Wills

Question 1

How do you create a valid will?
CIF

Answer 1

Must have
(1) Capacity - tetstamentary capacity + legal capacity;
(2) Testamentary intent
(3) Will must follow state law formalities

Testamentary capacity - capable of understanding (a) what property you have; (b) that you are disposing of it to others; (c) who you are disposing of it to.

Legal capacity – you must be at least 18

State law formalities
Will must be
* In** writing **
* signed by testator or by someone in his conscious presence at his direction; AND
* Signed by two attesting witnesses who witnessed the testator sign; OR
* Notarized

Question 2

Intestate Succession

Any property not passing by a valid will or by operation of law will be governed by a state’s applicable intestacy statute. Explain the order under UPC

Answer 2

If the decedent leaves only a surviving spouse and no issue,
in most states the surviving spouse will receive the entire
estate

Question 3

If the decedent leaves only a surviving spouse and no issue, what result?

most states vs upc

Answer 3

Most states: spouse gets everything

UPC: Spouse gets evertyhing but some UPC states require a portion go to decedent’s parents + their issue

Question 4

If the decedent leaves a surviving spouse and issue, what result

most states vs upc

Answer 4

Most states: Surviving spouse receives a portion and issue receives a portion

UPC: Surviving spouse receives EVERYTHING if all kids and grandkids are issue of the surviving spouse (the theory being that the spouse will use it to benefit the youngsters)

Question 5

If the decedent does not leave a surviving spouse, what result

most states and upc

Answer 5

the estate
passes to the decedent’s issue

look to see what method used

Question 6

If the decedent does not leave a spouse or issue, the estate
passes in the following order

most states and upc

Answer 6

(1) to surviving
parents equally, or to one parent (if only one survives); 
(2) to the issue of the decedent’s parents (decedent’s siblings and
their issue); 
(3) to more remote ancestors;  and
(4) to the issue of more remote ancestors.

Question 7

How are assets distributed via intestacy in most states + UPC?

Answer 7

assets are distributed per capita at each generation

Under this, the property is divided into equal shares at the first level at which there are living takers. The shares of deceased persons at this level are pooled and distriubted equally at the next level.

Question 8

how are assets distributed in a district that uses per capita by representation (modern per stirpes)

Answer 8

Under this, the property is divided into equal shares at the first level at which there are living takers. The shares of deceased persons pass by representation to their living issuue.

Question 9

how are assets distributed in a district that uses per stripes

Answer 9

Under this, one share is created for each child, living or deceased (who has living issue.) The shares of deceased persons pass by representation to their living issuue.

Question 10

When is a will signed by a someone in the testators presence, under UPC vs minority view?

Answer 10

Majority/UPC: if signed within the range of Ts senses (the “conscious presence” test).
Within testator’s general awareness and cognizance

Minority: if signed within Ts line of sight (the “line-of-sight” test)
T must actually see u sign

Question 11

How is the signature requirement satisfied?

Answer 11

any mark made by testator with intent that it be his signature satisfies [X, initials, etc.]

Question 12

What is a holographic will or codicil?

hint: if will wasnt witnessed, was it holographic?

Answer 12

A holographic will or codicil is a handwritten will/codicil that was NOT witnessed.

**UPC & Half of States: ** to be valid, the material provisions of the will must be in testator’s handwriting and the will must be signed at the END of the will.

Other Half: A holographic will is not entitled to probate unless it is signed by two witnesses.

Question 13

what is the effect of a holographic codicil on an earlier will?

Answer 13

a valid holographic codicil revokes any earlier valid will to the
extent it conflicts with the codicil.

Question 14

When has a witness “been present” to witness the testator sign the will?

Answer 14

**UPC & Majority: **Under the Conscious Presence Test, the testator and witness are in each other’s presence if they are conscious of where the other is and of what the other is doing.

Minority: Under the Scope of Vision Test, the testator and witness are in each other’s presence if they could see each other sign were they to look.

Question 15

Under common law, what is the effect of an interested witness?

Answer 15

Common law = if interested witness present → entire will void
because NO takers under the will can witness the will

Question 16

Modernly, what is the effect of an interested witness?

Answer 16

if interested witness present → will still valid but gift might fail

• If interested witness is there AND 2 other disinterested witnesses → will valid + gift valid
• If interested witness but theres not 2 disintersted → will valid but gift fails
• If interested witness is there AND he is an heir → will valid but gift reduced to intestate share wouldve been (if its smaller)

Question 17

what is a codicil? when is it valid?

Answer 17

An instrument made after a will is executed that modifies, amends, or revokes a will.

To be valid it MUST satisfy the same will execution formalities
in writing, signed by testator, signed+ witnessed by 2 disinterested witnesses

Question 18

does a valid codicil republish a will?

Answer 18

A valid codicil republishes the will, meaning the OG will be deemed executed on the same date as the codicil.

Note: a valid codicil cannot republish an invalid will.

Exception: it can cure an interested witness issue, making a will with that issue valid, IF the codicial was executed with 2 disinterested witnesses

Question 19

when is an integration question raised?

Answer 19

What sheets were present at the time of will execution and therefore comprise the decedent’s last will?] proponent of will must show that the pages were present when will was executed and intended by T to be part of the will

Question 20

when is a document integrated into a will?

Answer 20

A document will be integrated
into a will if the Testator:
1) intended it to be part of the will; AND
2) the document was physically present at the
will’s execution.
*May be proven by extrinsic evidence or witness
testimony.

Question 21

When will an extrinsic document be incorporated into a will by the will referencing it?

Answer 21

A document or writing will be incorporated by reference if:
1) It was in existence at the time the will was executed;
* Bar Exam TRICK: It may not have been around at the time the Will was published, but if it’s around at the time the CODICIL is published… it can be incorporated.
2) It was sufficiently described in the will; AND
3) Testator intended to incorporate it into the will.

Question 22

When are words of cancellation valid?

Common Law v UPC

Answer 22

Common Law → words of cancellation are valid ONLY IF they come in physical contact with the cancelled words of the will (i.e. written over).

UPC → words of cancellation are valid written anywhere on the will (no physical contact is required).

Question 23

What happens if a testator crosses out a gift in a will and substitutes a new gift over it?

e.g. crossing out the type of gift, and substituting it for another type of gift

Answer 23

the gift will be revoked by cancellation, but the substitution is NOT VALID.