Wills

Question 1

What are the five statutory requirements that must be satisfied to validly execute a will?

Answer 1

1. The testator must be 18 years of age or older;
2. The will must be written;
3. The will must be written with testamentary intent;
4. The testator must sign the will;
5. Two attesting witnesses who witness the testator signing the will must also sign.

Question 2

What counts as a valid signature when executing a will?

Answer 2

• Any mark, whether a namer, initials, or “X,” as long as the testator intended the mark to serve as a signature.
• Another person may make the mark on behalf of the testator if the testator is present and so directs.

Question 3

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

Answer 3

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 4

Under the Uniform Probate Code, under what circumstances can a defectively executed will be validated?

Answer 4

If the wills proponent establishes by clear and convincing evidence that the testator intended the document to be her will.

Question 5

Under the Uniform Probate Code, under what circumstances are no witnesses required to validly execute a deed?

Answer 5

When the will is signed by both the testator and a notary public.

Question 6

How does the placement of the signature affect the will’s contents?

Answer 6

UPC & Majority: If the clause is present at the time that the will is signed, the signature’s placement does not matter.

CL & Minority: If the clause is present at the time that the will is signed, clauses above the signature are valid, and clauses below the signature are invalid.

Question 7

What is a “holographic” will?

What if its a holographic codicil?

Answer 7

A holographic will (or a written alteration to a will) is a handwritten will that is NOT witnessed. Not all states recognize holographic wills. In the states that do, some require that the writing also be signed by the testator.
In the states that recognize holographic wills, a valid holographic codicil revokes any earlier valid will to the extent it conflicts with the codicil.

Question 8

Which state’s law applies in determining a will’s validity as applied to property in that state?

Answer 8

UPC and Vast Majority: The will is valid if it is valid in:

• The state in which the will was executed;
• The state in which the testator was domiciled when they died;
• The state in which the testator was domiciled when they executed the will.

Question 9

What is the Interested Witness Rule?

Answer 9

Majority: The beneficiary-witness loses their legacy unless:

1. There were two or more disinterested attesting witnesses; OR
2. The witness-beneficiary would be an heir if there were no will. If this is the case, she takes the lesser of (1) the amount given in the will and (2) the intestate share.

UPC and Minority: Abolishes the interested witness rule.

Question 10

What is a Self-Proved Will?

Answer 10

A testator may execute a self-proved will by properly executing a will and then, along with the witnesses, signing a self-proving affidavit under oath before a notary public. The formalities of execution are conclusively presumed for self-proving wills.

Question 11

How may a will be revoked?

(4 methods.)

Answer 11

Revocation by . . .

1. Physical Act;
2. Proxy;
3. Inconsistency;
4. Operation of Law (Divorce);

Question 12

Revocation by Physical Act

(and what is an adequate act?)

Answer 12

A will is revoked by physical act if the testator (1) intends to revoke the will and (2) engages in a physical act that damages, destroys, or cancels the will.

• Majority: The physical act must touch the language of the will.
• UPC and Minority: The cancelation may appear anywhere on the will.

Question 13

1. What if the testator is found with a mutilated copy of their will at the time of their death?
   
   1. What if the will was last seen in the testator’s possession and control, but it cannot be found after their death?

Answer 13

1. Presumed that the testator mutilated the will with the intent to revoke.
2. Presumed that the testator destroyed the will with the intent to revoke.

Question 14

Revocation by Proxy

Answer 14

Revocation of a will by a person other than the testator is valid only if the person revokes (1) at the testator’s direction and (2) in the testator’s presence.

Question 15

Revocation by Inconsistency

(Will and subsequent Codicil)

Answer 15

If a will and a codicil are inconsistent, the two are read together to the greatest extent possible. The later document controls with respect to inconsistencies that cannot be read together.

Question 16

Revocation by Inconsistency

(Will and subsequent Will)

Answer 16

• If the subsequent will does not revoke the first and has no residuary clause, treat the second will as a codicil to the first.
• If the subsequent will does not revoke the first but has a residuary clause, then the second will revokes the first.

Question 17

Revocation by Operation of Law (Divorce)

What about separation?

Answer 17

UPC and Majority: If divorce follows the execution of the will, the divorce revokes all provisions in favor of the former spouse and the will is construed as if the former spouse were dead.

• Mere separation does not affect a spouse’s rights unless the spouses have separated and completed a property settlement.

Question 18

Dependent Relative Revocation

Answer 18

Generally, an interlineation functions as a revocation unless the will is re-executed or the will is republished by codicil.

Under Dependent Relative Revocation, the revoked clause may be reinstated if (1) the revocation was based on a mistake of fact or law and (2) but for the mistake, the testator would not have made the revocation. If the interlineated gift is larger, reinstate the gift. If it’s smaller, maintain the revocation.

Question 19

Revival of a Revoked Will

Answer 19

UPC and Some States: If the testator revokes a subsequent will, the previous will is revived if:

1. The previous will still exists;
2. The testator INTENDED the previous will to be revived; and
3. The subsequent will was revoked by a physical act.

Other States: If a testator revokes a subsequent will, the previous will will not be revived. The testator must re-execute the will or republish it by codicil.
However, the court will apply Dependent Relative Revocation to determine whether to reinstate the subsequent will. It will do so if the testator would not have revoked the subsequent will had she known that the prior will would not have been revived.

Other States: automatic revival if the subsequent will is revoked

Question 20

Incorporation by Reference

(What about lists of tangible personal property?)

Answer 20

An extrinsic document may be incorporated into a will by reference if:

1. The writing existed at the time the will was executed;
2. The will manifests the testator’s intent to incorporate the document; and
3. The will sufficiently describes the writing to identify it.

Many states and the UPC make a statutory exception for wills that reference a writing that disposes of tangible personal property (not money) that isn’t disposed of in the will. The writing must be (1) signed by the testator and (2) must describe the property with reasonable certainty.

Question 21

Act of Independent Significance

Answer 21

A 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 of the will-making process.

⇒ For example: “I devise my car to Olive.” Then I sell my car and replace with a much nicer one. Olive gets the new car.

Question 22

Lapse

(General Rule)

Answer 22

Under the common law rule of lapse, all gifts in a will were conditioned on the beneficiary surviving the testator. Any gifts to beneficiaries who did not survive the testator failed and passed to the residuary estate or under intestacy.

However, a gift to a deceased beneficiary will NOT lapse if an anti-lapse statute applies. The anti-lapse statute provides that, where a beneficiary under a will predeceases the testator, the gift will vest in the issue of that predeceased beneficiary if:
* (1) the predeceased beneficiary is a specified blood relative of the testator; AND
* (2) the beneficiary leaves issue who survive the testator. Under the Uniform Probate Code, the anti-lapse rule applies to gifts to children, grandparents, siblings, and stepchildren.

Question 23

Class Gift Rule

What if class members predecease testator?

(Lapse)

Answer 23

Class gifts generally close at the death of the testator/settlor
When a gift to a class is involved, whether or not the gift to a predeceased member of the class will go into the residuary estate or be divided amongst the other class members depends on whether a group of persons is named (i.e. “my children”) or whether individual members of the class are specifically named (i.e. “Tom, Mary, and Joe”).
* When the class is specifically named, the gift will lapse and fall into the residuary estate unless an anti-lapse statute applies.
* When the class members are named as a group, the predeceased member’s share will be divided amongst the other members, unless there is a provision in the will to the contrary or an anti-lapse statute applies.

OK if the class gift is based on a contingency–condition must be satisf

Question 24

Lapse in Residuary Gift

Answer 24

UPC and Majority Rule: If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the residue passes to the other residuary beneficiaries UNLESS the state’s anti-lapse statute applies.

CL: If a residuary beneficiary predeceases the testator, then their share “falls out of the will” and passes by the laws of intestacy.

Question 25

Types of Gifts

(What’s the order for abatement?)

Answer 25

Abatement is not giving effect to beneficiaries so creditors’ claims are satisfied.

2. 1. Specific Devise - A gift of a specific asset.
3. General Legacy - A gift of a pecuniary amount with no funding instructions.
4. Residuary Bequest - A gift of the residue.
5. Intestate Property - Property that is intestate for some reason.

To abate: start from the bottom and work up!

⇒ Abatement applies when the testator’s estate is partially insolvent. It also applies to satisfying funeral expenses, administration expenses, and creditor claims.

Creditors always have priority to assets of the estate over beneficiaries

Question 26

Ademption

(Common Law Rule and UPC Exceptions)

Answer 26

CL: * identity theory*, a specific gift is adeemed by extinction if it cannot be identified at the time of the testator’s death or the testator does not own it at the time of death. This can occur when the testator makes a specific gift, but the property is later destroyed or sold before their death. The testator’s intent is not relevant.

Majority: a specific gift will adeem only if the testator intended the gift to fail.

If the testator DID NOT intend for a specific gift to fail, the beneficiary is entitled to:
* (a) any real property or tangible personal property (owned by the testator at death) which the testator acquired as a replacement for the specific gift; OR
* (b) a monetary devise equal to the value of the specific gift.

Additionally, if the specific gift was destroyed, the beneficiary is entitled to any unpaid insurance recovery or other recovery for injury to the property.

Question 27

Increases to Property After Will Execution

(Stocks: Splits, Dividents, and Mergers)

Answer 27

Just know this: A person who was gifted securities (shares of stock) in a will is entitled to additional shares owned by the testator that were acquired as the result of stock splits or stock dividends.

Splits and Dividends

• Common Law: If the stock splits, the devisee gets all the resulting stock. If the increase is a dividend, the devisee only take the original stock.
• UPC: Whether the additional stock results from a split or a dividend, the devisee takes all of the stock.

Mergers - Shareholder stock replaced after merger with new stock.

• Common Law: A specific devisee is not entitled to securities of another entity owned by the testator as a result of a merger or similar action initiated by the original entity.
• UPC: A specific devisee is entitled to securities of another entity owned by the testator as a result of a merger or similar action initiated by the original entity.

Question 28

Devise of Encumbered Real Property

(Does a lien pass with the land?)

Answer 28

UPC and Majority: A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. Moreover, a general direction in the will to pay debts does not show such an intent.

Common Law and Minority: The devisee may demand that the executor pay off the indebtedness so that it passes to her free and clear.

Question 29

How can you tell whether a gift of stock or securities is specific?

Answer 29

• “My 100 shares of XYZ stock” → Specific. If the testator sells prior to her death, then the gift is adeemed.
• “100 shares of XYZ stock” → Not specific. The personal representative will buy shares to fund the gift.

Question 30

Is extrinsic eidence admissible to clear up a latent ambiguity?

What happens if the ambiguity can’t be resolved?

Answer 30

• Yes, extrinsic evidence is admissible.
• If the ambiguity isn’t resolved by extrinsic evidence, then the gift fails.

Question 31

Is extrinsic evidence admissible to resolve a mistake?

Answer 31

Majority: The Plain Meaning Rule applies and bars the use of extrinsic evidence to disturb a will’s plain meaning.

UPC: Yes. If extrinsic evidence demonstrates the testator’s intent by clear and convincing evidence, then the court may reform the terms of a will even if those terms are unambiguous.

Question 32

Intestacy Rules: What does a decedent’s spouse get?

Answer 32

• Survived by spouse, no issue, no parents → entire estate;
• Survived by spouse, issue who are spouse’s issue → entire estate;
• Survived by spouse, at least one issue who is not spouse’s issue → spouse gets a fixed statutory amount, or $100,000 under the UPC.

Question 33

Intestacy Rules: How does the share not going to the spouse get distributed?

Answer 33

1. All to issue, if any;
2. If no issue, to parents or to surviving parent;
3. If no issue or parents, then to parents’ issue.

Question 34

What proportion of the estate do the issue take?

Answer 34

Majority: Per capita with representation. Property is divided equally at the first generation at which there are living takers. The shares of each deceased person pass to her issue by right of representation.

UPC and Modern Trend: Property is divided equally at the first generation level. The shares of each deceased person are combined and distributed equally at subsequent generation levels.

CL and Per Stirpes. Propert is divided equally at the first generation level whether or not the takers are living. The shares of each deceased person pass to her issue by represenation.

Question 35

What is the “probate estate,” and what doesn’t it include? Why does it matter?

Answer 35

The probate estate is the estate that the intestacy statute applies to. It includes the estate that the decedent could have controlled by a will had the decedent execute a will. It does not include:

• Life insurance;
• Property held in trust;
• Property subject to a right of survivorship;
• Securities or bank accounts registered in payable on death or transfer on death form.

Question 36

Intestacy Rules: How are non-marital children treated?

Answer 36

• Mother’s child → inherits from mother.
• Father’s child, mother and father don’t marry → doesn’t inherit from father unless: (1) father and mother marry or (2) paternity is adjudicated before father’s death.
• Mother and 3P marry → doesn’t inherit from 3P unless 3P adopts or there is an unperformed agreement to adopt (adoption by estoppel).

Question 37

Intestacy Rules: How are adopted children treated?

Answer 37

Majority:

• Child can inherit from adopting parents, and they can inherit from her.
• Child can’t inherit from biological parents, and they can’t inherit from her.

Question 38

Simultaneous Death

Answer 38

Original Simultaneous Death Act: A person is deemed to have survivrd another person if they survive the decedent by any length of time.

Revised Simultaneous Death Act (UPC): A person is deemed to have survived another person if they survive the decedent at least 120 hours, or 5 days.

→ Note that the language of the will controls if it contradicts the relevant simultaneous death statute.

Question 39

Advancement

Answer 39

Majority and UPC: There is no advancement unless:

1. The decedent declares the gift to be an advancement in a contemporaneous writing; OR
2. The heir acknowledges the gift to be an advancement in a writing.

Minority and Common Law: Any lifetime gift to a child by or descendant is presumed to be an advancemment, to be taken into account in distribution of the intestate’s estate.

Question 40

What are the three rights that most states give to surviving spouses by statute?

Answer 40

1. Homestead. The right to live in the home for as long as the spouse chooses.
2. Exempt Property. Household furniture, automobile, appliances, and personal effects, up to a fixed dollar amount.
3. Family Allowance. A reasonable allowance from the estate for maintenance of family during the administration of the estate.

Question 41

Pretermitted Spouse

(What’s the effect?)

Answer 41

A pretermitted spouse is a spouse who doesn’t appear in the will. The result:

• Majority: No effect on will.
• UPC: Pretermitted spouse gets intestate share UNLESS: (1) the will indicates that the ommission was intentional; or (2) the testator provided for the spouse outside of the will and statements by the testator indicate that the provision was in lieu of provision in the will.

Question 42

Elective Share

Answer 42

In all states, the survivng spouse may claim a elective share from the net testimentary estate, which is the probate estate minus exempt property, family allowance, funeral expenses, and expenses of administration, and allowable creditors’ claims.

The surviving spouse may claim the elective share by filing an election within a period of the spouse’s death. In most states, they get a fixed share of 1/3. In UPC states, they get up to 1/2, vesting at 3 percent per year of marriage.

The elective share is in addition to exempt property, family allowance, and homestead.

Question 43

Pretermitted Children

(What’s the effect?)

Answer 43

A pretermitted child is a child born or adopted after the testator executed the will and who does not appear in the will. A pretermitted child is entitled to an intestate share UNLESS:

1. It appears that the ommission was intentional;
2. The testator left substantially all of her estate to the other parent of the pretermitted child; OR
3. The testator provided for the child by a transfer outside the will and intended the transfer to be in lieu of a provision in the will. Extrinsic evidence may be used to show intent.

Question 44

What if a child thought to be dead is left out of the will?

Answer 44

Common Law: Nothing happens, unless the words of the will itself indicate that the testator made the omission because of a mistake. (“Nothing to A, because A is dead.”)

UPC and Some States: Treat child as pretermitted if the testator failed to provide for the child because she believed the child to be dead.

Question 45

Renunciation

Answer 45

An heir or devisee may renounce her interest in whole or in part by doing so in writing within nine months after the decedent’s death. The result: the property is treated as if the heir or devisee predeceased the decedent.

Question 46

Living Will

Answer 46

A statement of an adult individual’s desires with respect to life-sustaining procedures if they should become terminally ill or enter a vegetative state.

• Execution. In writing, signed by an adult testator with two witnesses.
• Revocation. By any manifestation of intent to revoke at any time without regard to physical or mental condition.

Question 47

Durable Healthcare Power

Answer 47

Allows one person to appoint an agent to make healthcare decisions for them should they lose capacity.

• Eligibility of Agent. Anyone except an unrelated person associated with the principal’s healthcare facility.
• Execution. In writing, signed by the principal, with two adult witnesses. Usually, the agent can’t be a witness.
• Revocation. By written or oral notice to the agent or the principal’s healthcare provider.
  *

Question 48

Requirements and Test Applicable to Will Contests

Answer 48

• Standing. A person has standing to contest a will if they would take more as an heir or as a beneficiary under a prior will.
• Test for lack of testamentary capacity:
  
  1. Did the testator understand the nature of the act she was doing?
  2. Did the testator understand the character and nature of her property?
  3. Did the testator know the natural objects of her bounty?
  4. Did the testator understand the disposition she wished to make.
  • Note that just being frail, old, or absentminded isn’t enough.

Question 49

Undue Influence

Answer 49

Contestants have the burden of showing:

1. Existence and exertion of the influence;
2. The influence overpowered the mind and will of the testator;
3. The result is a will that would not have been executed but for the influence.

Question 50

When does a presumption of undue influence arise?

Answer 50

A presumption of undue influence arises when:

1. A confidential relationship existed between the beneficiary accused of exerting undue influence and the testator;
2. The beneficiary participated in the procuring or drafting of the will;
3. The provisions of the will appear to be unnatural and in favor of the beneficiary accused of undue influence.

Burden then shifts to the beneficiary to show that there was no undue influence.

Question 51

What happens if a gift is invalidated for undue influence?

Answer 51

• If only part of a will was procured by undue influence, then only that part of the will is void;
• If a will would not have been executed but for undue influence, then the entire will is void.

⇒ Consider what the testator would have done in the absense of the undue influence. Would the testator have executed a will at all?