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.
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devisees take the entire residuary estate in _________ to their interests in the residue.
proportion.
Class gifts _____ covered by antilapse statutes.
are. But remember only for grandparents and lineal descendants of grandparents.
If T’s estate is partially insolvent, the process of using estate assets to pay creditors is called
abatement.
The heirarchy of devises for abatement purposes (from least likely to abate to most likely) is
(1) specific devise/bequest
(2) demonstrative legacy ($5k to Sarah, to be paid from selling my Acme stock)
(3) general legacy ($5k to Sarah)
(4) residuary bequest
(5) intestacy
Under the common law majority, when a testator makes a specific devise in a will but sells the subject matter of the devise, the gift is ________ and the beneficiary gets ______.
adeeemed; nothing.
**A demonstrative legacy ($5k to Sarah to be paid from sale of my Acme stock) is NOT subject to ademption at common law.
A previously incompetent testator will still be deemed incompetent at the time of death unless T’s disability was
adjudicated to have ceased AND the T survies the adjudication by one year.
Under the UPC, if a will was executed before T was declared incompetent, a beneficiary of a specific devise has the following rights:
(1) any balance of purchase price owning from purchaser when contract is still executory at T’s death;
(2) condemnation award for taking of the property (to the extent unpaid at T’s death);
(3) fire or casualty insurance proceeds unpaid at death;
(4) real or tangible personal property acquire as a replacement;
(5) property acquired as a result of a foreclosure of a security interest on a specifically devised note
Under the common law, the beneficiary of an adeemed gift from a competent T gets
nothing
Under the common law, if T specifically devises a certain number of stock shares to B and the shares at T’s death have increased, the additional shares go to B only if the additional shares are a result of a
stock split. Dividends do not pass under the specific devise.
Under the UPC, a specific devisee takes any additional or other securities of the same entity owned by the T so long as the additional securities are a result of
action initiated by the entity (the company). Dividends ARE included. Additional securities acquired by purchase OPTIONS are NOT included.
Under the UPC, if T replaces a specifically devised gift with similar property, the B gets
the replacement property under the UPC’s replacement property exception.
**At common law, B gets nothing.
At common law, a specific devisee (is/is not) entitled to securities of another entity owned by T as a result of a merger/consolidation/re-org/other similar action.
is NOT. E.g. T devises 50 shares of Corp A stock. Corp B then buys Corp A, and each shareholder of Corp A stock gets a 1-to-1 trade of Corp A stock for a share of Corp B stock.
Under the UPC, a specific devisee (is/is not) entitled to securities of another entity owned by T as a result of a merger/consolidation/re-org/other similar action.
is.
T devises “200 shares of Corp A stock”, is this a specific devise?
No. This is deemed more like a demonstrative devise, and B is entitled to FMV of the stock even if it doesn’t exist at T’s death.
T devises “my 200 shares of Corp A stock.” Is this a specific devise.
Yep.
At common law, specific devisee of encumbered property (is/is not) entitled to have the encumbrance paid off out of the residuary estate.
is.
Under the UPC, specific devisee of encumbered property (is/is not) entitled to have the estate pay off the encumberance.
is NOT, unless the will shows such SPECIFIC intent. A general direction in the will is “to pay debts” is NOT sufficient.
Under the UPC, if T was not incompetent on death, a beneficiary of a specific devise has the following rights:
any real or tangible personal property acquired as a REPLACEMENT for other similar property;
property acquired as a result of a forescloure of a security interst on specifically devised note
Extrinsic evidence is allowed to clear up ________ ambiguities.
latent.
Under the common law majority, Extrinsic evidence (is/is not) allowed to clear up plain meaning ambiguties.
is not
Under the UPC, extrinsic evidence (is/is not) allowed to clear up plain meaning ambiguities
is. A court can “reform” the terms of the will if a contrary intent is shown by clear and convincing evidence.
General Intestacy Rules: surviving spouse, no issue, no parents
all to spouse
General Intestacy Rules: surving spouse, all issue are a result of the marriage
all to spouse (regardless of whether there are surviving parents)
General Intestacy Rules: surviving spouse, at least one issue NOT a result of marriage
fixed amount to spouse plus a fraction of any excess
General Intestacy Rules: issue, no surviving spouse (or share that does not pass to surviving spouse)
all to issue
General Intestacy Rules: no issue, no parents
to parents’ issue (i.e. siblings)
General Intestacy Rules: under the majority rule, shares pass
per capita at the generation of the first surviving member
General Intestacy Rules: other ways of calculating shares are
(1) per capita at each generation; (2) per stirpes
General Intestacy Rules: no issue, parents
to parents
The probate estate generally does not include things like
life insurance, property held in trust, POD or TOD securities and bank accounts
General Intestacy Rules: Illegitimate children generally _____ inherit from the father unless
cannot;
(1) the father marries the mother; or
(2) the father’s paternity is adjudicated before or after the father’s death
General Intestacy Rules: Children generally _______ inherit from stepparents unless
cannot;
(1) the stepparent adopted them; or
(2) adoption by estoppel
General Intestacy Rules: Adoptive parents ______ inherit from their adopted children.
can.
General Intestacy Rules: Adopted children _____ inherit from their adoptive parents.
can.
General Intestacy Rules: Adopted children generally ____ inherit from their biological parents unless
cannot;
UPC and some states: (1) child adopted by stepparent can continue to inherit from original parent’s family;
(2) orphan adopted by close family member can inherit from other family members.
Adopted persons ____ included in class gift terminology.
are
Simultaneous death act requires survivorship by _______ hours.
- Five days.
The simultaneous death act applies to all instances where passage of title to property
depends on priority of death, even to non-probate property (like joint tenancies, insurance proceeds, etc.)
At common law, any lifetime gift to a child or descendant was presumed to be an
advancement.
Under the modern majority rule (and the UPC), a lifetime gift to a child or a descendant _____ an advancement unless
is presumed not to be;
it is clear from the circumstances that it was intended to be.
UPC goes further and requires either (1) declared as such in a contemporaneous writing by the decedent; or
(2) acknowledged as such in writing by the heir.
At common law, hotchpot involved bringing any ______ into the residuary estate before dividing among the residuary takers.
advancements. Example: Residuary takers A,B,C of $78k. But A received a lifetime gift of $12k. Bring the $12k into the residuary estate to get $90k, divide evenly, $30k each. Reduce A’s award by the advance, so A gets $18, B and C both get $30k
Surviving spouses generally have rights to the following three types of property:
(1) homestead: right to live in the home for as long as spouse chooses (UPC gives spouse $15k instead);
(2) exempt property: household furniture, appliances, personal effects up to $10k;
(3) family allowance: reasonable allowance in $$ from estate for maintenance of family during administration
**These are generally chargeable against a share passing under the will unless the will provides otherwise.
Generally, a subsequent marriage after a will has _______ effect on the will.
no.
Under the UPC and some states, a pretermitted spouse (marriage after execution of the will) ______ claim an intestate share unless
can;
(1) will shows that the omission was intentional; or
(2) T made other provision for spouse by transfer outside will and T showed intent that the transfer was in lieu of provision in the will
In all states, a spouse can claim an _______ share.
elective
Elective share is _______ to exempt property, family allowance, and homestead.
in addition to
Elective share ______ waived by written contract after _______.
can; full disclosure.
To claim an elective share, spouse must file with _______.
a set period (usually 6 months).
In most states, the elective share fraction is _______, but under the UPC the maximum is ______ vesting at a rate of _______ per year of marriage.
1/3; 50%; 3%.
Under the Slayer Rule, a person who intentionally kills the decedent is
not entitled to any benefit by will, intestacy, life insurance, or otherwise. The killer is treated as having pre-deceased. Criminal acquittal is not dispositive, different standard of proof
A pretermitted child ______ entitled to an estate share unless
is;
(1) will shows that the omission was intentional; or
(2) T left substantially all estate to parent of the pretermitted child; or
(3) H provided for child by transfer outside will and T showed intent that the transfer be in lieu of provision by will (extrinsic evidence okay to show intent)
At common law, a failure to provide for a child under a belief that the child is dead
generally is dispositive unless both the mistake and what would have been done BUT FOR the mistake appear in the terms of the will (basically never happens).
Under the UPC and many states, a failure to provide for a child under a belief that the child is dead results in
the child being treated like a pretermitted child.
A living will is a statement of an adult’s desires with respect to
life-sustaining procedures, artificiaul nutrition or ydration, pain alleviating treatment, for when the individual becomes terminally ill or in a persistent vegitative state
The requirements of a living will are that it be
(1) in writing
(2) signed
(3) most states require two adult witnesses (though uniform act does not)
A living will can be revoked by
any manifestation of intent to revoke at any time before death REGARDLESS of the principal’s mental state or physical condition (can be INCOMPETENT and revoke)
A durable healthcare power allows a principal to appoint an
agent to make healthcare decisions for the principal in the event the principal loses capacity (e.g. consent to treatment, access medical records, admit or discharge from hospital)
The requirements to properly execute a durable healthcare power are
the same as a living will, with the addition that the agent usually cannot be one of the witnesses.
A durable healthcare power can be revoked by
written or oral notic to either the agent or the principal’s healthcare provider, or automatically be the execution of a later durable healthcare power.
An agent under a durable healthcare power is not civilly or criminally liable for healthcare decisions made in
good faith.
Any person may be an agent of a durable healthcare power except an
unrelated person associated with the principal’s healthcare facility.
A will may be contested by any person who
would take more as an heir if there wre no will or as a beneficiary under a prior will
To prove that T lacked testamentary capacity, the proponent must show that at the time of the will’s execution or shortly thereafter, T lacked one of the following
(1) the ability understand the nature of the act T was doing;
(2) knowledge of the nature and character of his property;
(3) knowledge of the natural objects of his bounty;
(4) understanding of the disposition T wished to make
Under the insane delusion standard, a will or gift in a will will fail if T is otherwise sane but
(1) the will or gift is a product of an insane delusion that
(2) has no basis in fact or reason and
(3) T adheres to this belief against all reason and evidence
To prove undue influence, the burden is on the contestants to show
(1) the existence and exertion of the influence;
(2) that overpowered the mind and will of the testator;
(3) the will would not have been executed but for the influence
In most states, a presumption of undue influence arises upon a showing that a principal beneficiary in a _____________ draws or procures execution of the will.
confidential relationship (attorney-client, doctor-patient, etc.)
Suspicious circumstance can also show undue influence, like
a relative stranger insinuates himself with T and T is susceptible to influence b/c of mental or physical condition or age and T then writes a will that disinherits T’s children.
Several typical factors that can help show undue influence but are not on their own dispositive are
(1) opportunity to exert influence;
(2) susceptibility of T due to age, mental or physical condition;
(3) an unnatural disposition or a departure from an established estate plan
