Wills Flashcards
To be valid a will or codicil must be executed
A valid partial will, or codicil, that refers to an earlier will is said to republish that will. When
republication takes place, the republished will is deemed to be executed on the same day as the
codicil. Republication can cure defects that might otherwise affect the validity of bequests made
under a will. For example, in a jurisdiction that voids bequests to interested witnesses, a bequest to such a witness can be saved if the will is republished by a later-executed codicil witnessed by two disinterested witnesses. However, by most accounts, a document that is not a valid will cannot be republished by codicil. There is some contrary authority, but those cases involve codicils written on the unexecuted dispositive document itself. Here, the codicil was a separate document.
Incorporation by reference
“A writing that is not valid as a will but is in existence when a will is executed may be
incorporated by reference into the will if the will manifests an intent to incorporate the writing
and the writing to be incorporated is identified with reasonable certainty.”
Slayer statute
Although murderers are often barred from inheriting under a “slayer statute,” such a statute
would not bar Daughter from inheriting from Testator because these statutes apply only when the heir killed the decedent whose estate is at issue. No slayer statute bars an heir from inheriting from a decedent’s estate because the heir killed another person, even if the heir’s victim left property to the decedent that is included in the decedent’s estate.
Ademption doctrine
Under the common law ademption doctrine, if specifically devised property (i.e., property that is
specifically described in the will) is not in the testator’s estate when the testator dies, the bequest adeems (i.e., fails). Under this common law doctrine, the testator’s intentions are irrelevant; all that matters is whether the testator owned the specifically devised asset at his or her death. Some modern courts have rejected the common law “identity test” for ademption in favor of an intent test. Under the intent test, a beneficiary of specifically devised property is entitled to substitute property that was owned by the testator at his or her death if the beneficiary proves that the testator intended the beneficiary to take the substitute property.
Rights of a specific devisee
Under the Uniform Probate Code, a specific devisee has the right to any “real . . . property
owned by the testator at death which the testator acquired as a replacement for specifically
devised real property.”
Bequeathed stock
Under the common law, a devisee of common stock was entitled to additional shares of that
stock obtained by the testator through a stock split, but not to additional shares acquired as a
stock dividend. Under this approach, Aunt would be entitled to only 400 shares of XYZ common
Stock.
Today, virtually all jurisdictions treat stock splits and dividends the same way; in each case,
additional shares obtained by the testator go to the specific devisee. Under this approach, Aunt
would be entitled to all 600 shares of XYZ common stock.
Prenuptial agreements waiving rights in the spouse’s estate
A prenuptial agreement in which spouses waive rights to a share of each other’s assets upon
death or divorce does not bar either party from making subsequent gifts or bequests to the other
spouse. Such an agreement bars only claims that do not arise from a voluntary gift or bequest.
Revocation by operation of law
A bequest may be revoked by operation of law when a change in circumstance occurs that makes it unlikely that the testator would have wanted a beneficiary named in the will to take under the will. All states provide that if, after the execution of a decedent’s will, the decedent is divorced, a bequest in favor of the decedent’s former spouse is revoked by operation of law.
Adoption
An adoption typically severs the parent-child relationship between the child and his biological parents. A few states do not sever the parent-child relationship when the child is adopted by a relative of a biological parent.
Appointment of a personal representative
An individual named as personal representative in a decedent’s will has priority to receive letters
testamentary from the court overseeing the administration of the estate. Where, however, the will is silent regarding the appointment of the personal representative, the court will appoint a person granted priority under the governing statute if that person is otherwise qualified. Typically, the decedent’s surviving spouse is the individual with the first priority.
Under the Uniform Probate Code, a surviving spouse has first priority only if the spouse is a
devisee of the decedent.
Revocation of a will
A will may be revoked by the execution of a new will or by some physical act, such as cancellation or other writings on the will, if the testator (or someone acting at the testator’s
direction) performs the physical act with the intent to revoke the will. The burden of proof to
establish that a validly executed will has been revoked is upon the party seeking to revoke the
will.
Pretermitted children
Most states have “pretermitted child” statutes aimed at ensuring that children born after the
execution of a will are not inadvertently disinherited. Many of these statutes provide that, under
certain circumstances, a child born to a testator after the testator’s will is executed is entitled to
whatever share of the testator’s estate the child would have received if the testator had died
intestate. In states with such statutes, bequests in favor of an afterborn child’s other parent are
irrelevant. However, a testator can avoid the consequences of such a statute if the will evidences intent to do so.
Spouse entitlement to the deceased’s estate
Under the law of the state, the wife is entitled to a one-half share of the revocable trust created by the husband because the trust was in existence during the marriage. This leaves open the question of who is entitled to the balance of the trust’s assets. Under the statute, this type of trust is characterized as “illusory.” If a court deems a trust illusory for all purposes then the trust is void and the as assets are distributed in accordance with the will.
Power of Attorney
All states have adopted statutes authorizing advance directives and durable health-care powers.
An advance directive (sometimes called a living will) specifies the patient’s (non)treatment
preferences should he or she become incapacitated. A durable health-care POA empowers a
designated agent to make health-care decisions for the principal in the event of the principal’s
incapacity. Unless a durable POA specifies otherwise, a designated agent is empowered to make health-care decisions for the principal whenever the principal lacks capacity; the power is not limited to a particular illness or for a particular time period.
Power of Attorney - Decision making in the absence of specific instructions
In the absence of specific instructions, a designated agent shall make decisions for the principal
“in accordance with the agent’s determination of the principal’s best interest . . . considering
the principal’s personal values to the extent known to the agent.”
