Wills

Question 1

What is a codicil?

Answer 1

A codicil is a supplementary document that either amends or revokes a decedent’s will in whole or in part.

Question 2

What is the UPC Rule on simultaneous death?

Answer 2

The UPC follows the “Uniform Simultaneous Death Act” And if there is insufficient evidence to determine who survived whom, the property will pass as though each party predeceased the other. An heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours to rebut.

Question 3

What is a spouse’s intestate share of a decedent’s estate when he or she survives along with shared descendants?

Answer 3

Where the decedent is survived by a spouse and shared descendants, the spouse takes the entire estate

Question 4

Where a decedent is survived by a parent and a spouse but no descendants what is the spouse’s intestate share?

Answer 4

Where the decedent is survived by a spouse and a parent but no descendants the spouse takes $300,000 and 75% of the remainder of the estate.

Question 5

Where a decedent is survived by a spouse, shared descendants, and spouse’s other issue what is the spouse’s intestate share?

Answer 5

Where the descendant is survived by a spouse, shared descendants, and spouse’s other issue the spouse takes $225,000 and 50% of the remaining estate.

Question 6

Where a descendant is survived by a spouse and by issue not related to the surviving spouse what is the spouse’s intestate share?

Answer 6

Where a descendant is survived by a spouse and issue not related to the surviving spouse the surviving spouse is entitled to $150,000 and 50% of the remaining estate.

Question 7

What is the rule of intestate succession for posthumously born children?

Answer 7

If a child is born within 280 days of the decedent’s death there is a rebuttable presumption that the child is the husband’s and may inherit as issue. (Uniform Parentage Act increases this number to 300 days)

Question 8

What are the three methods of calculating the issue’s shares once the spouse has taken intestate? Which of them is followed by the UPA?

Answer 8

1. Per Stirpes
2. Per Capita with Representation
3. Per Capita at Each Generation (Followed by UPC)

Question 9

What is the per stirpes method of calculating intestate share of a decedent’s issue?

Answer 9

Under the per stirpes method, shares are divided equally among the total number of children who survive or leave issue who survive, and then divide by representation

Question 10

What is the per capita with representation method of calculating intestate share of a decedent’s issue?

Answer 10

Under the per capita with representation method property is divided equally at the first generation where a member survives the decedent. (First move is different)

Question 11

What is the per capita at each generation method of calculating intestate share of a decedent’s issue?

Answer 11

Under the per capita at each generation method property is divided into equal shares at the first generation where there is a surviving member. Instead of passing to a deceased member’s issue by representation the remaining shares are pooled and divided among the next generation. (UPC Method)

Question 12

What are the three requirements for a formal will?

Answer 12

1. Signed writing
2. Witnesses
3. Testamentary Intent

Question 13

What are the two approaches to witnessing the execution of a will “in the presence” of a witness?

Answer 13

1. Line of sight

2. Conscious Presence (modern approach)

Question 14

What is the competency requirement for a valid will?

Answer 14

The testator must be at least 18 years old and be of sound mind at the time of the execution of the instrument.

Question 15

What is the modern/UPC rule on compliance with the formalities of a will?

Answer 15

Under the modern/UPC “substantial compliance” view, even if a formality is not met, the Court will admit the will to probate if there is clear and convincing evidence that the testator intended the document to serve as his will.

Question 16

What is a holographic will?

Answer 16

A holographic will is a will executed by Captain Picard aboard the Starship Enterprise, witnessed by Wesley Crusher and Geordie Laforge.

either that or it is an informal handwritten will that need not be witnessed, only signed by the testator.

Question 17

How can you distinguish between a codicil and a new will?

Answer 17

Look for a residuary gift: If an original will has a residuary gift, and the new writing does not it is probably a codicil. If the original will does not have a residuary gift and the new writing does, it is probably a new will.

Question 18

Name the 5 will substitutes

Answer 18

1. Joint Tenancy with the right of survivorship
2. Revocable Trust
3. Pour over will
4. Paid on Death Contract
5. Deed

Question 19

What are the three methods of revoking a will?

Answer 19

1. Subsequent Instrument
2. Physical Act
3. Operation of Law

Question 20

What is the rule for lost wills?

Answer 20

Where a will has been lost there is a rebuttable presumption that the testator revoked the will by physical act. The burden is on the proponent of the will to show its existence by clear and convincing evidence.

Question 21

What is Dependent Relative Revocation? (DRR)

Answer 21

DRR provides a mechanism whereby a will may be invalidated if it can be shown that the will was executed based upon a mistake, and that mistake caused the challenged will to be executed.

Question 22

What is an “act of independent significance?

Answer 22

The doctrine of acts of independent significance allows a testator to condition a gift on unrelated acts that happen in the future. (e.g. my stamp collection to my daughter in law)

Question 23

What are the requirements for qualification under an anti-lapse statute?

Answer 23

To qualify under most anti-lapse statutes a gift must have been intended for a family member who predeceased the decedent, who is survived by issue.

Question 24

What are the two rules for ademption? (Old and New)

Answer 24

Under the traditional rule a devise is extinct if it is not in the estate. This traditional theory is often called “identity theory” because the identity of the devised property was central.

Under the modern rule, known as the “intent theory” a court will look to the testator’s intent at the time she disposed of the property and try to avoid ademption by providing a substitute gift.

Question 25

Is extrinsic evidence allowed to resolve ambiguities?

Answer 25

Yes, the modern rule is to allow extrinsic evidence for both patent and latent ambiguities

Question 26

What are three bars to inheritance?

Answer 26

1. The Slayer Rule: No beneficiary who murders may take under a decedent’s will
2. A disclaimer: a person who disclaims a testamentary gift is not entitled to it
3. Elder Abuse: A person who is convicted of financial exploitation, abuse, or neglect of a person is prohibited from inheriting from that person.

Question 27

Who has standing to challenge a will?

Answer 27

Only an interested party

Question 28

Who bears the burden of proof in a challenge to the testator’s mental capacity? What are the four components of a such a challenge?

Answer 28

The person challenging the will bears the burden to show that the testator lacked the requisite mental capacity at the time of execution. The operative question is whether the testator had the capacity to know:

1. The nature of the act
2. The nature and character of his property
3. The natural objects of his bounty
4. The plan of attempted disposition.

Question 29

What are the three components of a challenge to a will based on undue influence?

Answer 29

The contestant bears the initial burden of showing:

1. The beneficiary received a substantial benefit under the will
2. The beneficiary had a confidential relationship with the testator (doctor, nurse, lawyer, family..etc.)
3. The Testator had a weakened intellect at the time of execution