Wills Flashcards
Intestate succession: only surviving spouse
Spouse takes entire estate.
UPC: Certain portion given to decedent’s parents and their issue.
Intestate succession: surviving spouse and issue
Most states: each receive certain %.
UPC: surviving spouse receives entire estate if all issue are issue of spouse.
Intestate succession: no surviving spouse, but issue
Entire estate to issue.
Intestate succession: no surviving spouse or issue
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
What distribution approach do most states and UPC use for intestate assets?
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.
Law applicable for valid execution of will under UPC
Execution complies with law of place where
- executed; OR
- testator’s domicile, abode, or nationality at time of either death or signing will.
Valid will requires testator intent, which can be proved by ______.
Extrinsic evidence
Interested witness
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.
Codicil: cure and limit
Cures interested witness issues with original will/doc, as long as codicil witnessed by 2 disinterested.
Cannot republish invalid will.
Acts of independent significance
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.
Substitute gift in will revoked by physical act
Substitute gift cannot be created by words of cancellation (crossing out and writing in). Revocation by cancellation may be valid, but substitution is not.
Revival of will: UPC
If will only partially revoked by subsequent instruments, revoked provisions will automatically revive unless testator did not intend that.
Breach of contractual will
Court will probate new will and impose constructive trust in favor of original intended Bs under contractual will.
Modern Per Stirpes (Per Capita by Representation) Distribution
- Estate divided into as many equal shares as surviving descendants in same generation and deceased descendants in generation who left issue.
- 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)
Per Stirpes Distribution
- Assets divided at first generation (surviving and deceased w/ issue). Each receives one share.
- Deceased beneficiary share drops directly to their issue. Each (surviving and deceased w/ issue) receives one share.
- Continues until all shares taken.
(Diff from Per Capita by Generation: deceased share goes only to issue, not entire generation)
Heirship: Parentelic v. Civil Law Consanguinity Method
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)
What is a residuary clause? What happens if there is not one or the clause fails?
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.
Heir v. issue
Heir: receives assets is T dies intestate
Issue: lineal descendants (kid, grandkid, etc.)
How is ambiguity in will resolved?
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.
When does residue of a residue rule apply?
Only if anti-lapse statute does not provide substitute taker for predeceased B.
Will provisions re: death with/without issue
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.
Under ademption, B is entitled to ___ for destroyed/damaged specific gift.
- Unpaid insurance proceeds or other recovery for injury to property; AND
- Damaged item itself
Exoneration of real property
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
Under UPC, when can disclaimer of inheritance rights be made?
At any time, so long as not barred (i.e., accepted or transferred interest).
A prenup waiving rights to each other’s assets upon divorce does not apply to ____.
Voluntary gifts or bequests.
What is a conditional/contingent will? How is that determined?
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.
Is a gift of stock shares general or specific?
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.
Children: Inheritance Rights and Disinheritance
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.
Illusory Transfer Doctrine
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.
Exceptions to general inheritance right of pretermitted child
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.
Insane Delusion and Wills
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.
CL Presumption of Undue Influence
- Confidential relationship between T and wrongdoer;
- Wrongdoer actively participated in will drafting; AND
- Unnatural result occurred.
Fraud in the Inducement v. Execution
In Inducement: person deceives T re: facts related to instrument (property or beneficiaries).
In Execution: person deceives T re: nature of document being signed.
Typical grounds for standing to challenge will
- Beneficiary of prior will
- Should be B of will
- Would financially benefit if T died without will
If joint tenant is unjustly enriched by securing funds in bank account through misconduct, court will…
Create constructive trust in which tenant forced to hold funds as trustee and return them to decedent’s estate.
Life Insurance Beneficiary and Wills
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.
If decedent does not name personal rep (executor), court will…
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
