Wills

Question 1

What is a Will?

Answer 1

a Revocable written instrument that is effective only upon the testator’s death.

Question 2

A Will is valid if

Answer 2

it is executed by a competent individual w/ the requisite testamentary intent, in accordance w/ prescriped formalities: CIF

• Competent
• Intent
• Formalities

Question 3

A will must

Answer 3

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

Question 4

Competency v. Incompetency

Answer 4

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

Question 5

Undue Influence in Will Factors

Answer 5

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

Question 6

Fraud of a Will includes:

Answer 6

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

Question 7

Consequences of Fraud

Answer 7

Do what is necessary to cure the effects of improper behavior:

1. invalidate only affected portions
2. invalidate entire will
3. probate the will, but impose constructive trust

Question 8

Intent necessary to make a Will:

Answer 8

1. Signed
2. Present Subjective Intent
   
   • Genuine + Present + Unconditional
3. Operative at Death

Question 9

Will Contests:

Answer 9

• 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

Question 10

Two types of Will

Answer 10

1. Attested (witnessed)
2. Holographic and Nuncupative (oral)
   
   • only admitted in very rare circumstances

Question 11

Requirements for Will:

Answer 11

1. Signed at the END
   
   • by testator or in his name in presence of another at their direction
2. 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

Question 12

Signature Requirement for Attested Will

Answer 12

• Viewed liberally; partial name, initials suffice.
• Do not have to be notarized

Question 13

Revocation

Answer 13

A Testator always ahve the power to revoke his will and/or any attendant codicils

1. Operation of Law (marriage, divorce, child birth)
2. Subsequent Will
   
   • Codicil cannot revoke prior will
3. Physical Act
   
   • Any means of destruction done w/ revocatory intent
   • Cannot partially revoke by physical act

Question 14

Integration Doctrine

Answer 14

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

Question 15

Republication by Codicil

Answer 15

An earlier will is republished by reference in a subsequent codicil

Question 16

Interpretation of WIlls

Answer 16

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

Question 17

Devise

Answer 17

Any disposition of real or personal property by will.

1. Specific
   
   • identifiable property
2. General
   
   • value payable out of general assets
3. Demonstrative
   
   • designates the fund or proeprty from which it is primarily to be paid
4. Residuiary
   
   • Gift of the remaining portion

Question 18

Ademption

Answer 18

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

Question 19

Abatement

Answer 19

Estate is not sufficient to pay all of the devises; some of gifts must be extinguished or reduced.

Priority - PRGSS

1. Property not disposed
2. Residuary gifts
3. General gifts
4. Specific Gifts and Demonstrative Gifts
5. Share of surviving spouse

Question 20

Exoneration

Answer 20

Debt on Devise’s Property

If subject to the debt, then Devisee takes property subject to the encumbrance unless testator directs otherwise

Question 21

Anti-lapse

Answer 21

Death of Devisee: Property becomes part of reside or passed via intestacy unless testator had directed otherwise

Question 22

Wills Protection for Children

Answer 22

NONE

Parents not required to leave anything for their children. Can disinherit expressly or by not mentioning.

Question 23

Protection for Spouse

Answer 23

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)

Question 24

Time limit for distribution

Answer 24

Must survive the decedent by 5 days (120 hours)