Wills Flashcards
Will Execution Requirements (applies to codicils too)
(1) T must be 18
(2) Signed by T or someone at her direction and in presence (any mark will suffice)
(3) Two attesting witnesses (need not sign in each other’s presence)
(4) Must sign in T’s presence (line of sight in IL NOT conscious presence test)
* Must be done in contemporaneous transaction
Interested Witness (or W’s spouse)
Never affects validity of will, but loses legacy unless (1) 2 other disinterested Ws OR (2) W takes share lesser between bequest or intestate
Note - does not apply to earned compensation for serving as executor (unless sign Will then no compensation)
Holographic Will (IL doesn’t recognize)
Handwritten and signed, but unwitnessed will
If property in state that recognizes holographic will, valid ti dispose of property
Conditional Will
Depends on the facts; argue both ways- motive should be admitted/conditioned
Will Revocation
(1) Later testamentary instrument
(2) Physical act to the ACTUAL WILL (burning, tearing, canceling, destruction) (can direct another to do so if in T’s presence)
If not in possession at death = presumed revoked
Writing on a will “VOID” in IL is not revocation b/c not witnessed
*Proof of Lost Wills - proof of due execution, prove nonproduction, prove contents
Dependent Relative Revocation
(1) First will revoked when second will executed
(2) Second will revoked by physical act (can’t revive revoked wills unless re-executed or republished)
(3) Apply DRR - permits revocation to be disregarded when act of revocation dependent upon mistake of law or fact as to validity of another disposition
Facial Changes to Will After Execution
NO EFFECT AT ALL in IL
Maj. Rule - partial revocations by physical act are valid
Anti Lapse Statute
Applies only when predeceasing beneficiary was child or descendant of T Predeceasing ben (1) must have been right degree relationship to T and (2) must have left descendants who survived T If AL does not apply - falls into residuary
Lapse in Residuary Gift
If res devised to 2 or more people and gift to one lapses, surviving bens take res in proportion
NOTE - AL trumps this rule. So if res ben was proper degree of relationship w/ descendants it goes to them
Class Gift
In a gift by will to class, if member of class predeceases T, surviving class members take
Simultaneous Deaths
No evidence that persons have died other than at same time, property of each passes as though he or she survived (120 hour rule)
Changes in Family After Will Execution
Marriage has no effect on will b/c elective share statute
T divorced - must be final divorce or annulment - revokes all gifts
Petermitted Child - Applies to kid born after will signed so take intestate share unless it appears intentional
Abatement
Order in which gifts sacrificed to pay creditors; first paid…
(1) Intestate property
(2) Residuary assets
(3) General legacies
(4) Specific bequests
Ademption (only applies to specific gifts)
Bequeathed property not in estate at death
Bequests of Stock or Other Securities
Most states take shares produced by stock dividend (NOT IL - dividend passes under res)
Specific Bequest of Encumbered property
IL - specific legatee of encumbered property NOT entitled to have lien exonerated (take subject to lien)
Incorporation by Reference (applies to tangible personal property)
Document not present when will executed incorporated if: (1) In existence when will executed and (2) will must refer to document and (3) must describe the document sufficiently to permit ID)
Mistakes or Ambiguity
Plain meaning rule - EE not admissible if no ambiguity
Latent Ambiguity (misname nephew) - EE adm and if it does not cure, gift fails
Patent Ambiguity - Mistake on face of will - EE adm for facts and circumstances
Non Probate assets
Not subject to disposition by will: joint back account, life insurance, death benefits under retirement plan, revocable trust
Intestate Succession
Applies when (1) No will (2) Will deneid probate or (3) valid will but not complete disposition of property
Spouse - 1/2 if survived by desendants (all if no descendants)
Descendants - per stirpes - one share for each line of living
Parents/Siblings - Maj. - all to parents; IL - evenly
Adopted/Nonmarital children - stepchild (NO); adopted (yes)
Out of wedlock if PAP - Paternity, Acknowledged or Probate
Advancement
Lifetime gift is NOT advancement unless (1) declared in writing by donor or (2) acknowledged in writing by donee
Disclaiming Interest
(1) Must be in writing, signed and delivered to decedent’s personal rep (2) no time limit
Elective Share
If decedent survived by descendants 1/3 of net estate
If not survived - 1/2 net estate
Must file notice of election w/in 7 months of will being admitted to probate
Will Contests
Lack of testamentary capacity - Did not understand nature of her act, character of property, objects of her bounty, dispose of according to her plan
Undue Influence - existence and exertion that effects the product of the will
Powers of Appointment
General - Not limited in the class of bens to whom she can appoint property to Special - limited in class of persons whom can appoint property to
