Wills

Question 1

Intestacy – Generally – Uniform Probate Code [UPC]

Answer 1

• Surviving spouse (SS) takes the entire estate

o All of decedent’s descendants are also descendants of SS, and SS has no other
descendants, or
o Decedent (D) has SS, but no descendants or parents

• SS takes $300,000 and 75% of the remainder of the estate
o No descendant of D survives D, but D has a surviving parent

• SS takes $225,000 and 50% of the remainder of the estate
o All of D’s issue are also issue of SS, and SS has other issue

• SS takes $150,000 and 50% of the remainder of the estate
o D has issue not related to SS

Question 2

Intestacy – generally – Community Property

Answer 2

Community property (CP)—all property acquired during the marriage is jointly owned
by both spouses unless it is gift, inheritance, or devise given to only one spouse
• CP is divided equally—SS owns 50% of CP outright
• If D dies intestate, then D’s 50% of CP is given to SS and D’s separate property (SP) is then distributed pursuant to the general intestacy scheme

Question 3

Intestacy – Surviving Spouse – Marriage Requirement

Answer 3

1. Marriage requirement—SS must have been legally married to D
   • Putative spouses—qualify if the spouse believes in good faith in the validity of an invalid marriage
   • Separation—spouses are still married until the issuance of a final dissolution decree
2. Survival requirement—SS (or other heir) must survive D to inherit (or take under a will)
   • Common law—must have survived D for any length of time

Question 4

Intestacy – Surviving Spouse – Survival Requirement

Answer 4

Survival requirement—SS (or other heir) must survive D to inherit (or take under a will)

• Common law—must have survived D for any length of time
• Uniform Simultaneous Death Act (USDA)

o 120-hour rule—must have survived D by 120 hours

o Insufficient evidence of order of death—the property of each individual passes as

though the other individual predeceased him

• Determination of death

o Common law—irreversible cessation of circulatory and respiratory functions

o Modern standard—brain death (for which there are no established criteria)

• Burden of proof—on the party whose claim depends on survivorship

o Common law—preponderance of the evidence

o USDA—clear and convincing evidence

Question 5

Intestacy – Issue – Child-parent Relationship – married parents, adopted child, foster parents, step-parents

Answer 5

Married parents
o Child of a marriage—presumption: the child is the natural child of the parties to the
marriage
o Posthumously-born children—rebuttable presumption: the child is the child of the
deceased husband if the child is born within 280 days of his death

• Adopted child
o Reference in a will to “child” includes an adopted child
o Treated like a biological child for inheritance purposes
o No inheritance rights between the genetic parents and the adopted child
o Stepparent exception—an adoption by a stepparent establishes a parent-child
relationship between the stepparent and the child (with full inheritance rights) but
does not curtail the parent-child relationship of the genetic parent who is married to
the stepparent nor the right of the adoptee (or a descendant of the adoptee) to
inherit from or through the other genetic parent

Question 6

Intestacy – Issue – Child-parent Relationship – Half-bloods, children born out of wedlock, posthumously-conceived child

Answer 6

Half-bloods—treated the same as whole-bloods

• Children born out of wedlock
o Modern trend—cannot inherit from the natural father unless:
 The father subsequently married the natural mother;
 The father held the child out as his own and lived with the child or provided
support;
 Paternity is proven by clear and convincing evidence after the father’s death;
or
 Paternity is adjudicated during the father’s lifetime by a preponderance of the
evidence
o Uniform Parentage Act (UPA)—requires proof of paternity for a child to inherit
 When a father holds a child out as his own—presumption of paternity; the
child can bring an action to establish paternity at any time
 Otherwise—no presumption of paternity; the child must bring an action within
three years of reaching the age of majority

• Posthumously-conceived child—not recognized as a child of the deceased parent

Question 7

Intestacy – Issue – Calculating Share

Answer 7

Per capita with representation
o Property is divided equally among the first generation with at least one living
member
o The share of a non-living member of that generation passes to the living issue of
that member
o Non-living member with no living issue—no property is allocated to the non-living
member

• Per stirpes
o Issue equally share the portion that the deceased ancestor would have taken if
living
o The estate is first divided into the total number of children of the ancestor who
survive or leave issue who survive

• Per capita at each generation
o Property is divided into as many equal shares as there are living members of the
nearest generation of issue and deceased members of that generation with living
issue

• Negative inheritance—to disinherit an heir through properly executed will

Question 8

Intestacy – Ancestors and Remote Collaterals –

Answer 8

Parentelic approach—follows collateral lines until a live taker is found; D’s property is
distributed within that taker’s parentelic line

2. Degree-of-relationship approach—calculated by counting the number of relatives
   between the living taker and D using the closest common ancestor
3. Combined approach—those in a closer collateral line take to the exclusion of those in a
   more remote collateral line
4. UPC approach
   • D’s parents equally if both survive or all to the surviving parent if only one survives
   • Then to descendants of D’s parents
   • Then to D’s living maternal/paternal grandparents
   • Then to descendants of D’s deceased grandparents
   • Then to D’s nearest maternal/paternal relative
   • Finally D’s estate escheats to state

Question 9

Execution of Wills – Formalities – Valid Will Requirements

Answer 9

Writing signed by the testator (T)
• Two or more witnesses
• T has present testamentary intent

Question 10

Execution of Wills – Formalities – Writing signed by T

Answer 10

Entire will must be in writing

• Signed by T
o Location of signature
 Some states—at end, otherwise the will is invalid
 Other states (UPC)—anywhere on the will, but the portion of the will after the
signature is invalid
o Form of signature—T’s formal name is not required if the name used indicates T’s
intent
o Signature on T’s behalf—permitted by a person in T’s presence and at T’s direction

• T’s Capacity
o T must be at least 18 years old and of sound mind
o T meets mental capacity if she knows (capacity is presumed unless challenged):
 Nature and extent of her property
 Persons who are the natural objects of T’s bounty
 Disposition she is trying to make, and
 Testamentary plan

Question 11

Execution of Wills – Formalities – Witnesses

Answer 11

Number—at least two; some states require three

• Signatures
o Signed by T (or by a person on T’s behalf) in the joint presence of two Ws
 UPC—T may acknowledge his signature to Ws; Ws need not be present at the
same time
o Signed by two Ws
 No need for an attestation clause
 Ws need not sign at the end of the will
 Ws must sign in the presence of T
 UPC—W may sign within a reasonable time after witnessing T sign or
acknowledge the will
o Presence
 Line-of-sight (traditional) test—T and Ws see (or have the opportunity to see)
each other sign the will
 Conscious-presence (modern) test—T and W must be aware through any
sense that each is signing the will

• Knowledge of instrument
o Ws must be aware that the instrument is a will, but need not know its contents

• Age and competency—W has sufficient mental capacity/maturity to comprehend the
value of the act of witnessing; determined at the time of signing

Question 12

Execution of Wills – Formalities – Testamentary Intent

Answer 12

T must execute a will with present testamentary intent, must understand that he is
executing a will, and intend that it have testamentary effect
• T must generally know and approve of the will’s contents, but need not understand all
provisions

Question 13

Execution of Wills – Formalities – Integration

Answer 13

a will consists of all pages present at the execution and intended to be a part of the will

Question 14

Execution of Wills – Formalities – Compliance with Statutory Requirements

Answer 14

Common law—strict compliance

• UPC—substantial compliance if there is clear and convincing evidence of T’s intent

Question 15

Execution of Wills – Holographic Wills [a will in T’s handwriting]

Answer 15

1. Handwritten document
   • Some states—entire will must be in T’s handwriting
   • Other states (UPC)—only the material provisions must be in T’s handwriting (e.g., a
   filled-in printed form)
2. Must be signed by T—proxy not permitted
3. Witnesses—not required
4. Date—required by some states
5. Testamentary intent
   • Some states—established by reference to printed parts of the will or extrinsic
   evidence
6. Handwritten changes after will completed—effective

Question 16

Execution of Wills – Self-Proved Will

Answer 16

a will acknowledged by T and affirmed by Ws before a court official

• Effect—removes the need for testimony of the attesting Ws at a formal probate
proceeding

Question 17

Execution of Wills – Nuncapative [oral] Wills

Answer 17

1. Most states (UPC)—not permitted
2. Some states—permitted, but valid for disposition of limited personal property made in
   contemplation of immediate death

Question 18

Execution of Wills – Codicils

Answer 18

changes or additions to a will

1. Execution—the same formalities as for a will must be observed
2. Effect—republishes the will as of the date the codicil was executed
   • May validate an invalid will

Question 19

Execution of Wills – Will Substitutes

Answer 19

methods for transferring property outside of probate

1. Revocable trusts
2. Pour-over wills—a devise of T’s property to a trust created during T’s life
3. Bank accounts and securities registered in beneficiary form
4. Payable-on-death clause in contract
5. Life insurance—policy proceeds are not part of D’s estate unless payable to the estate as beneficiary
6. Deeds—unconditionally delivered to the grantee during D’s lifetime or delivered to an
   escrow agent during D’s lifetime with instructions to turn over to grantee upon D’s death
7. Totten trusts—a type of revocable trust set up with a bank (similar to a payable-on-death account)

Question 20

Revocation of Will – Any time prior to T’s death – Subsequent Instrument, Destruction with Intent to Revoke

Answer 20

1. Subsequent instrument—an oral revocation of a will is not valid
   • Revocation can be express or implied by the terms of a subsequent instrument
   • Inconsistency—the later document controls and revokes prior inconsistencies
2. Destruction with intent to revoke
   • Destruction—burning, canceling, tearing, obliterating, or destroying a material
   portion of the will
   o Most states—requires defacement of some language of the will
   o Some states (UPC)—the destructive act need only affect some part of will
   • Rebuttable presumption of revocation—when a will once known to exist cannot
   be found
   o Inapplicable if a duplicate original is found
   • Destruction of executed will—presumptively revokes all other duplicate originals
   • Third party can revoke for T if done at T’s direction and in T’s conscious presence

Question 21

Revocation of Will – Lost Wills

Answer 21

1. Duplicates/copies—a duplicate original is permitted, but not a photocopy
2. Burden on proponent—proof by clear and convincing evidence

Question 22

Revocation of Will – Revocation of Codicils

Answer 22

—revives the will (contrast: the revocation of a will revokes all codicils to the will)

Question 23

Revocation of Will – Revival

Answer 23

1. Republication
   • Implied
   o Common law—automatic revival of the original will upon revocation of a
   subsequent will
   o Most states (UPC)—require proof that T intended to revive the original will
    Extrinsic evidence is only admissible if revocation was by physical act
   • Express—T acknowledges the original will with testamentary formalities
2. Dependent Relative Revocation (DRR)—T’s revocation of the will is disregarded if it
   was based on a mistake of law or fact and would not have been done but for that mistake

Question 24

Will Contracts – Writing Requirement

Answer 24

the will states the contract’s material provisions; the terms are contained in a written contract; or the will expressly references a contract and extrinsic evidence proves its terms

Question 25

Will Contracts – Consideration Requirement

Answer 25

—e.g., B promises to care for T in exchange for a bequest

Question 26

Will Contracts – Enforceability

Answer 26

only if signed by the party sought to be charged; no remedy for breach while
T is still alive

Question 27

Will Contracts – Reciprocal Provisions

Answer 27

1. Joint wills—a single instrument that serves as the will of more than one person
   • Does not by itself create a presumption of a contract not to revoke
2. Reciprocal wills—identical or reciprocal provisions in separate wills
   • Does not by itself create a presumption of a contract not to revoke
3. Contract not to revoke
   • If evidence establishes (e.g., the wills state that devises were made in consideration of
   reciprocal devises), the contract becomes irrevocable upon death of first party; a
   constructive tr

Question 28

Construction of Will – Classification system of gifts

Answer 28

1. Specific—property distinguished with reasonable accuracy from T’s other property
2. General—property to be satisfied from general estate assets
3. Demonstrative—property to come from a particular source
4. Residuary—property remaining after all specific, general, and demonstrative gifts are made

Question 29

Construction of Will – incorporation by reference

Answer 29

another writing not executed with testamentary formalities
may dictate the distribution of T’s property if it:

• Existed at time of execution of the will,
• Is intended to be incorporated, and
• Is described in the will with sufficient certainty to permit identification

Question 30

Construction of Will – acts of independent significance

Answer 30

designation of a beneficiary or disposition by reference
to some unattested act or event occurring before or after the execution of the will or T’s death if the act or event has some significance apart from the will

Question 31

Construction of Will – Lapse

Answer 31

if the beneficiary dies before T, the gift lapses and passes to the residuary beneficiary,or if none, via intestacy

1. Anti-lapse statute—if the beneficiary was T’s relative and left issue, then the issue
   succeeds to the beneficiary’s gift
   • Applies to class gifts
   • UPC—also apply to non-probate transfers
2. Residuary lapse
   • Common law—a lapsed residuary interest passes by intestacy (“no residue of a
   residue”)
   • UPC—a lapsed residuary interests passes to the remaining residuary beneficiaries
3. Void gifts—gift to a beneficiary, who unbeknownst to T, is already deceased when the will
   was executed
   • Anti-lapse statute also applies to void gifts

Question 32

Construction of Will – Abatement

Answer 32

(first to last)—reduction/elimination of gifts when assets insufficient

Order—gifts abate in the following order:
• First, intestate property
• Then, residuary bequests
• Then, general bequests to people other than relatives
• Then, general bequests to relatives
• Then, specific bequests to people other than relatives
• Finally, specific bequests to relatives
• Note: a demonstrative gift is treated as a specific bequest; if it cannot, then it is
treated as a general bequest

Question 33

Construction of Will – Ademption

Answer 33

the denial of a gift to a beneficiary because the property is no longer in T’s
estate

1. Ademption by extinction—applies only to specific bequests
   • Traditional approach—“identity theory”
   • UPC approach—“intent theory” (mild presumption against ademption)
2. Exoneration of liens
   • Common law—a beneficiary of encumbered real property can have the lien paid off
   • Most states (UPC)—a beneficiary of encumbered real property is not entitled to have
   the lien paid off
3. Ademption by satisfaction—a gift may be satisfied by inter vivos transfer of property
   after the execution of the will if that is T’s intent
   • UPC—presumes no ademption by satisfaction absent an express writing

Question 34

Construction of Will – Ambiguities and Mistakes

Answer 34

1. Plain meaning rule—reluctance to disturb the plain meaning of a will regardless of
   mistake
2. Ambiguities—can be resolved by extrinsic evidence
3. Mistakes—extrinsic evidence is admissible to show that there was a mistake in the will’s execution
4. Rule of construction—the will “speaks” at the time of T’s death

Question 35

Power to Transfer – Rights of Surviving Spouse – Elective Share or Forced Share

Answer 35

1. Elective share or forced share
   • Common law state—SS can elect to take a share of T’s augmented estate rather
   than the gifts left to SS in the will
   o The right may be waived by a signed writing after fair disclosure before or during
   the marriage
   • Community property state—SS is entitled to one-half of community and quasicommunity
   property (forced share)
   o SS must elect to take the forced share in lieu of any interest under T’s will

Question 36

Power to Transfer – Gifts to Children

Answer 36

1. Advancements of inheritance (corresponds to ademption by satisfaction for gift by will)
   • Common law—a lifetime gift is presumed to be an advancement of the child’s
   intestate share; the child has the burden to prove otherwise
   • Modern trend (UPC)—the gift is an advancement if D declared in a contemporaneous writing that the gift was an advancement, or the heir acknowledges
   that the gift was an advancement in writing
2. Controlled transfers to minors—guardianship, conservatorship, transfer pursuant to the
   Uniform Transfers to Minors Act, trust

Question 37

Power to Transfer – Omitted Child

Answer 37

a child born after T’s will is executed
1. Rebuttable presumption—that the omission was by mistake
• The presumption is rebutted by (i) intentional omission; (ii) T had other children when
will executed, left estate to other parent of omitted child; (iii) T otherwise provided for
the child

2. Omitted child’s share
   • T’s only child—intestate share
   • Other children—omitted child shares equally in property devised to the other children

Question 38

Power to Transfer – Bars to Succession

Answer 38

1. Homicide—the killer of D cannot take under D’s will or through intestacy
   • Killer is treated as if he predeceased D
2. Disclaimer—permitted but must be affirmatively done because acceptance of the gift is
   presumed
   • The disclaiming party is treated as if she predeceased D

Question 39

Will Contests – Standing to Contest

Answer 39

only directly interested parties who stand to benefit financially may contest a will; not T’s general creditors nor the spouse or prospective heir of a beneficiary under a prior will

Question 40

Will Contests – Lack of Testamentary Capacity

Answer 40

T lacks capacity if, at the time of the will’s execution, T did
not have the ability to know the nature of act, the nature and character of his property, the natural objects of his bounty, and the attempted disposition plan

Question 41

Will Contests – Insane Delusion

Answer 41

a belief for which there is no factual or reasonable basis, but to which T adheres despite all reason and evidence to the contrary

1. Rational person test—a rational person in T’s situation could not have reached the same belief
2. “But for” causation—the delusion was the sole cause of the testamentary disposition

Question 42

Will Contests – Undue Influence

Answer 42

mental or physical coercion exerted by a third party on T with the intent to
influence T such that he loses control of his own judgment and executes an unnatural will

1. Confidential relationship—T, as a result of his weakened or dependent state, confided,
   trusted, or relied upon the other party
   • No confidential relationship between husband and wife
   • Burden of proof is on the beneficiary to show by a preponderance of the evidence that
   there was no undue influence
   • The beneficiary is treated as though he predeceased T to the extent the gift exceeds
   the beneficiary’s intestate share

Question 43

Will Contests – Fraud

Answer 43

a misrepresentation made by the beneficiary when the will was executed with the
intent to deceive T and with the purpose of influencing the disposition, resulting in a will that would not have been executed but for the fraud

Question 44

Will Contests – Forfeiture Clause

Answer 44

designed to deter a beneficiary from suing over his share by causing him
to lose his share entirely if he does so

1. Most states (UPC)—a forfeiture clause is unenforceable against a beneficiary who has
   probable cause to contest

Question 45

Probate and Administration – Procedure

Answer 45

1. Jurisdiction—the place where D is domiciled at the time of death has jurisdiction over D’s
   personal property and any real property located there
2. Notice—given to interested parties
3. Timing
   • Common law—a will could be probated at any time
   • UPC—probate proceedings must be brought within three years of death

Question 46

Probate and Administration – Creditor’s Claims

Answer 46

1. Period of limitations—a claim must be made within a specified period after probate is opened
2. Notice—the personal representative must provide notice to creditors
3. Priority of claims—administrative expenses, last medical expenses and funeral expenses,
   family allowance, tax claims, secured claims, judgments against D, all other claims

Question 47

Probate and Administration – Personal Representative

Answer 47

executor (named in will), administrator (appointed by court)

1. Principal duties:
   • Provide notice to legatees, heirs, and claimants
   • Inventory, collect, and manage D’s assets
   • Receive and pay claims of creditors and tax collectors
   • Distribute remaining assets
2. Fiduciary duty—owes the highest duty of loyalty and care to those represented
   • Common law—can be personally liable for the actions of the estate
   • UPC—can only be sued in a representative capacity for breach of fiduciary duty

Question 48

Powers of Appointment – Types

Answer 48

1. General power of appointment—no restrictions or conditions on the exercise of the power
2. Special power of appointment—places limitations on the holder’s exercise of the power

Question 49

Powers of Appointment – Scope of Authority

Answer 49

1. Exercising power
   • Any instrument, unless the donor directs otherwise, may be used to exercise the power
   • Testamentary power of appoint can only be exercised via will
   o Mere residuary clause in a will is not sufficient to exercise a power, but use of the
   phrase “including any power of appointment I may possess” is generally effective
2. Contracting the power—the holder can do so if presently exercisable power

Question 50

Powers of Attorney – Types

Answer 50

1. General—the agent can handle all affairs when the principal is unable to do so
2. Special—the agent’s powers are limited to a specific function and/or duration

Question 51

Powers of Attorney – Scope of Authority

Answer 51

1. Durable power of attorney—agency continues until the death of principal, even if the
   principal becomes incapacitated
2. Fiduciary duties
3. Liability—the agent is only responsible for intentional misconduct
4. Revocation—the powers can be revoked by the principal at any time

Question 52

Intestacy – Issue – Child-parent Relationship – foster parents and step-parents

Answer 52

• Foster parents and stepparents
o Generally, no inheritance rights between a child and a foster parent or stepparent
o Equitable adoption
 A relationship started during the child’s minority and established by clear and
convincing evidence that a legal barrier prevented adoption, or
 A foster parent agreed with the genetic parents to adopt the child and the
foster parent treated the child as his own
o Effects
 The child can only inherit from (not through) the equitable adoptive parent
 Equitable parents cannot inherit through or from the child
 Inheritance rights between the child and the genetic parents is unaffected

Question 53

Execution of Wills – Formalities – Witnesses – Interested W Doctrine

Answer 53

• Interested W doctrine—W who receives a gift under will
o Common law—an interested W is not competent as a W; the will is invalid unless
there are at least two disinterested Ws
o Purge theory—a gift to W is denied to the extent of the amount in excess of W’s
intestate rights
o UPC—interested W doctrine is abolished

Question 54

Revocation of Will – Any time prior to T’s death – Operation of Law, Partial Revocation, Alteration

Answer 54

3. Operation of law
   • Divorce
   o Most states (UPC)—revokes will provisions for the former spouse unless contrary to
   T’s intent
   o Some states—revokes will provisions for the former spouse if there is a property
   settlement agreement
4. Partial revocation—permitted, but if a revoked gift falls outside of residuary, revocation
   is not given effect until re-execution or republication of will
5. Alteration—T cannot increase a gift by canceling words in the will, but can decrease a gift
   as long as the alteration is made to the existing language rather than through the addition
   of new language to the will

Question 55

Power to Transfer – Rights of Surviving Spouse – Omitted Spouse

Answer 55

2. Omitted spouse—a spouse who married T after T’s will was executed and who is not a
   beneficiary in the will
   • Rebuttable presumption that the omission was by mistake; the omitted spouse is
   entitled to the intestate share
   o Traditional doctrine—the presumption is rebutted if T’s intent to omit the spouse is
   apparent from the language of the will or if the spouse was provided for outside of
   the will
   o UPC—a valid prenuptial agreement also rebuts the presumption