Wills Flashcards
The five statutory wills formalities are
(1) testator must be 18 OR OLDER;
(2) the will must be WRITTEN;
(3) the writing must have TESTAMENTARY INTENT;
(4) testator must SIGN the will (any mark, initials, even an X, or by someone else at T’s direction and presence);
(5) two attesting WITNESSES who witness T’s signing or T later acknolwedges his signature to the witness
Under the UPC, a will failing the formalities will still be valid if
(1) a court can validate a defectively executed will if the proponent establishes by clear and convincing evidence that the instrument was intended to be a will;
(2) notarized wills
Under the traditional rule, anything below a testator’s signature was
not included in the terms of the will.
Under the modern majority and UPC, anything below a testator’s signature is
included in the terms of the will
Terms added after the testator signs the will are
not valid, but the will as originally written is valid.
A will that does not have two attesting witnesses is called a
holographic will.
For states that allow holographic wills, the requirements are that
(1) the material provisions are in the testator’s own handwriting; and
(2) the writing is signed by the testator
The material provisions of a holograhic will are typically
(1) terms that identify property; and
(2) who is to receive said property
The two tests for the “presence” of witnesses are
(1) line of sight (traditional, minority rule;
2) concious presence (majority and UPC
The “concious presence” test for witnesses is satisfied if the witnesses were concious of
(1) where the testator is; and
(2) what the testator is doing
Under the traditional common law and minority rule, a will can govern the disposition of real property in an ancillary proceeding if the will complies with the law of
the state in which the property is located
Under the majority and UPC, a will can govern the disposition of real property in an ancillary proceeding if the will complies with the law of
(1) place of execution; or
(2) domicile at death; or
(3) domicile at execution.
**Any one of the above will work.
Under the traditional and majority rule, an interested witness is purged from the will unless
(1) there were two disinterested witnesses; or
(2) if the witness would take in intestacy, the witness gets the lesser of the amount given in the will or the intestate share
Under the UPC and modern trend, an interested witness (is/is not) purged from the will.
is not. But look for undue influence issues.
A will can be revoked by
(1) intent to revoke; and
(2) a physical act.
A self-proving affidavit arises when __________ and has the consequences of _________.
T and the witnesses sign an affidavit reciting all elements of due execution; formalities of execution are conclusively presumed.
In most states, writing VOID on the back or margin of the will (does/does not) revoke the will.
does not
An act of revocation on only one copy of a will that was executed in duplicate
all executed copies.
In most states, revocations must cross some _______ of the will.
language.
Under the UPC, writing void _______ on the will revokes it.
anywhere.
A physical act to revoke a will must be performed on the __________.
original will. A subsequent copy is not sufficient. But look for executions in duplicate
Under the “lost will” presumption, a will is presumed revoked if it
(1) was last seen in T’s possessionl/control; and
(2) cannot be found after T’s death
Revocation by another person must be done
(1) at T’s direction; and
(2) in T’s presence
If a will is lost, proponents can generally prove the contents of the lost will through
a copy and one witness or other “clear and convincing proof”
If an attorney messes up the execution or revocation of the will, mention
that attorney’s can be sued for negligence.
If a codicil makes no reference to a will but contains slightly inconsistent provisions, the prior will and codicil
are read together, with the codicil controlling any inconsistencies.
**The same rules can apply if the second document calls itself a will.
If a subsequent will has a residuary clause, it ________ the first will _________.
revokes; in its entirety by inconsistency.
If the second will has no residuary clause, it is presumptively a ______ to the first.
codicil. There is an implied revocation only to the extent of the inconsistency.
Revocation of a will ________ all codicils.
revokes
Revocation of a codicil ________ the underlying will.
does not revoke.
Divorce following a will _________ all provisions in favor of the ex-spouse.
revokes.
**Treat the will as if the former spouse pre-deceased.
A spouse’s separation __________ provisions in favor of a spouse.
does not revoke.
If a married couple enters into a property agreement pursuant to a separation agreement, that property agreement is treated as a
waiver by the spouse of rights under the will.
A divorce _______ a provision for a spouse in T’s revocable inter vivos trust.
revokes
Under dependent relative revocation (DRR), the original version is reinstated if the court determines the
T would not have made the change but for a mistake of law or fact (i.e. had T known that the change was invalid, T would not have tried to make it)
**But if the failed attempted change was to give a LESSER amount (e.g. reduces a gift from $10k to $1k, then DRR probably won’t apply.
An edit to a will (interlineation) is not valid unless
(1) T reexecutes the will after the change; or
(2) T republishes by codicil.
Revival: Under the traditional rule, revoking a subsequent will _________ revive a prior will.
not
Revival: Under the UPC and some states, revoking a subsequent will _________ revive a prior will if _____________.
can;
(1) the prior will still exists; and
(2) T intended to revive the prior will; and
(3) the subsequent will must have been revoked by physical act
To incorporate a document by reference under the traditional rule,
(1) the writing must be in existence at the time the will was executed; and
(2) the will must manifest an intent to incorporate the document; and
(3) the will must describe the writing sufficiently to permit its identification.
Holographic wills (where recognized), _____ incorporate non-handwritten material by reference.
can
Under the UPC and in many states, a later-written document can be incorporated by reference if it
(1) only disposes of TANGIBLE, PERSONAL property (not money, real property, stocks, bonds) not specifically disposed of by the will; and
(2) is signed by T; and
(3) describes the property with reasonable certainty
Under the doctrine of independent significance, acts that have an independent lifetime motive may impact on the will as well. (just tap to see answer)
E.g. devising your car your nephew, and you get a new car, the nephew still gets the car
When the beneficiary named in the will pre-deceases the testator (or in UPC states, dies within 120 hours of the testator), the gift ________ unless the gift is saved by the state’s ___________.
lapses; antilapse statute.
The UPC antilapse statute applies when the beneficiary is T’s ________ or lineal desecendant of T’s ________ who leaves _______ that survive T.
grandparent; grandparent; issue.
**Issue means lineal descendants (children, grandchildren, etc.)
Generally, when there is a class gift in a will and some class members predecease the testator, the _________ members of the class take unless the state’s ___________ applies.
surviving; antilapse statute.
**Class gift must be to grandparents or lineal descendants of grandparents for the antilapse statute to apply.
