Wills Flashcards
What are the formal requirements for a valid will?
A valid will must be:
* In writing
* Signed by the testator or someone in T’s presence at T’s direction
* Witnessed by at least two competent witnesses who sign in T’s presence
* Executed by a testator with testamentary capacity (18+ years old, sound mind)
These requirements ensure that the testator’s intentions are clearly documented and legally binding.
What is a Holographic Will?
A Holographic Will is a will that is handwritten by the testator and must be:
* Signed by the testator
* Contains material provisions in the testator’s handwriting
* No witness requirement in states allowing holographic wills
Holographic wills are accepted in some states, providing an alternative to formal will execution.
Are Oral Wills (Nuncupative Wills) recognized in most states?
No, Oral Wills are not recognized in most states, except for soldiers and sailors during active duty
This limitation reflects the need for clear, documented evidence of testamentary intent.
How can a will be revoked by physical act?
A will is revoked if:
* The testator destroys, burns, tears, or cancels the will with intent to revoke
* The act is done by the testator or at the testator’s direction in the testator’s presence
This emphasizes the importance of the testator’s intent in the revocation process.
What are the conditions under which a later valid will revokes a prior will?
A later valid will revokes a prior will if:
* The new will expressly revokes the prior will
* The new will wholly disposes of the testator’s estate (implied revocation)
This ensures clarity in the testator’s current wishes regarding their estate.
What happens to gifts to a former spouse upon divorce in most states?
In most states, divorce automatically revokes gifts to a former spouse unless the will states otherwise
This rule protects the testator’s intent after a significant life change.
What is Dependent Relative Revocation (DRR)?
Dependent Relative Revocation occurs when a testator revokes a will based on a mistaken belief of law or fact, and the court may ignore the revocation if the testator would not have revoked but for the mistake
DRR provides a safety net for testators who may have made decisions based on incorrect assumptions.
What is required for a document to be incorporated by reference in a will?
A document may be incorporated by reference if:
* It existed at the time of will execution
* The will manifests intent to incorporate it
* The document is described with sufficient certainty
This allows for flexibility in estate planning by referencing external documents.
What is a codicil?
A codicil is a later document that modifies or supplements a will and must be executed with the same formalities as a will
Codicils allow for updates to a will without creating an entirely new document.
What is the order of intestate succession if no valid will exists?
The order of intestate succession is:
* Children (per capita or per stirpes distribution)
* Parents
* Siblings
* Grandparents
* Next of kin
* Escheat (estate goes to the state if no heirs exist)
This order helps determine how an estate is distributed when there is no will.
Define ‘Per Stirpes’ in intestate succession.
Per Stirpes means heirs take their deceased ancestor’s share
This method ensures that descendants inherit the portion that their ancestor would have received.
Define ‘Per Capita at Each Generation’ in intestate succession.
Per Capita at Each Generation means shares are equally divided among living heirs at each generational level
This approach can lead to different distributions compared to Per Stirpes.
What constitutes a lack of testamentary capacity in a will contest?
A lack of testamentary capacity means the testator lacked understanding of:
* The nature of the act (making a will)
* The extent of property
* The natural objects of bounty (who should inherit)
* How the will disposes of the estate
This is a key ground for challenging the validity of a will.
What must be proven to establish undue influence in a will contest?
To prove undue influence, a contestant must show:
* The influencer exerted control over the testator
* The testator’s free will was overcome
* The resulting disposition would not have been made but for the undue influence
This helps protect the testator’s autonomy in making decisions about their estate.
What is the difference between Fraud in the Inducement and Fraud in the Execution?
Fraud in the Inducement occurs when the testator is deceived into making a will by false statements, while Fraud in the Execution happens when the testator is misled about the document’s nature (e.g., thought it was a deed)
Understanding these distinctions is crucial for identifying grounds for contesting a will.
What is Ademption in the context of wills?
Ademption occurs when a specific gift fails if the item is no longer in the testator’s estate
This principle applies only to specific gifts, not general or demonstrative gifts.
What happens to a gift if the beneficiary predeceases the testator?
A gift lapses if the beneficiary predeceases the testator
This can lead to unintended consequences if not addressed in the will.
What are Anti-Lapse Statutes?
Anti-Lapse Statutes provide that if the deceased beneficiary was the testator’s relative, the gift passes to the beneficiary’s descendants
These statutes aim to prevent a gift from lapsing in familial situations.
What is the order of abatement if the estate is insufficient to pay all bequests?
Gifts are reduced in this order:
* Intestate property
* Residuary gifts
* General gifts
* Specific & demonstrative gifts
This hierarchy ensures a fair distribution of limited resources.
What is the probate process?
The probate process requires that a will be:
* Filed in probate court
* An executor is appointed to distribute assets
* Creditors must be paid before distribution
This process ensures that the deceased’s wishes are carried out legally and orderly.
What are examples of non-probate assets?
Non-probate assets include:
* Joint tenancy property (right of survivorship)
* Life insurance (pays named beneficiary)
* Retirement accounts (401(k), IRA)
* Trust assets (revocable or irrevocable)
These assets pass outside the will and are not subject to the probate process.
