Wills Flashcards
I don’t have a Will. What will happen to me?
Property passes by INTESTATE succession of whatever state you’re in
(Tip: MEE might give you the state’s particular intestate succession law, so follow that to make things easier).
What are the basic scenarios for intestate succession?
SCENARIO 1: I died with no will and left only a spouse and no kids!!
Most States: Spouse gets everything.
UPC: Spouse gets everything but some states require grandparents and parents to get a portion.
SCENARIO 2: I died with no will and left a spouse AND issue (child, grandchild, etc.)
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)
SCENARIO 3: I died with no spouse?
This one is easy. It goes to the issue of the dead person (kids, grandkids).
SCENARIO 4: I was a lonely person that played sudoku and drank spindrifts under a gravity blanket all day and had no issue or spouse.
First it goes to the dead persons PARENTS or PARENT if there’s only one, then the dead persons siblings and their kids, then to “more remote ancestors” (this is something Liver King would say), then to kids and grandkids of more remote ancestors. So PARENTS - SISTER AND BROTHER - NIECES AND NEPHEW - REMOTE ANCESTORS.
Per capita
“fair method” = all the issue get equal amounts.
MOST STATES/UPC) Per Capita at Each Generation: Divide evenly at first generation, then pool the shares of predeceased individuals and divide EVENLY among their issue – issue get SAME AMOUNTS.
Basically let’s say Testator has three kids but two died before he died and his estate is worth $10. One of his dead children who died before him had two kids and another of his dead children who died before him had three kids. So the SURVIVING child will get $3.33 and the 5 grandkids of testator will all get $1.33. Simple and fair, right?
Per stirpes
“unfair” method = all the issue get different amounts. if you have more kids, each of your kids gets less
Divide evenly among Testator’s living children then issue gets DIFFERENT amounts based on how many of them there are on the branch.
So let’s say testator has three children and two die before him… and one of his dead children had two kids and another had one kid. So his SURVIVING child gets $3.33 (same as before), but then the one grandchild of his one dead kid gets a FULL $3.33 because he had no siblings lol, and the two grandchildren of his other dead child get $1.66 (they basically got screwed over since they had siblings… which wouldn’t happen in per capita at each generation).
How do I make a Will?
There are FOUR requirements of a will:
Testamentary capacity… aka the “are you completely insane” test. You must know:
a. Nature and extent of your property (what kind of stuff do you have)
b. The NATURAL objects of your property (do you know who your relatives and friends are?)
c. The disposition that you are making of the property (do you even know what is happening and who you are giving all this property to?)
d. The ability to connect all the above elements together to form a coherent plan (you need to have at least the pattern recognition of a highly advanced dolphin)
i. Pro-tip: Mental capacity is PRESUMED and the burden is on the will challenger to show you were suffering from a mental defect.
- Testamentary intent (you need to actually intend that this document is a will, you can bring in outside evidence for this. Maybe the person thought they were shading in the eyelids of a picture of a llama instead of writing a will)
- Legal Capacity (basically… you need to be 18)
- Complies with state law formalities (HINT: The question will usually TELL us there is a law or statute in the state we’re in, then we can use that to help us analyze the formalities. i.e. In July 2019 MEE the question gave the state’s holographic will requirements then talked about whether the state recognized a holographic will, etc.)
State formalities to create a will?
Most states require: (1) writing, (2) attestation (witnessed by at least two witnesses), (3) signed by testator.
MNEMONIC: WAS. Written. Attested. Signed.
UPC: (1) writing, (2) signed by testator or some other individual in the testator’s “conscious presence” and by the testator’s direction, (3) signed by at least two individuals within a reasonable time after witnessing the signing of the will (this can be anyone, I witnessed like 57 in a row at a firm and you just awkwardly stand there and listen and then sign while the couple smiles at you) or NOTARIZED.
Important Note: The UPC follows the “conscious presence” test… so the testator only needs to know you’re signing it by using their SENSES directly. The MEE could try to trick you like you heard someone sign it through a phone or some shit. This won’t work. Your spiderman senses need to be operating to sense it when they are actually nearby. The minority “line of sight” rule is that the testator needs to actually SEE you sign it. Let’s be real… this has like a 97% chance of appearing in the problem if Wills comes up so don’t fuck this one up.
Interested Witnesses
Common law allowed NO TAKERS to witness (anyone receiving a benefit under the will).
Most states temper this rule though with some caveats.
A few weird scenarios the MEE tests:
(1) Taker McWilerson is there but there are also two disinterested takers (some states will allow this so long as there are a total of two non-takers).
(2) Taker McWilerson is there and he’s an HEIR. Some states will then reduce his gift to what his INTESTATE share would have been.
(3) The UPC just says fuck it, Taker McWilerson can be there.
I have my Will! But wait… I want to make changes to my Will. How do I do it?
A codicil is a supplement to a will made after the will was made. It can modify, amend or revoke the will.
Actually… it doesn’t even need to be a separate document! It can appear on the actual will that it amends. It doesn’t need to be typed and can be handwritten by the testator! (this is called a ~Holographic~ codicil)
The codicil still has to be signed by the testator and witnessed by two witnesses. A valid codicil republishes the will (the republished will is then deemed to be executed on the same day as the codicil).
Can my codicil cure defects in my will?
Maybe.
Some MEE problems throw in a scenario where the will may have interested witnesses, and so long as the codicil has two disinterested witnesses, it cures the defect.
Okay I’ve got my Wills and my Codicils… I’d like to incorporate by REFERENCE some other random documents that I put in a desk drawer into my will. Can I do that?
Yes! You can incorporate extrinsic random documents even if they don’t meet any of the formalities of a will! They have to meet THREE requirements though:
(1) The writing is in existence at the time the will is created,
a. 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. Sorry NCBE… we will not be returning in July.
(2) The language of the will actually MANIFESTS intent for the document to be incorporated (in one problem the testator said something like I want that document to “republish” my will and this wasn’t enough… it was kind of the same thing but republish means something different than incorporate – make arguments on both sides),
(3) The language of the will DESCRIBES the writing with particularity to allow it to be identified (does it actually describe it or is the testator playing a little fast and loose with his words? Hit them with law school analysis on this)
We have a will, a codicil, and many documents in our desk drawer incorporated by reference. Now we want to light the will on fire. How can we revoke it? Two ways.
PHYSICAL ACT REVOCATION
The testator needs to (1) INTEND to revoke it, and (2) the will must be burned, destroyed, torn or cancelled by the testator (or someone at his direction and in his presence).
Revocation by Subsequent Will or Codicil
You can execute a subsequent valid will or codicil to revoke the old will but it will ONLY revoke to the extent it CONFLICTS with the old will. UNLESS you actually say in the new will or codicil “I’m revoking all the shit in the first will in it’s entirety” - you gotta expressly revoke the whole damn thing my future barristers.
Can just cross stuff out and substitute gifts and write all over the will to cancel it?
Common law approach: Words of cancellation must come in contact with words of the will to revoke it.
UPC Approach: Words of cancellation are valid even if they did not come into contact with the words of the will.
Pro-tip: The UPC is always just way more chill and laid back than the common law. The UPC is basically like the Common Law if it was extremely stoned. It allows everything.
If I give my friend a motorcycle can I just cross motorcycle out and type in “Bookshelf”?
No. This is an MEE ULTRA TRICK: Sometimes they have people “typewrite” changes on their will and try to trick your sleep deprived mind into thinking you are looking at a HOLOGRAPHIC will or codicil. It’s not Holographic because it’s TYPED. (holographic wills must be handwritten).
What the hell is a holographic will or codicil?
This is just about the riskiest thing you could do in all of Wills law.
You take out a pencil and just write a bunch of shit on a sheet of paper and sign it (holographic will) with no witnesses around. Or you pencil up your actual will and add in changes then sign it (holographic codicil). This creates chaos in the probate system because people can challenge whether it was the testator’s real handwriting and creates all this ambiguity, etc.
Revocation
A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.
Pretermitted Heir Statutes
Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will.
If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.
An omitted child statute does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.
Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if
(i) the father subsequently married the natural mother, (ii) the father held the child out as his own and either received the child into his home or provided support, (iii) paternity was proven by clear and convincing evidence after the father’s death, or (iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.
Further, the Supreme Court has held that a statute is unconstitutional if it denies inheritance rights to a nonmaterial child when paternity has been established during the father’s lifetime.
Do step children get inheritance rights?
Yes.
Under the UPC and the majority of jurisdictions, adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions.
Abatement
Gifts by will are abated, i.e. reduced, when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.
Incorporation
A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.
Holographic Wills
A holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed. To be valid, a will must be acknowledged by the testator and signed in the presence of at least two attesting witnesses, who also sign the will within 30 days
Elective Shares
An elective share gives the surviving spouse a fraction of the decedent’s estate if the surviving spouse decides to elect that share
Life Insurance Policies
Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract. However, some courts have upheld a beneficiary change by will if the insurance company does not object.
Slayer Statute
A party cannot take property from a decedent when the party was responsible for the decedent’s death.
