Wills Flashcards
Will Requirements
Legal Capacity
Testamentary Capacity
Testamentary Intent
Formalities
Will Formalities
Writing
Signed by Testator
Witnessed by 2 Credible Witnesses
Legal Capacity
Testator must be 18 years old and of sound mind at time of creation
Testamentary Capacity
Testator must have capacity to understand:
- Nature of the act (creating a will)
- Nature and extent of their property
- Persons who are”natural objects of their bounty” (family and friends)
- Ability to formulate an orderly scheme of disposition
Testamentary Intent
Testator must have present intent that the instrument operate as a will
Look to see if: T intended to dispose of property, intended the disposition to occur at death, and intended that the instrument in question accomplish the disposition.
Writing Requirement
Typed or Handwritten
Signed Requirement
Any mark made w the intent to authenticate
Witness Requirement
2 Credible
In the presence of the T
Signed by the Witness
Generally must be disinterested
Interested Witnesses
A witness who is also a beneficiary
Rule for Interested Witness
Will still valid but bequest is void
UNLESS the witness/beneficiary would have take as a share under intestacy laws
under UPC gifts not purged
Compliance
MD - Strict Compliance
UPC - Allows for substantial compliance
(If will fails under strict compliance look to see if proponent provides CLEAR and CONVINCING evidence that decedent intended instrument to be a will)
Formalities that are not Required
Attestation Clause
Self-Proving Affidavit
Attestation Clause
Recites the elements of due execution is PRIMA FACIE evidence of the formalities
Self-Proving Affidavit
Second set of signatures in the presence of a notary
Holographic Wills
HANDWRITTEN not in the presence of witnesses
Rule for Holo Wills
MD: Only good for one year and be in military
UPC: Recognized and post facto changes are good too
Oral Wills
Not recognized
Dispositive Provisions of the Will
Specific Bequests
Demonstrative Bequests
General Bequests
Residual
Specific Bequests
Particular item
Can be specific or general in nature
“MY 2021 Dodge Charger” or “My car”
Demonstrative Bequests
Cash Bequest funded from a particular asset
“$5,000 from the sale of my car”
Ademption does not apply, bequest will be funded by the sale of other assets
General Bequests
Always cash, can be funded whether or not cash exists in the estate
“$5,000 to A”
Ademption does not apply, bequest will be funded by the sale of other assets
Residuary
Balance and all amounts not yet disposed of at execution.
“And the residual to B”
Ademption
When an item of a specific bequest is no longer property of the estate.
Gift fails
Abatement
Occurs when there is not enough property to fund the estate plan.
Order of abatement
- Specific
- Demonstrative
- General
- Residual
Lapse
When you draft a will and leave property to a beneficiary who is alive, but ends up predeceasing the Testator who did not update the will
Anti-Lapse Statute
MD: Pushes through the estate
- if there is a will follow the terms
- if not it passes to beneficiary’s heirs
UPC: Two step test
1. Blood Relationship between predeceased beneficiary and Testator; if related then
2. Look for descendants, if so they take via substitution
IF NOT RETURNS TO RESIDUAL
Ambiguities
Patent
Latent
Patent Ambiguity
Exists if the provision is ambiguous on its face
“I leave gafag to A”
Extrinsic Evidence ADMISSIBLE
Not in MD
Latent Ambiguity
Exists when the language of the will is clear on its face, but cannot be carried out without clarification
“To my step-brother, Kevin”
Extrinsic Evidence ADMISSIBLE
Facts of Independent Significance
Events that change the outcome of the will, but happen for their own independent signifigance
“The contents of my trunk” > At the time of creation there was a million dollars, at distribution just my shoe collection.
Integration
Person probating must show that:
- Pages present at time of execution are those present at distribution.
- Page numbers, stapling, initials at the bottom
- Presumed included but can be rebutted
Incorporation by Reference (IBR)
- Intent (Terms and actions in the will)
- Existence (Document existed at time of execution, look for dates)
- Identification by reasonable certainty
Applicable Law
Real Property - Where its located
Personal Property - T’s domicile at death
Devise/Devisee
Gift of real property/ Beneficiary of real property
Legacy/Legatee
Gift of personal property/beneficiary of personal property
Class Gifts
Only class members who survive the testator collect share
Codicil
Modifies a previously executed will and must be executed with SAME formalities
Doctrine of Republication by Codicil
Will and codicil are treated as one instrument from the date of the last codicil’s execution
Pour-Over Gift
A provision in a will making a gift to an intervivos trust.
Joint Wills
Discouraged
Single instrument executed by two or more testators and intended to be the will of each
Reciprocal or Mutual Wills
Separate wills executed by two or more T’s that contain substantially similar provisions
Contractual Will
“T agress to leave entire estate to M if M takes care of T in T’s old age.”
Revocation of Wills
May be done anytime before death.
3 types:
Operation of Law
Subsequent Instrument
Physical Act
Revocation (Physical Act)
Intent + Act
Ripping up the will
Revocation (Operation of Law)
- Divorce
- Marriage After the Will (Omitted Spouse takes intestate share unless will makes a provision for new spouse, omission was intentional, or made w contemplation of marriage.)
Revocation (Subsequent Instrument)
Express - “I hereby revoke my prior Will and Codicil.
Implied - 2 documents are so inconcsisten that they cannot be read together (New one controls)
Ademption Exceptions
Replacement Property
Balance of Purchase Price
Proceeds of Condemnation Award or Insurance
Proceeds from sale by Guardian or Conservator
Ademption by Satisfaction
Gift may be satisfied in part or in whole by an intervivos transfer of the gift to beneficiary.
Kind of like an advancement but for Will v Intestacy
Ademption Exception: Replacement Property
Some states allow the beneficiary to receive replacement property if the T replaced the gifted item with a similar item.
Ex. 2020 Charger > 2024 Charger
Ademption Exception: Balance of Purchase Price
If T sold the gifted item and the purchaser still owes money to T, some states allow Beneficiary to receive the balance remaining
Ademption Exception: Proceeds of Condemnation or Insurance Award
Some states allow the beneficiary to receive a condemnation award paid after the T’s death or casualty unsurance proceeds for the loss of property if they are paid after the T’s death
Ademption Exception: Sale by Guardian or Conservator
If the T became incompetent and the specifically devised property was sold by a guardian or conservator, the beneficiary may be entitled to a general pecuniary legacy equal to the amount of the proceeds
