Wills Flashcards
Wills for MEE
What laws on wills apply in dealing with (1) real property and (2) personal property?
- Law of the state where property is located
- Law of the state where testator was domiciled at the time of their death
Savings statutes
Most states have savings statutes to save a will as to whether it is valid
* Wills are still interpreted according to the appropriate laws
Will is valid if it complies with either
* Local law
* Law where it was executed
* Law of decedent’s domicile at death
* Law of decedent’s domicile at time of will’s execution
Requirements for will to be held valid
- Legal capacity
- Testamentary capacity
- Testamentary intent
- Statutory formalities (depend on type of will)
Legal capacity
Must be at least 18 years old and of sound mind
Testamentary intent
At the time of execution, Testator intends that this particular document will be their will
Can be overcome by:
* Undue Influence
* Fraud
* Mistake
Testamentary capacity
Testator has ability to understand the:
* Nature of their act (executing a will)
* Understand effect of what they are doing (this is passing my property to X)
* Nature and extent of their property (general idea of what property they own)
* Persons who are natural objects of their bounty (family members)
* Be able to do all of the above simultaneously in an orderly scheme
Testamentary capacity when testator has been adjudicated insane or incompetent
If adjudicated insane or incompetent, there is a rebuttable presumption that the testator lacked testamentary capacity = just have to show executed will during “lucid interval”
Attested will
An attested will must be:
- In writing
- Signed by testator or by someone in Testator’s presence who testator directs to do so (proxy)
- Two attesting witnesses in the presence of whom the testator signs the will or acknowledges the signature
- Signature of the witnesses in the testator’s conscious presence
Signature of testator in attested will
Any mark made by testator w/ intent that mark be their signature is sufficient
If testator is using a proxy, proxy may sign their own name as long as signature is at the direction and in the presence of the testator
Can a beneficiary also be a witness to an attested will?
Yes, modern trend is that just b/c witness is receiving gift from the will does not mean they cannot be a witness
Attestation clause
Recites elements of execution and is prima facie evidence of proper execution of the will, but is not required
Self-proving affidavit
Testator and witnesses swear in affidavit to the things they would swear to in probate proceeding
-Acts like deposition to avoid need to call witnesses who may not remember or will be dead by the time of probate proceeding
*Not required, but expedites process later
Holographic will
- Testator handwrites their will
- Testator must sign will
- No attesting witnesses
Varies by state:
-Amount of handwriting required (majority require entire will to be handwritten)
-Whether need witnesses to be valid
Oral wills
Abolished in most states
Handwritten changes to attested wills made after execution
Changes in beneficiaries, amounts, interlineations, etc. made after execution of attested will are not usually given effect (may even revoke will)
But if changes are handwritten and the jurisdiction recognizes holographic wills, the changes may be accepted as a valid holographic codicil
Interpretation of ambiguity in will
Patent ambiguity: ambiguous on its face, fails to convey sensible meaning
* Look to extrinsic evidence
* If ambiguity is something left blank = court will not fill in
Latent ambiguity: language makes sense, but cannot be carried out w/out further clarification (ex. “to my sister X,” but sister’s name is Y)
* Look to extrinsic evidence
Mistake: language makes sense and can do exactly what is stated, but party claims it was a mistake
* Traditional approach = plain meaning rule (do what it says)
* Modern rule = use extrinsic evidence to alter plain meaning (need clear and convincing evidence to show this was testator’s real intent)
Incorporation by reference
Testator incorporates an extraneous existing document into the will by reference
* Testator must have intent to incorporate writing
* Writing existed at time of will’s execution
* Writing must be clearly identified to know what is being incorporated
* Writing could have lacked witnesses, not been signed, be made under undue influences (doesn’t matter)
Acts or facts of independent significance to the will
If the gifts are general and need specification as to what is entailed in the gift, courts can look outside of the will to see what is included
Ex.
* Gifts to “my children” w/out specifying who the children are
* Gift of “contents of X box” w/out specifying what is in the box = whatever is in the box at time of death
Conditional wills
Will that operates only if certain event occurs or does not occur = ineffective
* If possible, courts will interpret as a general will (not conditional)
Codicil
Amendment to an existing will
* Codicils must be executed w/ same formalities required of the will
* Will and codicil are treated as one document and examine changes in circumstances using the date of the last codicil (rather than the will or earlier codicils)
* If will is ineffective, codicil can incorporate the will to make it effective (proof of codicil = proof of will)
*To change a will, the changed will must either be re-executed or republished by codicil
Pour-over gift to inter vivos trust
Provision in will that leaves property to inter vivos trust
* Trust can be created before or after testator executes will as long as trust exists at time of testator’s death
* Trust does not need to be previously funded (poured-over property can be the initial funding for that trust)
Integration
Must be able to show that all pages present at time of will execution are same as pages present at time of probate as a unified document
(Ex. Staple pages together, sentences flow from page to page, same type of paper, same font styles, etc.)
Joint will
Single testamentary document contains wills of two or more people (usually married couple)
* Bad practice!
Reciprocal or mutual wills
Separate wills w/ parallel dispositive provisions (usually in families where spouse leaves to other spouse, but if other spouse is dead, to kids and same in other spouse’s will)
Contractual will
Will executed or not revoked is the consideration for a contract
* Contract to make, not to make, or not to revoke a will is valid
* Contract must be in writing under modern law
* Can be revoked by agreement if both parties are alive (irrevocable upon first testator’s death)
- If both parties are alive and one party breaches the contract = no remedy b/c other party can just change their will in response
- If one party dies in compliance w/ agreement and other party revokes their will = no relief will be granted to beneficiaries
- If one party dies in compliance and the other party revokes their will and attempts to dispose of the property covered in a new agreement = the new will may be valid but it is a breach and injured beneficiaries under contract can sue to impose constructive trust on the property they should have received
Power of appointment
Owner of property (donor) transfers to donee the power to appoint the new owner of the property
* Not a duty to appoint (can not do it)
* If donee does not appoint a new owner = either goes to default takers named in the will or reverts back to donor
- General power: can appoint to self or creditors
- Special power: cannot appoint to self or creditors, but only to limited class of people (ex. children, grandchildren, etc.)
Depending on how power was originally created
1. Presently exercisable power = exercisable during donee’s lifetime
2. Testamentary power = exercisable only by donee’s will
If a person is given power of appointment, but they did not exercise it during their lifetime nor put it in their will, but their will includes a residual clause, is this power of appointment property that passes under the residual clause?
Varies by state
Methods of revoking a will
- Revocation by operation of law
- Revocation by physical act
- Revocation by writing
Revocation of will by operation of law: marriage
- Most states: marriage has no effect on prior will
- Some states and UPC: marriage gives spouse intestate share unless
–will provides for spouse;
–omission was intentional; or
–testator executed will in contemplation of marriage
Revocation of will by operation of law: divorce
- All provisions in favor of ex-spouse are void
- Divorce must be final (not pending)
- If re-marry, no longer void
- Property passes as if ex-spouse predeceased testator
UPC
* Divorce revokes gifts not only to former spouse, but also to relatives of former spouse (ex. ex-spouse’s children)
* Majority of states do not follow this (relatives get their gifts)
Revocation of will by physical act
Must have:
1. Intent to revoke (if mistakenly destroys will = not revoked)
2. Mental capacity (must be of sound mind, if under duress = not revoked)
3. Physical act (burning, tearing, ripping, writing “void” across it, etc.)
- Proxy revocation (getting someone else to destroy) is allowed if done by testator’s request and in testator’s presence
Partial revocations of will by physical act
If testator physically destroys part of a will (crosses out, writes in changed terms, signs amendment), states vary as to whether allowed
Revocation by writing: subsequent codicil or will
- Will or codicil must meet formal requirements
- Revocation can be express (“I hereby revoke all prior wills and codicils”)
- If new will completely disposes of testator’s property = old will is completely revoked by inconsistency
- If new will partially disposes of testator’s property = old will is only revoked as to inconsistent parts
Presumptions as to revocations
Person who wants to prove a will is valid has the burden of proving that the testator did not revoke it
* If will is found in location expect will to be found in and no suspicious circumstances = presumption that will was not revoked
* If will was in testator’s possession or control but cannot be produced after testator’s death = presumption that testator destroyed will = will was revoked (but can be rebutted by proving lost will)
Lost or destroyed wills
If cannot produce original will but have sufficient evidence to show why = can rebut presumption that lost will means it was revoked
Must prove:
* Valid execution of will
* Cause of non-production (proof it was not revoked)
* Contents of the will
Situation that indicates revival of will
If testator
1. Executes valid will 1
2. Executes valid will 2, thereby expressly revoking will 1
3. Validly revokes will 2
4. Does will 1 revive?
Methods of reviving will
UPC approach: look for evidence of testator’s intent
Automatic revival approach: some states say will 2 was revoked and therefore took effect to revive will 1
No revival approach: by executing will 2, will 1 is immediately revoked and property is passed through intestacy
Per stirpes distribution
*Minority of states
- Split shares amongst first generation that are alive or have children that are alive
- For grandchildren that survive their parent, split their parent’s amongst them
Ex.
Son 1 = 1/2
-> Arthur and Brenda = 1/4 each
Son 2 = 0
Daughter = 1/2
Per capita with representation distribution
*Majority of states
- Split shares amongst first generation that has any people alive
- For grandchildren that survive their parent, split their parent’s share amongst them
Ex.
Son = 1/2
-> Arthur and Brenda = 1/4 each
Daughter = 1/2
If this were to be divided per stirpes vs. per capita with representation, how would they differ?
Per stirpes
-Arthur = 1/4
-Brenda = 1/4
-Charles = 1/2
Per capita w/ representation
-Arthur = 1/3
-Brenda = 1/3
-Charles = 1/3
Per capita at each generational level distribution
*Modern trend and UPC
- Split shares amongst first generation that are alive or have children that are alive
- For grandchildren that survive their parent, pool the remaining shares together and divide them equally amongst the grandchildren
Ex.
-Charles = 1/4
-Doris = 1/4
-Edward = 1/6
-Fran = 1/6
-George = 1/6
