this test, the presence requirement is satisfied if ____, and the act of signing took place within the ____ of the other parties.
“conscious presence”
each party was conscious of where the other parties were and what they were doing; general awareness and cognizance
For the presence requirement a substantial minority of courts use the ____ test, under which the requirement is satisfied only if the person was ____
“scope of vision”
in such close proximity that they could have seen the signing had they looked.
In most states, the witnesses do not need to attest in ____.
each other’s presence
Participating via ____ is not “presence” for the purpose of fulfilling execution requirements unless the state has specific e-will legislation.
telephone or computer
Attestation Clause
- An attestation clause recites the elements of due execution and is prima facie evidence of those elements.
- It is not required, but it is useful if a witness forgets or misremembers the facts surrounding the execution.
Self-Proving Affidavit
- A self-proving affidavit recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public.
- It functions like a deposition and eliminates the need to produce the witnesses in court years later; thus, probate is faster and cheaper.
It is common practice to use a self-proving affidavit with all wills because it is often difficult to ____
find witnesses as they die, are unavailable, or do not remember witnessing the will.
Jurisdictions vary as to whether the self-proving affidavit is a separate document executed after the will (meaning two sets of signatures are needed) or whether it can be incorporated into the will itself (meaning one set of signatures is needed).
- Many states authorize both methods.
- The majority view is that ____
the signatures on the affidavit can serve as the signatures needed on the will itself.
Some states and the UPC allow ____ to substitute for the attestation of witnesses.
notarization
Even though a will is not executed in accordance with all of the required statutory formalities (for example, there is only one witness), the UPC gives the court the authority to ignore _____. The defectively executed will can be given effect if the will proponent establishes ____
harmless errors
by clear and convincing evidence that the testator intended the document to be their will.
A holographic will is one that is _____
entirely in the testator’s handwriting and has no attesting witnesses.
States vary with regard to how much material may be typewritten before the will no longer qualifies as holographic, but the UPC and most states that recognize holographic wills accept a will that contains some typewritten text as long as ____
the portion not in the testator’s handwriting is not material.
A holographic will must contain the ____
testator’s signature, but it need not be at the end of the will.
Holographic wills and codicils are recognized by the ____. Most states that recognize holographic wills give effect to ____ after the will is completed.
UPC and a majority of the states
handwritten changes made by the testator
In contrast to holographic wills interlineations, changes in beneficiaries, amounts, etc., made after the execution of an attested will are usually ____. Watch for a fact pattern, however, where
these changes are made to an attested will in a jurisdiction that recognizes holographic wills. If the requirements are met, often these changes are construed as ____
not given effect, and in fact may work a revocation.
a valid holographic codicil.
Most states and the UPC do not recognize ____ wills.
oral (or “nuncupative”)
The small number of states that allow oral wills do so only for the disposition of ____ and only if made by:
personal property
(1) soldiers or sailors (with some states requiring an armed conflict in progress);
or (2) any person during their last sickness or in contemplation of immediate death.
+ immediate death.
ATTORNEY LIABILITY FOR NEGLIGENCE (majority/minority rules)
1 - In most states, an attorney’s duty runs not only to the client but also to the intended beneficiaries of the attorney’s services, and they can sue the attorney for negligence or as a third-party beneficiary of the attorney-client contract.
–> In such an action, the statute of limitations begins to run on the date
of the decedent’s death and not on the date the will was executed.
2 - A significant number of states still require privity between the attorney and a malpractice plaintiff (the intended beneficiaries would lack standing to sue the attorney for malpractice)
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILL EXECUTION: Classification Based on Type of Property
- A devise is a gift of real property, and the recipient of a devise is a devisee.
- A bequest is a gift of personal property. - A legacy is a gift of personal property in a will, usually of money, and the recipient is called a legatee.
A _____ is a gift of a particular item of property distinct from all other objects in the testator’s estate.
specific devise or legacy
Ex: “I leave my Sony computer Model VGN-FZ250E with a serial number of 458779027578 to Walter Bishop.”
A ____ is not distinguishable from the
rest of the testator’s estate until the testator dies.
specific bequest of a general nature
Ex: “I leave my computer to Walter Bishop.”
A general legacy is ____
a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment.
A demonstrative legacy is ____
a gift of a general amount that is to be paid from a particular source or fund.
Ex: “I leave $10,000 to Walter Bishop from my account at Superior State
Bank.”
A demonstrative legacy is a hybrid—it is treated as a specific legacy to the extent ____ and a general legacy to the extent of _____.
the source of payment is available; any shortfall of that source of payment (If the designated fund is insufficient, the balance will usually be paid from other assets of the estate)
The residuary estate, and hence a gift of the residue, consists of the balance of the testator’s property after paying
(1) debts, expenses, and taxes; and
(2) specific, general, and demonstrative gifts.
Ademption refers to ____
the failure of a gift because the property is no longer in the testator’s estate at the time of their death.
Ademption applies only to _____
specific devises and bequests.
Most states follow the ___ approach so that if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes ___.
“identity”; nothing (The beneficiary does not take a substitute gift nor the value of the gift, and the beneficiary cannot trace into the proceeds of the sale of the gift even if they are identifiable).
In most states, the court will not inquire into the ____ the property is no longer in the estate for ademption.
testator’s intent or the reason
A gift may be ____ adeemed, as where the testator devises a large tract of land and then conveys a portion of the tract during their life. The beneficiary takes ____.
partially; the remaining portion
Neither ____ are adeemed by an absence of cash or the specific asset in the estate; they will be satisfied by selling (or directly giving) other assets.
general nor demonstrative legacies
To avoid ademption, a court will attempt to construe a gift of securities as a ____, unless the testator specifically stated, for example, “my 200 shares of Acme stock.”
general legacy
Common Statutory Exceptions to the Ademption Doctrine
- Replacement Property
- Balance of Purchase Price
- Proceeds of Condemnation Award or Insurance
- Proceeds from Sale by Guardian or Conservator
Some states allow the beneficiary to receive replacement property if ____
the testator replaced the gifted item with another similar item.
If the testator sold the gifted item and the ____ to the testator, some states allow the beneficiary to receive the remaining money.
purchaser still owes money
Some states allow the beneficiary to receive a condemnation award paid after the testator’s death or casualty insurance proceeds for the loss of the property if ____.
they are paid after the testator’s death.
If the testator became incompetent and the specifically devised property was sold by a guardian, the beneficiary may be entitled to ____
a general pecuniary legacy equal to the amount of the proceeds.
ADEMPTION BY SATISFACTION
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect.
Most states require a ____ in the will before a gift is deemed a satisfaction. In UPC states, the doctrine does not apply unless ____.
However, a writing is not required if the testator gives ____ to the beneficiary; in this case, there is both a satisfaction of the legacy and an ademption.
writing or specific instructions; the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction
specifically described property
Appreciation and depreciation of specifically gifted property between will execution and death is ____
normally irrelevant.
Income on property goes into ____, but improvements to real property go to ____
the general estate; the specific devisee.
Any increase to specific gifts occurring after the testator’s death passes to the ____
specific beneficiary because the beneficiary is deemed to own the property from the time of the testator’s death.
At common law, a specific bequest of stock includes any additional shares produced by ____ but does not include shares produced by ____. Today, the UPC and nearly all states also include ____. The beneficiary will also take an increase in securities caused by ____.
a stock split; a stock dividend
stock dividends
a merger or corporate reorganization
The beneficiary does not take new securities that have been ____ or acquired by ____
purchased; the reinvestment of dividends.
While the common law and some states follow the contrary view, the UPC and a large number of states provide that liens on specifically devised property are not exonerated (paid off with estate
funds) unless_____. This means that generally the beneficiary takes the property subject to the debt.
the will so directs
Abatement is ____
the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises.
If the testator does not set out an order of abatement in the will, testamentary gifts will usually abate in the following order:
- Property passing by intestacy
- Residuary estate
- General legacies
- Demonstrative legacies
- Specific bequests and devises
Within a class, abatement is ____. In some states, personal property in each category is used before ____ in that category.
pro rata; real property
A gift lapses if ___
the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator because, for example, the beneficiary disclaimed or did not survive long enough.
Who receives a lapsed gift is controlled by:
- The express terms of the will
- Rule of law (such as an anti-lapse statute)
- Residuary clause
- Intestacy
Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was _____ and left descendants who survived the testator.
These descendants take by ____. The
statute applies unless ____.
in a specified degree of relationship to the testator (for example, descendant of the testator, the testator’s parent, or the testator’s grandparent)
substitution; a contrary provision appears in the will
In most states, ____ are considered a contrary will provision, and the anti-lapse statute will not be applied. Under the ___, however, mere words of survivorship are not sufficient to negate application of the anti-lapse statute.
words of survivorship; UPC
If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator (and the anti-lapse statute does not apply), some states follow the common law rule and ____
Most states, however, have replaced this “no residue of a residue” rule with one allowing ____
do not allow the surviving residuary beneficiaries to divide the deceased beneficiary’s share among them (unless the will specifies this) = Instead, the deceased beneficiary’s share passes by intestacy
the surviving residuary beneficiaries to divide the share in proportion to their interests in the residue (Note that if the
anti-lapse statute’s provisions are met, that statute takes precedence, and the deceased beneficiary’s descendants take.)
If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless _____
the will provides otherwise or the anti-lapse statute’s requirements are met
If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is ___.
void (In many states, the rules that apply to lapsed gifts also apply to void gifts.)
High Level requirements of will
- Legal capacity (17 years and sound mind)
- Testamentary capacity (act, property, family, orderly scheme)
- Testamentary intent (present intent that the instrument operate as their will)
- Formalities
Who raises interpretation and construction issues for wills?
- The personal representative who wants to do the right thing and thus avoid liability for improper administration
- Beneficiaries or heirs who would take under various will interpretations
The fact that the testator left a will, especially if it has a residuary clause, indicates ____. Therefore, favor the construction that ____
an intent not to die intestate; avoids intestacy
Among two or more contradictory provisions in a will, the ___ prevails
last one
The will is construed as ____, not from isolated parts out of context
a whole
Words are given their _____ meaning unless it is clear from the will that the testator intended otherwise.
Technical words are given their ____ unless it is clear from the will that the testator intended otherwise
ordinary and grammatical
technical meaning
The court will attempt to give effect to ____ the testator included in the will
all words
Types of ambiguity in wills
- Patent ambiguity
- Latent (Hidden) Ambiguity
- No Apparent Ambiguity—Mistake
A patent ambiguity exists if ____.
a provision is ambiguous on its face, that is, it fails to convey a sensible meaning
The traditional view is that extrinsic evidence is not admissible to correct a patent ambiguity, but the modern view is that _____. However, extrinsic evidence cannot be used to ____
extrinsic evidence is admissible
fill in blank spaces or supply omitted gifts.
A latent ambiguity exists when ____
the language of the will is clear on its face but cannot be carried out without further clarification.
Ex: To my sister, Pat,” but the testator has a sister named Chris and a brother named Pat.
The court will consider ____ to resolve a latent ambiguity.
extrinsic evidence
No Apparent Ambiguity
The situation may arise where a will provision is clear on its face and can be carried out as written, but a beneficiary or other interested person thinks the testator made a mistake.
No Apparent Ambiguity - traditional approach
Under this traditional approach, extrinsic evidence cannot be used to disturb the clear meaning of a will.
-> This rule enhances predictability for both the testator and the testator’s attorney because a testator can rest assured that the words chosen will take effect as written.
No Apparent Ambiguity - modern approach
Other jurisdictions adopt a more liberal rule that permits the use of extrinsic evidence. These courts hold that the evidence is significant and assists the court to carry out the testator’s intent.
INCORPORATION BY REFERENCE - basic idea
Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference.
INCORPORATION BY REFERENCE - Effect
The effect of incorporation by reference is that the incorporated material is treated as if it were actually written out in full in the will. It does not matter that the document, for example, lacked witnesses, is not signed, or was written under the influence.
A document may be incorporated by reference into a will, provided:
- The will manifests an intent to incorporate the document
- The document is in existence at the time the will is executed; and
- The document is sufficiently described in the will
The language of the will must refer to the extrinsic document in such a way that ____
it may be reasonably identified, and the document must correspond to the description in the will.
Many states and the UPC have carved out an exception to the requirement that the document exist at execution. These states permit a testator to _____
refer in their will to a list specifying the distribution of items of tangible personal property and to write or alter that list after executing the will.
An act or fact of independent significance is ____
something outside of a will which has a purpose other than disposing of property at death.
A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if _____. However, the
law may require certain items represented by title documents to ____
they have significance apart from their effect on dispositions made by the will
be transferred in a particular manner such as real property, stock certificates, and bank accounts.
Acts of third persons, as well as those of the ____, can be used under this doctrine (ACTS OR FACTS OF INDEPENDENT SIGNIFICANCE)
testator
Example of ACTS OR FACTS OF INDEPENDENT SIGNIFICANCE doctrine
Testatrix’s will provides, “I leave the contents of my safe deposit box Number 657 at New York State Bank to Tony Stark.” Even though Testatrix may change the contents of the box at any time after will execution, Tony will receive the contents of the box even if Testatrix does not execute a new will after changing the contents because the safe deposit box is a fact of independent significance.
A conditional will is one that ____
provides that it is to be operative only if a certain event occurs or does not occur.
Note that a court might interpret what appears to be a condition as merely expressing _____, and might give the will effect even if the condition does not occur.
the motive for making the will
Ex: Testatrix’s will states, “I have just been diagnosed with cancer and therefore I am writing this will.” Testatrix dies in a car accident. The will is not conditional on dying from cancer; the diagnosis was a mere inducement.
Parol evidence is not admissible to show that a will absolute on its face was _____
intended to be conditional.
A codicil modifies a previously executed will and must itself be
_____
executed with the same formalities.
Under the doctrine of republication by codicil, the will and codicil are ____
treated as one instrument speaking from the date of the last codicil’s execution.
For questions involving alterations on the face of the will, you must know that any addition, alteration, interlineation, or deletion made after the will has been signed and
attested is ____ to change the will, unless the will is ____
ineffective; reexecuted with proper formalities (or the changes qualify as a holographic codicil where such codicils are recognized).
A validly executed codicil is generally viewed as impliedly incorporating a _____ by reference, thus validating the will.
defective will
An invalid will technically cannot be republished. So even if the word “republish” is used in the codicil, the defective will is instead ____
impliedly incorporated by reference.
A pour-over provision is a provision in a will making ____
a gift to an inter vivos trust.
Most states have adopted the Uniform Testamentary Additions to Trusts Act, which permits a testator to ____ notwithstanding the fact that the trust may be amended or revoked after execution of the will.
The trust may be created ____ the testator executes the will.
The property will be governed by all trust amendments, even those made after the testator executed the will or dies. If the trust is revoked, the gift fails (lapses). The trust does not have to be ______
make a gift to a trustee of an inter vivos trust
before or after
funded prior to the testator’s death.
INTEGRATION
The person probating the will must be able to show that the pages present at the time of execution are those present at the time of probate.
____ raise a presumption that the pages were present and intended to be part of the will when it was executed. Proof of integration can also be provided by ____
Physical attachment, internal coherence of pages, or an
orderly dispositional plan
testimony or other extrinsic evidence.
Internal integration methods include:
- Pages fastened together
- Sentences flow page-to-page
- Ex toto pagination, such as “page x of y”
- Avoidance of blank spaces
- Testator and witnesses initialing of each page
Joint Wills
A joint will is a single instrument executed by two or more testators and intended to be the will of each.
-> This highly unadvisable technique was frequently used by married couples in the past.
Reciprocal or Mutual Wills
Reciprocal or mutual wills are separate wills executed by two or more testators that contain substantially similar provisions. These are often called “sweetheart wills.”
Ex: Husband leaves all of his estate to Wife or to kids if Wife predeceases. Wife leaves all of her estate to Husband or to kids if Husband predeceases.
Contractual Wills
A contractual will is a will executed or not revoked as the consideration for a contract. A contract to make, not to make, or not to revoke a will is valid.
Contract wills = ____ law, not ___ law, governs these issues. Modern law requires ___, and many states have enacted statutes requiring that these contracts be ____.
Contract; Wills
a writing; in writing or be specifically mentioned in the will
(Note = minority/Cl rule = could use any extrinsic evidence to establish contractual nature of will)
The mere execution of joint wills or mutual wills DOES NOT raise a
presumption that _____
the wills were executed pursuant to a promise by each party not to revoke.
A contractual will can be revoked by agreement between the parties while ____. The contract becomes irrevocable upon ____.
they are both alive; the first testator’s death
Breach of Contract Rules (for contractual wills)
- Generally, there is no remedy during the testator’s lifetime because the testator can comply up until death.
- If the testator repudiates the
contract after substantial performance by the promisee, however, the promisee may seek damages, quantum meruit, or equitable relief. - If the testator dies in breach, the usual remedy is for the court to grant a constructive trust for the benefit of the promisee.
There is no remedy for breach of contract not to revoke unless ____.
Thus, a ____ will be granted in favor of the beneficiaries of the contractual wills only if the ____
the first party dies in reliance on the contract
constructive trust; survivor disposes of the property in breach of the agreement after the first party dies in compliance with the agreement.
A power of appointment is ____
an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
General vs. Special Power of appointment
- General power of appointment: is a power exercisable in favor of anyone including the donee themself, their estate, their creditors, or the creditors of their estate.
- Special power of appointment: is a power exercisable in favor of a limited class of appointees, which
class does not include the donee, their estate, their creditors, or the
creditors of their estate.
Presently Exercisable vs. Testamentary Power of Appointment
- A presently exercisable power of appointment is one exercisable by the donee during their lifetime.
- A testamentary power is one that is exercisable only by the donee’s will.
A surviving spouse’s elective share does not apply to ____
property over which the deceased spouse held a power of appointment
Under the theory that the donee does not own the appointive property, if the donee does not exercise their general power (whether presently exercisable or testamentary), the donee’s creditors ____. If, however, the donee exercises the power, even if the donee appoints to another person, the donee’s creditors can _____.
cannot reach the property; reach the appointive property as if the donee were the owner
If the donee of a general power is also the donor, the donee’s creditors can ____
reach the appointive assets regardless of whether the donee exercises the power.
In nearly every state, a residuary clause, by itself, does not exercise any power of ____ held by the testator.
appointment
(minority rule) In states that have enacted the Revised Uniform Probate Code, a will’s residuary clause exercises a general (but not a special) power of appointment unless:
(1) the donor’s will called for its exercise by a specific reference to the power, or
(2) the donor’s will provides for a gift in default of appointment.
If a person holding a testamentary power executes a will that devises “all the rest and residue of my property, including any property over which I may have a power of appointment,” this “blanket” exercise of any power of appointment will be given effect unless ____
the creator of the power called for the power’s exercise by an instrument that specifically referred to the power.
The courts will find that a power of appointment (whether general or special) was exercised by implication when ___
the donee purports to dispose of property subject to the power as though it were the donee’s own, meaning that the disposition can be given effect only if it is treated as an exercise of the power.
An exercise by implication can be found unless ____
the donor called for the power’s exercise by a specific reference to the power.
Absent a contrary provision in the instrument creating the power, the donee of an appointment can:
appoint the property outright or in trust (and can include spendthrift provisions in the trust), create life estates and future interests, impose conditions and limitations on the interests created, and create additional powers of appointment.
A person with testamentary capacity may revoke their will at ____
any time prior to death.
A will may be revoked by:
operation of law, subsequent instrument, or by physical act.
Even a will that the testator has contractually agreed not to revoke may be revoked, but ____
the beneficiaries may then have a breach of contract action against the estate.
In most states, marriage following execution of a will has ____ on the earlier will.
no effect
In some states and under the UPC, however, the new spouse (after execution of a will) takes an intestate share as an “omitted spouse” unless:
- The will makes provision for the new spouse
- The omission was intentional, or
- The will was made in contemplation of the marriage
In most states, divorce or annulment following execution of a will revokes ____
all gifts and fiduciary appointments in favor of the former spouse
-> The will remains valid and is read as if the ex spouse predeceased the testator
-> The divorce must be final. If the parties remarry, the revocation does not occur.
The UPC and some non-UPC states extend the
application of the rule (revocation of gifts and appointments to ex-spouse) to provisions in favor of ____
the former spouse’s relatives who are not relatives of the testator.
Pretermitted child statutes - general idea
Most states have pretermitted child statutes. The purpose is to provide a share for a left out child on the assumption that the testator would have made provision for the child had the testator thought about it.
Pretermitted child statutes - what they do
Under these statutes, if the testator fails to provide in their will for any child born or adopted after the execution of the will, the child takes a share computed using statutorily provided formulas.
In many states, if the entire estate is left to the pretermitted child’s other parent, the child will ____.
not receive a forced share.
In making up the child’s share under Pretermitted child statutes, the general rules of abatement apply. Thus, the share usually comes out of _____
the residue, revoking the will to that extent.
REVOCATION BY PHYSICAL ACT
Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke.
For revocation by physical act The testator must have the intent to ____, and the intent must be _____.
If the will is destroyed _____, no revocation occurs.
revoke; concurrent with the act
accidentally or by mistake
Proxy Revocation
The testator may direct someone else to destroy or cancel the will, but under the law of most states, the physical act must be done at the testator’s request and in the testator’s presence.
Ex: Testatrix calls her attorney on the phone and says, “Tear up my will—I don’t want it anymore.” Attorney brings in two of his legal assistants to watch him tear up the will. The revocation is ineffective because it was not done in the presence of Testatrix even though it was at her direction and was done in the presence of two witnesses.
Partial Revocation by physical act
Most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes.
Extrinsic evidence is admissible to determine whether a ____ revocation was intended. Some states give no effect to the changes and probate the will as originally written.
partial or total
Effect of Revocation on Other Testamentary Instruments
The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will.
When a will has been executed in duplicate, an act of revocation done to either copy revokes the will unless _____. However, destruction of an ____ copy with intent to revoke does not revoke the will.
there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last” will.
unexecuted
All or part of a will may be revoked or altered by a subsequent instrument that is _____
executed with the same formalities as a will.
The subsequent instrument may ____ revoke the earlier will.
expressly
Ex: Testatrix’s will contains a provision stating, “I hereby revoke all prior wills and codicils.” This revokes all prior testamentary instruments.
Compare: Testatrix’s will states, “This is my last will.” This does not revoke all prior testamentary instruments.
Revocation by Inconsistency
- If the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency.
- If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions.
If a will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that _____
the testator did not revoke it.
If a will last seen in _____ cannot be found after their death or is found in a mutilated condition,
a rebuttable presumption arises that the testator revoked it. However, if the will was last seen in the possession of ____, no presumption of revocation arises.
the testator’s possession or under their control
a third person or if a person adversely affected by its contents had access to the will
Note that ____ is admissible to overcome the presumption of revocation.
extrinsic evidence
If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven:
(1) valid execution;
(2) the cause of nonproduction (that is, proof that the will was not revoked); and
(3) the contents of the will.
–> The contents are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will.
The fact pattern involving the revival of revoked wills looks like this:
- Testator executes valid Will 1.
- Testator executes valid Will 2 which expressly
revokes Will 1. - Testator then validly revokes Will 2.
- Is Will 1 revived?
Approaches to revival of revoked will:
- UPC Approach—Look at Testator’s Intent
- Automatic Revival Approach
- No Revival Approach
Under the UPC and in many states, if a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless _____. If the original will was only partly revoked, the revoked provisions are revived unless _____.
it is evident from the circumstances or the testator’s statements that the testator intended to revive (that is, restore to effectiveness) the previous will
it is evident from the circumstances
or the testator’s statements that the testator did not intend to revive the provisions (flipped around)
Automatic Revival Approach
In other states, revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death.
No Revival Approach
In some other states, a will, once revoked, is not revived when the subsequent will is itself revoked. The revocation clause is effective when executed just like a revocation by physical act. The earlier will can be revived only if it is re-executed (that is, re-signed and witnessed) or republished by a validly executed codicil.
The testator may state in the revoking instrument that a revocation is effective upon ____
the happening (or non-happening) of a named event
Implied Conditional Revocation or Dependent
Relative Revocation = the fact pattern involving dependent relative revocation (“DRR”) looks like this:
- Testator executes valid Will 1.
- Testator validly revokes Will 1 (for example, by ripping it up).
- Testator executes Will 2, but Will 2 is invalid (for example, because it was not properly witnessed).
The doctrine of dependent relative revocation applies when a testator revokes their will under ______. If the other disposition fails, the revocation also fails and the will remains in force.
the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will
To determine whether DRR applies, we ask the following questions:
- Was the revocation of Will 1 impliedly conditioned on the validity of Will 2?
- Would Testator have preferred Will 1 over intestacy?
The more ____, the more likely the court will apply DRR. The more ____, the more likely the testator would have preferred intestacy to Will 1, so the court will not apply DRR.
similar the provisions of the two wills
different the wills
The UPC’s ____ statute that applies to the execution of wills also applies to the attempted revocation or alteration of a will.
The proponent must establish by _____ that the decedent intended the document which does not meet the technical requirements for a valid will to be a partial or complete revocation of a will or an alteration of the will.
“harmless error”
clear and convincing evidence
Common law marital property states have elective share statutes that give the spouse ____
an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will.
Amount of Elective Share
The amount varies from state to state, but the typical amount is one-third of the net probate estate if the decedent is survived by issue and one-half if the decedent is not survived by issue.
Some states and the UPC base the amount on the duration of the marriage—for example, the spouse receives 3% if married one year going up to 50% if married 15 or more years.
Property Subject to Elective Share Election
- The share is usually calculated from the decedent’s net estate (probate estate minus expenses and creditors’ claims).
- Some states, however, apply the share fraction to the decedent’s “augmented” estate.
–> The augmented estate includes certain lifetime transfers such as the decedent’s share of jointly held property that passed by survivorship, bank accounts now payable to someone other than the surviving spouse, and life insurance proceeds not payable to the surviving spouse.
Notice for elective share election
The surviving spouse must file a notice of election within a specified period (usually six months from admission of the will to probate).
Only the surviving spouse, or the ____, may make the elective share election.
guardian of an incapacitated spouse
Effect of elective share Election on Testamentary Plan
- The elective share is paid first from the assets that, but for the election, would have passed to the surviving spouse.
- Beyond that, the abatement rules apply.
Lifetime transfers by the decedent may be subject to the elective share if _____
the decedent retained the power to revoke or to invade, consume, or dispose of the principal.
A testator may disinherit their children; pretermitted child statutes protect children from being ____
accidentally omitted.
Most states provide a forced share for a child who was born or adopted ____ the will was executed. Only a few states provide a forced share for a child born or adopted before the will execution
after
In many states and under the UPC, if a testator fails to provide in their will for a living child solely because the testator mistakenly believed _____, the child shares in the estate as though they were an omitted afterborn or after-adopted child.
the child to be dead
Jurisdictions vary as to how they determine the share of a pretermitted child. In many states, the pretermitted child takes an ____ share of the decedent’s estate.
intestate
Under the UPC and by statute in several non-UPC states, if the testator had other children at the time the will was executed and the will makes a provision for one or more of the children, the portion of the estate to which the pretermitted child is entitled is limited to _____. The bequests to the other children are reduced, but _____.
The pretermitted child takes such share of the bequests to the other children as the child _____, and had given an equal share of such benefits to each child.
the provisions made to the other children; no other beneficiary’s bequest is reduced
would have received had the testator included
the child with the children upon whom benefits were conferred under
the will
Many states withhold a pretermitted child’s forced share in the following circumstances:
- The testator had other children at the time the will was executed and devised substantially all of their estate to the other parent of
the omitted child - It appears from the will that the omission was intentional
- The testator provided for the omitted child by a transfer outside of the will in lieu of a testamentary gift
Republication of a will by codicil can result
in a change in a child’s status with respect to pretermission. A child born before the republication is not considered ____ and is not entitled to the protection of the statute.
pretermitted
Most states have statutes that protect the family ____ from creditors’ claims by exempting a certain amount of land. These statutes often provide that the decedent’s spouse or dependent children are entitled to _____.
residence or farm; occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s will
Family Allowance
To provide support during probate administration, and usually takes precedence over all claims other than funeral and administration expenses.
It is in addition to the amount passing by will, intestacy, or elective share.
-> Some states
limit the allowance to a specific dollar amount (for example, $15,000), while others authorize payment of an amount needed to maintain the spouse and children for one year or a “reasonable amount.”
A surviving spouse (or if none, minor children) is usually entitled to petition to set aside certain items of ____ as exempt from claims against the estate except for perfected security interests on the items themselves.
These items are ____ the amounts passing by will, intestacy, or elective share.
tangible personal property (for example, household furnishings, personal effects, farm equipment, and, sometimes, automobiles)
in addition to
States vary considerably with regard to how quickly a will contest must be filed. Time periods can be as short as a few months or as
long as several years. All legatees under the will and all intestate heirs are _____
necessary parties and are entitled to notice.
Standing for will contests
Only interested parties (that is, those whose interests would be adversely affected by the admission of the will) have standing to contest a will.
- This includes heirs (because they would receive the estate by intestacy if the will is invalid) and, in some states, beneficiaries of prior wills (because if the will is invalid, property would pass under the testator’s prior will).
____ are not interested parties to contest a will.
Creditors, executors, and testamentary
trustees
The ____ has the burden to prove the will is invalid.
will contestant
If only a portion of a will is found to have been procured by undue influence, fraud, duress, or mistake, only _____ void and the remainder is given effect. Partial failure is rare because the procurement typically ____.
that part is; impacts the entire disposition scheme
A will contest challenges the validity of a document offered for probate. Grounds for challenge are:
(1) defective execution,
(2) revocation,
(3) lack of testamentary capacity,
(4) lack of testamentary intent,
(5) undue influence or duress,
(6) fraud, and
(7) mistake
An insane delusion is ___
a belief in facts that do not exist and that no rational person would believe existed.
Insane delusion destroys testamentary capacity only if ____
there is a connection (nexus) between
the insane delusion and the property disposition.
–> An insane delusion may invalidate an entire will or only a particular gift, because the will is set aside only to the extent that the delusion caused the testamentary disposition.
A person can hound and badger someone to make a will. Only if the influence is ____ is there a problem.
undue
To establish undue influence, the contestants must establish that:
- The influence existed and was exerted
- The effect of the influence was to overpower the mind and free will of the testator (so that the will reflects the desires of the person exerting the influence instead of the testator); and
- The resulting testamentary disposition would not have been executed but for the influence (causation)
For exam purposes, keep in mind that mere ____ do not constitute undue influence. The free will of the testator must be destroyed.
pleading, begging, nagging, cajoling, or even threatening
Direct evidence of undue influence is seldom available, so the court will look at the following factors.
- Unnatural dispositions, such as cutting out close family
- Opportunity or access to testator
- Confidential or fiduciary relationship between parties
- The ability of the testator to resist
- The beneficiary’s involvement with the drafting or execution of the will
–> Note that none of them, or even all of them, are conclusive that undue influence existed.
The opportunity to ____, the susceptibility of the testator to ____, or an unnatural disposition
favoring ____ alone is insufficient to establish undue influence.
influence the testator; influence due to age or poor health; some of the testator’s relatives over others
A presumption of undue influence arises when
(1) there was a confidential relationship between the testator and a beneficiary (that is,
the testator placed an unusual amount of confidence in the beneficiary,
and relied on the beneficiary); and
(2) that beneficiary was active in procuring, drafting, or executing the will
+ (Some states add a third requirement—that the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence.)
–> Once these elements are shown, the burden of proof shifts to the will proponent
Although a husband and wife share a confidential relationship, a presumption of undue influence does not arise between spouses unless the spouse exerted influence over the testator in such a manner that it:
(1) overpowered the free will of the testator, and
(2) resulted in a disposition reflecting the desires of the spouse exerting the influence.
If the attorney who drafted the will is also a beneficiary, many states ____ to the attorney unless the testator and the attorney are
closely related. The attorney may also be in violation of ethical rules.
void the gift
Duress is a form of undue influence but connotes _____ such as the threat of physical harm.
violent conduct
A successful contest on grounds of fraud requires that the testator have been ____ deceived as to:
willfully
(1) the character or content of the instrument,
(2) extrinsic facts that would induce the will or a particular disposition, or
(3) facts material to a disposition
If a testator is fraudulently prevented from ____, some courts will impose a constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made
making a will
Elements of Fraud
- False representation made to the testator
- Knowledge of falsity by person making the statement
- The testator reasonably believed the statement
- The statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation
In the case of fraud in the execution, there is a misrepresentation as to ____
the identity or contents of the instrument—that is, the testator did not know the document was a will or what it contained. There was a
lack of testamentary intent.
Ex: Asking Stevie Wonder to sign something that he thinks is for a fan but its a will
In the case of fraud in the inducement, the testator knows ____, but the testator is deceived as to ____.
they are executing a will and what it contains
some extrinsic fact and makes the will or a gift based on that fact
–> The will or the particular gifts affected by the fraud must be set aside.
A mistake is an error that was not caused by ____
evil conduct—no fraud or undue influence, etc.
In the case of mistake in the execution, the testator is in error regarding the identity or contents of the instrument and thus lacks
_____.
testamentary intent.
____ is admissible to show that a testator did not know that the instrument they were signing was a will, because the existence of testamentary intent is at issue. If the testator mistakenly signs the wrong will (for example, a husband and wife sign each other’s will), some courts will deny relief, but the better view is that the court will grant relief where ____.
Extrinsic evidence; the nature of the mistake is obvious
In the case of mistake in inducement, the testator is mistaken as to some extrinsic fact and makes their will based on that erroneous fact.
If the mistake involves the reasons a testator made their will a particular way and the mistake was not fraudulently induced, the court will _____. Relief might be granted, however, if the mistaken inducement appears ____.
The UPC and several states also provide relief if a child was omitted because the testator mistakenly believed the child was dead.
not normally grant relief; on the face of the will
Reformation for Mistake Under the UPC
Under the UPC, a court may reform a will, even if the will is unambiguous, to conform to the testator’s intent if it is proven by clear and
convincing evidence that the testator’s intent and the terms of the will were affected by a mistake of fact or law. This includes mistakes
involving both the expression of terms and inducement to make the will or any of its provisions.
A no-contest clause (sometimes called an in terrorem clause) is ____
a clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose.
–> The goal is to scare a beneficiary who would get more money by intestacy into not contesting for fear of getting nothing if the contest fails.
Under the UPC and in most states, a no-contest clause is valid and will be enforced unless ____
the beneficiary had probable cause for bringing the contest.
Some states (minority rule) give a no-contest clause ____, regardless of whether there was probable cause for challenging the will.
full effect
“Probate” refers to ___
the proceeding in which an instrument is judicially determined to be the will of the decedent or in which a decedent’s heirs are determined.
A _____ is appointed to carry out the estate administration.
If named in the will, the personal representative is an ____; if not so named, they are an ____.
personal representative
executor; administrator
Testate estates must go through some form of court proceeding to _____. Intestate estates also need a court proceeding so that the ____ are judicially determined.
have the will determined to be valid; intestate’s heirs
Primary probate jurisdiction is in the state of ____. Ancillary jurisdiction may be wherever the ____.
the decedent’s domicile at the time of death; decedent’s assets are located
Any person who has ____ may serve as personal representative. If an executor is named in the will, they will be appointed as personal representative unless ____. If no
executor is named in the will or if the executor named cannot serve, or if the estate is intestate, an administrator will be ____.
capacity to contract; disqualified; appointed
A personal representative must ____ unless the testator has provided in the will that no bond is required or state law ____ unless the testator or the court requires one.
file a bond; does not require a bond
The primary functions of the personal representative are to:
(1) give notice to devisees, heirs, and claimants against the estate;
(2) discover and collect the decedent’s probate assets and file an inventory;
(3) manage the assets of the estate during administration;
(4) pay expenses of administration, claims against the estate, and taxes;
and
(5) distribute property.
Like a trustee, a personal representative serves in a fiduciary capacity. Unlike a trustee, a personal representative is primarily a ____ and generally must have court approval for such activities as borrowing money, operating a business, or selling property. (However, some states allow the personal representative under certain conditions to administer the state without court involvement.)
liquidator
The personal representative is entitled to ____.
compensation for their services
- Rates of compensation may be governed by statute, or if there is no controlling statute, the court has discretion to award reasonable compensation.
- Alternatively, the testator may provide compensation for the executor by means of a gift in the will or provide that the executor is to serve without pay.
The court may deny compensation where the personal representative has engaged in
______
dishonest or fraudulent conduct or has neglected their duties.
The personal representative must give notice of administration to creditors of the estate. Creditors must then ____ within a specified period of time or the claims may be barred.
file their claims
Claims are generally paid in the following order:
(1) administration expenses,
(2) funeral expenses and expenses of the last illness,
(3) family allowance,
(4) debts given preference under federal law, (5) secured claims,
(6) judgments entered against the decedent during his lifetime, and
(7) all other claims.
A living will states an individual’s desires regarding:
(1) whether to administer, withhold, or withdraw life-sustaining procedures;
(2) whether to provide, withhold, or withdraw artificial nutrition or hydration;
and
(3) whether to provide treatment to alleviate pain.
A durable healthcare power (also called a medical power of attorney) appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until ____
the principal becomes incapacitated.
Most states require that living wills and durable healthcare powers be:
(1) in writing,
(2) signed by the declarant or principal or another at the person’s direction, and
(3) witnessed by two adult witnesses.
-> In contrast, the Uniform Health Care Decisions Act does not require any witnesses for a durable healthcare power.
-> Some states dispense with witnesses if the document is notarized.
Most (but not all) of these states provide that the person designated as the agent cannot serve as ____
a necessary witness.
LIVING WILLS AND DURABLE HEALTHCARE POWERS: The declarant or principal must be an adult and of sound mind. Capacity is _____
presumed, so the burden of proof is on the challenger.
Even when a durable healthcare power is not properly witnessed, the designated agent may nonetheless have authority to act under ____
a state’s “family consent” or “statutory surrogate” statute.
-> These laws, enacted in some states, permit a close family member to act as a surrogate decisionmaker for a person who has not properly designated an agent under the state’s durable healthcare power statute.
A living will can be revoked at any time by:
(1) obliterating, burning, tearing, or destroying the will;
(2) a written revocation of the will; or
(3) an oral expression of intent to revoke the will.
Generally, a durable healthcare power can be revoked by:
notifying either the agent or the principal’s healthcare provider, and the revocation can be either oral or written.
+ Some states also allow revocation of a durable healthcare power in the same manner as that for living wills.
Many states provide that a principal can appoint as agent (under a DURABLE HEALTHCARE POWER) anyone except:
an owner, operator, or employee of a healthcare facility which the principal is receiving care, unless that individual is related
to the principal.
AUTHORITY OF AGENT UNDER DURABLE
HEALTHCARE POWER
The agent has the authority to make most healthcare decisions on the principal’s behalf that the principal could have made for themself while having capacity.
- The authority of the agent is within the discretion of the principal and must be stated in the instrument creating the durable healthcare power.
- If specific powers are not expressed
or stated in the instrument creating the durable healthcare power, the agent must act in the principal’s best interest.
- The agent is not subject to civil or criminal liability or to discipline for unprofessional conduct relating to healthcare decisions provided the agent acted in good faith.
