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Wills Flashcards

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1
Q

Nonprobate property

A

inter vivos outright gifts
inter vivos “living” trusts
future interests
co-tenancy and joint tenancy
life insurance
brank arrangments (accounts)
Totten trust
Joint or Survivor accounts
payable on death designations
Deeds held in escrow

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2
Q

What does intestate succession mean?

A

Someone dies without having made a will or the will is denied in probate

OR

the will doesn’t dispose of all their property

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3
Q

Which marital law applies?

A

The law of the domicile (common law marital property system or community property system) at the time the property was acquired

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4
Q

Which intestacy law applies?

A

Personal property –> domicile at death

real property –> the law of the situs

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5
Q

Modern Spousal Intestate Right

A

If the decedent has descendants not the spouse’s descendants –> usually 1/2 or 1/3 or a specific amount

if the decedent’s descendants are the spouse’s descendants –> spouse takes all

No descendants –> spouse takes all

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6
Q

What is a descendant?

A

Someone descending in the lineal line like grandchildren and children

These always trump parents, siblings, aunts and uncles if they are there

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7
Q

Default Arrangement for Descendent Children

A

If all decendent’s children survive the decendent (or his children that don’t survive don’t have children (no grandchildren)) each child receives an equal share.

Grandchildren can’t take if their parent is alive

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8
Q

Classic Computing Shares

A

Classic Per Stirpes

Per Capita with Representation

Per Capita with Each Generational Level

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9
Q

Per stripes

A

Each surviging child gets a share and one share for each nonsurviving child that has a descendent

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10
Q

Per Capita with Representation (Majority Rule)

A

Property is divided into equal shares at the first generational level at which there are living takers. Each person not alive at that level has their descendants get their share by representation.

Result is if all children are deceased, all living grandchildren get equal share

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11
Q

Per capita at each generational level (modern trend)

A

Modern and UPC approach

INitial division at the first genreational level where there are living takers, but the rest is combined and divided equally at next level.

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12
Q

Intestate Succession in a Typical State Arrangement

A

Spouse and or descendants

parents

descendants of parents (siblings or their descendants)

grandparents or descendents

nearest maternal or paternal kin

state

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13
Q

Adopted Children’s Right in Intestacy

A

Treated like a natural child regardless of when they are adopted

Jurisdictions vary on whether they can still take from their biological parents but usually they don’t

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14
Q

Stepchildren and foster children

A

generally don’t get intestate inheritance unless adopted unless adoption by estoppel

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15
Q

Adoption by estoppel

A

Permits a child to inherit from or through a stepparent or forster parent when legal custody is gained with an agreement to adopt

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16
Q

Nonmarital children

A

Will inherit from mom

Will inherit from dad if
1) father married mother after birth
2) man adjudicated to be the father in a paternity suit
3) his death and during probate proceedings the man is proved by clear and convincing evidence

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17
Q

Half bloods and whole bloods

A

Half bloods share one common parent

Half bloods and whole bloods inherit equally under UPC and most states, others reduce half bloods

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18
Q

Posthumous children

A

these are children born after death of parent

most states allow them to inherit, some allow if not in gestation but born in a certain period of time

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19
Q

Disinheritance clauses

A

A decedent can make a “negative” will to remove someone from the inheritance line

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20
Q

Definition of an Advancement

A

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

Courts presume not an advancement unless shown to be intended as such

look for

1) contemporaneous writing by donor
2) acknowledged as such ina writing by heir

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21
Q

Procedure if Advancement is Found

A

Gifts value is added back to estate for purpose of calculation but then subtracted from recipient’s share

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22
Q

Advancee Predeceases Intestate

A

Most states the advancement is binding on the estate of the advance, but UPC doesn’t make it binding unless the writing requires it

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23
Q

Simultaneous Death of Beneficiary and Intestate

A

You must outlive the intestate to inherit

When difficult to tell, most states have the Uniform Simultaneous Deaht Act which doesn’t apply if you survive by mere minutes.

Others follow the revised USDA which requires outlive by 120 hrs

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24
Q

USDA v. Wills

A

If the will gives different qualifications for outliving, you follow the will/

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25
Q

Disclaimers

A

when an heir or beneficiary doesn’t accept and they cannot be forced to accept

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26
Q

Requirements for a Disclaimer

A

written
signed by disclaimant
acknowledged by a notory
filed in appropriate court within 9 months of death

for feds - written, irrevocable, filed in 9 months or the beneficiary 21st birthday

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27
Q

Can you disclaim on behalf of a child or person without capacity?

A

Yes, if court finds it is in the interest of the beneficiary

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28
Q

Effect of Disclaimer

A

It is like the disclaimer died before the intestate and it accelerates remainders

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29
Q

Decedent’s death caused by heir or beneficiary

A

In nearly all states, feloniously causing the death of the decedent forfeits your interest. (must prove by preponderance of evidence)

This is usually done via slayer statue

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30
Q

What constitutes a will?

A

An instrument that disposes of probate property

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31
Q

Codicil

A

a supplement to the will that modifies it

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32
Q

Are wills revocable?

A

Wills are freely revocable during the testator’s lifetime and operative at their death

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33
Q

Which law applies when it comes to a will?

A

For real property, the law of wills where the property is located

for personal property, the law of where the domicile is

After these laws determine if it is probate, the local law governs construction and application

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34
Q

Will Requirements

A

Legal capacity
testamentary capacity
testamentary intent

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35
Q

Execution of Attested Wills Requires

A

Will or codicil in writing
signed by testatory or another at their direction
two attesting witnesses
testator signs in the presence of the witnesses
witnesses sign in testator’s presence

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36
Q

Legal Capacity Requirement

A

Must be 18 years old and sound mind exception for those married or in military

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37
Q

Testamentary capcity

A

Must understand

nature of the act

nature and extent of property (not exactly though)

persons who are natural objects of their bounty

formulate an orderly scheme of disposition

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38
Q

When is testamentary capcity determined?

A

At will execution

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39
Q

What if the testator is a drug addict or mentally or physically ill?

A

If they had the testamentary capacity at the time it is fine

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40
Q

Testamentary intent

A

Must have present intent that the instrument operate as a will (future promises don’t make it)

Can use parol evidence to show that an instrument was not meant to be a will

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41
Q

What do you do if it isn’t clear if the instrument was meant to be a will?

A

Must show

1) intended to dispose of the property
2) intended the disposition to occur only upon his death

3) intended that the instrument in question accomplish the disposition

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42
Q

Additional Requirements some states impose on addiitonal requirements

A

testator must sign at the end

publish the will

witnesses must sign in presence of each other

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43
Q

What constitutes a testator’s signature?

A

any mark made by the testator with the intent that it operate as their signature satisfies the signature requirement

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44
Q

Can you use a proxy signature?

A

Yes if it is at the testator’s direction and in their pesence

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45
Q

Does it matter who signs in what order?

A

No just needs to be contemporaneous transacton

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46
Q

What is required to be a competent witness?

A

mature enough and sufficient mental capacity (usually a minimum age)

common law: can’t be a beneficiary
statutes today: will valid but interested witness maybe voided out if they would not have taken if the will was not in probate

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47
Q

Presence Requirement

A

Have to be within the general awareness and cognizance of the other parties

Scope of vision test – satisfied if could have been seen signing had they looked

Phone calls not good enough unless e-will legislation is there

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48
Q

Attestation clause

A

If there is one it is prima facie evidence of the facts within the instrument and is signed by the witnesses and recites the formalities required to make it effective.

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49
Q

Self-proving affidavit

A

affidavit that recites all the elements of due execution were performed and is swon to by the testator and witnesses before a notary public

Is like a deposition and eliminate the need to produce the witnesses in court years later

Signatures here count for will

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50
Q

What can you do with a harmless error?

A

even if not executed perfectly, the UPC can ignore harmless errors

effectively executed wills can be given effect by clear and convincing evidence that testator intended the document to their will

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51
Q

Holographic wills

A

One that is entirely in the testator’s handwriting and has no attesting witnesses

MUST HAVE A SIGNATURE, even if it is a nickname

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52
Q

Interlineations

A

Interlineations are changes in the execution of an attested will are usually not given effect, and maybe a revocation

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53
Q

Oral wills

A

Generally not accepted except for small disposition of personal property, soldiers or sailors, or someone during their last sickness or in contemplation of death

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54
Q

Attorney liability to third parties

A

You can have duty to intended beneficiaries of the attonrey’s service and they can sue for negligent preparation or execution of a will

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55
Q

Devise v. Bequest v. Legacy

A

Devise – gift of real property to a devisee
Bequest – gift of personal property
Legacy – gift of personal property in a will, usually money to a legatee

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56
Q

General Legacy

A

A general legacy is a gift of general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment

Example: 100 shares of stock from XYZ Co. or 100 acres of property in Utah County count if the testator never owned them and intended the executor to purchase them

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57
Q

Demonstrative legacy

A

A gift of general amount that is paid from a particular source or fund and is a hybrid.

Treated as specific legacies to the extent the source of the payment is available and a general legacy to extent of any shortfall on the source of the payment

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58
Q

Specific devise or legacy

A

Gift of a particular item of property that is distinct from all other objects in the testator’s estate

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59
Q

Residuary Estate

A

The residuary estate is the gift of the residue - the balance of the property after

1) paying all debts, expenses, taxes

2) specific, general or demonstrative gifts

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59
Q

Ademption defined

A

Failure of a gift because property is no longer in the testator’s estate at the time of death

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60
Q

To what do ademptions apply?

A

Specific devisees and bequests are the ONLY gifts that can be adeemed and the beneficiary does not get a substitute gift

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61
Q

Partial Ademption

A

Occurrs when a part of a gift is adeemed. Think a large parcel that had part of it given away

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62
Q

Statutory Exceptions to Ademption

A

Replacement property - some states allow the beneficiary to take the item that replaced the adeemed item

Balance and Purchase Price - if testator sold the gifted item and purchaser still owes money to the testator, some states allow the beneficiary to receive the remaining money

Proceeds of Condemnation Award or Insurance – some states allow beneficiary to receive a condemnation award paid after T’s deathor casualty insurance proceeds for the loss of property

Proceeds from Sale by Guardian or Conservator

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63
Q

Ademption by Satisfaction

A

A testimentary 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.

A writing or specific instruction in the will is usually required to have a satisfaction

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64
Q

Increases in property value before and after death

A

If there’s an income, it goes to the general estate. IMprovmenets to real property go to the specific devisee

Appreciation after goes to beneficiary because they own it after the death of the testator

65
Q

Exoneration of liens

A

Common law and some states say otherwise, but the UPC and most states provide that liens on specifically devised property are NOT EXONERATED UNLESS THE WILL SO DIRECTS

Beneficiaries take subject to debt

66
Q

Abatement Defined

A

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

67
Q

Order of Abatement (unless will says otherwise)

A

Intestate property

Residuary estate

General legacies

Demonstrative legacies

Specific bequests and devises

68
Q

Lapsed Gifts

A

A gift lapses if the beneficiary dies before the testator or is treated as dead because they disclaimed

69
Q

Who recieves lapsed gifts?

A

Determined by

1) express terms of the will
2) Rule of law (anti-lapse statutes)
3) residuary clause
4) intestacy

70
Q

Anti-Lapse Statutes

A

These operate to save gifts if the beneficiary had a special relationship with the testator (parent, grandparent) and left descendants who survived the testator

Descendents take by substitution UNLESS the will says otherwise

  • most states see words of survivorship as enough
  • UPC says words of survivorship as NOT ENOUGH
71
Q

Lapse of Residuary Gifts

A

CL said no residue of residue and any residuary shares were invalid and went to heir via intestate>

Modern approach, if residue is devised to two or more persons, the residuary beneficiary’s share will pass to the other residuary beneficiaries.

This only applies if the anti-lapse statue doesn’t produce a substitute taker

71
Q

Who in a class gift take?

A

Class members who survive the testator unless the will says otherwise

72
Q

Basic Rules of Will Construction

A
  • interpret in a way to avoid intestacy
  • last will prevails
  • ordinary things get ordinary meaning
  • technical words get technical meaning
  • will is construed as a whole, not out of context
  • give effect to all words
73
Q

What do you do if the will is parent or obviously ambiguous?

A

Modern view is extrinsic evidence is admissible to clarify ambiguity but NOT fill in gaps or omitted gifts

74
Q

How do you resolve latent ambiguity?

A

Language is clear on face but can’t be carried out without clarification

Consider extrinsic evidnece

75
Q

No apparent ambiguity – mistake

A

It looks clear and it can be carried out, but someone thinks there’s a mistake

–> Traditional rule is to follow the plain meaning rule and not use extrinsic evidence

–> modern rule permits extrinsic evidence

76
Q

Incorporation by Reference Basic Idea and Effect

A

A will can incorporate another document by reference and it becomes as if it was written

77
Q

Requirements for Incorporation

A

Will must manifest intent to incorporate

Document must be in existence at the time the will is executed

Document be must sufficiently described in the will

78
Q

Acts or Facts of Independnet Significance

A

Court may use an act of independent significance to fill in any gaps of a will.

Acts of independent significance are those with significance outside the will making process

79
Q

Conditional Wills Defined

A

Operative only if a certain event occurs or does not occur.

Courts construe wills as general and not see motive as conditional.

Parol evidence is NOT ADMISSIBLE TO SHOW a will was absolute on its face was intended to be conditional

80
Q

Codicils Republication

A

Modifies previously executed will and must be executed under the same formalities (written, signed, witnessed)

Treat the codicil and will as one document

81
Q

Changes or alterations that are not re-executed have what status?

A

Ineffective. All changes need to be reexecuetd with proper formalities

82
Q

Effect of a codicil on a prior invalid will

A

A properly executed codicil will validate a prior invalid will as an incorporation by reference

83
Q

Pour-over Provisions in a Will

A

A pour-over provision in a will gifts property to a previously established trust.

Distributed according to the terms of the trust.

Distinguished from a testamentary trust because it doesn’t create the trust, it just puts it in the preexisting trust.

84
Q

Integration and how to prove it

A

You show that the pages present at the time of execution are present at the time of probate.

Can prove by physical attachment, internal coherence of pages, orderly disposition, testimony or other extrinsic evidence

85
Q

Combination Will Types

A

Joint Wills - one will made by two or more testators and intended to be the will of each (not advisable)

Reciprocal or Mutual Wills - separate wills that contain similar provisions (sweetheart wills)

Contractual Wills - executed or not revoked as consideration for a contract.

All governed by contract law

86
Q

Contracts to not revoke will

A

A joint will or mutual will DOES NOT create a presumption of a contract not to revoke a will.

Can be revoked by agreement between parties while both alive and becomes irrevocable on first testator’s death

UPC doesn’t address this but some states recognize revocation if there is sufficient notice before one party dies

87
Q

Breach of of Valid Agreement to Execute Mutual Wills

A

Court will probate the new will and then impose a constructive trust in favor of the original intended beneficiaries under the contractual will

88
Q

When does a contract not to revoke get breached?

A

No breach if the other party has the chance to change will to not rely on the other

Breach if one dies in compliance and the other breaches and moves property or makes a new will

Merely stating you’re breaching without more is not enough while alive

89
Q

Power of Appointment

A

The testator gives another person the power to decide where and to whom the testator’s property will go has the power of appointment

90
Q

General Power of Appointment

A

Testator DOES NOT leave any conditions or restrictions as to the appointment of property.

91
Q

Testimentary power of appointment

A

Only can be exercised by the donee’s will and according to donor’s conditions. Can’t do it while alive

92
Q

Presently Exercisable Appointment Power

A

The donee can exercise appointment power during their lifetime

93
Q

Special Power of Appointment

A

The testator/donor makes a limited class of appointees which class doesn’t include the donee, their estate, creditors or creditors of the donees estate

94
Q

Appointed Estates v. Spouse’s Elective Share

A

Spouse’s elective share doesn’t apply to property the deceased spouse held a power of appointment

95
Q

General Creditors and Appointive Property

A

Donee doesn’t own the appointive property, if the donee doesn’t exercise their general power the donee’s creditors cannot creat the property.

If they do exercise it, even appointing someone else, the donee’s creditors can reach the appointive property as if the donee was the owner

If a donee is also the donor, the donee’s creditors can reach the appointive assets regardless of whether donee exercises that power

96
Q

Do residual clauses create appointment power?

A

Generally no, a residual clause by itself does not create any power of appointment. A minority of states that use the Revised Uniform Probate Code hold a will’s residuary clase exercises a general power of appointing unless

1) the donor’s will called for its specific reference to the power
2) the donor’s will provides for a gift in default of appointment

97
Q

Blanket Appointment Clauses

A

Given effect unless creator of the power called for the power’s exercise by an instrument that specifically referred to the power

98
Q

Appointment by Implication

A

Found when the donee purports to dispose of property subject to the appointment power as if it was the donee’s own. By implication found unless the donor called for the power’s exercise by specific reference to the power

99
Q

What interests can an appointment create?

A

Appoint property outright
in trust
life estates
future interests
impose conditions and limitations on interests
create additional powers of appointment

99
Q

Revocation of Wills Generally

A

A testator may revoke their will at any time prior to death

99
Q

Methods of Revocation

A

Operation of law
subsequent instrument
physical act

100
Q

Revocation by Operation of Law Types

A

Marriage following execution

Divorce or annulment

Pretermitted children

101
Q

Effect of a Marriage following execution of a will

A

In most states it has no effect on the earlier will.

In some states and the UPC, the new spouse takes an intestate share as an “omitted spouse” unless

  • will makes provision for new spouse
  • omission intentional
  • will made in contemplation of the marriage
102
Q

Effect of Divorce or Annulment on an Executed Will

A

Divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse

The will is valid it just treats the spouse as dead

Some states and UPC also strike former spouse’s relatives who are not relatives of the testator

Divorce must be final

103
Q

Pretermitted Children

A

Provides a share to a left-out child that the testator would have given a share to had they thought about it.

Applies after the will is executed

104
Q

Revocation by Physical Act

A

A will or codicil can be revoked by burning, tearing, cancelling, or obliterating a material portion of the will with the intent to revoke. Accidental destruction is insufficient.

105
Q

Proxy Revocation

A

Testators may direct a third party to destroy or cancel a will, but it must be done at their request and in their presence

106
Q

Partial Physical Revocations

A

States permit partial revocations when there is sufficient evidence that the tesator made the changes

Extrinsic evidence permitted

Some states don’t permit this

107
Q

Revocation and Other Testimentary Documents

A

A revocation of a will terminates all codicils but the revocation of a codicil doesn’t revoke the will

Destroying unexecuted copies of a will do not revoke the will

108
Q

Types of Revocation by Written Instrument

A

Express revocation - expressly says prior will is revoked

Inconsistency -

1) If the new instrument completely disposes of the testator’s property, the old will is completely revoked.

2) If there’s partial disposition, the old will is only revoked so far as it is inconsistent

109
Q

Presumptions and Revocations

A

Wills found in a normal place and no suspicious circumstances are presumed to not have been revoked

Wills last seen in the testator’s possession or under their control but not found or is found in a mutilated condition is presumed to be revoked. If in a third party possession no presumption.

We presume lost or destroyed wills are revoked unless you can prove

1) valid execution
2) cause of nonproduction of the will
3) contents of the will

110
Q

What are the three approaches to revival of revoked wills?

A

UPC – look at the testor’s intention - revoked unless evident that intended to revive the will

Automatic revival - a revocation of a second will revives the prior

No revival approach – once revoked it can’t be brought back unless re-executed or there’s a valid codicil

111
Q

Express Conditional Revocation

A

Testator may state in the revoking instrument that a revocation is effective on a happening or nonhappening

112
Q

Dependent Relative Revocation

A

Applies when a testator revokes a will under the mistaken belief that another disposition of their property would be effective, and but for that mistaken belief, they would not have revoked the will.

113
Q

Questions to ask if a DPR applies>

A

Was the revocation of W1 conditioned on the validity of W2?

Would Testator have preferred intestacy to W1?

114
Q

Harmless Error Statute

A

A proponent must show by clear and convincing evidence that a testator intended a document that doesn’t meet the requirements to be a valid will to be a partial or complete revocation of a will

115
Q

Pretermitted children and family protection

A

Pretermitted Children:
a child left out unintentionally from the will

  • if born or adopted after the execution, child is entitled to an intestate share unless intentionally omitted from the will
  • some states don’t allow recovery if provided for outside the will
  • if child was living at the time of execution, not entitled to share unless child was omitted because testator did not know they were alive
  • some states presume a child is unintentionally omitted unless evidence says otherwise
116
Q

Types of Family Protection

A

Spousal elective share

Pretermitted Children

117
Q

Spouse’s elective share

A

Give a surviving spouse the right to take a statutory share of the deceased estate and varies by state (typically 1/3 of net probate estate)

Elective shares are in addition to any statutory family exceptions like the family residence, exempt personal property and family allowance

118
Q

How do you calculate the spouse’s elective share?

A

Reduce the gross estate by the exempt personal property

take out expenses (not taxes)

Now you have the net estate and take the statutory percentage reduced by the value of the assets that would pass absolutely to the spouse under the decedent’s will (can’t be less than what they’d take under the will)

119
Q

Can you claim a spousal share against a revocable trust?

A

Yes, under the illusory transfer doctrine, if a settlor retains control over the trust property so he remains the practical owner during life time, the trust will be ineffective against the surviving spouse’s claim.

Key to this is whether the settlor intended to surrender complete dominion to the trustee and trust beneficiaries.

Spouse can reach it if it is fraudulent transfer under Fraudulent transfer doctrine

120
Q

Other family protections besides surviving spouse and pretermitted children

A

Homestead - protections for the family residence or farm from creditor’s claims by exempting certain amounts of land

Family allowance - provides support during probate administration and takes precedence over all other claims other than funeral and admin expenses. THIS IS IN ADDITION to amounts passed by will and intestacy

Exempt personal property – tangible property like household furnishings, personal effect and sometimes cars as exempt from security interests

121
Q

Basis for Will Contests

A

1) defective execution
2) revocation
3) lack of testamentary capacity
4) lack of testamentary intent
5) undue influence or duress
6) fraud
7) mistake

122
Q

Insane delusion

A

Belief in facts that do not exist and that no rational person would believe existed.

Destroys testamentary capacity only if there is a nexus between the delusion and the property disposition

123
Q

Undue influence

A

Must show

1) influence existed and was exerted
2) effect of influence was to overpor the mind and free will of the testator
3) but for causation

124
Q

Evidence to prove undue influence

A

Unnatural dispositions like cutting out family

opportunity or access to testator

confidential or fiduciary relationship between parties

ability of the testator to resist

beneficiary’s involvement in the drafting or execution of the will

Need more than motive, opportunity and susceptibility

125
Q

Presumptions of Undue Influence

A

1) confidential relaitonship between the testator and beneficiary and
2) beneficiary was active in procuring, drafting, or executing the will

No automatic presumption between spouses unless spouse exerted influence that overpowered free will and resulting in a disposition reflecting desires of spouse exerting influence

No gifts to attorneys

126
Q

Duress

A

This is a threat of physical violence and harm

127
Q

Fraud

A

False representation made to testator

knowledge of falsity by person making the statement

testator reasonably believed the statement

statement caused the testator to execute a will or make a particular disposion they would not have made but for the misrepresentation

128
Q

Fraud in factum

A

tricking the testator into signing something they didn’t know was a will

129
Q

Fraud in inducement

A

they know they’re executing a will and what it says, but were deceived about facts and they make a gift based on the deception

130
Q

Mistake in inducement

A

testator mistaken as to extrinsic fact and makes will lbased on it

131
Q

Mistake in factum

A

didn’t have testamentary intent

can use extrinsic evidence

132
Q

UPC reformation for mistake

A

under upc, court may reform a will, even if it is unambiguous to conform with testator’s intent if proven with clean and convincing evidence that intent and terms impacted by mistake

133
Q

Defective execution

A

No signature, witnesses didn’t sign in their presence, no witnesses

134
Q

No-contest clauses

A

Create risk for contesting a clause by saying if you contest and lose you get a reduced share or nothing.

Majority and UPC don’t apply it if it was a good faith probable cause challenge

135
Q

Probate defined

A

proceeding in which an instrument is judicially determined to be the will of the decedent or in which it a decedent’s heirs are determined

136
Q

Personal Representatives v. Executors

A

If smoeone is appointed to carry it out probate in the will they are an executor

If not named they are an administrator

137
Q

What is the probate jurisdiction?

A

The state of the decedent’s domicile at the time of death

138
Q

Capacity required to be a personal representative

A

contracutarl capacity and the posting of a bond

139
Q

Powers and duties of personal representatives

A

1) give notice to devisees, heirs, claimants

2) discover and collect decedent’s probate assets and file an inventory

3) manage the assets of the estate during administration

4) pay expenses of administration, claims against estate, taxes

5) distribute property

140
Q

Duty of care of Personal representative

A

Fiduciary duty

141
Q

Compensation for personal representatives

A

entitled to compensation and the reates are set by statute but if no statute, court has discretion to awarded a reasonable compensation

Sometimes executors are paid by the will’s statement to give a gift to them

142
Q

Creditors Claims Order

A

1) admin expenses
2) funeral expenses and last illnesses
3) family allowance
4) debts favored by fed law
5) secured claims
6) judgments entered against the decedent during lifetime
7) all other claims

143
Q

Standing to contest a will

A

must have a finanincal interest – person adversely affected by will being admitted to probate

144
Q

Advance Health Directives

A

Called living will and specifies the patient’s preferences for treatment or non-treatment if they become incapacitated

145
Q

Durable health-care-power of attorney

A

gives a designated agent the power to make healthcare decisions for the principal if they are incapacitated.

Not limited to a particular event, illness, or time-period unless that is expressly stated

146
Q

Requirements to make a durable health-care power or advanced directive

A

1) signed writing
2) witnessed or notarized

147
Q

Revocation of a Living Will

A

Any time by obliterating the will, written revocation, or oral expression to revoke

148
Q

revocation of durable healthcare power

A

notifying hte agent or principal’s healthcare provider – orally or in writing

149
Q

Eligibility to act as agent under durable healthcare power

A

anyone exept owner, operator or employee of a healthcare facility unless they are related to the principal

150
Q

Authority of Agent under durable healthcare power

A

Make most healthcare decisions on principal’s behalf that they could make for themselves

If no express direction must be in the principal’s best interest

151
Q

Liability of agent under durable healthcare power

A

No criminal or civil liability or professional discipline provided that they acted in good faith

152
Q

Stock splits and dividends

A

Stock splits – beneficiary takes any additional shares produced by a stock split

Dividends – beneficiary does not take shares produced by a stock dividend.

But under the majority and Uniform Probate Code, a specific bequest of stock also includes shares of stock provided by stock dividend

153
Q

Specific or General Bequest

A

Specific bequests have language that identifies with particularity property

General language lacks the specific language

154
Q

Specific or General Stock Bequests

A

To be specific under the common law, it must say “my stocks” for redemption purposes.

But for purposes of stock splits and dividends, most courts consider all bequests of stock to be specific

155
Q

Ademption and Testator’s Intent

A

Some courts consider the testator’s intent to see whether there is evidence that the testator intended to give a replacement gift or substitute property

156
Q

UPC Replacement Property Rule

A

Under the UPC, beneficiaries are entitled to replacement property that was acquired as replacement by the testator for the adeemed property.

MBE Rules (7 decks)

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