Wills Flashcards
Nonprobate property
inter vivos outright gifts
inter vivos “living” trusts
future interests
co-tenancy and joint tenancy
life insurance
brank arrangments (accounts)
Totten trust
Joint or Survivor accounts
payable on death designations
Deeds held in escrow
What does intestate succession mean?
Someone dies without having made a will or the will is denied in probate
OR
the will doesn’t dispose of all their property
Which marital law applies?
The law of the domicile (common law marital property system or community property system) at the time the property was acquired
Which intestacy law applies?
Personal property –> domicile at death
real property –> the law of the situs
Modern Spousal Intestate Right
If the decedent has descendants not the spouse’s descendants –> usually 1/2 or 1/3 or a specific amount
if the decedent’s descendants are the spouse’s descendants –> spouse takes all
No descendants –> spouse takes all
What is a descendant?
Someone descending in the lineal line like grandchildren and children
These always trump parents, siblings, aunts and uncles if they are there
Default Arrangement for Descendent Children
If all decendent’s children survive the decendent (or his children that don’t survive don’t have children (no grandchildren)) each child receives an equal share.
Grandchildren can’t take if their parent is alive
Classic Computing Shares
Classic Per Stirpes
Per Capita with Representation
Per Capita with Each Generational Level
Per stripes
Each surviging child gets a share and one share for each nonsurviving child that has a descendent
Per Capita with Representation (Majority Rule)
Property is divided into equal shares at the first generational level at which there are living takers. Each person not alive at that level has their descendants get their share by representation.
Result is if all children are deceased, all living grandchildren get equal share
Per capita at each generational level (modern trend)
Modern and UPC approach
INitial division at the first genreational level where there are living takers, but the rest is combined and divided equally at next level.
Intestate Succession in a Typical State Arrangement
Spouse and or descendants
parents
descendants of parents (siblings or their descendants)
grandparents or descendents
nearest maternal or paternal kin
state
Adopted Children’s Right in Intestacy
Treated like a natural child regardless of when they are adopted
Jurisdictions vary on whether they can still take from their biological parents but usually they don’t
Stepchildren and foster children
generally don’t get intestate inheritance unless adopted unless adoption by estoppel
Adoption by estoppel
Permits a child to inherit from or through a stepparent or forster parent when legal custody is gained with an agreement to adopt
Nonmarital children
Will inherit from mom
Will inherit from dad if
1) father married mother after birth
2) man adjudicated to be the father in a paternity suit
3) his death and during probate proceedings the man is proved by clear and convincing evidence
Half bloods and whole bloods
Half bloods share one common parent
Half bloods and whole bloods inherit equally under UPC and most states, others reduce half bloods
Posthumous children
these are children born after death of parent
most states allow them to inherit, some allow if not in gestation but born in a certain period of time
Disinheritance clauses
A decedent can make a “negative” will to remove someone from the inheritance line
Definition of an Advancement
An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate
Courts presume not an advancement unless shown to be intended as such
look for
1) contemporaneous writing by donor
2) acknowledged as such ina writing by heir
Procedure if Advancement is Found
Gifts value is added back to estate for purpose of calculation but then subtracted from recipient’s share
Advancee Predeceases Intestate
Most states the advancement is binding on the estate of the advance, but UPC doesn’t make it binding unless the writing requires it
Simultaneous Death of Beneficiary and Intestate
You must outlive the intestate to inherit
When difficult to tell, most states have the Uniform Simultaneous Deaht Act which doesn’t apply if you survive by mere minutes.
Others follow the revised USDA which requires outlive by 120 hrs
USDA v. Wills
If the will gives different qualifications for outliving, you follow the will/
Disclaimers
when an heir or beneficiary doesn’t accept and they cannot be forced to accept
Requirements for a Disclaimer
written
signed by disclaimant
acknowledged by a notory
filed in appropriate court within 9 months of death
for feds - written, irrevocable, filed in 9 months or the beneficiary 21st birthday
Can you disclaim on behalf of a child or person without capacity?
Yes, if court finds it is in the interest of the beneficiary
Effect of Disclaimer
It is like the disclaimer died before the intestate and it accelerates remainders
Decedent’s death caused by heir or beneficiary
In nearly all states, feloniously causing the death of the decedent forfeits your interest. (must prove by preponderance of evidence)
This is usually done via slayer statue
What constitutes a will?
An instrument that disposes of probate property
Codicil
a supplement to the will that modifies it
Are wills revocable?
Wills are freely revocable during the testator’s lifetime and operative at their death
Which law applies when it comes to a will?
For real property, the law of wills where the property is located
for personal property, the law of where the domicile is
After these laws determine if it is probate, the local law governs construction and application
Will Requirements
Legal capacity
testamentary capacity
testamentary intent
Execution of Attested Wills Requires
Will or codicil in writing
signed by testatory or another at their direction
two attesting witnesses
testator signs in the presence of the witnesses
witnesses sign in testator’s presence
Legal Capacity Requirement
Must be 18 years old and sound mind exception for those married or in military
Testamentary capcity
Must understand
nature of the act
nature and extent of property (not exactly though)
persons who are natural objects of their bounty
formulate an orderly scheme of disposition
When is testamentary capcity determined?
At will execution
What if the testator is a drug addict or mentally or physically ill?
If they had the testamentary capacity at the time it is fine
Testamentary intent
Must have present intent that the instrument operate as a will (future promises don’t make it)
Can use parol evidence to show that an instrument was not meant to be a will
What do you do if it isn’t clear if the instrument was meant to be a will?
Must show
1) intended to dispose of the property
2) intended the disposition to occur only upon his death
3) intended that the instrument in question accomplish the disposition
Additional Requirements some states impose on addiitonal requirements
testator must sign at the end
publish the will
witnesses must sign in presence of each other
What constitutes a testator’s signature?
any mark made by the testator with the intent that it operate as their signature satisfies the signature requirement
Can you use a proxy signature?
Yes if it is at the testator’s direction and in their pesence
Does it matter who signs in what order?
No just needs to be contemporaneous transacton
What is required to be a competent witness?
mature enough and sufficient mental capacity (usually a minimum age)
common law: can’t be a beneficiary
statutes today: will valid but interested witness maybe voided out if they would not have taken if the will was not in probate
Presence Requirement
Have to be within the general awareness and cognizance of the other parties
Scope of vision test – satisfied if could have been seen signing had they looked
Phone calls not good enough unless e-will legislation is there
Attestation clause
If there is one it is prima facie evidence of the facts within the instrument and is signed by the witnesses and recites the formalities required to make it effective.
Self-proving affidavit
affidavit that recites all the elements of due execution were performed and is swon to by the testator and witnesses before a notary public
Is like a deposition and eliminate the need to produce the witnesses in court years later
Signatures here count for will
What can you do with a harmless error?
even if not executed perfectly, the UPC can ignore harmless errors
effectively executed wills can be given effect by clear and convincing evidence that testator intended the document to their will
Holographic wills
One that is entirely in the testator’s handwriting and has no attesting witnesses
MUST HAVE A SIGNATURE, even if it is a nickname
Interlineations
Interlineations are changes in the execution of an attested will are usually not given effect, and maybe a revocation
Oral wills
Generally not accepted except for small disposition of personal property, soldiers or sailors, or someone during their last sickness or in contemplation of death
Attorney liability to third parties
You can have duty to intended beneficiaries of the attonrey’s service and they can sue for negligent preparation or execution of a will
Devise v. Bequest v. Legacy
Devise – gift of real property to a devisee
Bequest – gift of personal property
Legacy – gift of personal property in a will, usually money to a legatee
General Legacy
A general legacy is a gift of general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment
Example: 100 shares of stock from XYZ Co. or 100 acres of property in Utah County count if the testator never owned them and intended the executor to purchase them
Demonstrative legacy
A gift of general amount that is paid from a particular source or fund and is a hybrid.
Treated as specific legacies to the extent the source of the payment is available and a general legacy to extent of any shortfall on the source of the payment
Specific devise or legacy
Gift of a particular item of property that is distinct from all other objects in the testator’s estate
Residuary Estate
The residuary estate is the gift of the residue - the balance of the property after
1) paying all debts, expenses, taxes
2) specific, general or demonstrative gifts
Ademption defined
Failure of a gift because property is no longer in the testator’s estate at the time of death
To what do ademptions apply?
Specific devisees and bequests are the ONLY gifts that can be adeemed and the beneficiary does not get a substitute gift
Partial Ademption
Occurrs when a part of a gift is adeemed. Think a large parcel that had part of it given away
Statutory Exceptions to Ademption
Replacement property - some states allow the beneficiary to take the item that replaced the adeemed item
Balance and Purchase Price - if testator sold the gifted item and purchaser still owes money to the testator, some states allow the beneficiary to receive the remaining money
Proceeds of Condemnation Award or Insurance – some states allow beneficiary to receive a condemnation award paid after T’s deathor casualty insurance proceeds for the loss of property
Proceeds from Sale by Guardian or Conservator
Ademption by Satisfaction
A testimentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect.
A writing or specific instruction in the will is usually required to have a satisfaction
Increases in property value before and after death
If there’s an income, it goes to the general estate. IMprovmenets to real property go to the specific devisee
Appreciation after goes to beneficiary because they own it after the death of the testator
Exoneration of liens
Common law and some states say otherwise, but the UPC and most states provide that liens on specifically devised property are NOT EXONERATED UNLESS THE WILL SO DIRECTS
Beneficiaries take subject to debt
Abatement Defined
Process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises
Order of Abatement (unless will says otherwise)
Intestate property
Residuary estate
General legacies
Demonstrative legacies
Specific bequests and devises
Lapsed Gifts
A gift lapses if the beneficiary dies before the testator or is treated as dead because they disclaimed
Who recieves lapsed gifts?
Determined by
1) express terms of the will
2) Rule of law (anti-lapse statutes)
3) residuary clause
4) intestacy
Anti-Lapse Statutes
These operate to save gifts if the beneficiary had a special relationship with the testator (parent, grandparent) and left descendants who survived the testator
Descendents take by substitution UNLESS the will says otherwise
- most states see words of survivorship as enough
- UPC says words of survivorship as NOT ENOUGH
Lapse of Residuary Gifts
CL said no residue of residue and any residuary shares were invalid and went to heir via intestate>
Modern approach, if residue is devised to two or more persons, the residuary beneficiary’s share will pass to the other residuary beneficiaries.
This only applies if the anti-lapse statue doesn’t produce a substitute taker
Who in a class gift take?
Class members who survive the testator unless the will says otherwise
Basic Rules of Will Construction
- interpret in a way to avoid intestacy
- last will prevails
- ordinary things get ordinary meaning
- technical words get technical meaning
- will is construed as a whole, not out of context
- give effect to all words
What do you do if the will is parent or obviously ambiguous?
Modern view is extrinsic evidence is admissible to clarify ambiguity but NOT fill in gaps or omitted gifts
How do you resolve latent ambiguity?
Language is clear on face but can’t be carried out without clarification
Consider extrinsic evidnece
No apparent ambiguity – mistake
It looks clear and it can be carried out, but someone thinks there’s a mistake
–> Traditional rule is to follow the plain meaning rule and not use extrinsic evidence
–> modern rule permits extrinsic evidence
Incorporation by Reference Basic Idea and Effect
A will can incorporate another document by reference and it becomes as if it was written
Requirements for Incorporation
Will must manifest intent to incorporate
Document must be in existence at the time the will is executed
Document be must sufficiently described in the will
Acts or Facts of Independnet Significance
Court may use an act of independent significance to fill in any gaps of a will.
Acts of independent significance are those with significance outside the will making process
Conditional Wills Defined
Operative only if a certain event occurs or does not occur.
Courts construe wills as general and not see motive as conditional.
Parol evidence is NOT ADMISSIBLE TO SHOW a will was absolute on its face was intended to be conditional
Codicils Republication
Modifies previously executed will and must be executed under the same formalities (written, signed, witnessed)
Treat the codicil and will as one document
Changes or alterations that are not re-executed have what status?
Ineffective. All changes need to be reexecuetd with proper formalities
Effect of a codicil on a prior invalid will
A properly executed codicil will validate a prior invalid will as an incorporation by reference
Pour-over Provisions in a Will
A pour-over provision in a will gifts property to a previously established trust.
Distributed according to the terms of the trust.
Distinguished from a testamentary trust because it doesn’t create the trust, it just puts it in the preexisting trust.
Integration and how to prove it
You show that the pages present at the time of execution are present at the time of probate.
Can prove by physical attachment, internal coherence of pages, orderly disposition, testimony or other extrinsic evidence
Combination Will Types
Joint Wills - one will made by two or more testators and intended to be the will of each (not advisable)
Reciprocal or Mutual Wills - separate wills that contain similar provisions (sweetheart wills)
Contractual Wills - executed or not revoked as consideration for a contract.
All governed by contract law
Contracts to not revoke will
A joint will or mutual will DOES NOT create a presumption of a contract not to revoke a will.
Can be revoked by agreement between parties while both alive and becomes irrevocable on first testator’s death
UPC doesn’t address this but some states recognize revocation if there is sufficient notice before one party dies
Remedy for a Breach of of Valid Agreement to Execute Mutual Wills
Court will probate the new will and then impose a constructive trust in favor of the original intended beneficiaries under the contractual will
When does a contract not to revoke get breached?
No breach if the other party has the chance to change will to not rely on the other
Breach if one dies in compliance and the other breaches and moves property or makes a new will
Merely stating you’re breaching without more is not enough while alive
Power of Appointment
The testator gives another person the power to decide where and to whom the testator’s property will go has the power of appointment
General Power of Appointment
Testator DOES NOT leave any conditions or restrictions as to the appointment of property.
Testimentary power of appointment
Only can be exercised by the donee’s will and according to donor’s conditions. Can’t do it while alive
Presently Exercisable Appointment Power
The donee can exercise appointment power during their lifetime
Special Power of Appointment
The testator/donor makes a limited class of appointees which class doesn’t include the donee, their estate, creditors or creditors of the donees estate
Appointed Estates v. Spouse’s Elective Share
Spouse’s elective share doesn’t apply to property the deceased spouse held a power of appointment
General Creditors and Appointive Property
Donee doesn’t own the appointive property, if the donee doesn’t exercise their general power the donee’s creditors cannot creat the property.
If they do exercise it, even appointing someone else, the donee’s creditors can reach the appointive property as if the donee was the owner
If a donee is also the donor, the donee’s creditors can reach the appointive assets regardless of whether donee exercises that power
Do residual clauses create appointment power?
Generally no, a residual clause by itself does not create any power of appointment. A minority of states that use the Revised Uniform Probate Code hold a will’s residuary clase exercises a general power of appointing unless
1) the donor’s will called for its specific reference to the power
2) the donor’s will provides for a gift in default of appointment
Blanket Appointment Clauses
Given effect unless creator of the power called for the power’s exercise by an instrument that specifically referred to the power
Appointment by Implication
Found when the donee purports to dispose of property subject to the appointment power as if it was the donee’s own. By implication found unless the donor called for the power’s exercise by specific reference to the power
What interests can an appointment create?
Appoint property outright
in trust
life estates
future interests
impose conditions and limitations on interests
create additional powers of appointment
Revocation of Wills Generally
A testator may revoke their will at any time prior to death
Methods of Revocation
Operation of law
subsequent instrument
physical act
Revocation by Operation of Law Types
Marriage following execution
Divorce or annulment
Pretermitted children
Effect of a Marriage following execution of a will
In most states it has no effect on the earlier will.
In some states and the UPC, the new spouse takes an intestate share as an “omitted spouse” unless
- will makes provision for new spouse
- omission intentional
- will made in contemplation of the marriage
Effect of Divorce or Annulment on an Executed Will
Divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse
The will is valid it just treats the spouse as dead
Some states and UPC also strike former spouse’s relatives who are not relatives of the testator
Divorce must be final
Pretermitted Children
Provides a share to a left-out child that the testator would have given a share to had they thought about it.
Applies after the will is executed
Revocation by Physical Act
A will or codicil can be revoked by burning, tearing, cancelling, or obliterating a material portion of the will with the intent to revoke. Accidental destruction is insufficient.
Proxy Revocation
Testators may direct a third party to destroy or cancel a will, but it must be done at their request and in their presence
Partial Physical Revocations
States permit partial revocations when there is sufficient evidence that the tesator made the changes
Extrinsic evidence permitted
Some states don’t permit this
Revocation and Other Testimentary Documents
A revocation of a will terminates all codicils but the revocation of a codicil doesn’t revoke the will
Destroying unexecuted copies of a will do not revoke the will
Types of Revocation by Written Instrument
Express revocation - expressly says prior will is revoked
Inconsistency -
1) If the new instrument completely disposes of the testator’s property, the old will is completely revoked.
2) If there’s partial disposition, the old will is only revoked so far as it is inconsistent
Presumptions and Revocations
Wills found in a normal place and no suspicious circumstances are presumed to not have been revoked
Wills last seen in the testator’s possession or under their control but not found or is found in a mutilated condition is presumed to be revoked. If in a third party possession no presumption.
We presume lost or destroyed wills are revoked unless you can prove
1) valid execution
2) cause of nonproduction of the will
3) contents of the will
What are the three approaches to revival of revoked wills?
UPC – look at the testor’s intention - revoked unless evident that intended to revive the will
Automatic revival - a revocation of a second will revives the prior
No revival approach – once revoked it can’t be brought back unless re-executed or there’s a valid codicil
Express Conditional Revocation
Testator may state in the revoking instrument that a revocation is effective on a happening or nonhappening
Dependent Relative Revocation
Applies when a testator revokes a will under the mistaken belief that another disposition of their property would be effective, and but for that mistaken belief, they would not have revoked the will.
Questions to ask if a DPR applies>
Was the revocation of W1 conditioned on the validity of W2?
Would Testator have preferred intestacy to W1?
Harmless Error Statute
A proponent must show by clear and convincing evidence that a testator intended a document that doesn’t meet the requirements to be a valid will to be a partial or complete revocation of a will
Pretermitted children and family protection
Pretermitted Children:
a child left out unintentionally from the will
- if born or adopted after the execution, child is entitled to an intestate share unless intentionally omitted from the will
- some states don’t allow recovery if provided for outside the will
- if child was living at the time of execution, not entitled to share unless child was omitted because testator did not know they were alive
- some states presume a child is unintentionally omitted unless evidence says otherwise
Types of Family Protection
Spousal elective share
Pretermitted Children
Spouse’s elective share
Give a surviving spouse the right to take a statutory share of the deceased estate and varies by state (typically 1/3 of net probate estate)
Elective shares are in addition to any statutory family exceptions like the family residence, exempt personal property and family allowance
How do you calculate the spouse’s elective share?
Reduce the gross estate by the exempt personal property
take out expenses (not taxes)
Now you have the net estate and take the statutory percentage reduced by the value of the assets that would pass absolutely to the spouse under the decedent’s will (can’t be less than what they’d take under the will)
Can you claim a spousal share against a revocable trust?
Yes, under the illusory transfer doctrine, if a settlor retains control over the trust property so he remains the practical owner during life time, the trust will be ineffective against the surviving spouse’s claim.
Key to this is whether the settlor intended to surrender complete dominion to the trustee and trust beneficiaries.
Spouse can reach it if it is fraudulent transfer under Fraudulent transfer doctrine
Other family protections besides surviving spouse and pretermitted children
Homestead - protections for the family residence or farm from creditor’s claims by exempting certain amounts of land
Family allowance - provides support during probate administration and takes precedence over all other claims other than funeral and admin expenses. THIS IS IN ADDITION to amounts passed by will and intestacy
Exempt personal property – tangible property like household furnishings, personal effect and sometimes cars as exempt from security interests
Basis for Will Contests
1) defective execution
2) revocation
3) lack of testamentary capacity
4) lack of testamentary intent
5) undue influence or duress
6) fraud
7) mistake
Insane delusion
Belief in facts that do not exist and that no rational person would believe existed.
Destroys testamentary capacity only if there is a nexus between the delusion and the property disposition
Undue influence
Must show
1) influence existed and was exerted
2) effect of influence was to overpor the mind and free will of the testator
3) but for causation
Evidence to prove undue influence
Unnatural dispositions like cutting out family
opportunity or access to testator
confidential or fiduciary relationship between parties
ability of the testator to resist
beneficiary’s involvement in the drafting or execution of the will
Need more than motive, opportunity and susceptibility
Presumptions of Undue Influence
1) confidential relaitonship between the testator and beneficiary and
2) beneficiary was active in procuring, drafting, or executing the will
No automatic presumption between spouses unless spouse exerted influence that overpowered free will and resulting in a disposition reflecting desires of spouse exerting influence
No gifts to attorneys
Duress
This is a threat of physical violence and harm
Fraud
False representation made to testator
knowledge of falsity by person making the statement
testator reasonably believed the statement
statement caused the testator to execute a will or make a particular disposion they would not have made but for the misrepresentation
Fraud in factum
tricking the testator into signing something they didn’t know was a will
Fraud in inducement
they know they’re executing a will and what it says, but were deceived about facts and they make a gift based on the deception
Mistake in inducement
testator mistaken as to extrinsic fact and makes will lbased on it
Mistake in factum
didn’t have testamentary intent
can use extrinsic evidence
UPC reformation for mistake
under upc, court may reform a will, even if it is unambiguous to conform with testator’s intent if proven with clean and convincing evidence that intent and terms impacted by mistake
Defective execution
No signature, witnesses didn’t sign in their presence, no witnesses
No-contest clauses
Create risk for contesting a clause by saying if you contest and lose you get a reduced share or nothing.
Majority and UPC don’t apply it if it was a good faith probable cause challenge
Probate defined
proceeding in which an instrument is judicially determined to be the will of the decedent or in which it a decedent’s heirs are determined
Personal Representatives v. Executors
If smoeone is appointed to carry it out probate in the will they are an executor
If not named they are an administrator
What is the probate jurisdiction?
The state of the decedent’s domicile at the time of death
Capacity required to be a personal representative
contracutarl capacity and the posting of a bond
Powers and duties of personal representatives
1) give notice to devisees, heirs, claimants
2) discover and collect decedent’s probate assets and file an inventory
3) manage the assets of the estate during administration
4) pay expenses of administration, claims against estate, taxes
5) distribute property
Duty of care of Personal representative
Fiduciary duty
Compensation for personal representatives
entitled to compensation and the reates are set by statute but if no statute, court has discretion to awarded a reasonable compensation
Sometimes executors are paid by the will’s statement to give a gift to them
Creditors Claims Order
1) admin expenses
2) funeral expenses and last illnesses
3) family allowance
4) debts favored by fed law
5) secured claims
6) judgments entered against the decedent during lifetime
7) all other claims
Standing to contest a will
must have a finanincal interest – person adversely affected by will being admitted to probate
Advance Health Directives
Called living will and specifies the patient’s preferences for treatment or non-treatment if they become incapacitated
Durable health-care-power of attorney
gives a designated agent the power to make healthcare decisions for the principal if they are incapacitated.
Not limited to a particular event, illness, or time-period unless that is expressly stated
Requirements to make a durable health-care power or advanced directive
1) signed writing
2) witnessed or notarized
Revocation of a Living Will
Any time by obliterating the will, written revocation, or oral expression to revoke
revocation of durable healthcare power
notifying hte agent or principal’s healthcare provider – orally or in writing
Eligibility to act as agent under durable healthcare power
anyone exept owner, operator or employee of a healthcare facility unless they are related to the principal
Authority of Agent under durable healthcare power
Make most healthcare decisions on principal’s behalf that they could make for themselves
If no express direction must be in the principal’s best interest
Liability of agent under durable healthcare power
No criminal or civil liability or professional discipline provided that they acted in good faith
Stock splits and dividends
Stock splits – beneficiary takes any additional shares produced by a stock split
Dividends – beneficiary does not take shares produced by a stock dividend.
But under the majority and Uniform Probate Code, a specific bequest of stock also includes shares of stock provided by stock dividend
Specific or General Bequest
Specific bequests have language that identifies with particularity property
General language lacks the specific language
Specific or General Stock Bequests
To be specific under the common law, it must say “my stocks” for redemption purposes.
But for purposes of stock splits and dividends, most courts consider all bequests of stock to be specific
Ademption and Testator’s Intent
Some courts consider the testator’s intent to see whether there is evidence that the testator intended to give a replacement gift or substitute property
UPC Replacement Property Rule
Under the UPC, beneficiaries are entitled to replacement property that was acquired as replacement by the testator for the adeemed property.
