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
under common law, a bequest to a beneficiary who predeceaesd the testator…
failed
no longer rule
anti-lapse statutes
the gift will vest in the descendant of that predeceased beneficiary if:
1) predeceased beneficiary is a specified blood relative of the testator; and
2) beneficairy leaves descendants who survive the testator
republication of a will
A valid partial will, or codicil, that refers to an earlier will is said to republish that will.
When republication takes place, the republished will is deemed to be executed on the same day as the codicil. Republication can cure defects that might otherwise affect the validity of bequests made under a will
a document that is not a valid will cannot be republished by codicil
slayer statute
generally prevents a person who intentionally and feloniously kills another to inherit from the slayer’s victim
Ademption doctrine
Under the common law ademption doctrine, if specifically devised property (i.e., property that is
specifically described in the will) is not in the testator’s estate when the testator dies, the bequest adeems (fails).
identity test for ademption
if the T doesn’t own the specifically devised item at death, the devise is adeemed by extinction, and the devisee gets nothing.
intent test for ademption
a beneficiary of specifically devised property is entitled to substitute property that was owned by the testator at his or her death if the beneficiary proves that the testator intended the beneficiary to take the substitute property
Rights of a specific devisee
has the right to any real prop owned by the T at death which the T acquired as a replacement for specifically devised real property
Bequeathed stock
a devisee of common stock was entitled to additional shares of that stock obtained by the testator through a stock split, but not to additional shares acquired as a
stock dividend
stock splits and dividends/additional shares by testator go to
specific devisee
Prenuptial agreements waiving rights in the spouse’s estate
A prenup in which spouses waive rights to a share of each other’s assets upon death or divorce does not bar either party from making subsequent gifts or bequests to the other spouse.
Such an agreement bars only claims that do not arise from a voluntary gift or bequest.
Revocation of a bequest by operation of law
when a change in circumstance occurs that makes it unlikely that the testator would have wanted a beneficiary named in the will to take under the will.
All states provide that if, after the execution of a decedent’s will, the decedent is divorced, a bequest in favor of the decedent’s former spouse is revoked by operation of law.
Adoption
An adoption typically severs the parent-child relationship between the child and his biological parents.
A few states do not sever the parent-child relationship when the child is adopted by a relative of a biological parent.
Appointment of a personal representative
An individual named as personal rep in a decedent’s will has priority to receive letters testamentary from the court overseeing the administration of the estate.
Where will is silent regarding the appt of the personal rep, court will appt a person granted priority under the governing statute if that person is otherwise qualified.
Typically, the decedent’s surviving spouse is the individual with the first priority.
UPC says a surviving spouse has first priority only if the spouse is a devisee of the decedent.
Revocation of 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.
The burden of proof is upon the party seeking to revoke the will.
Power of Attorney
A durable health-care POA empowers a
designated agent to make health-care decisions for the principal in the event of the principal’s
incapacity
In the absence of specific instructions, a designated agent shall make decisions for the principal in accordance with the agent’s determination of the principal’s best interest considering the principal’s personal values to the extent known to the agent.
Power of Attorney - Liability for decision making
typically insulate an agent who has acted in good faith from civil and criminal liability
Requirements for testamentary validity
T must have mental capacity so T must be capable of knowing and understanding
(1) the nature and extent of her property,
(2) the natural objects of her bounty,
(3) the disposition that she is making of that property, and
(4) how these elements relate to one another in forming an orderly disposition of the estate.
Because mental capacity is presumed, a will contestant has the burden of proving that the testator lacked mental capacity
Restatement 3rd says a court may reform an unambigious donative doctrine based on clear and convicing evid of
(1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and
(2) what the donor’s intention was.
abatement
when assets of a testator’s estate are insufficient to pay all of the bequests payable under T’s will, these requests will be reduced (abated) in the following order:
intestate property,
residuary gifts,
general gifts,
specific gifts
doctrine of integration
All pages that are present at the singing of the will and that are intended by the testator to be part of the will are a part of the will
paternity for purpose of intestate succession may be established by
evid of subsequent marraige of parents,
by acknowledgement by father,
by an adjudication of paternity during the life of the father or by other clear and convicing evidence
all states grant nonmarital children the right to inherit from their mothers and to inherit from their fathers
when at least one statutorily defined method of establishing paternity has been satisfied
majority rule for gift giving during lifetime + advancement
under UPC not deemed an advancement unless:
a) the will provides for a deduction; OR
b) a writing indicated that the property was in satisfaction of a devise or value will be deducted from the value of devise.
undue influence
wrongdoer exerts such influence over the testator that it overcomes testator’s free will and causes T to make agift he would otherwise not have made.
burden is on will contenstant to show (SODA): 1) tesator was susceptible to undue influence, (2) alleged influence had opportunity to exert undue influence, (3) alleged influencer had disposition to exert undue influence, and (4) will appears to be the product of undue influence
pour over will
To the extent person didn’t transfer assets to revocable trust over life time then those assets are transferred through the probate process into the trust
an effective disclaimer must
1) be declared in writing,
2) describe the interest/power disclaimed,
3) be signed by person making the disclaimer, and
4) delivered or filed
