Wills

Question 1

Will Execution Requirements (applies to codicils too)

Answer 1

(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

Question 2

Interested Witness (or W’s spouse)

Answer 2

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)

Question 3

Holographic Will (IL doesn’t recognize)

Answer 3

Handwritten and signed, but unwitnessed will

If property in state that recognizes holographic will, valid ti dispose of property

Question 4

Conditional Will

Answer 4

Depends on the facts; argue both ways- motive should be admitted/conditioned

Question 5

Will Revocation

Answer 5

(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

Question 6

Dependent Relative Revocation

Answer 6

(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

Question 7

Facial Changes to Will After Execution

Answer 7

NO EFFECT AT ALL in IL

Maj. Rule - partial revocations by physical act are valid

Question 8

Anti Lapse Statute

Answer 8

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

Question 9

Lapse in Residuary Gift

Answer 9

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

Question 10

Class Gift

Answer 10

In a gift by will to class, if member of class predeceases T, surviving class members take

Question 11

Simultaneous Deaths

Answer 11

No evidence that persons have died other than at same time, property of each passes as though he or she survived (120 hour rule)

Question 12

Changes in Family After Will Execution

Answer 12

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

Question 13

Abatement

Answer 13

Order in which gifts sacrificed to pay creditors; first paid…

(1) Intestate property
(2) Residuary assets
(3) General legacies
(4) Specific bequests

Question 14

Ademption (only applies to specific gifts)

Answer 14

Bequeathed property not in estate at death

Question 15

Bequests of Stock or Other Securities

Answer 15

Most states take shares produced by stock dividend (NOT IL - dividend passes under res)

Question 16

Specific Bequest of Encumbered property

Answer 16

IL - specific legatee of encumbered property NOT entitled to have lien exonerated (take subject to lien)

Question 17

Incorporation by Reference (applies to tangible personal property)

Answer 17

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)

Question 18

Mistakes or Ambiguity

Answer 18

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

Question 19

Non Probate assets

Answer 19

Not subject to disposition by will: joint back account, life insurance, death benefits under retirement plan, revocable trust

Question 20

Intestate Succession

Answer 20

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

Question 21

Advancement

Answer 21

Lifetime gift is NOT advancement unless (1) declared in writing by donor or (2) acknowledged in writing by donee

Question 22

Disclaiming Interest

Answer 22

(1) Must be in writing, signed and delivered to decedent’s personal rep (2) no time limit

Question 23

Elective Share

Answer 23

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

Question 24

Will Contests

Answer 24

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

Question 25

Powers of Appointment

Answer 25

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