Wills

Question 1

Intestate succession: only surviving spouse

Answer 1

Spouse takes entire estate.

UPC: Certain portion given to decedent’s parents and their issue.

Question 2

Intestate succession: surviving spouse and issue

Answer 2

Most states: each receive certain %.

UPC: surviving spouse receives entire estate if all issue are issue of spouse.

Question 3

Intestate succession: no surviving spouse, but issue

Answer 3

Entire estate to issue.

Question 4

Intestate succession: no surviving spouse or issue

Answer 4

Estate passes in following order:
1. Surviving parents equally (one if only surviving)
2. Siblings and their issue
3. More remote ancestors
4. Issue of more remote ancestors

Question 5

What distribution approach do most states and UPC use for intestate assets?

Answer 5

Per Capita at Each Generation:
1. Estate divided into as many equal shares as surviving descendants in same generation and deceased descendants in generation who left issue.
2. Surviving each get share. Deceased shares combined and divided in same manner among descendants in next generation.
3. Continues until all assets distributed.

Question 6

Requirements for valid execution of will under UPC

Answer 6

Execution complies with law of place where
- executed; OR
- testator’s domicile, abode, or nationality at time of either death or signing will.

Question 7

Valid will requires testator intent, which can be proved by ______.

Answer 7

Extrinsic evidence

Question 8

Interested witness

Answer 8

CL: not permitted; must have 2 disinterested. Since abolished by all states.

Now: valid, BUT
1. Gift deemed void/purged unless
a. Still 2 disinterested witnesses present. OR
b. Interested witness is heir. Any gift to wit/heir will be lesser of
i. Intestate share or gift under prior will; OR
ii. Gift under current probated will.

Question 9

Codicil: cure and limit

Answer 9

Cures interested witness issues with original will/doc, as long as codicil witnessed by 2 disinterested.

Cannot republish invalid will.

Question 10

Acts of independent significance

Answer 10

Those with significance outside will-making process. Example: gift to employees at time of death - usually hire/fire for business purposes, not to designate beneficiary.

May be used to fill in any gaps in will.

Question 11

Substitute gift in will revoked by physical act

Answer 11

Substitute gift cannot be created by words of cancellation (crossing out and writing in). Revocation by cancellation may be valid, but substitution is not.

Question 12

Revival of will: UPC

Answer 12

If will only partially revoked by subsequent instruments, revoked provisions will automatically revive unless testator did not intend that.

Question 13

Breach of contractual will

Answer 13

Court will probate new will and impose constructive trust in favor of original intended Bs under contractual will.

Question 14

Modern Per Stirpes (Per Capita by Representation) Distribution

Answer 14

1. Estate divided into as many equal shares as surviving descendants in same generation and deceased descendants in generation who left issue.
2. Surviving each get share. Remaining drop down and divided in same manner among then-living issue of deceased descendants.
   (Diff from Per Capita by Generation: only living descendants in 2nd generation take; does not continue to 3rd)

Question 15

Per Stirpes Distribution

Answer 15

1. Assets divided at first generation (surviving and deceased w/ issue). Each receives one share.
2. Deceased beneficiary share drops directly to their issue. Each (surviving and deceased w/ issue) receives one share.
3. Continues until all shares taken.
   (Diff from Per Capita by Generation: deceased share goes only to issue, not entire generation)

Question 16

Heirship: Parentelic v. Civil Law Consanguinity Method

Answer 16

Used to determine heirship.

Civil Law Consanguinity - all persons in same degree of relationship of decedent take equal shares (e.g., uncle and niece are both at 3rd degree so take same).

Parentelic/UPC - assets pass in order:
1. spouse
2. descendants
3. parents
4. siblings
5. nieces/nephews
6. continue down line of descendants from ancestors (e.g., niece but not uncle)

Question 17

What is a residuary clause? What happens if there is not one or the clause fails?

Answer 17

Provision in will/trust instructing transfer of remaining assets not specifically mentioned in will/trust (undisposed-of property), and gifts that fail.

If no clause or it fails, that property passes by intestate succession to heirs.

Question 18

Heir v. issue

Answer 18

Heir: receives assets is T dies intestate

Issue: lineal descendants (kid, grandkid, etc.)

Question 19

How is ambiguity in will resolved?

Answer 19

Through extrinsic evidence that bears on T’s actual or probable intent.

Generally not allowed to correct T’s mistake of fact/law. BUT UPC and 3rd Restatement allow reformation if established by clear and convincing evidence:
- T’s intent; AND
- that mistake affected specific terms of will.

Question 20

When does residue of a residue rule apply?

Answer 20

Only if anti-lapse statute does not provide substitute taker for predeceased B.

Question 21

Will provisions re: death with/without issue

Answer 21

If T includes provision re: dying without issue, but fails to include one re: dying with issue, some court infer gift to issue. Other groups hold gift fails and passes to estate.

Question 22

Under ademption, B is entitled to ___ for destroyed/damaged specific gift.

Answer 22

• Unpaid insurance proceeds or other recovery for injury to property; AND
• Damaged item itself

Question 23

Exoneration of real property

Answer 23

CL: specific gift of real property did not pass subject to mortgage; mortgage paid from estate.

Modern/UPC: specific gift of real property assumes mortgage unless explicitly stated otherwise, regardless of will’s general directive to pay debts

Question 24

Under UPC, when can disclaimer of inheritance rights be made?

Answer 24

At any time, so long as not barred (i.e., accepted or transferred interest).

Question 25

A prenup waiving rights to each other’s assets upon divorce does not apply to ____.

Answer 25

Voluntary gifts or bequests.

Question 26

What is a conditional/contingent will? How is that determined?

Answer 26

One that takes effect only upon occurrence of some uncertain event. If condition not satisfied or contingency fails, will is inoperable and void.

Determined by T’s intent; must be clear from language of will.

Question 27

Is a gift of stock shares general or specific?

Answer 27

It may be general or specific, depending on will’s language and T’s intent. It is a specific gift if testator owns shares at time of execution or if stock in closely held corporation.

Question 28

Children: Inheritance Rights and Disinheritance

Answer 28

Generally no right to estate if parent chooses to leave out of will, unless pretermitted (born after will made).

If portion of will fails, omitted child entitled to intestate share unless will intentionally disinherits child. Most: general disinheritance clause (disinherit anyone not mentioned in will) insufficient to show intentional omission.

Question 29

Illusory Transfer Doctrine

Answer 29

If S retains control over trust property so he is practical owner during his lifetime, trust will be ineffective to prevent claim by surviving spouse. Critical inquiry is whether S intended to surrender complete dominion over property to T and Bs.

Question 30

Exceptions to general inheritance right of pretermitted child

Answer 30

Some states: not entitle to share of estate if decedent provided for child outside will or left all/substantially all to child’s other parent.

Pretermitted child living at time of execution is not entitled to share of estate UNLESS omitted from will because T did not know of existence or believed child was deceased.

Question 31

Insane Delusion and Wills

Answer 31

Belief of supposed facts that do not exist AND no rational person would believe.

Invalidates will if
1. affects testamentary capacity; AND
2. materially affects disposition of T’s property.

Will must be product of insane delusion. Many states: T must have MI.

Question 32

CL Presumption of Undue Influence

Answer 32

1. Confidential relationship between T and wrongdoer;
2. Wrongdoer actively participated in will drafting; AND
3. Unnatural result occurred.

Question 33

Fraud in the Inducement v. Execution

Answer 33

In Inducement: person deceives T re: facts related to instrument (property or beneficiaries).

In Execution: person deceives T re: nature of document being signed.

Question 34

Typical grounds for standing to challenge will

Answer 34

• Beneficiary of prior will
• Should be B of will
• Would financially benefit if T died without will

Question 35

Most courts will not enforce a no-contest clause if…

Answer 35

Probable cause exists for instituting proceedings to challenge will.

Question 36

If joint tenant is unjustly enriched by securing funds in bank account through misconduct, court will…

Answer 36

Create constructive trust in which tenant forced to hold funds as trustee and return them to decedent’s estate.

Question 37

Life Insurance Beneficiary and Wills

Answer 37

Policyholder has power to change B during lifetime; generally not permitted through will.

Change of irrevocable B requires B’s consent; change of revocable B does not.

Question 38

Creditor’s Invasion of Non-Probate Assets

Answer 38

Recipient of transfer may be liable to pay creditor up to the value of transfer. 2+ transferees are severally liable.

Generally credit cannot attach inter vivos gift.

Question 39

If decedent does not name personal rep (executor), court will…

Answer 39

Appoint one. In order of priority:
1. Surviving spouse, who is devisee
2. Other devisees
3. Surviving spouse
4. Other heirs
5. Any creditor, if 45 days passed since death