Wills 3 Flashcards
Simultaneous Death.
USDA? Other?
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.
Disclaimers
How to disclaim?
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.
Decedent’s Death Caused by Heir or Beneficiary
(slayer statute)
- 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.
Advancements and Satisfaction of Legacies
[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).
If advancement is found, what to do for calculating shares
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.
If advance predeceases the decedent….
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.
Integration
Pages present at execution are part of will if so intended.
Codocil
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.
Alterations on the face of the will
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.
Incorporation by Reference
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.
Acts of Independent Significance
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
COnditional wills
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.
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 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).
Integration
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.
Powers of Appointment
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.
Nonprobate Assets
Cannot be disposed of by will
Includes life insurance, property passing by right of survivorship, property in trust.
Ways of revoking wills
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.
Revocation by Operation of Law - Subsequent Marriage
- 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.
Revocation by Operation of Law - DIVORCE
- 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.
Pretermitted Children.
When does it not apply?
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.
Revocation By written instrument.
Effect of provisions?
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.
REVIVAL of revoked will
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.
Revocation By physical act.
Presumption of revocation?
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.
Revocation of Codocil
Revocation of a will revokes all codicils to it, but…
Revocation of a codicil to a will does not revoke the entire will.
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.
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.
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.
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.
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.
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.
Joint and Mutual Wills
- 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..
- 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.
Changes AFTER Will’s Execution
Changes AFTER Will’s Execution
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.
Anti-Lapse Statutes.
Contrary provisions?
- 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))
- Statute usually applies only to wills, but UPC applies it to trusts, life insurance, etc.
- 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.
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)
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.
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.
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.
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.
- 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.
- 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.
- Ademption may be partial
- Testator’s intent is irrelevant
- 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.
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.
Increases to Property After Execution of the Will
(Accretions)
[between will execution and death]
Appreciation and depreciation is generally irrelevant for specifically gifted property.
- Increases before testator’s death: income on property goes to general estate, but improvements to real property go to devisee. .
- Increases after testator’s death: pass to specific beneficiary. B is deemed to own the property from time of T’s death.
- Specific bequests of stock include stock splits and stock dividends, but not new reinvestment shares from dividends.
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.
Protection of the Family
Protection of the Family
Elective Share Statute
- 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.
- 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.
- 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.
