Wills Flashcards
requirements for duly executed will
T must be 18 years old
- signed by T or someone ay T’s direction and in her presence ( proxy signature)
- two attesting Ws over age 14
- each W must sign in T’s presence
residuary estate
estate that remains after administration expenses and debts have been paid and any specific bequests made by the will have been satisfied
codicil
later amendment or supplement to the will… must be executed with the same formalities as a will
does it matter if W1 signed before T
NO - exact order of signing is not critical when execution ceremony is contemporaneous transaction
Ws must sign in T’s conscious presence… what does that mean
- not necessary that T be able to see Ws when they sign
- enough that Ws are in T’s presence, they are so near to him that he is conscious of where they are and what they are doing, and where T could see by some slight physical exertion on his part
how to prove a will
- testimony of 1 attesting W in open court
- if all Ws are dead or unavailable, testimony of 2 persons as to the handwriting of the T or the handwriting of either W
2 step will execution ceremony
T and Ws sign the will, then (after being sworn by notary) T and Ws sign the affidavit
1 step will execution ceremony
will’s attestation clause recites all of the elements of due execution… attestation clause prepared as a sworn statement so T and Ws only sign once
venue for probate of will and administration of estate
- county where principal property located
- county in which nearest of kin reside OR
- county where T died
rule for examining contents of safe deposit box
may be examined without court order in presence of bank official by spouse, child, or executor
right of beneficiaries to sue attorney for bad will
none! privity of K says the attorney’s duty only runs to the client who contracted for the attorney’s services
bequest to interested W is void unless
- will can be proved without the interested W’s testimony
- interested W’s testimony is corroborated by the testimony of a disinterested and credible person
- the interested W would be an heir if this will were not probated… if so, the interested W takes whichever is lesser of the legacy under will or intestate share
holographic wills
- intent to be a will (extrinsic evidence admissible)
- signed by T (doesn’t have to be at the end)
- does not need to be dated
- must be WHOLLY in T’s handwriting
surplusage rule for holographic wills
extraneous printed words, not necessary to complete the will or its meaning can be disregarded
to be a will or codicil it must be intended to take effect at…
death… a document that is operative during lifetime cannot be a will
TX anti-lapse statute applies only when the predeceasing ben was…
descendant of T’s parents (child, grandchild, sibling, nephew, niece) AND left descendants who survive T by 120 hours
surviving residuary beneficiaries rule
where the residuary estate is devised to 2 or + persons, and the gift to one of them lapses, the remaining residuary bens take the residuary estate in proportion to their interests
class gifts rule of construction
in a gift by will to a class of persons, if a member of the class predeceases the T, the class members who survive T take
rule of convenience
"class closing rule" defines the takers of a class gift... later born class members do not share in the gift when some class member is entitled to a distribution - any other result would be INCONVENIENT
intestate succession applies when
- decedent left no will or not properly executed
- will does not make complete disposition of estate
- heir successfully contests will and it is denied probate
if a decedent dies intestate and is survived by descendants, all of whom are descendants of the surviving spouse, how should the CP be distributed
all to the surviving spouse
if an unmarried decedent dies intestate survived by both parents and 2 kids, how should her estate be distributed
1/2 to each kid
if a decedent dies intestate and leaves no spouse, kids or other descendants, or either parent, how should the estate be distributed
to his brothers and sisters or their descendants
ways to establish inheritance rights between nonmarital kid and her father
- paternity is presumed by the Family Code
- paternity established in paternity suit
- paternity established in probate proceeding
intestate shares of descendants are distributed in TX by
per capita with representation
for purposes of inheritance, a nonmarital kid is treated the same as any other kid of the decedent if the court finds the decedent was the bio father by which evidentiary standard
clear and convincing evidence
what type of trust will be imposed when an heir or will ben kills an intestate or T
constructive trust - imposed to prevent unjust enrichment
a disclaimed interest passes as though
the disclaimant predeceased the decedent
a class gift does not accrue to any person unless the person was…
born before or was in gestation at the T’s death and survived by at least 120 hours
a will must be signed by a T, or signed for him by another person as his proxy…
by his direction and in his conscious presence
what proof is required to probate an attested will
testimony of 1 attesting W
in TX a ben who contests a will with a no-contest clause…
does NOT forfeit her bequest if the challenge is unsuccessful but was brought in good faith and with just cause (question of fact)
an action alleging the will was not properly executed triggers…
no-contest clause
requirements to prove that a will of gift therein is the result of fraud
- false representations were made with intent to deceive T
- T was ignorant of the falsity of the speaker’s representations
- T, relying on false representations, made a different will than he otherwise would have made
to establish undue influence
- the existence and exertion of an influence
- the effect of the influence was to overpower the mind and free will of the T
- the will would not have been executed “but for” the influence
after a will is admitted to probate, who has the burden to prove testamentary capacity
burden shifts from will proponents to will contestants to establish capacity
if the issue of testamentary capacity is raised at the time the will is offered for probate, who has the burden of establishing capacity
the will proponents
a bequest to children does not include
nonmarital children
TX anti-lapse statute covers predeceasing bens who are
descendants of the T’s parents
who bears the burden of proving the T did not revoke the will
will proponent
elements to probate a lost will
- due execution of the will must be proved by the testimony of at least 1 attesting W
- cause of nonproduction must be proved to overcome presumption of revocation AND
- contents of will must be substantially proved by the testimony of a credible W who has read or heard the will or can ID a copy of the will
what is the effect of will ben serving as attesting W
will is valid and the W could take a share of the estate
