Wills 3 Flashcards
1
Q
Simultaneous Death.
USDA? Other?
A
A person cannot take as an heir or will beneficiary unless they survive the decedent. When disposition of property depends on order of death, and order cannot be established… (where a decedent and heir or beneficiary pass at or about the same time)… there are TWO APPROACHES:
A. USDA:
Under the USDA, property passes as though the beneficiary/heir died before the decedent unless there is sufficient evidence decedent died first.
- Applies to probate and nonprobate transfers (e.g., wills, trusts, insurance). For tenancy with right of survivorship, half the property passes through the estate of each party
- But this only applies if no sufficient evidence of survival. Does not apply if there is evidence that one person outlived the other, even by just a short period of time.
B. 120-hour rule:
Beneficiary/heir is only treated as having survived decedent if there is clear evidence that she survived by 120 hours or more (i.e., five days).
- 120-hour rule (half of all states have adopted)—person must survive by 120 hours after the decedent’s death to take as a beneficiary, heir, etc., and avoid application of USDA. (upc)
Governing instrument can make provision for different survival.
2
Q
Disclaimers
How to disclaim?
A
An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc., can disclaim an interest.
- Disclaimed property passes as though disclaimant predeceased decedent.
- Disclaimer must:
describe the property and
must be in writing, irrevocable, and signed by the disclaimant, and
filed with court within nine months of death (or also B’s 21st birthday for a heir or will).
- Estoppel of disclaimer if property or benefits accepted
- Disclaimer can be made on behalf of infant, incompetent, or decedent, if made by guardian/personal rep and ct finds its in best interests of interested parties and not detrimental to best interests of beneficiary.
3
Q
Decedent’s Death Caused by Heir or Beneficiary
(slayer statute)
A
- If one feloniously and intentionally causes death of a decedent, they forfeit any interest in decedent’s estate… so property passes as though killer predeceased decedent.
- Applies to probate and nonprobate transfers. rule disqualifies the killer from taking any interest or benefit, including insurance proceeds, family allowance, etc.
- Severs joint tenancy.
Need murder conviction, or court must generally find that the killing was unlawful or intentional by a preponderance of the evidence.
4
Q
Advancements and Satisfaction of Legacies
A
[Advancement is for intestate;
Ademption by satisfaction is for wills]
Advancement = lifetime gift to an heir with intent that gift be applied against any share the heir inherits from the donor’s estate.
Similar concept for wills called satisfaction
Lifetime gift is presumptively not an advancement of intestate share or in satisfaction of gift under will unless it’s shown to be intended as such:
Intent is shown by…
- a declared as such in a contemporaneous writing by donor [for intestacy advancement]
(or will provision in case of satisfaction),
OR - There is a written acknowledgment that it’s an advancement by the heir (donee).
5
Q
If advancement is found, what to do for calculating shares
A
If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share. (advancement goes into the hotchpot).
The heir need not return the amount of an advancement in excess of the value of their intestate share.
6
Q
If advance predeceases the decedent….
A
the advancement is binding upon those who succeed the estate of the advancee. But in UPC, not binding on advancees successors unless required writing states that it is.
7
Q
Integration
A
Pages present at execution are part of will if so intended.
8
Q
Codocil
A
A codicil is a supplement to a will that modifies it.
- Must be executed with same formalities as a will.
- Republishes will. Under the doctrine of republication by codicil, the will and codicil are treated as one instrument speaking from the date of the last codicil’s execution.
- Revocation:
Revocation of will revokes codicils;
Revocation of codicil revokes only codicil—not will.
For Prior INVALID will - a validly executed codicil is generally viewed as impliedly incorporating a defective will by reference, thus validating the will. But doesn’t republish.
9
Q
Alterations on the face of the will
A
Any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective to change the will, UNLESS:
the will is reexecuted with proper formalities; or…
the changes qualify as a holographic codicil where such codicils are recognized.
10
Q
Incorporation by Reference
A
T may incorporate an extraneous document into the will by reference, instead of writing something in the will. Document does not need to meet formalities or be signed or anything.
Requirements: The document must be [DIE]:
a. In EXISTIENCE at the time the will was executed,
(except UPC allows list of tangible personal property written/altered after execution),
b. Sufficiently DESCRIBED in the will (language in will refers to it such that it can be reasonably identified, and document must correspond to description in will),
and
c. The will must show INTENT to incorporate the document.
- Signed list of tangible personal property is valid even if made or altered after will’s execution.
Result: treated as if it were actually written out in full in the will.
11
Q
Acts of Independent Significance
A
Something outside of a will which has a purpose other than disposing of property at death. (something that has legal reason for existing other than dispotion of property at death).
Will may identify beneficiaries or property by reference to acts or events if they have significance apart from the will.
EX: “I leave the contents of my safe deposit box Number 657 at New York State Bank to Tony Stark.” safe deposit box is a fact of independent significance.
EX:
1) Specific gifts of a general nature
2) Class gift designations
3) Gifts to “my spouse”
4) Gifts of contents
12
Q
COnditional wills
A
A conditional will is one that provides that it is to be operative only if a certain event occurs or does not occur.
If possible, courts construe as general, not conditional.
Court might try to interpret “condition” as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur.
Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional.
13
Q
Pour-Over to Inter Vivos Trust.
What if trust amended after will execution?
What if trust not in existence when T excited the will?
A
A pour-over provision is a provision in a will making a gift to an inter vivos trust.
Most states: permits a testator to make a gift to a trustee of an inter vivos trust even tho the trust may be amended or revoked after execution of the will.
- Valid even if trust amended after will execution
- Under Uniform Testamentary Additions to Trusts Act, trust need not be in existence at will execution. trust may be created before or after the testator executes the will.
Property governed by all trust amendments, even those made after the testator executed the will or dies.
Trust does NOT have to be funded prior to T’s death.
If the trust is revoked, the gift fails (lapses).
14
Q
Integration
A
Person probating will has to show that the pages present at the time of execution are those present at the time of probate. Presumption that pages were present and intended to be part of the will when it was executed if:
Physical attachment (fastened pages together),
internal coherence of pages (sentences flow page to page) (pagination), or
an orderly dispositional plan.
15
Q
Powers of Appointment
A
A power of appointment is an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it.
- General vs. special power—
general power can be exercised in favor of anyone, including donee;
power exercisable in favor of limited class of appointees. special power cannot be exercised in favor of donee, donee’s estate, donee’s creditors, or donee’s estate creditors.
- Appointive property not subject to elective share or creditors. SS’s elective share does not apply to property over which the deceased spouse held a power of appointment.
- Exercise
a. Residuary clause does not, by itself, exercise testamentary power; must mention power.
b. Blanket exercise of power permissible - person holding a testamentary power executes a will that devises “all the rest and residue of my property, including all property over which I have a power of appointment”) = given effect unless the creator of the power called for the power’s exercise by an instrument that specifically referred to the power.
- Contract to exercise testamentary power is invalid
Donee’s creditors cannot reach the property if the donee does not exercise their general power. But if they do, creditors can reach it, even if the donee appoints to another person.
16
Q
Nonprobate Assets
A
Cannot be disposed of by will
Includes life insurance, property passing by right of survivorship, property in trust.
17
Q
Ways of revoking wills
A
A person with testamentary capacity may revoke their will at any time prior to death.
A will may be revoked by:
By operation of law
By subsequent (written) instrument
By physical act
But, can be revival.
18
Q
Revocation by Operation of Law - Subsequent Marriage
A
- Marriage AFTER Execution of Will:
Marriage usually has no effect on will, but if there is an omitted spouse statute…
New spouse takes an intestate share as an “omitted spouse” unless:
• The will makes provision for the new spouse
• The omission was intentional, or
• The will was made in contemplation of the marriage
Gifts abated (and therefore revoked) to extent necessary to make up omitted spouse’s intestate share.
19
Q
Revocation by Operation of Law - DIVORCE
A
- Divorce or annulment AFTER will - revokes all provisions in favor of former spouse
(and under the UPC, the former spouse’s relatives).
ALL provisions in favor of a former spouse are revoked, even appointments as executor, guardian, or trustee.
The will is revoked to extent of old spouse’s share.
Divorce must be final. If the parties remarry, the revocation does not occur.
20
Q
Pretermitted Children.
When does it not apply?
A
Child born/adopted AFTER execution of will, so left out of will.
Statutes provide a share for this child. Abatement rules apply, so usually comes out of residue - revoking will to that extent.
BUT, if the entire estate is left to the pretermitted child’s other parent, the child will not receive a forced share.
21
Q
Revocation By written instrument.
Effect of provisions?
A
All or part of a will may be revoked or altered by a subsequent instru- ment that is executed with the same formalities as a will. Can be expressly revoked or by inconsistency.
- Revoking instrument must be executed with same formalities as will
- Inconsistent provisions in later instrument revoke prior ones by implication.
If the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency.
If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistent provisions.
22
Q
REVIVAL of revoked will
A
Will always revived if:
a. Reexecuted with formalities, or
b. Republished by codicil.
c. In a majority of states, destruction of revoking instrument presumptively revives revoked will UNLESS testator did not so intend.
(Ex: T executes Will 1, then T executes Will 2, which expressly revokes Will 1, but then T validly revokes Will 2.)
UPC:
If a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive (that is, restore to effective- ness) the previous will.
If the original will was only partly revoked, the revoked provisions are revived unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions.
23
Q
Revocation By physical act.
Presumption of revocation?
A
Will or codicil can be revoked by:
- Burning, tearing, obliterating, or canceling a material portion of the will with intent to revoke (intent concurrent with act)
- May partially revoke will. (T revises will by striking with black marker, then writes changes, and initials.)
- Will not found at testator’s death is presumed revoked.
- Contents of accidentally lost or destroyed will may be proven.
T Can trell someone else to destroy the will, but it must be done in T’s presence and at their request - or else ineffective.
24
Q
Revocation of Codocil
A
Revocation of a will revokes all codicils to it, but…
Revocation of a codicil to a will does not revoke the entire will.
25
When Multiple wills, and one is destroyed…
When a will has been executed in duplicate, an act of revocation done to either copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last” will.
However, destruction of an unexecuted copy with intent to revoke does not revoke the will.
26
Presumption of revocation.
Except?
If:
- a will last seen in the testator’s possession or under their control
- cannot be found after their death or is found in a mutilated condition,
… Then, a rebuttable presumption arises that the testator revoked it.
However, if the will was last seen in the possession of a third person or if a person adversely affected by its contents had access to the will, no presumption of revocation arises.
27
When can a lost or destroyed will still be admitted to probate:
If presumption that T revoked is overcome, admitted to probate if can prove:
(1) valid execution;
(2) the cause of nonproduction (that is, proof that the will was not revoked); and
(3) the contents of the will. The contents are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will.
28
Dependent relative revocation - court may disregard revocation of will if…
(happens when T revokes Will 1, T executes Will 2 but Will 2 is invalid.)
The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will.
Dependent relative revocation—a court may disregard revocation if:
a. Revocation was premised on a MISTAKE of law or fact (revocation was impliedly conidtioned on validity of new will),
b. Revocation would not have occurred but for the mistaken belief that another disposition was valid, and
c. The results from disregarding revocation come closer to testator’s intent. (T would prefer revoked will over intestacy - more similar more likely court will apply DDR).
So… If the other disposition fails, the revocation also fails and the original will REMAINS in force.
29
UPC Harmless Error.
Applies to what?
Standard?
Applies to execution of wills AND attempted revocation or alteration.
The proponent must establish by clear and convincing evidence that the decedent intended the document which does not meet the technical requirements for a valid will to be a partial or complete revocation of a will or an alteration of the will.
30
Contract to make a gift by will
How can it be established?
A contractual will is a will executed or not revoked as the consider- ation for a contract. A contract to make, not to make, or not to revoke a will is VALID.
A contract to make a will, not to revoke a will, or to die intestate can be established by:
a. Provisions in the will stating terms of contract,
b. Express reference in will to contract, plus evidence of contract terms, or
c. Writing signed by decedent evidencing the contract
Revocation of the Contract: Only by agreement between the parties while both alive, irrevocable upon first T’s death.
If A dies with estate plan made in reliance on B’s promise, and unjustment enrichment would result… then Constructive trust remedy in favor of beneficaries of the contractual will.
Remedies for breach between A and B:
A revokes while alive and tells B = no relief, B can change his will.
A revokes without telling B, then dies = No relief, B can still change will.
A complies, then dies, then B revokes =
If B does nothing, B is not in breach until B dies.
If B tries to dispose of property covered by agreement, Constructive trust remedy in favor of beneficaries of the contractual will.
constructive trust after decedent’s death; there is no remedy during the promisor’s lifetime.
There is no remedy for breach of contract not to revoke unless the first party dies in reliance on the contract.
31
Joint and Mutual Wills
1. Mutual wills (i.e., separate wills by two or more testators that contain substantially similar provisions) are not presumed contractual, so no presumption of promise by each party not to revoke..
2. Majority rule is that joint wills (i.e., single will executed by two or more testators and intended as will of each) are not presumed contractual, but many courts treat them as contractual.
32
Changes AFTER Will’s Execution
Changes AFTER Will’s Execution
33
When does a gift lapse?
A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator because, for example, the beneficiary disclaimed or did not survive long enough. Distribution determined by express terms, anti-lapse statute, residuary clause, or intestacy.
34
Anti-Lapse Statutes.
Contrary provisions?
1. Lapsed gift is saved by statute if
(i) the predeceasing beneficiary was related to the testator, and
(ii) left descendants that survived Testator, and
(iii) there are no contrary provisions in the will.
Descendants take by substitution.
a. UPC: saves gift if predeceasing beneficiary is testator’s stepchild, grandparent, or a descendant of grandparent
Specified degree of relationship (example, descendant of the testator, the testator’s parent, or the testator’s grandparent))
2. Statute usually applies only to wills, but UPC applies it to trusts, life insurance, etc.
3. Anti-lapse Does not apply if contrary will provision, Bs descendants receive nothing.
a. Most states: words of survivorship (“if he survives me”) constitute contrary provision, so anti-lapse will NOT be applied.
b. UPC: words of survivorship are not enough to negate application of anti-lapse statute.
35
Lapse of Residuary gift
If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator
First, see if the anti-lapse statute applies (if dead B was related, dead B has descendants, no contrary provisions in will))…
Then, if anti-lapse does not apply:
Modern (majority): surviving residuary beneficiaries divide the deceased beneficiary’s share among them, in proportion to their interests in the residue.
CL: the deceased beneficiary’s share passes by intestacy. (“no residue of a residue” rule)
36
Lapse of Class gifts (some members of the class die)
If a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met.
37
Devise; Bequest; Legacy.
Specific vs. General
Devise = Gift of real property.
Specific devise = gift of a particular item of real property distinct from all other objects in the testator’s estate
Bequest = Gift of personal property.
Specific bequest of a general nature is not distinguishable from the rest of the testator’s estate until the testator dies.
Legacy = gift of personal property in a will.
Specific legacy = gift of a particular item of property distinct from all other objects in the testator’s estate.
General legacy = gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment.
Also, if T gives gift where T never owned the items in the gift, it is a general legacy if T intended the executor to purchase them for the beneficiary.
Demonstrative legacy = gift of a general amount that is to be paid from a particular source or fund.
treated as…
a specific legacy to the extent the source of payment is available, and
a general legacy to the extent of any shortfall of that source of payment.
38
Residuary estate. How is it calculated?
Residuary estate, and hence gift of the residue, consists of:
balance of the testator’s property after paying…
(1) debts, expenses, and taxes; and
(2) specific, general, and demonstrative gifts.
39
Ademption by Extinction
Ademption - Property Not in Estate [ademption means withdraw]
Failure of a gift (only specific devises and bequests) because the property is no longer in the testator’s estate at the time of their death.
1. Gift fails (“gift adeems”)
Identity approach: if specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing. No tracing proceeds, no sub gift, no value of gift.
2. Ademption applies only to specific devises and bequests
No ademption if it’s a…
general bequest,
general legacy, or
demonstrative legacy.
Bequest of securities is general bequest (no ademption) unless “my” is used. To avoid ademption, a court will attempt to construe a gift of securities as a general legacy.
They will be satisfied by selling (or directly giving) other assets.
4. Ademption may be partial
5. Testator’s intent is irrelevant
6. Exceptions to Ademption: Some states use these…
a. Insurance proceeds and condemnation awards paid after death
b. Property subject to executory contract (testator’s rights pass)
c. Securities owned as a result of merger, consolidation, etc.
d. If T became incompetent and specifically devised Property was sold by guardian, B may be entitled to proceeds.
40
Ademption by Satisfaction
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends the transfer to have that effect.
Intent needs to be at the time of gift and be in writing.
UPC - does not apply unless…
the testator provides for satisfaction in the will or a contemporaneous writing, or
the devisee acknowledges, in writing, the gift as one in satisfaction.
However, a writing is not required if the testator gives specifically described property to the beneficiary.
41
Increases to Property After Execution of the Will
(Accretions)
[between will execution and death]
Appreciation and depreciation is generally irrelevant for specifically gifted property.
1. Increases before testator's death: income on property goes to general estate, but improvements to real property go to devisee. .
2. Increases after testator's death: pass to specific beneficiary. B is deemed to own the property from time of T’s death.
3. Specific bequests of stock include stock splits and stock dividends, but not new reinvestment shares from dividends.
42
Liens on property at time of T’s death.
UPC: liens on specifically devised property are not exonerated (paid off with estate funds) unless the will so directs. So beneficiary takes the property subject to the debt.
CL: Contrary view.
43
Protection of the Family
Protection of the Family
44
Elective Share Statute
1. Spouse may choose take a statutory share of the decedent’s estate instead of share (if any) in will. SS must file notice of election.
2. Amount—in most states,
one-third of net probate estate if Decedent has surviving descendants, and
one-half if descedent does NOT have surviving descendants.
3. Share paid in manner causing least disruption. elective share is paid first from the assets that, but for the election, would have passed to the surviving spouse. Beyond that, the abatement rules apply.
45
Pretermitted child (afterborn, etc.)
Provide a forced share for a child who was born or adopted after the will was executed. Also applies if T only failed to put child in will because T mistakenly believed child was dead.
1. In most states, afterborn or after-adopted children take an intestate share.
Exceptions:
a. Omission appears intentional
b. At execution, testator had other children and left nearly all of his estate to other parent of omitted child.
c. Testator provided for omitted child outside of the will, in lieu of a testamentary gift
REMEMBER: republication of a will by codicil can result in a change in a child’s status with respect to pretermission. A child born before the republication is not considered pretermitted and is not entitled to the protection of the statute.
2. Under UPC, omitted child may be limited to same bequest as to other children. The bequests to the other children are reduced, but no other beneficiary’s bequest is reduced.
46
Homestead,
Protect the family residence or farm from creditors’ claims by exempting a certain amount of land.
Decedent’s spouse or dependent children are entitled to occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s wil.
47
Family Allowance,
provide support during probate administration. It is in addition to the amount passing by will, intestacy, or elective share.
Some states limit the allowance to a specific dollar amount (for example, $15,000), while others authorize payment of an amount needed to maintain the spouse and children for one year or a “reasonable amount.”
48
Exempt Personal Property
A surviving spouse (or if none, minor children) is usually entitled
to petition to set aside certain items of tangible personal property (for example, household furnishings, personal effects, farm equip- ment, and, sometimes, automobiles) as exempt from claims against the estate
except for perfected security interests on the items themselves.
These items are in addition to the amounts passing by will, intestacy, or elective share.
49
Will contests
Will contests
50
Standing and grounds to contest will.
Who may not?
Grounds?
Standing: Contest may be brought by any person whose interest would be directly affected by the will’s admission to probate.
Only interested parties (that is, those whose interests would be adversely affected by the admission of the will) have standing to contest a will.
Creditors, executors, and testamentary trustees are not interested parties.
Grounds:
Defective execution
Will offered has been revoked
Testator lacked testamentary intent
Testator lacked testamentary capacity
The will or gift is a product of undue influence, or duress;
The will or gift was procured by fraud
The document was executed or gift made because of mistake
The will contestant has the burden to prove the will is invalid.
51
Testamentary Capacity
1. Testator must be at least 18 years old at date of execution
2. Contestant must prove that testator could not understand:
a. Nature of act
b. Nature and extent of property
c. People who are the natural objects of testator’s bounty
d. Nature of disposition
3. Capacity determined at time of will execution
4. Insane delusion invalidates will only to extent delusion caused disposition
52
Insane Delusion
An insane delusion is a belief in facts that do not exist and that no rational person would believe existed.
Four reqs:
1. T had a False belief
2. False belief was the product of a sick mind
3. There is no evidence to support the belief, not even a scintilla of evidence.
4. Delusion must have affected testator’s will.
Insane delusion destroys testamentary capacity only if there is a connection (nexus) between the insane delusion and the property disposition.
Only that part of the will that was affected by the delusion is invalid. An insane delusion may invalidate an entire will or only a particular gift, because the will is set aside only to the extent that the delusion caused the testamentary disposition.
53
Undue influence
Requirements:
a. Influence existed and was exerted on testator,
b. Effect was to Overpower the mind and free will of testator (so will reflects desires of person exerting influence instead of testator), and
c. Product was a will that would not have been made but-for the influence.
NOTE: mere pleading, begging, nagging, cajoling, or even threatening do not constitute undue influence. The free will of the testator
must be destroyed.
54
Presumption of undue influence
2. Presumption of undue influence arises when:
a. There is a confidential relationship between the testator and beneficiary (T placed confidence and relied on B), and
b. The beneficiary participated in a significant activity related to execution of the will (procuring, drafting, or executing the will).
If these shown, shift burden to will proponent.
BUT,
No Automatic Presumption Between Spouses - unless the spouse exerted influence over the testator in such a manner that it
(1) overpowered the free will of the testator, and
(2) resulted in a disposition reflecting the desires of the spouse exerting the influence.
Attorney as Drafter and Beneficiary: If the attorney who drafted the will is also a beneficiary, many states void the gift to the attorney unless the testator and the attorney are closely related.
55
Undue influence - factors to look for:
Court looks for:
• Unnatural dispositions, such as cutting out close family
• Opportunity or access to testator
• Confidential or fiduciary relationship between parties
• The ability of the testator to resist
• The beneficiary’s involvement with the drafting or execution of the will
Circumstantial evidence not enough - opportunity to influence the testator, the susceptibility of the testator to influence due to age or poor health, or an unnatural dispo- sition favoring some of the testator’s relatives over others alone is insufficient to establish undue influence.
56
Duress
Duress is a form of undue influence but connotes violent conduct such as the threat of physical harm.
57
Fraud
A successful contest on grounds of fraud requires that the testator have been willfully deceived as to:
(1) the character or content of the instrument,
(2) extrinsic facts that would induce the will or a particular disposition, or
(3) facts material to a disposition.
**Five Elements of Fraud:**
* False representation made to the testator
* of Material fact
* Known to be false by person making the statement
* For the piurpose of inducing action/inaction,
* The testator reasonably believed the statement
- The statement caused the testator to execute a will or make a particular disposition that the testator would not have made but for the misrepresentation.
1. Willful deceit as to character or content of will or as to a material fact
**a. Fraud in execution (aka fraud in the factum**)—
misrepresentation as to the identity or contents of the instrument (T didnt know it was a will or what it contained). Lack of Testmanetary intent. Or someone forges T's signature on will.
Entire will invalid.
**b. Fraud in the inducement - **
T knows they are executing a will and what it contains, but the testator is deceived as to some extrinsic fact and makes the will or a gift based on that fact.
Will or the particular gifts affected by the fraud must be set aside.
**c. Fraudulent prevention of execution—**
possible constructive trust remedy
If a testator is fraudulently prevented from making a will, some courts will impose a constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made.
2. Will or gift as result of fraud is invalid
58
Mistake
A mistake is an error that was not caused by evil conduct—no fraud or undue influence, etc.
1. Mistake in execution (mistake in the factum) = Mistake as to instrument (did not know it was a will)—extrinsic evidence admissible.
error regarding the identity or contents of the instrument and thus lacks testamentary intent.
court will grant relief where the nature of the mistake is obvious.
2. Mistake in inducement—
T is mistaken as to some extrinsic fact and makes their will based on that erroneous fact.
If no fraud in the inducement, no relief unless mistake appears on face of will.
3. Mistake in contents
a. No relief for mistaken omission
b. Evidence not admitted to contradict plain meaning. extrinsic evidence cannot be used to disturb the clear meaning of a will. (Traditional approach).
Modern: permits use of extrinsic evidence.
4. Reformation—UPC and Restatement permit court to reform will terms (even if will unambiguous) to conform to testator’s intent if clear and convincing evidence that testator’s intent or will terms were affected by fraud or mistake
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Ambiguity
Admission of extrinsic evidence – distinguish patent and latent ambiguity.
a. Latent ambiguity (hidden, ambiguous as applied… will clear on its face but needs clarification to be carried out)—
Extrinsic evidence **admissible** to resolve the ambiguity.
b. Patent ambiguity (ambiguous on its face of will, fails to convey sensible meaning)—
gift fails under traditional view,
modern view allows evidence of intent - extrinsic evidence is admissible. But NOT to fill in blank spaces or supply omitted gifts.
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No-Contest Clauses
Clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose.
Will be enforced unless contestant had probable cause to challenge will.
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Probate
Proceeding in which an instrument is judicially determined to be the will of the decedent or in which a decedent’s heirs are determined.
Primary probate jurisdiction is in the state of the decedent’s domicile at the time of death.
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Personal Representative
A personal representative is appointed to carry out the estate administration. Can be executor (named) or Administrator. They’re a fiduciary.
Anyone with capacity to contrat can be personal rep’. Entitled to compensation.
Order of preference—person named in will, surviving spouse (will beneficiary), any will beneficiary, surviving spouse, any heir, a creditor
Duties—
1. give notice to devisees, heirs, and claimants against estate;
2. discover and collect assets and file inventory,
3. manage assets during administration,
4. pay expenses and claims against estate and taxes,
5. distribute property
Generally must have court approval for such activities as borrowing money, operating a business, or selling property.
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Creditor’s Claims
PR must give NOTICE of administration to creditors of estate.
1. Creditors Must file claims within time specified in statute or are barred.
2. Claims are paid in this Priority:
1. administration expenses,
2. funeral and last illness expenses,
3. family allowance,
4. tax claims,
5. secured claims,
6. judgments entered against Decedent during lifetime,
7. all other claims
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Abatement
1. When assets insufficient (to pay claims against estate and satisfy all bequests and devises), gifts reduced in this order:
a. Property passing by intestacy
b. Residuary estate (residue)
c. General legacies (pro rata).
d. Demonstrative legacies.
e. Specific devises and bequests
Abatement is Pro rata within a class.
Demonstrative legacies are treated as specific legacies for abatement purposes to the extent they can be satisfied from the designated source,. To the extent the fund is insufficient, demonstrative legacies are treated as general legacies for abatement purposes.
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Interpetation of Ambigious Will provisions
1. Evidence of surrounding circumstances permitted.
2. Testator’s declarations inadmissible.
3. Rules of construction
a. Favor construction avoiding intestacy. If T left a will, T intended not to die intestate.
b. Favor intestate heirs
c. Favor construction consistent with perceived plan
d. Every portion of will given effect if possible, all words given effect, and will construed as a whole.
e. Between completely inconsistent provisions, one most recently added is favored (last one prevails).
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Living Will
A living will states an individual’s desires regarding: (1) whether to administer, withhold, or withdraw life-sustaining procedures; (2) whether to provide, withhold, or withdraw artificial nutrition or hydra- tion; and (3) whether to provide treatment to alleviate pain.
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Durable Healthcare Power (medical power of Attorney)
A durable healthcare power (also called a medical power of attorney) appoints an agent to make healthcare decisions on behalf of the principal and does not become effective until the principal becomes incapacitated.
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Living wills and Durable healthcare powers must be:
In writing,
Signed by declarant or principal or another at the person’s direction, and
Witnessed by two adult witnesses.
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Nonprobate property - Will substitutes
Nonprobate property - Will substitutes
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Will subs
This property does NOT pass thru probate and thus is not governed by T’s will or by intestacy. Assets removed from decedent’s estate before distributing property via will/intestacy.
Life insurance,
joint tenancies,
tenancy by the entirety,
inter vivos trusts,
bank account trusts (including Totten trusts, joint or survivor accounts, payable on death designations),
deeds,
contracts,
inter vivos gifts (includes gifts causa mortis), future interests (remainder/executory).
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Totten trust
Account, Not true trust. Deposit of $ in bank account in trust for another person. Depositor retains complete control over account during their lifetime, transfer complete only upon their death.
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Joint/survivor bank accounts.
Can creditors get them?
“with right of survovrship” = gives survivor absolute right to all $,
BUT creditors can reach the $ to the extent Decedent deposited $ in the account if other estate assets are insufficient to satisfy creditors.
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For an act of revocation to be effective...
The act of revocation must be done with the intent to revoke the will.
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If a testator revokes a will or bequest based on mistaken assumptions of law or fact
If a testator revokes a will or bequest based on mistaken assumptions of law or fact, the revocation of the will is ineffective if it appears that the testator would not have revoked had he had accurate information.
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Divorce
Divorce bars a former spouse from taking a gift made under a will that was executed prior to the divorce. There must actually be a **final divorce**, not just the filing for divorce.
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Slayer Statute
The slayer rule says that an individual who **feloniously and intentionally** kills the decedent or who is convicted of **committing abuse, neglect, or exploitation** with respect to the decedent forfeits all benefits with respect to the decedent’s estate.
**Voluntary manslaughter** counts as a felonious and intentional killing, while **involuntary manslaughter** does not.
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Antilapse
The general rule is that if a beneficiary does not survive the testator, the gift to the beneficiary will “lapse” or fail and go to the residuary of the estate.
However, under a **antilapse statute**, if a beneficiary dies before the testator and:
* was **related to the testator** **by blood** and
* **had issue who survived the testator**, and
* there are no contrary provisions in the will...
Then, the gift to the beneficiary is “saved” from lapsing because the **beneficiary’s issue will take the gift** in lieu of the deceased beneficiary.
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Terminology: Ademption
Failure of a gift
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Terminology: Devise or legacy
Gift left by will
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Heirs
Those who inheret property INTESTATE.
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Testate
Die with a will.
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Testator
Person who dies with a will.
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Living Will
Describes an adult's desires regarding medical treatment when they cannot give informed consent.
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Durable healthcare power
A principal's appiointment of an agent to make healthcare decisions for them.
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If testator is incapable of signing...
If testator is incapable of signing, must be signed by another in her presence and by her direction.
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Attestation Clause
Constitutes prima facie evidence of the facts recited in the clause (i.e., that execution requirements have been satisfied)
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For a will to be valid....
For a will to be valid, testator must have capacity and the requisite testamentary intent
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Capacity
testator, at the time of will execution, must understand:
Act — nature of his act (i.e., that he is executing a will);
Property — nature and extent of his property; and
People — persons who are the natural objects of his bounty
Nature of Disposition—how the above three factors relate and formulate a scheme of distribution
[APP'N].
Rebuttable presumption exists that testator had mental capacity.
Physical ailments, drug addiction do not raise a presumption of incapacity.
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Interested Witnesses
where a witness stands to benefit under the will...
will is valid but gift to witness-beneficiary is void.
EXCEPTIONS: Interested witness can still be a beneficiary where either:
* There were two other witnesses who were disinterested (i.e., three total witnesses, two of whom were disinterested), or
* Interested witness would take if there was no will (i.e., interested witness would have taken as a descendant through intestate succession)
UPC — presence of interested witness does not invalidate a will or any part of it
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Integration test
A document will be integrated into a will if:
**Physical presence** — the document was physically present at the time of the will’s execution; **and**
**Intent of inclusion** — testator intended the document to be part of the will.
witness testimony and other extrinsic evidence may be used to establish that the requirements have been satisfied.
Presumption — requirements are presumed where there is a physical connection of pages (e.g., staple or paperclip) or when there is some internal coherence (i.e., pages comprise a complete, orderly disposition when combined)
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Incorporation by reference requirements.
Tangible personal property list?
Requirements — document will be incorporated by reference where (need all):
1. **Intent to incorporate** — the will manifests testator’s intent to incorporate the document;
2. **Authenticated document** — the will sufficiently **describes** the document such that it can be authenticated;
Description must be such that the document can be reasonably identified.
Document must correspond to the will’s description.
3. **In existence upon will execution** — the document must be in existence at the time the will is executed.
Tangible property exception — in most states, a will may incorporate by reference a document (i.e., statement or list) that disposes of testator’s tangible personal property.
Document can be prepared before or after execution of the will and can be changed before testator’s death.
Requirements — document must:
- Be signed by testator; and
- Describe items and to whom they are devised with reasonable certainty
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What does revocation always require?
Present intent to revoke. testator must intend to revoke at the time of the writing/physical act.
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Revocation by written instrument
Revocation by written instrument — a will or any part of it can be revoked or changed as long as there is:
Intent — present intent to revoke; and
Formalities — instrument revoking the will is made with the same formalities required for will execution
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Revocation by physical act
Revocation by physical act — a will may be revoked in most states by burning, tearing, or otherwise destroying the will
Present intent required — testator must intend to revoke at the time of the physical act
Act by another (revocation by proxy) — a person other than testator may revoke the will by physical act if done at testator’s direction and in testator’s presence
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Partial revocation
Partial revocation — revocation may be accomplished by making marks of cancellation on the will (e.g., crossing out provisions) in most states
Where such marks are found on a will known to have last been in testator’s possession, a presumption is created that the marks were made by testator with the requisite intent to revoke
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Pretermitted children
Pretermitted children — arises where testator’s will does not provide for children born or adopted after the will was executed
Most states give the pretermitted child a share of testator’s estate equal to what they would have received through intestate succession
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Revival
Revival — where a will is revoked and the revoking instrument is subsequently revoked, the original will is presumptively revived
Exception — revoked will is not revived if testator’s statements or other evidence make clear she did not intend to revive the prior will
Re-execution — a revoked will may be re-executed by a subsequent will or codicil if testamentary formalities are satisfied
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Dependent Relative Revocation
Dependent Relative Revocation (DRR) — court doctrine under which a court disregards a revocation that was done to create an alternative disposition to the original will, but was based on a mistake of fact or law
Court will apply DRR and revive the revoked will if doing so would come closer to giving effect to what testator tried, but failed, to do than would intestate succession
Requirements — court may apply DRR (ignore will revocation) where:
- Revocation was premised on some mistake of law or fact;
- Revocation would not have occurred absent testator’s mistaken belief that some other plan for disposition of property was valid; and
- The originally revoked will is closer to testator’s preference than would be intestate succession
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Lapse in the residue
**Lapse in the residue** — can arise where a bequest is made to a person who predeceases testator and the anti-lapse statute does not apply (e.g., predeceased beneficiary was not testator’s relative).
**Common law** — lapsed gift passes to testator’s heirs via intestacy.
**Modern view** — residuary beneficiaries who survive testator and deceased beneficiary take the deceased beneficiary’s share.
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lapse of Class gifts
Class gifts — if a will makes a gift to a class of people and a class member predeceases testator, surviving class members take predeceased’s gift absent an alternative provision in testator’s will
**Exception** — if an anti-lapse statute applies to the predeceasing class member (e.g., predeceased was testator’s relative and has surviving descendants), gift vests in predeceased’s descendants, not the class.
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Ademption
Under the doctrine of ademption, a gift of **specific property** in a will fails if it is no longer in testator’s estate at death.
**Applies to specific devises only** — ademption only occurs with specific gifts that are satisfied only by giving the actual described property. ("gift to A is adeemed (i.e., it fails) b/c the gift was a specific item of irreplaceable property".
**Not applicable to general or demonstrative devises**
**General devise** = gift of a dollar amount payable from estate’s assets
**Demonstrative devise **= gift of a general amount that identifies some asset as a source of the payment (e.g., certain stock holding).
- Where a general or demonstrative gift fails (e.g., stock is not worth as much as provided in a demonstrative legacy), estate generally must sell off other property to satisfy the gift.
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Minority EXCEPTION to Ademption
Exception — in **intent theory** states, adeemed gifts may be saved.
A **minority** of states apply the intent theory of ademption, under which an adeemed bequest is saved if evidence establishes that ademption would be inconsistent with testator’s intent.
Effect — beneficiary gets monetary value of the specific bequest or gets property that was acquired as a replacement for the adeemed gift
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Abatement
Where an estate’s value is insufficient to pay its obligations and provide for disposition of property under a will, it must reduce (abate) gifts in order to pay the obligations and satisfy some bequests and devises.
Requirement to pay obligations — estate must always pay off obligations before distributing assets (i.e., satisfy debts, expenses, taxes, etc.).
Abatement occurs when, after doing so, the estate lacks sufficient funds to carry out disposition of property under terms of the will
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Order of abatement
Order of abatement — testator’s will may set out an order of abatement.
Absent provisions in the will, most state statutes provide for an order of abatement setting a priority as to which categories of property in the estate will be sold off first
Order — most states abate estate property in the following order:
* Property not disposed of by will (i.e., **passing by intestacy**)
* **Residuary estate** (i.e., the portion that would remain after all specific gifts and bequests have been made)
* **General devises** — abate pro rata
* **Specific devises** and **bequests**
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Contracts Involving Wills, Joint & Mutual Wills
Valid Ks to make, not make, or revoke a will are generally enforceable
Governed by K law and Ks regarding wills are not considered wills
K requirements must be satisfied (e.g., mutual assent, consideration)
Writing required — most states require Ks involving wills to be in writing
Additional requirements — UPC and some states also require either:
Provisions in the will state the material provisions of the K,
Express reference in the will to the K and extrinsic evidence proving the K terms, or
Writing signed by decedent/testator evidencing the K
Remedy for breach — constructive trust
Upon breach of a K to make a will (e.g., testator fails to provide for party to the K in their will), court usually probates the will and imposes a constructive trust in favor of the intended beneficiary under the K
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Common grounds for contesting a will:
* Lack of capacity or testamentary intent (see card 7)
* Defective execution (i.e., failure to comply with required formalities)
* Undue influence, fraud, or mistake (see cards 22-23)
* Will has been revoked
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Standing to contest a will
generally only those with a pecuniary interest have standing to contest
Includes beneficiaries, someone who should be a beneficiary, or someone who would benefit if decedent has died intestate
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No-contest clauses
— clause in a will providing that a beneficiary loses their interest under the will if they contest it
Does not apply to suits challenging executor appointment, jurisdiction, or asking the court to interpret the will
Application — states vary on how strictly they apply no-contest clauses
Majority — no forfeiture of interest if beneficiary challenges in good faith and on the basis of probable cause
Minority — no-contest clauses given full effect regardless of challenging beneficiary’s cause or intent
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Undue Influence
Undue influence — a will is invalid if executed while testator was subject to undue influence that effectively overrode testator’s free will
Requirements — will contestant has burden of proof and must show:
Influence was exerted on testator;
Testator’s mind and free will were overpowered; and
Testator’s will would not have been executed absent undue influence
Presumption — a presumption of undue influence arises if:
1. A confidential relationship (e.g., attorney-client) existed between testator and beneficiary, who exerted influence; and
2. Beneficiary participated to a significant degree in executing, drafting, or procuring testator’s will
- Once established, burden shifts to proponent of the will (usually beneficiary) to prove the will was not induced by undue influence
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Living wills and durable healthcare powers
Living wills and durable healthcare powers (a.k.a. “power of attorney for healthcare”) are forms of advanced healthcare directives, which are instructions regarding an individual’s health if they become unable to make such decisions on their own
Creation — states vary on requirements, but most are similar to those needed for will execution: writing, signed by testator or principal or another at his direction, and witnessed by two adults
Revocation — both a living will and durable healthcare power of attorney may be revoked.
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Durable healthcare power of attorney —
document that appoints an individual as agent to make healthcare decisions on behalf of principal
Becomes effective only if principal is incapacitated
Extends to all healthcare questions, unless otherwise limited
