Wills Flashcards
Terminology and Concepts (Will, Codicil, Intestate, Testator, Executor: Legal declaration of property distribution after death
WIll
Terminology and Concepts (Will, Codicil, Intestate, Testator, Executor: Formal amendment or revision to an existing will
Codicil
Terminology and Concepts (Will, Codicil, Intestate, Testator, Executor: Dying without a will; property may escheat to the state if no heirs exist
intestate
Terminology and Concepts (Will, Codicil, Intestate, Testator, Executor: The individual creating the will
Testator
Terminology and Concepts (Will, Codicil, Intestate, Testator, Executor: Named personal representative responsible for administering the will
Executor
Gifts in Will (specific, general, residuary): A gift of a clearly identified item
Specific
Gift in Will (Specific, general, residuary): ex “my 2019 BMW X3”
specific gift
Gifts in Will (Specific, general, residuary): A gift of an item of general value
General Gift
Gifts in Will (Specific, General, Residuary): Ex “a 2019 BMW X3”
General Gift
Gifts in Will (Specific, General, Residuary): A gift of all remaining property after specific and general gifts are distributed
Residuary Gift
What is the correct order of distribution in intestate succession?
(Surviving Spouse, Issue, Escheat to the State, Parents, Issue of Parents, Grandparents, Next-of-Kin, Issue of Grandparents)
Correct Order:
Surviving Spouse
Issue (children, grandchildren)
Parents
Issue of Parents (siblings, nieces, nephews)
Grandparents
Issue of Grandparents
Next-of-Kin
Escheat to the State (if no heirs exist)
Methods of Intestate Distribution (Per Stripes, Per Capita) : The estate is divided into equal shares for each branch of the family.
If a child has passed away, their share goes to their own children (the deceased’s grandchildren) equally.
Example:
If you have three children, and one has passed away, the two living children each get 1/3. The children of the deceased child share their parent’s 1/3 equally
Per Stripes
Methods of Intestate Distribution (per Stripes, Per Capita): The estate is divided equally among all living descendants, regardless of their family branch.
Example:
If you have three children, and one has passed away leaving two kids, the estate is split equally among the two living children and the two grandchildren, so each gets 1/4.
Per Capita
Disinherit Without A Will
To ensure someone doesn’t inherit, you must create a will and explicitly state your intent to disinherit them.
Historically: You needed a valid will to disinherit someone. Without a will, the law automatically gave certain family members (like children or spouses) a share of your estate.
Modern Laws: Now, you can disinherit someone by clearly stating your intent in a valid will. If you don’t have a will and don’t mention disinheritance, the default inheritance laws apply, and those family members may still get a share.
Execution or Revocation of a Will: To execute or revoke a will, a testator must be at least ___ years
old and of sound mind
Execution or Revocation of a Will: To execute or revoke a will, a testator must be at least 18 years
old and of sound mind
Barnes v. Marshall
Mental peculiarities supported the conclusion of unsound mind.
Insane Delusion: Adhering to an irrational belief against evidence eliminates testamentary capacity.
Tests for Delusion:
-Rational Person Test: Would a rational person believe it?
-Any Factual Basis Test: Is there any factual support for the belief?
Creation of Wills: Must be presented in what format
Must be in writing with limited exceptions
Creation of Wills: True or False Signature Not Required Required
False
Creation of Wills: Must have how many witnesses
Must be witnessed by two witnesses in most states
Creation of Wills (Holographic vs Noncupative):Handwritten, recognized in some states but risky due to fraud concerns
Holographic
Creation of Wills (Holographic vs Noncupative): Verbal wills allows in limited situations (ex military combat)
Noncupative
Revocation of Wills (By Act, Writing, Operation of Law): Physical destruction with intent
By Act
Revocation of Wills (By Act, Writing, Operation of Law): Valid subsequent writing expressing revocation intent
By Writing
Revocation of Wills (By Act, Writing, Operation of Law): Ex divorce revokes provisions favoring the ex-spouse unless stated otherwise
Writing
Revocation of Wills (By Act, Writing, Operation of Law): Ex tearing, burning
By Act
Special Legal Doctrines (equivocation vs ademptions sv abatement): Ambiguity in a will resolved by extrinsic evidence
equivocation
Special Legal Doctrines (equivocation vs ademptions sv abatement): Siegley v Simpson
Determined intent through evidence
Equivocation To Remember the Case:
Siegley v. Simpson: Break it into key associations:
Siegley sounds like “seek clarity” (fitting for resolving ambiguity).
Simpson is familiar (e.g., The Simpsons), so think of a character’s intent clarified with evidence. Siegley v. Simpson, 131 P. 479 (Wash. 1913).
Facts: Testator’s will left $6,000 to “my good friend Richard H. Simpson.” The legacy was claimed by
Richard H. Simpson and Hamilton Ross Simpson. Although the latter’s name did not match the name
in the will exactly, nevertheless the court said that the names were similar enough that the language in
the will constituted an equivocation. The court then took extrinsic evidence to determine the identity of
the person named in the will. The testator had met Richard H. Simpson only once in 20 years, referred
to him as “Mr. Simpson,” and did not even know that his full name was Richard H. On the other hand,
Hamilton Ross Simpson was the testator’s good friend, the two had worked together closely for years,
and the testator had told associates that he had provided for Hamilton Ross Simpson in his will.
Should Richard H. Simpson or Hamilton Ross Simpson be the beneficiary under the will?
In light of the extrinsic evidence, the court concluded that when the testator used the name Richard H.
Simpson in the will, he really intended Hamilton Ross Simpson.
Special Legal Doctrines (equivocation vs ademptions sv abatement): If the state cannot satisfy all gifts
abatement
Special Legal Doctrines (equivocation vs ademptions sv abatement): Specific gifts are nullified if the item no longer exists
ademption
Special Legal Doctrines (equivocation vs ademptions sv abatement):
Residuary gifts abate first, followed by general, then specific gifts.
