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
Will - Takers - Lapsed Devise
- When devise conditioned to the beneficiary surviving the testator
- Effect of pre-decease: property is added to residue of estate
- If no condition of survival exists : the beneficiary descendant take representation of interest under anti-lapse statute
Will - Takers - Class beneficiaries / definition, timing
- Membership has to be determined at time of execution (different from trust)
- ID has to definitive enough if not might fail
OR
- trustee with authority by will to select beneficiaries in an ID class
Will - Takers - Surviving heirs when will sets trust w/term income beneficiary with remainder / timing for class determination , pre-deceased.
- UPC class must be determined at time of distribution (when time lapse is completed) and NOT at time of death
- If heirs predeceased, then their share canbe re-distributed to their surviving issues BUT NOT to 3rd parties
Will - Takers - “Legal Issues” / who, rights
- All potential blood descendants
- When pre-deceased: Look at will methods or at state rules on whether it passes to his own issue
Will - Takers - “Disclaimer” by beneficiary / concept, treatment
- Named beneficiary refuses devise
- Treated as pre-deceased: added to residue UNLESS specific alternate taker established
Will - Takers - POA by testator to person to decide who takes what property - Gral/Special + taxation
- Gral power: holder to appoint anyone / taxed as part of decedent’s estate
- Special power: holder to appoint someone from specific group or class / not taxed as part of decedent’s estate
Will - Takers - Demonstrative Legacies / concept, satisfaction
- Devise to name beneficiary to certain amount coming from particular asset
- If asset doesn’t produce enough balance satisfied from residue of estate
Will - Takers - Slayers and abusers/ treatment
- State statute applies when to receive will/trust/intestate
- Usually treated as predeceased
Will - Property issues (4) (“When will specifies property to particular takes, but…”) AAES
1) Ademption
2) Accessions and accretions
3) Exonerations
4) Satisfaction
Will - Property issues - AAES - Ademption
- Property transferred or destroyed before death
- Taker gets NOTHING UNLESS application “Replacement Doctrine”: i.e. receive property acq as replacement or net proceeds from sale
Will - Property issues - Accesion
- Property increases in value btwn will creation and death
- Increase goes to taker
- Also applies for stock splits, dividends, added land from river path movement
Will - Property issues - Exoneration
- Property subject to liability before death
- Received w/liability unless indicated otherwise - i..e mortgage
Will - Property issues - Satisfaction/ concept, presumption CLvsUPC
- As intervivo transfer against testamentary devise
- CL: rebuttable presumption of satisfaction
VS
- UPC: no presumption, satisfaction only if expressly intended
Will - Codicil - Gral/ concept, formalities, reference to old will
- Supplementation or modification of existing will
- If creates new testamentary scheme requires compliance w/formalities SITMA
- If no new scheme then no formalities req. (i.e. - just decrease size of one gift by adding to residue)
- If reference to old will in codicil- old will republish and valid in all provisions not inconsistent (over-ruled)
Will - Revocation - Grounds (2)
Will was:
1) burned/destroyed/torned/cancelled w/intention of revocation by testator (or someone under direction of testator)
2) Execution of subsequent will
Will - Revocation - Formalities Requirement
2 W attest destruction
- Loss/destroyed by accident not enough: use of copy for probate is allowed
Will - Revocation - Effects on related codicil / presumption
Presumption of revocation - unless clear intention otherwise
Will - Revocation by phisical act- Effects on earlier will
Revival ONLY if evidence on testator intention to do so shown with extrinsic E
[Gral rule for revocation is that earlier un-revoked will revives]
Will - Revocation - Effects from “Partial revocation”
- Partial revocation allowed as long as it increases the residue of estate
- If regarding specific gift: it can be freely removed, but it can only added by complying with SITMA
Will - Revocation - Effects from “Dependent Relative Revocation” (DRR)/ concept, effect on first will
- as “savings clause”
- Revives previous will when court concludes that grantor would not have revoked first will if he know second will /codicil would have failed
Types of will - Classification (3) (other than written)
1) Oral/written
2) Conditional
3) Mutual (joint)
Types of will - Oral/hand-written
- Oral: “nuncupative”: allowed in some states when testator in last sickness / service in army forces
- Handwritten: “hollographic”: requires W and proper execution
Types of will - Conditional Wills / concept, reqs
- Testator intent of condition precedent before will becomes effective
- It has to clearly established in will
Types of will - Contract to make devise (as promise) / reqs - equitable solution
- Mere promise is not enforceable w/o consideration (same as trust)
- Court may still order recovery when no conideration if there is no other will and there was a clear/cogent/convincing E of trustor intent
Types of will - Mutual/Joint Will / concept, revocability, enforcement
- Promise btwn 2 parties to device to 3rd parties either separately or by joint will.
- Joint will is irrevocable after 1 of them dies.
- Named devisees can enforce as 3rd party beneficiaries
Family restrictions on dispositions - Gral / concept, standing
- As superior rights by family members to testamentary scheme
- Includes: spouse, children, ex-spouse, terms of prenuptial agreement
Family restrictions on dispositions - Surviving Spouse
- End with at least minimum half of all community and/or jointly owned property
- Minimum “forced share”: available in motion.
i. e. interest in family residence superior to all interests other than mortgage
i. e. interest in pension plan under ERISA
Family restrictions on dispositions - Children
- Court created support available, w/special consideration if surviving parent also deceased
- Possible appointment of guardian ad-litem, conservator, temporary fiduciary
Family restrictions on dispositions - Past Obligation (Ex-spouse)
Ex-spouse bound to support and other obligation according to divorce decree can not excuse of obligations by re-marrying or declaring bankruptcy
Family restrictions on dispositions - Prenuptial Agreement / control in case of conflict
- Obligation in pre-nup usually controls and supersede any prior or subsequent will in case of conflict (bc of irrevocability of contract rights)
Challenges to a will - Gral / method and timing, standing, grandchildren escenario
- File petition 4-6 month since probate opening, specifying external validity issue
- Standing only for parts w/beneficial interest on denial of will validity or probate (gain financially)
- Not for grandchildren if parent alive in relation to grandparents will
Challenges to a will - Grounds for challenge (5)(FCFFU)
1) Failure to comply with SITMA
2) Capacity absent (for understanding POT)
3) Fraud in the execution: misrep on nature/condition/character of will
4) Fraud in the inducement: willful deceit/duress to create/change will
5) Undue Influence
Challenges to a will - Undue Influence / grounds, presumption, effect
- When vulnerable testator’s will/decision making is overcomed
- Rebutable presumption: producing donative transfer would not otherwise have been made w/o influence /Burden of proof on contestant
- Court can set aside or strike that portion
[Also applies to trust creation]
Challenges to a will - Rebuttable Presumption of Undue Influence when: LOAF
- Large device: when unnatural/unusual large portion of estate to beneficiary
- Opportunity: for beneficiary to exert undue influence in light of age, health, mental vigor of testator and indep legal counsel
- Active participation: by beneficiary in the preparation/procurement of suspicious provision
- Fiduciary relation: w/testator involving special trust and confidence
Challenges to a will - Dead Man Statute
Prohibition for interested party to declare or make statement about decedent intent concerning subject
- ok if non-taker testimony and/or use corroborative document
Challenges to a will - “In Terrorem”/”No Contest” Clauses / concept, effect, non-application case
- aka “no contest clause”
- Beneficiary who contests will forfeits its share on it.
- Clause not enforceable when contest is in good faith and w/probable cause to believe will was forged or revoked
-Challenges to a will - Revival of previous will Gral rule + rule for revocation by physical act
When will revoked, the most previous un-revoked will is revived
UNLESS revocation is by physical act, then no revival unless tehre is proof of intention by testator show by extrinsic E
- if no previous will: intestate succesion
Uniform Simultaneous Death Act - Rule / concept, effext
- When 2 or more people are intestate sucessor of each other OR named as taker on each other will
AND they die within 120 hours of one another, and no will or other document provides for this situation explicitly, each is considered to have predeceased the others.
- Property then passess to alternate taker, but not to their respective heirs
