Wills Flashcards
What are the requirements for a valid will in Virginia?
A valid will requires:
- Will must be signed by the testator.
- Testator must sign in the presence of both witnesses (present at the same time).
- Will must be witnessed by two attesting witnesses.
- Each witness must sign in the testator’s presence.
What do all wills require both valid and holographic
- Testator must have legal capacity (18 years old) and testamentary capacity.
- Present testamentary intent.
What do you need for a holographic will?
A holographic will is valid in Virginia if:
- Entirely in the testator’s handwriting.
- Signed by the testator.
- Proved by at least two disinterested witnesses familiar with the handwriting.
Where should a will be admitted to probate?
the will should be admitted to probate in the jurisdiction where the decedent had a place of residence.
Where is a residence for a person in a nursing home?
For a patient in a nursing home, the place of legal residence is rebuttably presumed to be the same as it was before he or she became a patient
where must testamentary capacity be found?
Testamentary intent must be found on the face of the will, not from extrinsic evidence.
What is a codicil, and what are its effects?
A codicil is a later testamentary instrument executed with same formalities as a will that amends, alters, or modifies a previously executed will.
Effects include:
- Republishes the will as if re-signed on the codicil’s date.
- Can fix issues in an earlier will.
- Revoking a will revokes its codicils, but revoking a codicil only cancels the amendment.
What happens to the codicil if you revoke an entire will
What happens if you revoke a codicil?
If you revoke the will, any attached codicils are also revoked.
- If you revoke a codicil, it only cancels that specific amendment—the rest of the will stays valid.
revoke a will, then make a codicil referencing the prior revoked will. what happens?
Once a will is revoked, the will cannot be revived unless it is re-executed with full testamentary formalities. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will. A codicil must be executed with the same testamentary formalities as a will. The valid execution of a codicil that makes referenced to the revoked will would cause the will to be revived under the republication by codicil.
What is the doctrine of incorporation by reference for wills?
1) the doc must be in existence at the time the will was executed;
2) the will must refer to the doc as being in existence, and
3) the will must identify and describe the document w/ reasonable certainty
4) signed by the testator
What are the requirements for creating a pour-over trust in Virginia?
A pour-over trust requires:
- Must be in writing.
- Identified in the will.
- Executed before or concurrently with the will.
What is a pour over trust
A will that adds property to an existing trust is known as a pour over trust.
How to create a valid trust?
A trust is created when
(1) the settlor has capacity to create a trust;
(2) the settlor has the intent to create a trust;
(3) the trust has a definite beneficiary (or is an honorary or charitable trust);
(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole beneficiary.
What is the doctrine of cy pres?
Cy pres allows a court to amend a trust’s terms to align closely with the original intent of the donor when fulfilling the original terms becomes impossible or impractical, often in the context of charitable gifts.
What is required to prove testamentary capacity in Virginia?
Capacity must be proved by preponderance of the evidence but a presumption of capacity arise if there is a valid will.
Testamentary capacity requires the testator to:
- Understand the nature of the act of making a will.
- Know the nature, condition, and extent of their property.
- Recognize their relationship to the natural objects of their bounty.
- Understand the scope and meaning of the will’s provisions.
What constitutes undue influence in will contests?
To prove undue influence, it must be shown that:
- Influence was exerted on the testator.
- The influence overpowered the testator’s mind and will.
- The resulting will would not have been made but for the influence.
Must be proven by clear and convincing evidence.
How can a will be revoked in Virginia?
A will can be revoked by:
- Physical act (cutting, tearing, burning, obliterating, canceling, or destroying the will) with intent to revoke.
- Executing a valid subsequent will (new will or codicil) with proper formalities.
-express or implied
- Divorce
-revokes portions of a will in favor of the former spouse
What happens if a testator execute a second will but does not expressly state that it replaces the earlier one?
If execute a second will but do not expressly state that it replaces the earlier one, then they will be read together.
The second instrument is treated as a codicil (amendment to a will).
The second will revoke the first ot the extent of any inconsistent provisions (revocation by implication)
What is the harmless error doctrine?
If a document does not satisfy formal will requirements, it may still be valid if clear and convincing evidence shows the decedent intended it to be their will.
This doctrine does not excuse the requirement for the testator’s signature.
What is intestate?
When a decedent dies without a will.
In va what happens when a decedent leaves no surviving spouse?
in va what happens when a decedent No descendants?
In VA when a decedent leaves no surviving spouse, the entire estate shall pass to the decedent’s descendants per capita w/ representation (per stirpes).
If no descendants, then the estate will pass to the decedent’s parents or to their descendants by representation.
How to determine the marital property portion of the decedents estate?
The martial prop. Of the augmented estate is determined by multiplying the value of the augmented estate by a percentage that varies depending on the length of the marriage.
If the decedent has a child outside of the marriage what does that child take and what does the spouse take?
the current spouse takes ⅓ and the outside child takes ⅔
What happens under Virginia’s intestacy laws?
In intestacy:
- Estate passes to descendants per capita with representation.
- If no descendants, estate passes to parents or their descendants.
- Half-siblings inherit half as much as whole siblings.
- Surviving spouse’s share depends on the presence of descendants.
What is the elective share for a surviving spouse in Virginia?
The surviving spouse is entitled to 50% of the marital property portion of the augmented estate. The claim must be made within six months of the will’s probate. The amount increases based on the length of the marriage (full 50% after 15 years or more).
