Wills Flashcards
What happens to the parent-child relationship when a biological child is adopted by another person?
Typically severed, unless specified otherwise by the court.
Some states do not sever the relationship if the adoption is by a relative.
What is the consanguinity method in heirship?
Heirship is determined by degree of relationship; all persons of the same degree take equal shares.
What is the parentelic method in heirship?
Descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents.
What are the four requirements for a will to be valid?
- Must be in writing
- Signed by the testator or on their behalf
- Two witnesses, being present at the same time, must witness either the testator’s signature or acknowledgment, and
- Witnesses must sign the will during the testator’s lifetime and understand the instrument being signed in testator’s will.
What is a holographic instrument?
An unwitnessed will or codicil in the testator’s handwriting with signature and all material provisions in their handwriting.
What is the effect of a codicil on an earlier will?
It republishes the earlier will, deeming it executed on the same day as the codicil.
What determines whether a power of appointment is effectively exercised?
The donee’s intent and any formalities mandated by the donor.
What happens if a trust is deemed illusory?
The trust is void and assets are distributed to the residuary legatee.
How is the validity of a will determined at common law?
Under the law of the state where the testator was domiciled at death.
What must a court determine to ascertain if a will is conditional or contingent?
Whether the possibility referred to is a condition for the will’s operation or just a statement of motive.
What is required for a writing to be incorporated by reference into a will?
- Intent to incorporate
- Sufficient particularity to identify the writing.
How can a will be revoked?
By executing a new will or through a physical act with intent to revoke.
What is a holographic codicil?
A handwritten codicil that can revoke an earlier will.
What presumption arises from cancellation marks on a will?
The marks were made by the testator with intent to revoke.
What is the doctrine of dependent relative revocation (DRR)?
It allows a court to invalidate the revocation of a will based on a mistaken assumption.
What happens to a bequest if a beneficiary does not survive the testator?
The bequest lapses and falls into the residue of the estate.
What is abatement in the context of a will?
Reduction of bequests when assets are insufficient to pay all bequests.
What is the ademption doctrine?
If specifically devised property is not in the estate at death, the bequest fails.
What do slayer statutes do?
Bar individuals who feloniously kill a decedent from inheriting from the decedent’s estate.
What happens if a will fails to dispose of all property?
The undisposed property passes to the testator’s heirs as partial intestate property.
What is a pretermitted child?
A child born after the execution of a will who may be entitled to a share of the estate.
How are ambiguous terms in a will resolved?
Extrinsic evidence may be used to clarify the ambiguity.
What must a testator possess to have mental capacity for a will?
- Knowledge of the nature and extent of property
- Understanding of natural objects of bounty
- Awareness of the disposition being made
- Ability to relate these elements.
Under what conditions can a will be reformed for mistake?
Clear and convincing evidence must show a mistake affected specific terms and the donor’s intention.
What constitutes undue influence in the context of a will?
Influence that overcomes the testator’s free will leading to a donative transfer that would not otherwise occur.
What is fraud in the context of a will?
Deception that leads a testator to execute a will they would not have made otherwise.
What happens to life insurance proceeds upon the insured’s death?
Payable to the named beneficiary.
How are stock splits and dividends treated under modern law?
Both are treated the same; additional shares obtained by the testator go to the specific devisee.
What does a prenuptial agreement do regarding gifts or bequests?
Does not bar subsequent gifts or bequests, only claims not arising from voluntary gifts.
Who has priority to receive letters testamentary in a decedent’s estate?
The individual named as personal representative in the will.
What is an advance directive?
Specifies a patient’s treatment preferences if incapacitated.
What powers does a durable health-care power of attorney grant?
Empowers an agent to make health-care decisions for the principal in case of incapacity.
What protection does a designated agent have in durable health-care POAs?
Insulated from civil and criminal liability if acting in good faith.
What is the primary function of a designated agent under a durable POA?
To make health-care decisions for the principal when the principal lacks capacity
The power is not limited to a particular illness or for a particular time.
In the absence of specific instructions, how should a designated agent make decisions?
In accordance with the agent’s determination of the principal’s best interest considering the principal’s personal values
This is to the extent known to the agent.
True or False: A designated agent is liable for wrongful death actions when acting under a durable POA.
False
State laws typically insulate an agent who has acted in good faith from civil and criminal liability.
What does a health-care decision include?
Direction to provide, withhold, or withdraw all other forms of health care
This encompasses any decisions related to a patient’s treatment.
Define ‘health care’ in the context of a durable POA.
Any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual’s physical condition
This includes a wide range of medical services.
Fill in the blank: A designated agent shall make decisions for the principal in accordance with the agent’s determination of the principal’s _______.
[best interest]
This includes considering the principal’s personal values.
