Wills

Question 1

A child in gestation at decedent’s death can inherit

Answer 1

if she lives for more than 120 hours

Question 2

A child conceived by artificial insemination of a married woman can inherit

Answer 2

if husband consented to posthumous insemination and agreed to support resulting child.

Question 3

A gift to an heir made during the testator’s lifetime is

Answer 3

not an advancement on what they’re supposed to get under the will unless the donor declares it to be one in CONTEMPORANEOUS writing, OR it’s acknowledged to be one in writing by the recipient when she receives it.

Question 4

If a gift to an heir during testator’s lifetime IS an advancement on what they’re supposed to get under the will, you calculate the amount that person gets under the will by…

Answer 4

adding the lifetime gift to the total amount distributed to heirs, then divvy it up to heirs, then subtract out what the one heir got during his lifetime before giving him his share.

Question 5

After you’ve disclaimed your interest in an estate, can you later reclaim that interest?

Answer 5

NO. Disclaimer is irrevocable!

Question 6

How can you validly disclaim an interest in someone’s estate?

Answer 6

In writing and signed, filed in probate court within 9 months of decedent’s death. If it’s an interest in real estate, you have to notarize your disclaimer.

Question 7

A disclaimed share of a decedent’s estate will pass

Answer 7

as if the disclaiming party predeceased the decedent (often this means to her children)

Question 8

Four major nonprobate assets are

Answer 8

1. property passing by survivorship right
2. property held in trust
3. property passing by contract (e.g. IRA, life insurance)
4. property over which decedent had power of appointment

Question 9

To sign a will by proxy, the proxy must

Answer 9

sign at testator’s direction AND in her conscious presence.

Question 10

Any writing added to a will after the testator signs is

Answer 10

NOT valid.

Question 11

To be valid, a codicil must be executed

Answer 11

with the same formalities as the original will

Question 12

Do witnesses have to sign in the testator’s presence for the will to be valid?

Answer 12

NO, as long as they did witness the testator do something (sign, acknowledge signature, acknowledge will)

Question 13

If a witness to the will’s signing is interested, this will

Answer 13

not affect validity of will, but will purge the gift to the interested witness, unless the witness can prove that the bequest was not inserted (and the will was not signed) as a result of fraud or undue influence.

Question 14

Holographic wills are _____________ and they are __________ in MA.

Answer 14

wills that are signed by testator but not witnessed; NOT VALID. (Valid in about 30 states though.)

Question 15

A will executed in another state will be admissible to probate in MA if it

Answer 15

was executed in accordance with MA law, law of place where will was executed, OR law of the place of testator’s domicile, either at signing or at death.

Question 16

Conditional wills are those that

Answer 16

are only valid if a certain condition (written into the will) occurs. e.g. “If I die while on this trip…” is possibly a conditional will (argue both ways)

Question 17

Three ways to revoke a will are

Answer 17

1. execute another testamentary instrument with the required formalities
2. perform a “revocatory act” on all or part of the will – burn, tear, cancel it
3. execute another testamentary instrument that ends up revoking all or part of the previous will by inconsistency

Question 18

A revocatory act is one

Answer 18

performed by testator or his proxy WITH INTENT TO REVOKE the will. Must be performed on the will itself, not on a copy.

Question 19

Writing “this is void” on each page of a will

Answer 19

revokes the will by revocatory act (not by subsequent testamentary document because the “voiding” wasn’t witnessed)

Question 20

How can you probate a will if the will can’t be found?

Answer 20

Proof of lost wills statute: can probate if

1. proof of due execution (e.g. testimony of witness)
2. can prove why the will hasn’t been produced (there’s a presumption that the testator revoked if the will isn’t around anymore), AND
3. can prove will’s content (usually by copy, or by oral testimony if it’s free from doubt)

Question 21

If a will cannot be produced, there is a presumption that

Answer 21

the testator revoked it, as long as it was last seen in testator’s possession

Question 22

If a will is found mutilated after testator’s death, there’s a presumption that

Answer 22

the testator revoked it, as long as it was last seen in testator’s possession

Question 23

What do you do if a second will was written, but the first wasn’t revoked?

Answer 23

Read them together where possible, revoking provisions in first only if necessary. First will is considered wholly revoked if it’s wholly incompatible with second.

Question 24

Dependent relative revocation is

Answer 24

where testator revokes a will under a mistake of law or fact as to the validity of another document. The revocation can be disregarded in this case – but ONLY if revoking it would more closely align with testator’s intent.

E.g. revokes a will giving daughter $2,000 to instead write a “will” giving here $5,000, but turns out later will is invalid because not witnessed.

Question 25

Revoked will can be revived if

Answer 25

it still exists AND there’s evidence that testator intended to revive the will.

Question 26

Deletions from a will after it’s been duly executed are

Answer 26

considered partial revocations by revocatory act and are recognized.

Question 27

When a will beneficiary predeceases the testator, the gift

Answer 27

lapses (fails) unless it’s covered by the anti-lapse statute.

Question 28

The anti-lapse statute provides that

Answer 28

if the deceased beneficiary of a will was a grandparent of the testator or a descendant of a grandparent, and the beneficiary left surviving offspring, then the beneficiary’s share goes to those offspring.

Question 29

Under the anti-lapse statute, if the deceased beneficiary named certain heirs in her will, does the deceased beneficiary’s share go to those named heirs?

Answer 29

NO. It goes to the deceased beneficiary’s offspring.

Question 30

What happens if the anti-lapse statute does not apply?

Answer 30

The deceased beneficiary’s share falls into the residuary estate and is distributed to the residuary beneficiary.

Question 31

Does the anti-lapse statute apply to non-probate transfers?

Answer 31

YES, as long as no alternate beneficiary was named – this is very different from most states.

Question 32

The surviving residuary beneficiaries rule provides that

Answer 32

if the residuary estate is devised to two or more people, and one of them can’t take for some reason (e.g. they’re dead and the anti-lapse statute doesn’t apply), then the surviving beneficiary takes all.

Question 33

If a bequest is made to a class of persons, and some of that class does not survive the testator

Answer 33

only the surviving class members will take (unless the anti-lapse statute saves the deceased class members’ share).

Question 34

Things to add in to any essay that mentions a spouse’s share of decedent’s estate

Answer 34

1. family allowance of up to $18k for living expenses while probate is happening
2. personal property allowance up to $10k

Question 35

If a decedent spouse executes a codicil after marriage

Answer 35

then the will as a whole is treated as executed after marriage for purposes of omitted spouse statute.

Question 36

How is an estate distributed if the surviving spouse mentioned in the will is now an ex-spouse?

Answer 36

As if the ex-spouse predeceased

Question 37

Omitted spouse and omitted child statute do not apply if

Answer 37

it appears from WILL ONLY that the omission was intentional (no extrinsic evidence allowed)

it appears that provisions outside the will were made for the spouse/child instead of the will (e.g. trusts)

Question 38

If a decedent had no other children when the will was executed, the omitted child statute provides the omitted child with

Answer 38

an intestate share, UNLESS all/substantially all of the estate went to the child’s other parent

Question 39

If a decedent had other children when the will was executed, the omitted child statute provides the omitted child with

Answer 39

a share of what was given to the other child.

Question 40

Ademption occurs when

Answer 40

specifically devised property is no longer in the testator’s estate when he dies.

Question 41

Where there’s ademption, what generally happens?

Answer 41

Devisee gets nothing, because testator cannot devise property he no longer owns

Question 42

Does ademption apply to demonstrative legacies?

Answer 42

No. If T bequeaths $25k in Exxon stock, and there’s no more Exxon stock, T will get $25k.

Question 43

Devisee who gets specific devise of property with a lien on it (e.g. real estate with a mortgage) will

Answer 43

take the property subject to the lien unless testator VERY specifically instructs that lien should be exonerated on his death.

Question 44

A will can provide that T devises property to persons named in an extrinsic writing, if that writing

Answer 44

exists when will was executed, the will manifests intent to incorporate the writing, and the will describes the writing well enough to identify it.

Question 45

A will can refer to a handwritten list that’s NOT in existence at the time the will is written if

Answer 45

the list devises only tangible personal property.

Question 46

If a testator leaves the “contents of a room” or “the car I own at my death” to someone in will, and ends up swapping these things around so that they’re way more valuable than they were at the time will was executed

Answer 46

these are “acts of independent significance” and the devisee will take whatever the current property is (unless it’s a title document!).

Question 47

No-contest clauses in wills

Answer 47

are given full effect in MA. If you challenge a will with a no-contest clause, and you lose, you forfeit your interest.

Question 48

Exceptions to no-contest clauses:

Answer 48

you can always bring suit to construe the will’s provisions and you won’t lose your interest by doing so.

Question 49

To prove that a testator lacked testamentary capacity, you must meet an element of this four-part test:

Answer 49

1. T was not able to understand the nature of his act. (There’s a presumption that T was of sound mind, so it’s a tough burden to prove.)
2. T didn’t know nature and approximate value of property
3. T didn’t know the “natural objects of his bounty” (e.g. that he was married, had kids, etc.)
4. T didn’t understand the disposition he was making.

Question 50

To prove that a testator was subject to undue influence, you must prove that

Answer 50

she was subject to coercion or duress that destroyed her free will, such that the product is a will or gift in will that would’ve have been made BUT FOR the influence.

(U-I-E-E-P) – existence, effect, product

Question 51

If there’s a typist’s error in the will (e.g. 200 shares instead of 300)

Answer 51

you get what the will says you get. There may be a mistake, but there is no ambiguity.

Question 52

A latent ambiguity occurs when ________ and the consequences of it are _________.

Answer 52

The meaning of a bequest is not discernible from its face (e.g. a devise to a person who doesn’t exist); extrinsic evidence is allowed.

Question 53

A patent ambiguity occurs when ___________ and the consequences of it are ___________.

Answer 53

the meaning of a bequest is ambiguous but it’s obvious from the face of the will that there’s been a mistake; extrinsic evidence is probably allowed (not totally clear in MA, but it’s allowed in vast majority of jx’s).

Question 54

If there’s fraud in the inducement, the result will be

Answer 54

a constructive trust imposed in the victim’s favor.

Question 55

Promises to make a will or to not revoke a will can be enforced only if they are

Answer 55

expressly provided for in the will; the will expressly references a K; or there’s a writing signed by the decedent evidencing the K.

Question 56

Promises to make a will/not to revoke a will can be modified

Answer 56

during the testator’s lifetime, and no damages to the party who’s not benefited, because she’s experienced no harm.

Question 57

Express words of disinheritance are

Answer 57

given full effect. The disinherited person is treated as if she predeceased the testator.

Question 58

Can an attorney be liable to the beneficiaries of a will that she wrote or whose execution she supervised?

Answer 58

Unclear in MA; argue both ways (both that there’s no privity of K – common law rule – and that there’s liability because attorney owes duty to intended beneficiaries).

Question 59

Elective share if decedent was survived by issue is

Answer 59

First $25k of personal property, plus a life estate in 1/3 of the balance of personal AND real property.

Question 60

Elective share if decedent was survived by “kindred,” but not issue, is

Answer 60

First $25k of personal property, plus a life estate in 1/2 of the balance of personal AND real property.

Question 61

Elective share if decedent was NOT survived by kindred OR issue (i.e. only spouse survived)

Answer 61

First $25k of personal property, plus 1/2 the balance of personal AND real property OUTRIGHT

Question 62

If property is held in a life estate as part of a spouse’s elective share, it is held in TRUST if it’s

Answer 62

personal property

Question 63

Trusts are included in

Answer 63

the balance of the estate for elective share purposes, if they are revocable trusts.

Question 64

You can only elect to take your elective share if the decedent was

Answer 64

a MA domiciliary.

Question 65

When must spouse file election to take her elective share?

Answer 65

Within 6 months after will is admitted to probate.

Question 66

If a spouse doesn’t file election to take elective share within the allotted time, it is

Answer 66

conclusively presumed she opted to take her share under the will instead.

Question 67

A spouse can’t elect if she is

Answer 67

dead, deserted the decedent, or if the couple has been living apart for “justifiable cause.”

Question 68

If a fiduciary benefits in a will from a transaction with his principal, there is a

Answer 68

presumption of undue influence.

Question 69

Statute of limitations to file a claim against a decedent’s estate is

Answer 69

1 year after death