Wills Flashcards
Non-probate property
Needs to be taken out of estate first
- life insurance
- joint tenancies with survivorship
- intervivos trust
- bank account trusts
- deeds
- contracts
- intervivos gifts
- future interest - remainder or executory interest
Intestate succession
die without a will
will denied probate
will does not dispose of all of the property - gift failed or no residual clause
intestate - applicable law
Marital rights - law of the domicile at the time property was acquired
Personal property - law of decedent’s domicile at death
real property - law of the situs of the property
Intestate - surviving spouse
CL - not an heir; Woman received dower- 1/3 real property life estate in property husband owned during marriage
Man received curtesy - life estate in all wife’s real property if they had a child together
Modern - spouse is an heir
- if no descendants or no descendants or parents (upc) - entire estate
- if descendants - spouse gets 1/3 or 1/2, or specific $ plus 1/3 or 1/2, or (upc) all if the descendants are all kids of their marriage
Intestate - Descendants
if all children alive - equal shares
Classic per stirpes - divide equally at top level then distribute down
per capita with representation - equal shares at first surviving level, then distribute down
Per capital at each generational level - each generation gets and equal share
Intestate share of other heirs
- Spouse and/or descendants
- parents or surviving parent
- siblings and their descendants
- paternal and maternal grandparents and their descendants
- nearest kin on paternal and nearest kin on maternal
- escheat to the state
Adopted child intestacy
Treated the same as biological children
generally not inheritance between adopted child and biological parent
Step children and foster children
No inheritance unless adopted
adoption by estoppel - child can inherit if unfulfilled agreement to adopt them
Nonmarital children - intestacy
Always inherits from mom
from father if
- father married the mother after birth
- man was adjudicated to be the father in a paternity suit
- after death and during probate proceedings, proved to by the father by c&c evidence
Halfbloods
Usually get full share
some give half share or cut them out
Posthumous children - intestacy
if in gestation at time of death, allow them to be an heir
some state allow if born within statutory period
Disinheritance clause
will contains clause - effect on intestacy
Most states and CL - ineffective
UPC and statutes - effective and treats intestacy share as disclaimed
Advancement
lifetime gift to heir with intent that it be applied against any inherited share
cl - presumed to be an advancement
modern - presumed no an advancement unless shown to be intended
UPC - advancement only if it is declared in a contemporaneous writing by donor OR acknowledged in writing by heir even if not contemporaneous; not binding on advancee’s successor unless writing states so
generally binding on successor if advancee predeceases - except upc
Simultaneous death
must survive to take
USDA - property of each decedent disposed of as if they had survived the other - does not apply if there is evidence that outlived the other even just for minutes
120 hour rule UPC - must survive by 120 house otherwise treated as predeceased
Disclaimer
Do not have to take the interest
- burdensome
- tax
- avoid creditors
written, signed, acknowledged before notary, filed within 9 months of death
cannot be disclaimed if any part has been accepted
property passed as if predeceased
Slayer statute
if feloniously or intentionally brings about death - forfeit interest and treated as predeceased
conviction of murder in any degree
or find that the killing was unlawful or intentional by a preponderance of evidence
Will and codicil
document executed to dispose of property after death
codicil is a supplement to a will that modifies it
upc - substantial compliance
other states - exact compliance
Will applicable law - validity and effect of will
Real property - whether the property is located
personal property - domicile at time of death
out of state and foreign wills to be admissible to probate- saving statute - if in accordance with law of
- that jurisdiction
- the state where the will was executed
- T’s domicile at the time fo execution
- t domicile at death
Will requirements
Legal capacity
- 18 and sound mind, married, or military
testamentary capacity
- nature of their act - executing a will
- nature and extent of their property
- the person who are the natural objects of their bounty
- disposing of property
Testamentary intent
- present intent that the document act as the will
Execution of attested wills
- In writing
- signed by T or by proxy - someone under T’s direction and in T’s presence
- two signing competent witnesses (or notary for UPC)
- witnesses signed will in T’s presence
Some states require
- T sign at end
- T publish will - tell witnesses it is a will
- Witnesses sign in presence of each other
Interested witnesses
Common law - not competent
now - valid but purge gift unless more than 2 witnesses or taking as an heir then reduce amount
No purging under UPC
Attestation clause
Prima facie evidence of the elements of an attested will are met
Self proving affidavit
Recites all the elements of execution were performed and is sworn to by t and witnesses before a notary
witnesses do not need to tesify at court to prove will
Holographic will
Entirely in T’s handwriting or material portion in handwriting
signed
Oral wills
only special circumstances
personal property
- soldiers and sailors
- on deaths doorstep
need 2 or more witnesses
Devise
real property
Bequest
personal property
Legacy
personal property in a will usually money
Specific v general
Specific - particular item and distinct
specific of general nature - specific item but not distinguishable
General - general economic benefit payable out of the general estate
demonstrative - gift of general amount that is to be paid for particular source of fund - specific to extent of source, general for any shortfalls
Ademption
Failed gift - no longer in estate
take nothing
only specific gifts
Statutory exceptions to ademption
Replacement property
balance of purchase price if still owed
proceeds of condemnation award or insurance paid after death
proceeds from sale by guardian or conservator
Ademption by satisfaction
intervivos transfer
may require
- writing or specific instructions in will
UPC
- in will
or contemp writing or devisee written acknowledgment at any time
no writing needed if specific
Stock splits and dividends
Specific bequest of stock
CL - include split but not dividend
now - split and divident
includes inc caused by merger or corp reorganization
Newly purchased securities
Does not take new securities that have been purchased or acquired by the reinvestment of dividends
Liens
usually not exonerated - take subject to lien
Abatement
reducing first where assets not sufficient to pay all claims and satisfy all gifts
- property by intestacy
- residual
- general pp
- demonstrative pp
- specific pp and rp
pro rata
pp used before rp
Lapse
Taker predeceases or treated as predeceased
- express terms in will
- antilapse statute if applicable
- residuary
- intestate
antilapse - doesnt lapse if have sufficiently close relationship - relative
upc - words of survivorship not enough to negate antilapse
in other state it is enough
if dead when executed - gift is void, but antilapse may apply
Who can bring a will claim
personal rep of a beneficiary or heir that would have taken
Basic rules of construction
Avoid intestacy
conflicting provisions- last one prevails
construe as a whol
ordinary words given ordinary meaning
technical words given technical meaning
all words given effect
Patent ambiguity
Obvious - on its face
trad view - extrinsic not admissible
modern - admissible but not for blank spaces or omitted gifts
Latent ambiguity
hidden
clear on face but cannot be carried out without further clarification
look at extrinsic evidence
Mistake - no apparent ambiguity
clear on face and can be carried out as written
plain meaning rule - extrinsic not admissible
modern - admissible to carry out T’s intent
Incorporation by reference
treated as written into the will even if do not meed will requirements
requirements
- intent to incorp
- doc in existence at the time will executed
- doc is sufficiently described in will
exception to in existence
- reference list of disposing of tangible personal property made after will execution
Acts or facts of independent signficance
can reference in disposition if they have significant apart from their effect on dispositions made by will - leaving contents of will box even though contents may change
Conditional will
Not preferred, will likely interpret as a motive if not clear
Codicil
must be executed with same formalities
treated as one instrument republished on the date of the codicil
invalid will, valid codicil - incorp by reference
Integration
Show that the pages present at the time of execution are those present at the time of probate
Combination will
Joint will
Reciprocal or mutual will
contractual will whether the execution or not revoking is the consideration
contract because irrevocable upon death - constructive trust
Power of appontment
authority granted to a person enabling that person to designate the persons who shall take the property and the manner in which they shall take
General - power exercisable in favor of anyone including the donee of the power, their estate, and their creditors
Special - in favor of limited class, not including donee or their estate or creditors
Will Revocation
Operation of law
Subsequent instrument
Physical act
Revocation by operation of law
Marriage
- some say no effect on earlier will
- most say new spouse takes intestate share as an omitted spouse unless - will makes provisions for new spouse, omission was intentional, or will made in contemplation of marriage
Divorce
- most states - revokes all gifts, treated as predeceased
- some revoke relatives of former spouse too
- divorce must be final, remarrying each other does not revoke
pretermitted children
- give a share using statutory formula
- if other parent got share, do not give child a share
- forced share - intestate share of estate, may be limited based on what the other children got
- get nothing if omission intentional or provided for outside of the will
- republication by codicil can effect pretermitted status
Revocation by physical act
burning, tearing, canceling, obliterating
- intent to revoke at the time of act
- proxy - at the request of T and in T’s presence
Partial revocation - some states allow, and extrinsic evidence is admissible, some states give no effect to changes
Revocation of will revokes codicils, revocation of codicils do not revoke will
Destroying a duplicate revokes the will unless no intent to revoke.
destruction of unexecuted copy with intent to revoke does not revoke
Revocation by written instrument
same formalities of will
expressly revoke
- this is my last will does not revoke
impliedly revoke by inconsistency
- new will completely disposes of property - old will completely revoked
- new will partially disposes, old will revoked to extent of inconsistent provisions
Revocation presumptions
Presumption of no revocation
- found in normal location and no suspicious circumstances
rebuttable presumption of revocation
- last seen in T’s possession or control and cannot be found or found in mutilated condition
- no presumption if last seen in possession of 3rd person or person adversely effected by its contents had access
Lost or destroyed will
if presumption that T revoked is overcome - admitted into probate if prove
- valid execution
- cause of non production and that it was not revoked
- the contents of the will
Revival
3 approaches
- UPC - T’s intent
- previous will remains revoked unless it is evident that T intended to revive the previous will
- if original will is only partly revoked, the revoked provisions are revived unless evidence that T did not intend to revive - Automatic revival
- No revival
- only revived if reexecuted
Conditional revocation
Express conditional
Implied conditional revocation- DRR
- Dependent relative revocation
- revoke will 1 thinking will 2 is valid - but for mistaken belief, would not ahve revoked
- will 1 remains in force
- was will 1 impliedly conditioned of validity of will 2
- would T prefer will 1 over intestacy - look at similarity of provisions
Surviving spouse elective shares
Cl marital property states- allow spouse to elect to take a statutory share of estate instead of under will
- 1/2 if no descendants, 1/3 if descendants
- UPC - based on duration of marraige
Homestead
spouse or dependents are entitled to occupy for as long as they choose despite the disposition of the residence in the will
Family allowance
provide support during probate administration - in addition to amount passed by will, intestacy, or elective shares
- some limit to dollar amount
- others allow a reasonable amount
Will contest procedures
Necessary parties - all legatees under will and all intestate heirs - need notice
Standing - interest parties
- whose interest would be adversly effected by admission of the will
- heirs
- beneficiaries of prior wills
Grounds for will contest
Defective execution
revocation
lack of testamentary capacity
lack of testamentary intent
undue influence or duress
fraud
mistake
Insane delusion
belief in facts that do not exist and that no rational person would believe existed
destroys testamentary capacity if connection between delusion and property disposition
Undue influence
influence existed and exerted
overpower the mind and free will
would not have executed the disposition but for the influence
Hounding and badgering is not enough, needs to be undue - free will must be destroyed
presumption of undue influence - confidential relationships
- confidential relationship between T and beneficiary
- and beneficiary was active in procuring, drafting, or executing the will
- some state require that the provision appears unnatural and favor the person exercising the influence
not presumed between spouses
if attorney - void unless close relative
Duress
Undue influence with violent conduct or threat of physical harm
Fraud
T willfully deceived as to
- character or content of the instrument
- extrinsic facts that would induce the will or particular disposition
- facts material to disposition
Fraudulently prevented from making will - constructive trust
elements
- false misrep to t
- Knowledge of falsity
- T reasonably relied
- statement caused T to execute the will or make a disposition they otherwise would not have
Fraud in the execution and in the inducement
Fraud in the factum - execution - misrep as to identity or contents of the instrument
- not test. intent
Fraud in the inducement- T knows they are executing a will, and of the contents, but T is deceived as to some extrinsic fact and makes the will or gift based on that fact
- gift must be set aside
Mistake
Mistake in execution (in the factum)
- T is in error regarding the identity or contents of the instrument - extrinsic evidence to show no test. intent
mistake in inducement - no relief
- mistaken as to some extrinsic fact and makes their will based on erroneous fact
- may grant relief if mistake appears on face of will or if believe child is dead
UPC
-ma reform will even if unambiguous, to conform to T’s intent if proven by c&c evidence that intent and terms affected by mistake
No contest clause
beneficiary forfeits interest if they contest and lose
majority- no forfeiture if probable cause for contest
minority- clause given full effect
Personal representative
Executor if named in will
administrator if not named in will
