Wills Flashcards
Intestate Succession
Descendants Also Survive: If the decedent leave descendants as well as a surviving spouse, the spouse takes 1/3 or 1/2 of the estate.
UPC: In UPC states, the surviving spouse takes the entire estate if the decedent is survived by descendants, all whom are the descendants of the surviving spouse, and the surviving spouse has no other surviving descendant
Some state give the surviving spouse a specific dollar amount plus one-third or one-half of the estates
No Descendants Alive: In most states, if the decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate.
UPC States: However, in UPC states the spouse take the entire estate only if the decedent is not survived by the descendants or parents
If the decedent’s spouse and parents do not survive the testator, there are two available schemes to divide property among the decedent’s children:
1. Per capita at each generation (where all cousins will be treated alike) or
To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving. Combine the shares belonging to the deceased persons and distribute them equally at the next generational level. (Cousins are treated alike.)
- Per capita with representation (modern per stripes) (where a child will simply take his parent’s share)
This is the same as above except instead of combining all shares and dividing them equally, simply pass each deceased person’s share on to her issue(s). (Cousins are not treated alike.)
If there is no spouse and no children, the order goes:
1. Parents
2. Brothers and sisters and their descendants
3. One-half to paternal grandparent’s and one-half to maternal grandparents and their descendants(both halves to one side if there are no takes on the other side)
4. One-half to nearest kin on maternal sides and one-half to nearest kin on paternal side(all to one side if there are no kin on the other side)
5. Failing all of the above, the estate escheats to the state
Children: A child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!).
Advancements: This is an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of intestate succession?
1. Majority law: most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir’s intestate share unless there is evidence to show that the decedent intended the gift to be an advancement.
- Common law: A lifetime transfer to an heir was presumptively treated as a down payment on the heir’s intestate share and thus is taken into account when computing the heir’s intestate share. At common law, this only applied to a gift to a child (not, say, a gift to a sibling), but most states have broadened it to include any heir.
Ademption by Satisfaction: This doctrine applies when there is a will (unlike the advancements doctrine).
The Uniform Probate Code (UPC) states that a lifetime gift is not a prepayment unless:
1. The will says so,
2. The testator declares in a contemporaneous writing that the gift is to be deducted from the will, or
3. The devisee acknowledges in writing that the gift is in satisfaction of the bequest.
Execution of a Valid Will
A valid will requires:
1. Legal Capacity
2. Testamentary Capacity
3. Testamentary Intent
4. Formalities
Legal Capacity
The testator must be at least 18 years old and of sounds mind at the time the testator makes a will.
Testamentary Capacity
A testator need to be of sound mind. A testator simply must have the capacity to understand:
1. The nature of their act- That is that the testator is executing a will
2. The nature and extent of their property
3. The persons who are the natural object of their bounty(family members)
4. The above factors and be able to formulate an orderly scheme of disposition
Mental or Physical Ailment for Drug Addiction: The fact the testator was old, ill, possessed a failing memory, or was an alcoholic or drug addict does not mean they lacked testamentary capacity. A mentally challenged individual can make a will as long as they meet the requirements above.
Testamentary Intent:
The testator must have present intent that the instrument operate as their will.
Promises to make a will in the future and ineffective deeds are not given effect as wills
Formalities of a Will:
1. The will or codicil must be in writing
2. The will or codicil must be signed by the testator, in the presence of two attesting witnesses
3. The will or codicil must be signed by two witnesses in the testators presence
Note: Generally, any mark that is made with intent to adopt the will counts as a signature.
Holographic wills: Holographic wills are unwitnessed wills. Holographic wills are valid if signed and if the material portions are in the testator’s handwriting. Mention this doctrine if you see an unwitnessed will on the MEE.
Dispensing power: The UPC adopts the dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.
Incorporation by Reference: Instead of writing something in the will, a testator may incorporate an extraneous document into the will by reference
Requirements for Incorporation By Reference:
1. The will manifests an intent to incorporate the document
2. The document is In existence at the time the will is executed; and
3. The document is sufficiently described in the will
Revocation
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
The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.
Revocation By Written Instrument
All or part of a will may be revoked or altered by a subsequent will or codicil executed with the same formalities of will
Express Revocation: Subsequent will or codicil can expressly revoke the earlier will
Revocation By Inconsistency: If the new instrument completely disposes of the testators property, the old will is completely revoked by inconsistency
If the new instrument partially disposes of the testators property, the old will is revoked only to the inconsistent provision
Presumption of Revocation: If the will was last seen in testators possession and cannot be found after their death or is found in a mutilated condition, a rebuttable presumption arises that it was revoked
Dependent relative revocation: Under this doctrine, a first will isn’t revoked if a later will is found invalid.
Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.
The more similar the provisions of the two wills the more like the court will apply DRR
Divorce: Divorce revokes gifts in favor of a spouse.
Note: there actually needs to be a divorce (or annulment)—not just a filing of divorce.
Revival of Revoked Wills
There are 3 approaches to this:
UPC/Intent Approach: Look at testators intent. If a will that wholly revoked a previous will is thereafter revoked, the previous will will remain revoked unless it is evident from the circumstances or the testators statements that the testator intended to revive the previous will.
Automatic Revival Approach: Revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testators death
No Revival Approach: Revocation by subsequent writing takes effect immediately when signed
Slayer Statue
An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s share, etc.).
Voluntary manslaughter is a form of a felonious and intentional killing. Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift.
Nor does it apply if the slayer murdered someone other than the decedent.
Note: when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the killing is not felonious and intentional!).
Abatement
Abatement: When the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order:
1. Intestate property,
2. Residuary gifts,
3. General gifts, and
4. Specific gifts.
Lapse and Anti-Lapse
The general rule is that if a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary.
Anti-Lapse Statues: Under a typical anti-lapse statute, if a beneficiary dies before the testator and was related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.
Lapse in Residuary Gift(Modern Rule): Surviving residuary beneficiaries divide the deceased beneficiary’s share
Class Gifts: If a will makes a gift to a class, only the members who survive the testator take share of the gift, unless the will provides otherwise.
Ademption by Extinction
Failure of a gift because the property is no longer in the testators estate at death of testator.
“Identity Approach”(Majority): If specifically bequeathed property is not in the testators estate at death, the bequest is deemed and the beneficiary takes nothing
Exceptions:
Replacement Property: Some state allow the beneficiary to receive replacement property in the testator replaced the gift with another similar item
Balance of Purchase Price
Condemnation or insurance proceeds
Proceeds from sale by guardian
Undue Influence
Undue Influence(IMPORTANT)
To establish undue influence, the contestants must establish that:
1. Influence existed and was exerted
2. The effect of the influence was to overpower the mind and free will of the testator; and
3. The influence caused the disposition
Presumption of Undue Influence: A presumption of undue influence arises when:
1. There was a confidential relationship between the testator and a beneficiary; and
2. That beneficiary was active in procuring, draft, or executing the will.
Attorney as Draft: if the attorney who drafted the will is also a beneficiary, many states void the gift to the attorney unless the testator and the attorney are closely related
Insane Delusion
A belief in facts that do not exist and that no rational person would believe they exists.
Insane delusion destroys testamentary capacity only if there is a connection(nexus) between the insane delusion and property disposition
Fraud
The elements of fraud include:
1. False representation made to testator
2. Knowledge of falsity by person making statement
3. Testator reasonably believed statement
4. Statement caused testator to execute will, testator otherwise would not have executed
There are two types of fraud:
1. Fraud in the Factum: Testator is deceived as to identity or contents on instrument
Thus can also attack the will as to testamentary intent
Hides that document is a will
2. Fraud in the Inducement: Testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact
