Wills Flashcards
Wills - Concept
Document by which a person directed his estate to be distributed upon death
Wills - Gral / regulations, fx
- Under Uniform Probate Code (UPC)
- Fx: to indicate decedent’s scheme for separate assets and their share on community/T in common
Wills - Applicable law (2)
- Testator’s domicile at time of execution
OR
- Location where testator die
Wills - Formalities SITMA reqs
- Signed by testator in front of 2 W (also for destruction)
- Intent: “testamentary” at time of execution
- Testamentary age: >18 y/o
- Mental Capacity: at time of execution understand POT
- Attested to by at least 2 capable W
[Also applies to codicil creating new scheme and to testamentary trust]
Wills - Formalities - SITMA -Signature by testator req - 3 ways
1) Sign testator himself
2) Direct another one to sign
3) Acknowledge previously made signature
Wills - Formalities SITMA - Mental Capacity - No misunderstanding POT + Presumption
1) Property nature and extent
2) Natural Objects of his bounty (children)
3) Testamentary effect of devise execution
[Presumption of capacity: contesting party needs to show that insane dilusion caused unnatural disposition]
Wills - Formalities SITMA - Mental Capacity - No misunderstanding POT - Rebuttal of Presumption of capacity
Need to show insane delusion cased any unnatural disposition
- ojo with possible lucid episodes
Wills - Formalities SITMA - Attested Signature
- 2 W, ideally uninterested parties (not cause over-reaching, undue influence, unnatural devise)
- W must see signature/hear acknowledgement + sign their own name to testament
Will - Court’s equitable dispensing power when intestated death
- Presumption of grantor’s intent control in case of intestacy
- Court allows probate despite of technical deficiency of will
- Intent must be clear and use of external E to show
Will - Content determination by court- 2 methods + inconsistency
1) Integration of “whole will” (practice to initial all pages and indicate nr of pages at the end)
2) Incorporation by Reference: of separate document describing additional items and/or recipients.
- inconsistency: will provision control
- Pre-decesased (to testator) recipients named in separate document dont take unless expressly indicated.
Will - Reqs for incorporation by reference (2)
1) Exist at time of execution
2) Be sufficiently described and identified
[Can potentially be saved Doctrine of Independent Significance]
Will - Interpretation - Gral/ approach, use of E
- Broad
- Use of extrinsic evidence when language is ambiguous OR doesn’t address what happens upon death
Will - Interpretation - Issue of ID of beneficiaries / Type of description allowed
- gral description allowed
- i.e. class gifts: “my heirs”, “issues of the decedent”
- More specific: “my family”, “my heirs”
Will - Interpretation - Issue of Independent Significance
Future taker can be identified by act/event that have significance apart from their effect upon the disposition made by the will
i.e. law school deam example
Will - Interpretation - Issue of property acquired after execution
Grl rule: passes under will
UNLESS otherwise expressly declared
Will - Interpretation - Issue of Doctrine of worthier title
- Life estate created with remainder for heirs of the grantor
- Abolished by modern rule: gives future interest directly to heirs
Will - Interpretation - Issue of Shelley’s Case
XXXXX
Will - Interpretation - Cy Pres Doctrine
- Courts modify bequest of testator
- When charitable purpose becomes impossible/impractical/wasteful
- Replaces entity for other with similar charitable purpose
Will - Takers - Quality of interests pre-death of testator
- Until death of testator they only have a “mere expectancy”
Will - Takers - Issue of Disinheritance / intent + effect
- Intent of testor to inheritance must be clear and convincing (i.e. ID heirs and expressly disinherit them)
- In most states and UPC: Result of inheritance is that heir is denied of any intestate distribution, BUT his surviving heirs might still take (unless expressly prohibited from)
Will - Takers - Adopted and half blood children / Treatment,effects
- Adopted: full rights to adoptive parent estate (looses any rights to natural parents intestate inheritance)
- Half-blood: treated as “whole blood”
Will - Takers - Omitted Surviving Children born/adopted after the execution of the will
- Still qualify for “forced share” equal to proportional share if decedent died intestate
- If alive at time of execution but no express provision for them on will
- they don’t get share of testamentary estate
Will - Takers - Born out of wedlock
Once paternity determined entitled to full share of intestate succession
Will - Takers - Divorce/Annulment /timing, effect, exceptions (3)
- Upon filing dissolution of decree ALL provisions favoring ex-spouse are Automatically reversed
- EXCEPT:
a) specific direction for survival,
b) as beneficiary in insurance policy,
c) as beneficiary in ERISA employer benefit
Will - Takers - Omitted Later Spouse
Gets HALF of the higher btwn: (3)
- community property
- joint property
AND
- Intestate share