Wills

Question 1

Requirements for a Validly Executed Will/Codicil

Answer 1

1) T must be 18 years old
2) Signed by T (or proxy)
- Any mark intended as T’s signature
3) Two attesting Ws
4) Each W must sign in T’s presence
- Order of signing doesn’t matter if contemporaneous transaction

Does not require:

• T sign at foot or end of will
• W know that he is witnessing a will
• Ws sign in each other’s presence

Question 2

Witnessing will in T’s presence

Answer 2

Illinois: W must be in T’s line of sight. Uninterrupted scope of T’s vision, so that T could have seen if he had looked.

UPC and Majority: Conscious Presence Test. Conscious of where W is and what W is doing.

Question 3

Attorney Liability for Negligent Preparation

Answer 3

Illinois: Attorney’s duty runs to client and to intended beneficiaries of the service. Privity of contract is not a defense.

Minority rule: Privity of contract defense. Duty runs only attorney’s client.

Question 4

Attesting W as Will Beneficiary (Interested Witness Statute)

Answer 4

Interested W never affects validity of the will.

Beneficiary-witness loses legacy, unless:

• Supernumerary Rule: Two disinterested attesting Ws
• “Whichever is least” Rule: witness-beneficiary would take a share of the estate if the will were not admitted to probate, in which case he takes the lesser of the bequest or the intestate share

Beneficiary spouse-witness

• Illinois: Voids legacy
• Majority: No problem. Only bequest to witness herself triggers voidance.

Executor-witness

• Illinois: No compensation for the executor who signs the will
• Majority: Yes, can be compensated as executor.

UPC: Abolish this statute.

Question 5

Holographic Wills exception

Answer 5

Illinois: Does not recognize exception. All wills must be signed by two attesting Ws.

Majority and UPC: Recognizes handwritten, signed, but unwitnessed wills.

Disposition of real property governed by laws of state where property is located.

Question 6

Revocation of Wills

Answer 6

1) Later testamentary instrument; or
2) Physical act
- Cross out words of will, cross out signature, tear it up, burn it, etc.
- Must destroy the will itself. Intent is not enough.
- By another person? Must be at T’s direction and in T’s presence.

Presumptions

Dependent Relative Revocation

Changes to will after execution

Question 7

Proof of Lost Will Statute

Answer 7

1) Proof of due execution (testimony of W’s)
2) Cause of will’s nonproduction must be proved
3) Contents must be substantially proved

Question 8

Presumptions Regarding Revocation

Answer 8

1) Will last seen in T’s possession, not found after death –> presumption that T revoked by physical act.
2) Will last seen in T’s possession, found mutilated after death –> presumption that T revoked by physical act.
3) Revocation by Implication: One “last will” followed by a second “last will” –> try to read second as a codicil revoking inconsistencies in the first. If wholly inconsistent, then first will is revoked by implication.

Question 9

Dependent Relative Revocation

Answer 9

Example: T executes Will #1. Then he executes Will #2, which expressly revokes Will #1. Then he revokes Will #2 by physical act, with the hope that Will #1 will be revived (which it can’t). Solution? DRR!

Revocation is disregarded when act was dependent on a mistake of law or fact as to the validity of another disposition. “Second best solution.”

Solution to example: Will #2 would be revived, but would have to be proved by Proof of Lost Wills Statute.

Doesn’t apply if to disregard revocation would totally defeat T’s intent.

Question 10

Changes on face of will after execution

Answer 10

Partial Revocation by Physical Act?

• Illinois: Partial revocation by physical act is not valid.
• Majority and UPC: It is valid.

Words added to a will after signed and witnessed are disregarded!
- DRR, the original will may not have been changed.

Question 11

Anti-lapse statute

Answer 11

When beneficiary predeceases T, gift lapses. Also applies to void gifts (i.e., B was dead at execution)

Elements:

1) Predeceasing B must have been in the prescribed degree of relationship to T (in IL, child or other descendent)
2) Predeceasing B must have left descendants who survived T.

If these elements fail, gift falls into residuary estates.

Question 12

Lapse in Residuary Gift

Answer 12

If anti-lapse statute does not apply, surviving residuary Bs take the entire estate in proportion to their interests in the residue

Question 13

“Class gift” rule of construction

Answer 13

If member of class (e.g., the children of X) predeceases, surviving class members take.

Rule of Convenience: Class is closed when some class member is entitled to a distribution.

Question 14

Uniform Simultaneous Death Act

Answer 14

Property passes as though the deceased had survived.

• Wills: As though T survived and B predeceased.
• Intestacy: As though T survived and heirs predeceased
• Insurance: As though insured survived and B predeceased
• Joint Tenants or Tenants by the Entirety: treat as tenancy in common, 1/2 passes to both as though they survived.

UPC: 120-hour rule

Question 15

Effect of T Marriage after Will

Answer 15

Illinois: No effect on the will. Elective Share Statute!

UPC: Omitted spouse takes intestate share of T’s estate.

Question 16

Effect of Divorce after Will

Answer 16

Final decree of divorce or annulment –> treat as though former spouse predeceased T.

“Divorce Revokes” statute does not apply to life insurance policy naming wife as B.

Question 17

Effect of Child after Will (pretermitted child statute)

Answer 17

Pretermitted children (born/adopted after execution) take intestate share unless it appears from the will that omission was intentional.

Does not apply to life insurance policies.

Question 18

Republication by Codicil

Answer 18

Will speaks on the date of the last codicil.

Affects pretermitted child statute.

Question 19

Abatement of Legacies to Pay Claims

Answer 19

Gifts are sacrificed to pay creditors’ claims in the following order:

1) Intestate property
2) Residuary assets (i.e., I give all the rest to…)
3) General legacies (i.e., I bequeath $10k to X)
4) Specific (i.e., I bequeath Blackacre to X)

Demonstrative - treated as hybrid

Question 20

Ademption

Answer 20

If specific gift, and property is not owned at T’s death, B takes nothing.
- If property sold by contract, but contract not fully performed, B can take remaining payments.

If demonstrative gift, other assets may be sold to satisfy the dollar value of the gift.

Incapacity Judicial Relief: If will executed before T is incapacitated, B gets sale price, condemnation award, or insurance proceeds to the extent they can be traced and haven’t been expended for the ward’s care.

Courts also grant relief if T did not have opportunity to change his will, with no intent to work an ademption. (e.g., bequested car in an accident, kills T).

Question 21

Bequests of Stocks or Other Securities

Answer 21

B takes any additional shares created by a stock split, merger, takeover, reorganization, etc.

Illinois: Newly declared stock dividends go into residuary estate.

Majority: B takes shares produced by stock dividends.

Question 22

Specific Bequest of Encumbered Property

Answer 22

Illinois and UPC: Specific legatee of encumbered property is not entitled to have lien exonerated unless the will expressly calls for it. Takes exactly what T owned: Title subject to lien.

Common law rule: Liens on specifically devised property are exonerated from residuary estate.

Question 23

Incorporation by Reference Doctrine

Answer 23

Extrinsic document can be incorporated by reference IF:

1) Document was in existence when will was executed.
2) Will refers to document as being in existence
3) Will describes the document sufficiently to permit its identification

UPC Exception (not in Illinois): Will may refer to written statement or list, signed by T, written before or after will is executed, that disposes of intangible property.

Question 24

Acts of Independent Significance Doctrine

Answer 24

Lifetime acts with lifetime motives or purpose are nontestamentary acts (e.g., bequesting furnishings in living room, but moving painting at later date).

Same result for gift of “contents in my sea chest,” not including deeds, bank passbooks, and stock certificates

Question 25

Mistake or Ambiguity in the Will’s Terms

Answer 25

Plain Meaning Rule: Absent suspicious circumstances, conclusive presumption that T read the will and intended its consequences.

Latent Ambiguity: Misdescription, so court tries to give meaning to words in the will. Extrinsic E is admissible, including facts and circumstances, statements to T’s attorney. Does not include T’s declarations of intent. If E does not cure –> gift fails.

Patent Ambiguity: Mistake appears on face of will. Same rules as above re: extrinsic E.

Question 26

Contracts Related to Wills

Answer 26

Illinois: Execution of a joint will by husband/wife may be found contractual if most of these factors are present:

1) Will labeled “Joint and Mutual”
2) Will leaves entire estate to surviving spouse
3) Will disposes of all of their property in a unified disposition
4) There is a common dispositive scheme on the death of the survivor.

Steps:

1) Apply wills law. A t can always revoke an earlier will, even if it was subject to contract law.
2) Apply contracts law. New will breaches contract, impose constructive trust against Bs to new will, for the benefit of the breached party.

Question 27

Disinheritance Clause

Answer 27

Illinois and Majority: If will does not make complete disposition of the estate (partial intestacy), disinheritance clause is ineffective.

UPC: Negative bequest rule, a will can provide how property shall not be disposed of. Disinherited person is treated as predeceasing T.

Question 28

Unlawful Conditions

Answer 28

If unlawful, trust property is taken free of trust and condition.

1) To encourage divorce
2) To restrain marriage
- Partial restraints are fine.
- Support conditioned on widowhood is fine.

Question 29

Slayer Statute

Answer 29

Killer forfeits interest in estate if intentionally and unjustifiably causes the death of another. Estate is distributed as though killer predeceased victim.

• If joint tenants with right of survivorship, killer forfeits right of survivorship but not 1/2 interest that he owned.
• Conviction can be criminal or civil

In Illinois, extends to criminal abuse/neglect or financial exploitation of elderly or disabled.

Question 30

Nonprobate Assets

Answer 30

Interests not subject to disposition by will or inheritance.

1) Property passing by right of survivorship (joint bank account, joint tenancy)
2) Property passing by contract
3) Property held in revocable trust

Question 31

Intestate Succession

Answer 31

Applies when:

1) No will
2) Will is denied probate
3) No complete disposition of estate (partial intestacy)
4) Pretermitted child

Key Issues:

1) Surviving spouses
2) Descendants (“issue”)
3) Parents/siblings
4) Adopted children, nonmarital children
5) Lifetime gifts to heirs/beneficiaries
6) Disclaiming interest

Question 32

Intestate Share of Surviving Spouse

Answer 32

Survived by descendants? 1/2
Not survived by descendants? All

Family allowance: $10k, plus $5k for each minor or disabled adult child, during probate administration. Priority over all claims except funeral and administration expenses.

Question 33

Intestate Inheritance by Descendants

Answer 33

Classic (strict) per stirpes: one share for each line of living descendants. Cut the shares at the child level, even if children are not living.

Question 34

Intestate Inheritance by Parents/Siblings

Answer 34

Illinois: Parents/siblings take equal portions (classic per stirpes)
Majority: Entire estate to parents

If only one surviving parent, takes double portion

Parent is DQ’d if neglected, deserted, or failed to support child

Question 35

Intestate Inheritance by Adopted/Nonmarital Children

Answer 35

Adopted under 18?

• Full inheritance rights
• Loses inheritance rights from natural parents/kin. Except where child is adopted by spouse of natural parent.

Adopted over 18?
- Inherit from adopting parent, but not parent’s kin.

Stepchild, not adopted –> no inheritance rights

Nonmarital children (born out of wedlock) can inherit from natural father only if PAP:

• Paternity suit; OR
• Acknowledged paternity; OR
• Probate proceedings by clear and convincing evidence

Question 36

Lifetime Gift to Heir or Beneficiary

Answer 36

Illinois and Majority: Lifetime gift to an heir is not an advancement unless declared in writing by donor or acknowledged in writing by donee.

Common law: Lifetime gift was presumptively an advancement of intestate share.

UPC: No advancement unless declared in contemporaneous writing or acknowledged in writing by donee.

Question 37

Disclaiming an Interest

Answer 37

Can disclaim in whole or in part with court approval, if:

• In writing, signed, and delivered to decedent’s personal rep. or trustee, or person in possession of property
• No time limit in Illinois, but within 9 months for tax purposes.

If disclaimed, treat as though predeceased T.

Question 38

Elective Share Statute

Answer 38

Survived by descendants –> 1/3 of estate
Not survived by descendants –> 1/2 of estate

Spouse must file notice of election within 7 months after probate. Can be made by someone else with court approval if spouse is incapacitated, but not if spouse is dead.

How to devise? All Bs contribute pro rata, but property devised to spouse is first applied.

Revocable trusts?
Illinois: Elective Share Statute only reaches the probate estate, not any non-probate transfers.
UPC and Majority: Statute reaches the augmented estate, including lifetime transfers which grantor retained power to revoke, invade, consume, or dispose of principal.

Question 39

Will Contests

Answer 39

Standing: persons with economic interest, that would be adversely affected by probate. Heirs, legatees under earlier will.

Two types: Lack of testamentary capacity and undue influence

No-contest Clauses:
Illinois: Given full effect regardless of probable cause.
Majority: Given effect unless court finds contest was brought in good faith and with probable cause.

Question 40

Lack of Testamentary Capacity

Answer 40

Did T have sufficient capacity to:

• Understand the nature of the act he was doing?
• Know the nature and approximate value of his property?
• Know the natural objects of his bounty?
• Understand the disposition he was making?

Capacity to contract is a different legal test than this four-point test.

Jury can find that will was executed during a lucid interval.

Question 41

Undue Influence

Answer 41

Contestants must show:

1) Existence and exertion of the influence
2) Effect of which was to overpower the mind and will of T
3) Product is a will that would not have been made but for the influence

Circumstantial E is important, but mere opportunity, susceptibility, or unnatural disposition are not enough

Confidential or fiduciary relationship, active in procuring the will, and receiving a substantial benefit? Presumption of undue influence, overcome by clear and convincing E.

Question 42

Powers of Appointment

Answer 42

Power must be expressly exercised.

General Testamentary Power of Appointment: Not limited in class of Bs to whom can appoint. Descendants are takers in default of appointment.

Special Testamentary Power of Appointment: Limited class of persons to whom she can appoint.

Donee cannot benefit from exercise of power. Can’t sell.