Wills Flashcards
a codicil is
A doc that amends or supplements a prior will, rather than completely replaces, the prior will
if T revokes a will then any codicils to that will are also deemed revoked.
holographic will
unwitnessed will, in the testator’s handwriting and it must be signed.
Some juris also required it to be dated
a holographic codicil can revoke…
an earlier will
If codicil disposes of only a part of the estate disposed of by a prior will, then the will is revoked only to the extent that it is inconsistent with the provisions of the holographic codicil
a will is created when
in writing,
signed by testator,
witnessed by 2 witnesses
a will may be revoked by
the execution of a new will or by some physical act, such as cancellation or other writings on the will, if the testator (or someone acting at the testator’s direction) performs the physical act with the intent to revoke the will
marks need to be signed/witnessed for it to be valid will
doctrine of relative revocation (DRR)
allows a court to undo the revocation of a will or bequest when the evid shows
1) that the revocation was based on a mistaken assumption of law/fact, AND
2) that the T wouldnt have revoked it if she’d known the truth.
T would not have revoked the will if T had not been mistaken.
courts typically apply DRR when
1) theres an alternative plan of disposition expressed in a document executed to subseuqnt docs whose revocation contestnat seeks to set aside fails or,
2) mistake leading to the doc’s revocation is recited in the revoking instrument itself
doctrine of incorporation by reference
A writing that is not valid as a will but is in existence when a will is executed may be incorporated by reference into the will if the will manifests an intent to incorporate the writing and the writing to be incorporated is identified with reasonable certainty
If such a document is incorporated, the dispositive provisions in it are given the same effect as if they had been set forth in the duly attested will.
Where a testator’s will fails to dispose of all of the testator’s property
the undisposed-of property passes to the testator’s heirs as partial intestate property
intestacy laws of the states provide that, absent descendants or a spouse, an intestate’s property is distributed to
(1) parents,
(2) the descendants of the parents (intestate’s siblings and their descendants),
(3) more remote ancestors, and
(4) the descendants of the more remote ancestors, in that order
if decedents parents or spouse do not survive the testator, there are two available scheme to divide property among decedent’s children
per captia at each generation - find first generation where there are descendant’s living and give one share to each
per captia w/ representation - same as above except instead of combining all shres and dividing them equally, simply pass each deceased person’s share on to her descendants
pretermitted child statutes
child born to a testator after the testator’s will is executed is entitled to whatever share of the testator’s estate the child would have received if the testator had died intestate
T can avoid consequences of these statues if will evidences intent to not give $ to kid
pretermitted spouse statutes
a spouse who is omitted from a will executed before marriage receives an intestate share of the deceased spouse’s estate
under common law validity of a testator’s will & distribution of personal property was determined under
the law of the state where the testator was domiciled at the time of his death
distribution of real property is governed by
the law of the place where the prop is located
under UPC, a will is valid if it complies either with…
the law of the state in which it was executed or with the law of the place where the testator was domiciled when he signed his will or when he died
contigent vs. conditional will
must first determine whether the happening of the possibility referred to is a condition to the operation of the will, or whether the possibility of the happening was only a statement of the motive or inducement which led to the preparation and execution of the instrument
factors to be considered:
where the will was kept after the purported condition lapsed,
whether there were any other testamentary documents,
whether setting aside the will would result in intestacy, and
whether effectuating the terms of the document would result in an inequitable distribution.
When a will is ambiguous, courts allow _____ to resolve the ambiguity
extrinsic evidence