Wills Flashcards
What is a Will?
a Revocable written instrument that is effective only upon the testator’s death.
A Will is valid if
it is executed by a competent individual w/ the requisite testamentary intent, in accordance w/ prescriped formalities: CIF
- Competent
- Intent
- Formalities
A will must
Do one or more of the following:
- Dispose of property
- state how property shall bot be disposed
- exercise a power
- appoint an executor
- dispose of decedent’s remains
- revoke a prior testamentary doc
Competency v. Incompetency
Reputtable presumption of competence if the will appears valid on its fact when executed.
Competency: 18+ and of sound mind
Incompetency: Lacks sufficient mental capacity to understand:
- nature and extent of property
- who expected to inherent
- nature of the testamentary act
- how to create an orderly plan for disposition
Undue Influence in Will Factors
Will or codicil is ineffective if product of undue influence: SCOMS
- Susceptibility to undue influence
- Causation - actually affected the scheme
- Opportunity - to exert undue influence
- Motive - to influence
- Substitution - Did 3d substitute
Fraud of a Will includes:
Intentional deception:
- Nature of the doc
- Content of the will
- Facts upon will was made
Fraud in Inducement: Decieved w/ respect to facts
- Must show deceived, misrepresented, w/ purpose of influencing a testamentary act.
Fraud in Execution: Decevied as to type of Doc
Consequences of Fraud
Do what is necessary to cure the effects of improper behavior:
- invalidate only affected portions
- invalidate entire will
- probate the will, but impose constructive trust
Intent necessary to make a Will:
- Signed
- Present Subjective Intent
- Genuine + Present + Unconditional
- Operative at Death
Will Contests:
- Someone objects to or contests probate of a will or enforcement of a particular provision
- Must have a pecuniary stake in the outcome
- “No Contest” provisions: Anyone challenging the will or a provision in it automatically loses any itnerest otherwise had
Two types of Will
- Attested (witnessed)
- Holographic and Nuncupative (oral)
- only admitted in very rare circumstances
Requirements for Will:
- Signed at the END
- by testator or in his name in presence of another at their direction
- Signed by at least 2 competent witnesses
- observed the making or acknowledgment of testator’s signature
- Was present when testator declared
- Signed name w/in 30 days of the other witness
Signature Requirement for Attested Will
- Viewed liberally; partial name, initials suffice.
- Do not have to be notarized
Revocation
A Testator always ahve the power to revoke his will and/or any attendant codicils
- Operation of Law (marriage, divorce, child birth)
- Subsequent Will
- Codicil cannot revoke prior will
- Physical Act
- Any means of destruction done w/ revocatory intent
- Cannot partially revoke by physical act
Integration Doctrine
Writings that are present upon execution + intended to be part of the will = presumption of integration if physically connected or logical continuity
Present + Intent + Integrated
Republication by Codicil
An earlier will is republished by reference in a subsequent codicil
Interpretation of WIlls
Plain Meaning Rule: Extrinsic Evidence not admissible to vary meaning
Mistake: Need Intent!
Textual Ambiguities:
- Latent: revealed only when the executor attempts to carry out a provision in the will.
- Equivocation: when a bequest explains two things equally well/poor. Extrinsic evidence is then admissible
- Patent: Obvious from face of the will. Courts reluctant to admit extrinsic evidence
Devise
Any disposition of real or personal property by will.
- Specific
- identifiable property
- General
- value payable out of general assets
- Demonstrative
- designates the fund or proeprty from which it is primarily to be paid
- Residuiary
- Gift of the remaining portion
Ademption
Specific Devise is no longer part of testator’s estate = GIFT FAILS! (Gift Extinguished)
- Does not apply to general or demonstrative gifts
- Ademption may be complete or partial
Abatement
Estate is not sufficient to pay all of the devises; some of gifts must be extinguished or reduced.
Priority - PRGSS
- Property not disposed
- Residuary gifts
- General gifts
- Specific Gifts and Demonstrative Gifts
- Share of surviving spouse
Exoneration
Debt on Devise’s Property
If subject to the debt, then Devisee takes property subject to the encumbrance unless testator directs otherwise
Anti-lapse
Death of Devisee: Property becomes part of reside or passed via intestacy unless testator had directed otherwise
Wills Protection for Children
NONE
Parents not required to leave anything for their children. Can disinherit expressly or by not mentioning.
Protection for Spouse
Protected from accidental or intentional disinheritance - Takes the elective share
Elective Share = Greater of 50k or 1/3 of the net estate of all property (not including trusts, life insurance)
Time limit for distribution
Must survive the decedent by 5 days (120 hours)
