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My MEE Topics > Wills > Flashcards

Wills Flashcards

1
Q

Will Requirements

A

Legal Capacity
Testamentary Capacity
Testamentary Intent
Formalities

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2
Q

Will Formalities

A

Writing
Signed by Testator
Witnessed by 2 Credible Witnesses

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3
Q

Legal Capacity

A

Testator must be 18 years old and of sound mind at time of creation

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4
Q

Testamentary Capacity

A

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

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5
Q

Testamentary Intent

A

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.

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6
Q

Writing Requirement

A

Typed or Handwritten

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7
Q

Signed Requirement

A

Any mark made w the intent to authenticate

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8
Q

Witness Requirement

A

2 Credible
In the presence of the T
Signed by the Witness

Generally must be disinterested

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9
Q

Interested Witnesses

A

A witness who is also a beneficiary

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10
Q

Rule for Interested Witness

A

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

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11
Q

Compliance

A

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)

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12
Q

Formalities that are not Required

A

Attestation Clause
Self-Proving Affidavit

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13
Q

Attestation Clause

A

Recites the elements of due execution is PRIMA FACIE evidence of the formalities

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14
Q

Self-Proving Affidavit

A

Second set of signatures in the presence of a notary

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15
Q

Holographic Wills

A

HANDWRITTEN not in the presence of witnesses

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16
Q

Rule for Holo Wills

A

MD: Only good for one year and be in military
UPC: Recognized and post facto changes are good too

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17
Q

Oral Wills

A

Not recognized

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18
Q

Dispositive Provisions of the Will

A

Specific Bequests
Demonstrative Bequests
General Bequests
Residual

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19
Q

Specific Bequests

A

Particular item
Can be specific or general in nature
“MY 2021 Dodge Charger” or “My car”

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20
Q

Demonstrative Bequests

A

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

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21
Q

General Bequests

A

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

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22
Q

Residuary

A

Balance and all amounts not yet disposed of at execution.
“And the residual to B”

23
Q

Ademption

A

When an item of a specific bequest is no longer property of the estate.
Gift fails

24
Q

Abatement

A

Occurs when there is not enough property to fund the estate plan.

25
Q

Order of abatement

A
  1. Specific
  2. Demonstrative
  3. General
  4. Residual
26
Q

Lapse

A

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

27
Q

Anti-Lapse Statute

A

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

28
Q

Ambiguities

A

Patent
Latent

29
Q

Patent Ambiguity

A

Exists if the provision is ambiguous on its face
“I leave gafag to A”
Extrinsic Evidence ADMISSIBLE
Not in MD

30
Q

Latent Ambiguity

A

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

31
Q

Facts of Independent Significance

A

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.

32
Q

Integration

A

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

33
Q

Incorporation by Reference (IBR)

A
  • Intent (Terms and actions in the will)
  • Existence (Document existed at time of execution, look for dates)
  • Identification by reasonable certainty
34
Q

Applicable Law

A

Real Property - Where its located
Personal Property - T’s domicile at death

35
Q

Devise/Devisee

A

Gift of real property/ Beneficiary of real property

36
Q

Legacy/Legatee

A

Gift of personal property/beneficiary of personal property

37
Q

Class Gifts

A

Only class members who survive the testator collect share

38
Q

Codicil

A

Modifies a previously executed will and must be executed with SAME formalities

39
Q

Doctrine of Republication by Codicil

A

Will and codicil are treated as one instrument from the date of the last codicil’s execution

40
Q

Pour-Over Gift

A

A provision in a will making a gift to an intervivos trust.

41
Q

Joint Wills

A

Discouraged
Single instrument executed by two or more testators and intended to be the will of each

42
Q

Reciprocal or Mutual Wills

A

Separate wills executed by two or more T’s that contain substantially similar provisions

43
Q

Contractual Will

A

“T agress to leave entire estate to M if M takes care of T in T’s old age.”

44
Q

Revocation of Wills

A

May be done anytime before death.

3 types:
Operation of Law
Subsequent Instrument
Physical Act

45
Q

Revocation (Physical Act)

A

Intent + Act
Ripping up the will

46
Q

Revocation (Operation of Law)

A
  • 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.)
47
Q

Revocation (Subsequent Instrument)

A

Express - “I hereby revoke my prior Will and Codicil.

Implied - 2 documents are so inconcsisten that they cannot be read together (New one controls)

48
Q

Ademption Exceptions

A

Replacement Property
Balance of Purchase Price
Proceeds of Condemnation Award or Insurance
Proceeds from sale by Guardian or Conservator

49
Q

Ademption by Satisfaction

A

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

50
Q

Ademption Exception: Replacement Property

A

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

51
Q

Ademption Exception: Balance of Purchase Price

A

If T sold the gifted item and the purchaser still owes money to T, some states allow Beneficiary to receive the balance remaining

52
Q

Ademption Exception: Proceeds of Condemnation or Insurance Award

A

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

53
Q

Ademption Exception: Sale by Guardian or Conservator

A

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

My MEE Topics (7 decks)

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