Wills Flashcards
1
Q
What is probate?
A
Court proceeding in which it is judicially determined that decedent left a validly executed will or if the will is invalid that decedent died w/o a will and his intestate heirs are then determined.
2
Q
What are the two kinds of personal representative?
A
Executor: valid will names a person to administer the estate.
Administrator: no one is named or decedent died w/o a valid will.
3
Q
Testate v. intestate succession?
A
Testate: property passes under a valid will
Intestate: property passes outside any valid will and thus according to state statute
4
Q
Heirs v. descendants v. devisees, legatees, and beneficiaries?
A
Heirs: persons who take under intestate succession.
Descendants: persons who take from decedent in descending fashion.
Devisees, legatees, beneficiaries: persons who take under a valid will.
5
Q
When a decedent passes intestate w/ a surviving spouse, what result?
A
If survived by spouse and descendants all of who are descendants of the surviving spouse, surviving spouse takes the entire estate.
If survived by spouse and children who are not all descendants of the surviving spouse, surviving spouse takes 1/3 of the estate and the decedent’s children split the 2/3 remainder in equal shares.
6
Q
When may a spouse not take when decedent dies intestate?
A
When the surviving spouse had willfully deserted or abandoned the decedent spouse.
7
Q
What are the surviving spouse’s statutory rights (which take precedence over any creditors’ claims)?
A
REFH.
1) Residence: if surviving spouse claims an elective share or decedent died intestate survived by descendants by a former marriage, spouse can live in principal family residence w/o charge until spouse’s rights are determined and satisfied.
2) Exempt personal property up to $15K.
3) Family allowance: amount needed for maintenance and support for 1 year, cannot exceed $18K unless petition is made for a higher allowance.
4) Homestead allowance of 15K unless spouse claims under an elective share.
8
Q
How do we determine inheritance by descendants?
A
Per capita w/ representation. Distribution to survivor in the same generation of descendants pro rata to every surviving descendant and every dead descendant who died leaving descendants.
9
Q
If a person dies intestate w/o spouse or descendant, who takes and in what order?
A
1) Parents or surviving parent as long as there has not been desertion.
2) Brothers and sisters and descendants of deceased brothers and sisters who take per capita w/ representation.
3) Grandparents: half to maternal side and half to paternal side and their descendants.
10
Q
What is a laughing heirs statute?
A
VA does not have this so there is no limit on the degree of kinship that qualifies one to be an heir. A laughing heir statute would put some limit on this.
11
Q
What does it mean to escheat?
A
If decedent leaves no living relations, the estate passes to the kin of decedent’s last deceased spouse under the intestate takers rules, or if no spouse, the property of decedent will escheat to VA.
12
Q
What is the half bloods doctrine?
A
When decedent has a number of siblings, some of which have only one common parent w/ decedent i.e. is a half blood sibling, the half-blood siblings inherit half as much as the whole blood siblings.
13
Q
What are the adoption rules for how adopted children take?
A
1) Parents adopt a child who is of no relation to either = child and child’s descendants have full inheritance rights from adoptive family and no rights from bio parents or kids.
2) When child is adopted by spouse of bio parent, child retains inheritance from both bio parents and gains rights from new adopting stepparent.
14
Q
What rights do non-marital children have?
A
1) Full inheritance rights from bio mother.
2) Child can inherit from bio father only if paternity is proven satisfying only of MAC tests: Marriage of parents before or after the birth, Adjudicated to be the father, Clear and convincing evidence of paternity.
15
Q
What constitutes clear and convincing evidence of paternity?
A
BADCAT.
1) Birth certificate: father gave consent to be named as the father.
2) Admission of paternity under oath either before a court or in writing under oath.
3) DNA tests or other medical evidence.
4) Cohabitation w/ mother during 10 mos. before child’s birth
5) Allowed child to use surname
6) Tax return of other govt doc claiming child as his.
16
Q
What happens when there are simultaneous deaths in quick succession?
A
Beneficiary must survive decedent by at least 120 hours (5 days) to take under a will (unless it states otherwise), succession, or non-probate transfer.
17
Q
What is an advancement?
A
In intestate succession, any child taking an intestate portion would have to take this lifetime gift into consideration if the gift was meant by the parent to be an advancement of what the child would take at the parent’s death. Applies to any descendants of decedent.
18
Q
What are the presumptions in the advancement doctrine?
A
If a lifetime gift of significant value, presume advancement of child’s intestate share to be taken into account in distribution of the intestate estate of the decedent parent at death. RESULT: hotchpot allows for consideration of value of the intervivos gift in distributing the remainder of the estate. EXCEPTION: child can rebut presumption of gift.
19
Q
What is ademption by satisfaction at CL?
A
Whenever a testator provides a bequest in a will and then makes an intervivos gift to the same person, it is presumed the intervivos gift was in satisfaction of what was to be given in the will, and hence the gift in the will shouldn’t go to that person who has already received it.
20
Q
What is ademption by satisfaction under VA statute?
A
No satisfaction of legacies unless the gift made during the lifetime was:
1) Declared by donor in writing at the time of the bequest to be in satisfaction of the bequest
2) Acknowledged by donee in writing at time of the bequest as in satisfaction of bequest,
3) Will acknowledges that any lifetime gifts are in satisfaction of the bequest.
21
Q
What is the effect of a disclaimer of the gift?
A
Disclaimed interest passes as though disclaimant predeceased the decedent.
22
Q
What steps must be taken to make a disclaimer valid?
A
1) Must be in writing and signed.
2) Must be delivered to personal rep of estate or trustee or payor.
3) Disclaimer must be made w/in 9 mos. to escape federal gift tax consequences.
23
Q
What is the slayer statute?
A
One who is convicted of the murder of another may not take any economic benefit from that person by deed, will or intestacy. Applies where:
1) D convicted in criminal court of murder or voluntary manslaughter of decedent;
2) Person found to be a murderer by preponderance of evidence in civil proceeding.
3) BUT murderer’s descendants can still take unaffected by the slayer’s conduct.
24
Q
What are the three kinds of wills in VA?
A
Witnessed wills, holographic wills, and nuncupative wills.
25
What is VA's harmless error statute?
As of July 1, 2007, document will be an effective will if proponent w/in 1 year of decedent's death can establish by clear and convincing evidence that decedent intended that the document constituted:
1) testator's will
2) a partial or complete revocation of any will
3) a codicil or modification of a will
4) a partial or complete revival of decedent's formerly revoked will or of a portion of the revoked will.
26
What does the harmless error statute not excuse?
Does not excuse failure to comply w/ requirements associated w/ testator's signature UNLESS 1) two people mistakenly sign each other's wills OR 2) person signs a self-proving affidavit and not the will itself.
27
What are the testator requirements in a witnessed will case? (age, signature)
Must be 18 years old unless emancipated. Must sign or get a proxy signature in T's presence if T is unable to sign himself.
28
Who must be present for a witnessed will?
Testator must sign in presence of 2 Ws who are present together when T signs. (Under harmless error, proponent could provide clear and convincing evidence of testator's intent that doc be his will, despite lack of presence.) BUT Ws do not have to be in presence of each other when they sign their names to the will as Ws.
29
Can interested Ws sign/be present for the signing of the will?
VA doesn't disqualify W because that witness receives more under the will than W would receive under intestate succession.
30
What is a codicil?
Additions to an earlier will and used to complement them, not revoke them in whole. Codicils must be executed w/ same formalities as a witnessed will or holographic will.
31
What are the requirements for a holographic will?
Must be
1) Handwritten
2) Signed by testator--if no signature, must have language indicating the finality of the instrument on its face
3) Wholly in T's handwriting and handwriting must be proven by 2 disinterested persons
4) Must contain an indication (death talk) that instrument is intended to be a will.
32
When the issue at probate is whether or not there is a will, what happens?
Usually proceed ex parte, but interpartes probate is a full judicial proceeding w/ notice to interested parties if there's a tough case. If the will is self-proved, no need to call attesting Ws.
33
What is the SOL for probate?
Interested parties can challenge a will and get trial de novo after it's admitted to probate:
1) W/in 6 mos. to appeal to CC from an order made by clerk or court deputy.
2) w/in 1 year to file bill in equity to impeach or establish the will.
LIMIT: BFP of real property from heir is protected unless will is probated w/in 1 year of decedent's death.
34
What is ancillary probate?
Real property passes according to law of where it is located, but probate is proper where a person dies domiciled. Thus, probate must start in location of domicile and file ancillary probate in order to pass real property located in another state.
35
What is a will self-proved?
If at time of execution or any time thereafter:
1) Testator acknowledges will
2) Ws acknowledge will
3) Before an officer authorized to administer oaths
EFFECT: deem properly executed despite any formalities.
36
What is the CL doctrine of lapse?
If a will left property to anyone who predeceased testator, bequest lapsed and went to an alternate taker if named or if not to the residuary estate of the testator.
37
What is VA's anti-lapse statute?
If a devisee or legatee is 1) a relative of testator and 2) devisee or legatee is dead at the time of the execution of the will or is dead at the time of the death of the testator, the descendants of deceased devisee or legatee who survive the testator take in place of the deceased devisee or legatee. APPLIES ONLY TO WILLS.
38
Does the anti-lapse statute apply to residuary gifts as well?
Yes. All surviving residuary class members and if the deceased residuary class members are family w/ descendants the descendants may take.
39
What is the class gift doctrine?
A class gift exists when testator intends to make a gift to a group of persons that is capable of increasing or decreasing on its own. If a member of the class predeceases the testator, the class members who survive the testator take. BUT, if conveyed to individuals, the deceased named person's share lapses and the share goes to the residuary estate.
40
What is the rule of administrative convenience?
The class closes whenever some class member is entitled to a distribution.
41
Who is an omitted spouse?
Spouse that testator marries after executing a will.
42
What is VA's omitted spouse rule?
New spouse receives what would be computed to be the spouse's intestate portion at the time of the testator's death.
43
What are the exceptions to VA's omitted spouse rule?
1) Testator stipulates otherwise for surviving spouse in the will;
2) Testator executes another will after the marriage and this will is the operative one;
3) New spouse disclaims interest in estate through a valid prenup;
4) New spouse doesn't survive by 5 days;
5) Spouse deserts or kills decedent.
44
What if the testator is divorced after the will is executed?
A FINAL DECREE OF DIVORCE or annulment after the execution of the will has the effect of revoking any disposition or appointment of property made by the will to the former spouse. Treat spouse as having predeceased the testator. Divorce rule does not revoke the bequest to a relative of the former spouse.
45
Does the revocation by divorce rule apply to life insurance policies, individual retirement accounts, joint accounts, and joint tenancies?
Yes. All death benefits in favor of a former spouse are revoked upon divorce or annulment. Any federally protected pension plan is preempted by ERISA. Divorce revokes the right of survivorship, so spouses become tenants in common.
46
What is a pretermitted child?
An omitted child born or adopted after the execution of the will w/o provision made for them in the will.
47
What is VA's pretermitted child rule if testator had no children when will was made?
Pretermitted child receives what the child would have received under intestate succession. But if child dies before age 18, unmarried w/o issue, portion obtained reverts back to those who provided the intestate portion.
48
What is VA's pretermitted child rule if testator had a child when will was made?
Pretermitted child receives the lesser of what the child would receive if the testator had died intestate or the equivalent of the largest bequest to that child or any child to which a bequest had been made in the will. But if child dies before age 18, unmarried w/o issue, portion obtained reverts back to those who would take under the will.
49
What happens to children living at the time of the will who were not provided for by the will?
These children take nothing under the VA statute.
50
How may a will be revoked?
1) Physical act of destruction
2) Valid subsequent will that expressly or impliedly revokes the previous will and its codicils
3) Divorce or annulment revokes by operation of law any provisions in favor of the former spouse
51
How does the harmless error statute apply to revocation?
Statute allows proponent to establish by clear and convincing evidence that the decedent intended a partial or complete revocation of the will even when requirements for revocation aren't met. BUT still need a signature.
52
What is a sufficient physical act to revoke the will?
Cutting, tearing, obliterating, canceling, burning, or other act of destruction. Probably includes writing "void" across the entire document.
53
When may there be a revocation by proxy i.e. revocation by physical act of another?
Act done must 1) be at testator's request and 2) in the testator's presence.
54
What is the presumption raised by a lost will?
IF will traced to testator's possession or control and can't be found after testator's death, a presumption arises that the testator revoked the will by physical act.
55
What is the presumption raised by a mutilation of a will?
If will traced to possession of testator and found mutilated after testator's death, law applies the presumption that testator must have been the one to perform the mutilation i.e. revocation.
56
When a will has been revoked, how may the will be revived?
1) Write a new will and have it executed properly.
2) Any will or codicil or any part thereof that has been revoked shall not be revived unless it's reexecuted in manner required by law.
3) Republish by separate codicil.
4) Dependent relative revocation: physical act revocation dependent upon the probate of another will that was never then probated, so revocation of first will cancelled.
57
What is dependent relative revocation?
A mistake of law or fact as to validity of another disposition causes the revocation of first will. Effect is to disregard the physical act revocation and permit its probate.
58
Three point test for proof of lost wills?
1) Due execution must be established as in any other case
2) Cause of will's non-production must be proved
3) Contents of will must be proved by clear and convincing evidence
59
What is implied revocation?
If second will doesn't expressly revoke the earlier will, read docs together i.e. treat second will as codicil to the first. To the extent of inconsistent provisions, second will revokes prior inconsistent statements by implication.
60
How may testator make changes on the face of the will after its' signed and witnessed?
May only get away with this if there's another rule that like Dependent Relative Revocation or Valid Holograph that saves the change. Otherwise, only physical acts that void a particular part of the will serve as revocation.
61
How do we pay debts of the decedent?
From the following kinds of gifts in the following order:
1) Intestate succession
2) From valid will taking from general gifts first, then demonstrative, then specific property gifts.
3) From non-probate transfers
62
What are kinds of bequest from most specific intent to least specific?
Specific bequest: I devise B to J.
Demonstrative legacy: A general amount given from a specific source.
General legacy: I give $10K to B.
Residuary gift: I give the rest, residue and remainder to A.
63
What is the personal property before real property rule in paying off other interests?
Absent contrary provision, debts, claims, etc. are first paid out of personal property in the following order 1) intestate property if there is a partial intestacy, 2) residuary assets, 3) general and demonstrative legacies, and 4) specific requests.
If after personal property estate is exhausted there are still debts and claims, real property abates in the same order: intestate, residuary, etc.
64
What is the equitable apportionment of estate taxes exception?
Estate taxes are equitably apportioned among all estate beneficiaries. EXCEPT: gifts that qualify for the marital deduction or charitable deduction aren't subject to apportionment because these gifts don't generate any tax.
65
What is ademption by extinction?
If a testator devises or bequeaths a specific item of land or personal property to an individual and that devise or bequest is not in testator's estate at the time of death of the testator. If property in a specific request is adeemed at the time of the death, devisee gets nothing.
66
What is the VA rule with ademption by extinction and the doctrine of equitable conversion?
Doctrine of equitable conversion does not apply in ademption by extinction cases, so if decedent sold before death, decedent takes the profits. This differs from CL which would apply equitable conversion to say title is just gone.
67
What is the rule for insurance proceeds due after decedent's death?
Insurance proceeds to the extent payable after death are devisable to the person who would have received the good had the item not been stolen. Ex: A was to receive diamond earrings under will. Earrings are stolen. B dies, and then payment on earring insurance policy is given. A can get the insurance money.
68
When does a specific beneficiary taken any remaining specifically devised property?
1) condemnation award for taking of property to extent paid after testator's death
2) Any fire or casualty insurance proceeds to extent paid after T's death.
69
What is the exemption to ademption doctrine for guardians or conservators?
If will executed before T incompetent and after disability a specifically devised item of property is sold by a guardian or conservator, a specific devisee upon death of T has right to a general legacy equal to the net sale price.
70
What is the rule with bequests of securities?
Beneficiary takes any additional securities of the same entity because of action initiated by the entity other than securities acquired by the exercise of a stock option and any securities of another entity resulting from a takeover or merger.
71
What is the VA rule for exoneration of liens?
Reverses CL rule exonerating real property devised in a will. Provides that unless contrary result is state in a will, any specific devise of real or personal property passes subject to any mortgage, pledge, security interest, or other lien existing at date of death of testator w/o right to exoneration.
72
What are the exceptions to the VA rule of exoneration?
1) Lien created by agent acting under valid durable power of attorney.
2) Lien created by a conservator, guardian or committee of the testator.
73
What is the doctrine of incorporation by reference?
Any doc extrinsic to a valid will, not present in the will itself when the will was signed may be incorporated by reference IF:
1) Extrinsic writing must be in existence when will executed
2) Will must show an intent to incorporate the writing
3) Will must describe the writing w/ reasonable certainty so that there can be no mistake as to the document referred to in the will.
74
What is a legal list?
A list of personal property that can be in existence prior to existence of will or after execution of will or can be changed after execution of will.
75
What is the doctrine of legal lists?
Characteristics:
1) Refers only to tangible personal property--money and stock are not tangible.
2) Describe items w/ reasonable certainty
3) list must be signed by testator
4) Will must refer to list and will must be valid
5) List may come into existence at any time.
76
Acts of independent significance doctrine:
Some property continues to change in and of itself. These items of class (nieces) or property (car) have what is called, independent significance and the law allows them to continue to change between the time of the execution of the will and the date of the death of the testator. Whatever meets description at date of death is what passes to the beneficiary.
77
What do we do with mistakes or ambiguities in the will when we have clear language?
A plain meaning in the language of the will cannot be changed or altered w/ extrinsic evidence DESPITE existence of oral evidence.
78
What do we do with latent ambiguities?
Phrases like "favorite nephew" in a gift when more than one nephew. Extrinsic evidence is admissible to cure (facts and circumstances, declarations of intent). BUT if extrinsic evidence doesn't cure the ambiguity, the gift fails for uncertainty.
79
What do we do with patent ambiguities?
"I bequeath twenty five dollars ($25,000) to brother." Extrinsic evidence is admissible to cure. What devisee takes depends on the evidence submitted. VA will look at 1) facts and circumstances and 2) extrinsic statements by testator of intention.
80
When is attorney liable for negligence?
No privity of K between attorney and intended beneficiaries, so no COA against attorney. WHY? Worry about conflict of interest by clouding the attorney-client relationship between atty and decedent. Action may be brought under bar disciplinary code.
81
What happens when there is a bequest of "all personal property"?
Includes intangible (stocks, bonds) and tangible personal property. BUT under doctrine of ejusdem generis (if a list of specific items is followed by words of general import the general words are construed to include only items of the same import as the items listed), a bequest of testator's "residence and all the furniture and personal prop located therein" means only similar items in the residence.
82
What are powers of appointment?
When a person gives another a life estate and asks that the life tenant pick someone to receive the remainder. Allows life tenant to make decision as to who best deserves or needs the gift.
83
Testamentary power of appointment
Can only exercise power conferred on her at death.
84
What is general testamentary power of appointment?
No limit on the class of beneficiaries to whom donee can appoint i.e. can give to self, her estate, or creditors.
85
Who are takers in default of appointment?
People who take if the power of appointment is not exercised.
86
What is required to exercise the power of appointment?
The will must make reference to the power of appointment in order for it to be used. EXCEPTION: if donee attempts to dispose of property as though it was her own, power of appt is exercised by implication as the only way to give effect to the provision in the will.
87
What is a special power of appointment?
Donee is limited in the class of beneficiaries to whom she can appoint. Must still mention the power in the will to use it.
88
What is the doctrine of contracts relating to wills?
Will and any K are completely separate and the law of each must provide the remedy. Law of K can't impact validity or distributees under will, but there may be a suit for breach of K.
89
When will the will be held to be a contract and what is the result?
Unless clear and convincing evidence of a K or agreement 1) in the will 2) from extrinsic evidence or 3) by clear implication from the surrounding circumstances, no K exists between parties. If a will is contractual, apply wills law seeking to contest and revive, and then apply K law arguing breach of constructive trust.
EX: joint and mutual will.
90
What are non-probate transfers?
Interests in property that aren't subject to disposition by will or intestacy. No inheritance tax and don't pass through probate.
91
What are the major types of non-probate assets?
1) Survivorship accounts: property passing by right of survivorship (joint bank acct, joint tenancy)
2) Payable on death: property passing by K to include life insurance benefits, retirement benefits payable to a beneficiary
3) Inter vivos trusts: includes revocable trusts. "In trust for myself for life, then at the date of my death to my living issue." Issue take asset named w/o passing thru succession.
4) Powers of appointment
92
What happens if a will and a non-probate asset name different beneficiaries? (EX: life insurance policy names A but will provides that proceeds go to B)
Nonprobate asset beneficiary always trumps wills and intestate provisions as long as they survive in accordance with the terms of law.
93
When does elective share apply?
Surviving spouse has a right to contest against a Last Will and Testament and the right to petition to become an omitted spouse. Surviving spouse has a statutory list of rights in such things as the house and an allowance.
94
In CL states like VA, what is the effect of title to property w/ respect to elective shares?
A decedent spouse w/ title to property may defeat the claims of a surviving spouse by transferring property outside the reach of the probate estate. Decedent spouse may, through non-probate devices like joint accounts and trusts, pass property outside the reach of normal probate and prevent spouse from taking a share.
95
How does VA overcome the harshness of the CL rule w/ respect to non-probate property?
Elective share statute that permits augmenting the probate estate w/ nonprobate transfers plus any completed gifts made during decedent spouse's lifetime w/in a few years. Allows surviving spouse to reach a portion of nonprobate assets.
96
What are the surviving spouse's statutory rights under the elective share statute?
REF.
1) Residence: if S files for elective share spouse has a right to occupy residence rent free until rights determined.
2) Exempt personal property: up to $15K
3) Family allowance up to $18K.
97
What is the policy of the elective share?
Transfer by decedent spouse must have occurred w/o the consent of surviving spouse, been for less than full consideration, and if transfer was to surviving spouse then this should be taken into consideration in providing recompense to the surviving spouse. VA seeks to provide equity to spouses whose share of wealth has been transferred by decedent spouse to another.
98
Once estate has been augmented, what does surviving spouse get under elective share statute?
1) If decedent was survived by children or descendants, the SS gets 1/3 of augmented estate.
2) If no descendants, SS gets 1/2 augmented state.
Additionally, may get 6% interest from date of decedent death until elective share is satisfied.
99
What is the procedure for election by surviving spouse?
1) Must file notice of election w/in 6 mos. after will is admitted to protate or after administrator of intestate estate is appointed.
2) If SS is incapacitated, court may make election on SS's behalf. BUT if SS dies before election made, any right of election dies with her.
3) If election made, all beneficiaries contribute ratably, but use what was given to the spouse in partial satisfaction first.
100
How to compute what is included in the augmented estate? Three parts
1) Probate estate: passing at death by will or intestacy.
2) Transfers to the spouse during the lifetime of decedent spouse to the extent owned by SS at DS's death or given away w/o complete satisfaction decrease the amount that SS can take.
3) Transfers to third parties that increase the amount that the SS is entitled to.
101
What are the kinds of property that fall w/in the transfers to third parties rule that augments the estate an SS can access?
STRINGY LEGS.
1) STRINGs attached lifetime transfers in which decedent retained right to income, power to revoke or consume, etc.
2) Life insurance paid to 3d party by reason of decedent's death.
3) Employee death benefits (not soc sec or erisa)
4) Gifts in excess of $10K w/in the calendar year of decedent's death or in any of the 5 preceding years.
5) Survivorship estates
102
What does the augmented estate not include?
JOG.
1) Joinder: transfers w/ spouse joinder or consent.
2) Old transfers: irrevocable transfers prior to Jan. 1, 1991.
3) Gifts to a deceased spouse from someone other than surviving spouse IF decedent segregated and maintained the property separate and apart from his or her other assets.
103
Who may bring a will contest?
Only an interested party can bring i.e. person w/ economic interest that would be adversely affected by will's probate.
104
How may lack of testamentary capacity by challenged?
If no capacity = entire will denied probate. Presume testator had capacity if formalities are met. This makes it harder to show incapacity in witnessed wills. Proponent of will must show that at time of execution testator had capacity by a BOP: Preponderance of the Evidence.
105
What is the test for capacity?
Did testator have sufficient capacity to:
1) understand the nature of act he was doing?
2) know extent of wealth?
3) Know that natural objects of his bounty?
4) Able to interrelate the above three?
Evidence that is more removed from the time of will making is less probative.
*NOTE: adjudication of incompetency is not sufficient to establish that the testator lacked capacity.
106
What is undue influence?
If allegation of undue influence proven, only elements of will affected by undue influence are denied probate.
107
What is the burden of proof for undue influence?
Contestant must prove suspicious circumstances, conduct on part of will beneficiary that demonstrates a desire to overcome mind and will of testator, and provisions in will are a product of this conduct exerted by beneficiary.
108
What is not sufficient to show undue influence?
1) Mere opportunity to exert influence isn't evidence opportunity was unduly used.
2) Mere susceptibility to influence due to illness, age.
3) Mere fact of unnatural disposition where one kid gets more than all others.
109
In undue influence, the burden shifts from the people contesting the will to the person who is alleged to have exerted the undue influence WHEN:
Confidential relationship btwn testator and beneficiaries creates a presumption of undue influence. FIVE TYPES:
1) Relationship of trust
2) Priest-penitent: spiritual relationship of confidentiality
3) doctor-patient
4) guardian-ward
5) attorney-client
110
To rebut presumption that person in a confidential relationship w/ confidential relationship, person must show:
Testator's mind was able to resist and make her own decisions. If presumption can't be rebutted, the portion of the will is revoked and the gift goes to the residuary of the estate.
111
What is a no contest clause?
Testator states if anyone contests the will whoever contests will not take under the will if they challenge. Contesting person must lose the challenge and be a legatee under the will.
112
What is the majority rule for no contest clauses?
No contest clauses are fully enforceable as long as the contest was made in good faith and there is probable cause.
113
What is the VA rule for no contest clauses?
Preference for strict enforcement of no contest clauses. BUT law is a bit unsettled.
114
What is the exception to the no contest clause?
Election, petition for omitted spouse, or petition to become a pretermitted heir aren't contests and won't trigger the penalties associated w/ no contest clause.
115
What is the jurisdiction for probate?
County where decedent was domiciled at date of death. If decedent in nursing home at time of death in county other than where decedent was domiciled prior to entering home, venue for probate is wherever decedent was domiciled prior to entering the nursing home.
116
What must a person do to qualify as an executor?
To qualify as executor, A must 1) take oath she believes this is B's last will, 2) she will faithfully perform duties and 3) give bond to secure her performance.
117
Can a person who isn't a resident of VA be an executor of estate?
Yes, but must appoint a resident agent for service of process.
118
Who has a right to be appointed as administrator of the estate?
During first 30 days after intestate decedent's death, priority of appointment is:
1) Spouse who is sole distributee
2) Spouse who has written consent of all decedent's competent children
3) distributee who is sole heir
4) Any distributee who secures written waivers from all other competent distributees.
AFTER 30 DAYS: any distributee may be appointed as the court of clerk sees fit.
