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Wills Flashcards

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1
Q

Non-Probate Property

A

(1) Gratuitous transfers not governed by will or intestacy
(2) Inter vivos outright gift
(3) Inter vivos trusts
(4) Future interests (remainder or executory interest)
(5) Co-ownership or property – Joint Tenancy (survivorship rights)
(6) Pay on death property
(7) Contracts

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2
Q

Intestacy: Definition

A

(1) As to a person, decedent dies without a valid will – total intestacy
(2) As to property, decedent dies with valid will but it does not dispose of all of the decedent’s property – partial intestacy

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3
Q

Intestacy: Basic Idea

A

Property remaining after the intestate’s debts and taxes have been paid passes to the intestate’s heirs

Cannot alter to fit decedent’s intent

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4
Q

Intestacy: Marital Rights - Applicable Law

A

Law of domicile at the time the property was acquired apply

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5
Q

Intestacy: Marital Rights - Common Law

A

What you own is yours

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6
Q

Intestacy: Marital Rights - Communal Property

A

What you earn is half yours, half your spouse’s

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7
Q

Intestacy: Succession Rights - Applicable Law

A

Personal property: Intestate’s domicile at death

Real property: law of state where the property is physically located

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8
Q

Intestacy: Share of Surviving Spouse - Common Law

A

(a) Spouse is not an heir
(b) Widow received dower: 1/3 real property husband owned during marriage
(c) Widower received curtsey: all wife’s real property, provided child born to marriage

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9
Q

Intestacy: Share of Surviving Spouse - Modern Law

A

(a) Spouse is heir
(b) Dower and curtsey eliminated or greatly altered)
(c) Share of surviving spouse depends on factors such as number of children and whether surviving spouse is the parent of deceased spouse’s children

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10
Q

Intestacy: Share of Descedants

A

Descendants receive all of the intestate’s property that does not pass to the surviving spouse

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11
Q

Intestacy: Share of Descendants - All children survive the intestate (or deceased children have no surviving descendants)

A

Each child receives an equal or per capita share

Younger generation (grandchildren) cannot take if older generation (child) is still alive

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12
Q

Intestacy: Share of Descendants - At least one descendant is predeceased by the intestate and is survived by a descendant who survives the intestate

A

Occurs when (a) all descendants belong to second or more distant generation or (b) descendants are from multiple generations

Methods of computing shares:

(1) Per stirpes (right of representation)
(2) Per capital with representation (“modern per sitrpes”)
(3) Per capita at each generation

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13
Q

Intestacy: Share of Descendants - Per Sitrpes

A

Divide into shares at first generation below decedent (i.e. children), even if no survivors

One share for each surviving child and one share for each deceased child who left descendants who survived the intestate

Each surviving child receives one share and the share of each deceased child passes to that child’s descendants

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14
Q

Intestacy: Share of Descendants - Per Capita with Representation (“Modern Per Stirpes)

A

Divide into shares at first generation with survivors

If all children are deceased and all property going to grandchildren, each grandchild takes an equal share rather than dividing the share the parent would have taken had the parent survived

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15
Q

Intestacy: Share of Descendants - Per Capita at Each Generation

A

Uniform Probate Code

Divides intestate’s property into shares at first generation with survivors but then gives all equally related persons the same share

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16
Q

Intestacy: Ancestors and Collaterals - No Descendants

A

If no descendants, all property not passing to surviving spouse passes to ancestors (related in ascending lineal line, e.g. parents) and collaterals (non lineal relatives, e.g., siblings, nieces, cousins)

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17
Q

Intestacy: Ancestors and Collaterals - Parents and First-Line Collaterals (i.e. descendants of parents) - Both parents survive

A

Each parent receives half

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18
Q

Intestacy: Ancestors and Collaterals - Parents and First-Line Collaterals (i.e. descendants of parents) - One parent and one sibling or descendant of sibling survive

A

(a) Some states and UPC give entire estate to parent

(b) Some states give half to surviving parent and half to first-line collateral

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19
Q

Intestacy: Ancestors and Collaterals - Parents and First-Line Collaterals (i.e. descendants of parents) - No parent and at least one sibling or sibling descendant survives

A

All property divided among first-line collaterals

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20
Q

Intestacy: Ancestors and Collaterals - Grandparents, Second-Line Collaterals, and More Distant Relatives

A

Property will pass to these relatives according to the state’s intestacy law

Some cut off inheritance at a predetermined level while other states look for these heirs

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21
Q

Intestacy: Ancestors and Collaterals - Escheat to State Government

A

If no heirs, property passes to state government

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22
Q

Intestacy: Adopted Child

A

Adopted parents: Inherits from and through the parents by adoption and their kin, just the same as a biological child

Biological parents: Jurisdictions vary as to whether the adopted child will inherit from and through biological parents

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23
Q

Intestacy: Adoptive Parents

A

Adoptive parents do take from and through adopted child

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24
Q

Intestacy: Biological parents of adopted child

A

Biological parents do not take from adopted child

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25
Q

Intestacy: Adoption by Estoppel/Equitable Adoption

A

Conduct of “parent” makes it appear as if adopted child, even though formal adoption never occurred

If parent dies without completing formal adoption, some states allow child to inherit.

If child dies, many states prohibit the parent from inheriting

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26
Q

Intestacy: Non-Marital Children

A

Vis-a-vis mother: treated the same in all cases

Vis-a-vis father: many states impose additional requirements on a non-marital child to inherit from a father, such as determination of paternity or father acknowledging child as own

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27
Q

Intestacy: Stepchildren

A

Generally not included in intestate distributions

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28
Q

Intestacy: Half-blooded Heirs

A

Definition: relationship where collateral relatives share only one ancestor in common

Jurisdictions vary in effect: (a) no difference, (b) give them half shares, or (c) cut them out if whole-blooded collaterals of same degree exist

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29
Q

Intestacy: Posthumous child

A

Jurisdictions vary as to whether they will take and the time by which the child needs to be conceived or born

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30
Q

Intestacy: Unworthy Heirs - Heir Killing Intestate

A

If heir murders the intestate, cannot take because of slayer statute or through the application of a constructive trust to prevent unjust enrichment

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31
Q

Intestacy: Unworthy Heirs - Parent’s Failure to Support Child

A

Some jurisdictions prevent biological parent or his kin to inherit through and from child unless parent can prove deserves to by openly treating person as a chid and not refusing to support the child

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32
Q

Intestacy: Unworthy Heirs - Abuse

A

A few states limit inheritance rights of heirs who physically or financially abuse the intestate

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33
Q

Intestacy: Unworthy Heirs - Adultery

A

A few states limit the inheritance rights of a spouse who committed adultery

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34
Q

Intestacy: Advancement

A

Irrevocable gift intended by the donor as prepayment of an inheritance. Many states require writing signed by donor or donee, some allow oral proof.

Effect: If advancee wants to share in the estate, must account for the advancement; compute shares as if advancement were still in estate based either on date of gift or date of death value depending on state law

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35
Q

Intestacy: Survival

A

Most states require heir to outlive the intestate by a set period of time (120 hours at common law)

If insufficient evidence that heir survived by the period of time, heir is treated as if predeceased the intestate

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36
Q

Intestacy: Disclaimers

A

Cannot be forced to accept an inheritance or gift under a will

Reasons to disclaim: (a) burdensome, (b) tax, (c) avoid creditors

Typical requirements: (1) written, (2) signed, (3) acknowledged before a notary, and (4) filed with appropriate court within 9 months from date of death

Cannot disclaim if already accepted.

Effect: Disclaimed property passes as if disclaimant predeceased. Irrevocable.

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37
Q

Intestacy: Negative Wills

A

A few states permit a person to disinherit an heir without leaving a will giving property to someone else

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38
Q

Will Validity

A

Only way to avoid intestacy is to leave a valid will disposing of all probate property.

Most states require exact compliance with all requirements (but Uniform Probate Code does permit court to excuse minor errors using substantial compliance test)

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39
Q

Will Validity: Applicable Law - Real Property

A

Law of Situs - where the property is

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40
Q

Will Validity: Applicable Law - Property Property

A

Law of domicile at death

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41
Q

Will Validity: Applicable Law - Savings Stattue

A

Most states will consider a will valid if it complies with: (a) local law, (b) law where executed, or (c) law of decedent’s domicile at death or when will executed

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42
Q

Will Validity: Requirements

A

(1) Legal Capacity
(2) Testamentary Capacity (Sound Mind)
(3) Testamentary Intent
(4) Formalities: attested, holographic, nuncupative

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43
Q

Will Validity: Requirements - Legal Capacity

A

Typically, 18 years old or older, but some states use other proxies (e.g. married)

44
Q

Will Validity: Requirements - Testamentary Capacity Elements

A

(1) Understand the action
(2) Comprehend the effect of the action
(3) Know general nature and extent of property
(4) Recognize natural objects of bounty (family members)
(5) Simultaneously hold elements in mind

45
Q

Will Validity: Requirements - Testamentary Capacity Issues

A

(a) Mentally challenges individuals can make a will as long as they meet the five elements
(b) Testamentary capacity is a lower standard than contractual capacity
(c) Adjudication of incapacity raises a rebuttable presumption of lack of testamentary capacity
(d) Sane person may lack capacity at times

46
Q

Will Validity: Requirements - Testamentary Intent

A

Must intend the very instrument executed to be the will

47
Q

Will Validity: Requirements - Formalities, of Attested or Formal Will

A

(1) In writing
(2) Signed by testator or proxy (if in testator’s presence or by testator’s direction)
(3) Attestation: (a) at least two witnesses (b) who are credible (able to testify), (c) know it is a will (publication), (d) are uninterested, and (e) in testator’s conscious presence
* Some states allow notarization instead of attestation

Attestation clause not required, but prima facie evidence of satisfaction of formalities

48
Q

Will Validity: Requirements - Formalities of Attested or Formal Will, Self-Proving Affidavit

A

Definition: testator and witnesses swear under oath that the requirements for a valid will were satisfied; may be a separate document or combined with will depending on jurisdiction

Effect: Probate will without having to bring the witnesses to court

49
Q

Will Validity: Requirements - Formalities of Holographic Will

A

Will in testator’s handwriting

Effect of non-holographic material: states vary with regard to how much material may be non-holographic

Witnesses not required in about half of the states

50
Q

Will Validity: Nuncupative or Oral Wills

A

Recognized in a few states under very limited circumstances

51
Q

Types of Testamentary Gifts: Devise

A

Gift of real property

Recipient is devisee

52
Q

Types of Testamentary Gifts: Bequest

A

Gift of personal property

(a) Specific bequest: distinguishable from rest of testator’s estate at time of will execution
(b) Specific bequest of a general nature: not distinguishable from rest of testator’s estate until testator dies

53
Q

Types of Testamentary Gifts: Legacy

A

Gift of personal property not sufficiently described to be specific (usually money)

(a) General Legacy/Gift/Bequest (“I leave $10 to John”)
(b) Demonstrative legacy: gift of sum of money payable out of a designated fund; if fund is insufficient, balance will usually be [paid from other estate assets

Recipient is legatee

54
Q

Types of Testamentary Gifts: Residuary Gift

A

Remainder of the estate

55
Q

Types of Testamentary Gifts: Private gift

A

Non-charitable beneficiaries

56
Q

Types of Testamentary Gifts: Charitable gift

A

Charitable beneficiary

57
Q

Ademption Of Specific Gifts by Extinction

A

If a gift fails (e.g. necklace is destoryed, house is destroyed), it adeems according to the identity rule. Beneficiary does not ake a substitute gift nor the value of the gift

58
Q

Ademption: Exceptions

A

(1) Replacement property: testator replaced gifted item with another similar item
(2) Balance of purchase price: testator sold gifted item, and purchaser still owes the testator money–that money goes to beneficiary
(3) Proceeds of condemnation or insurance: beneficiary gets any condemnation or insurance proceeds on gifted items
(4) Proceeds from a sale by a guardian or conservator: beneficiary receives proceeds from specifically give property if proceeds are traceable

59
Q

Ademption by Satisfaction

A

Beneficiary received gifted property before testator’s death. Many states require writing or specific instructions in the will before gift is deemed a satisfaction

*Satisfaction issues arise more often with money than specific gifts

60
Q

Changes in value of testator’s property: specific gifts

A

Appreciation and depreciation of specifically gifted property between will execution and death is normally irrelevant

61
Q

Changes in value of testator’s property: Securities Acquired after Will Execution

A

(a) Stock splits, stock dividends, mergers – beneficiary takes the increased number of shares
(b) Newly purchased securities: beneficiary does not take increased number of shares

62
Q

Exoneration of debts owned on specific gifts

A

Majority view: receive equity only; must assume debt if want the item

63
Q

Abatement - What gifts fail when estate property inadequate to satisfy all gifts

A

Typical order (when will is silent)

  1. Intestate property
  2. Residuary property (“The rest I leave to…”)
  3. General gifts
  4. Demonstrative gifts
  5. Specific gifts

Within a class, abatement is pro rata

64
Q

Beneficiary’s Disclaimer

A

Beneficiaries can disclaim, just as an heir may do so

Property then passes as if the beneficiary predeceased the testator under the terms of the will

65
Q

Survival

A

Beneficiaries must outlive the intestate by a certain period of time to take (usually 120 hours or testator can dictate)

If beneficiary doesn’t survive testator, beneficiary is treated as if predeceased testator

66
Q

Beneficiary Predeceases Testator: Lapse

A

Beneficiary fails to survive testator (or is treated as such)

Distribution

  1. Under express terms of the will
  2. Gift saved by rule of law (anti-lapse statute or cy pres)
  3. Via residuary clause)
  4. Via intestacy
67
Q

Beneficiary Predeceases Testator: Lapse - Anti-Lapse Statutes (Private Gifts)

A

Prevents lapses under certain circumstances (substitutes descendants of the predeceased beneficiary for the predeceased beneficiary)

Types (vary by jurisdiction)

(a) Applicable only if beneficiary is a lineal descendant of testator
(b) Applicable only if beneficiary is related to testator in a certain manner such as descendant of parent or of grandparent
(c) Applicable in all cases where beneficiary predeceases testator

68
Q

Beneficiary Predeceases Testator: Partial Lapse in Residual Clause

A

E.g., “I leave the residuary of my estate to my friends, A, B, and C. A predeceases testator.

Distribute:

(a) Via intestacy: some courts are unwilling to imply survivorship language and thus A’s one-third passes by intestacy
(b) To surviving residual beneficiaries (imply survivorship language), i.e. B and C split A”s lapsed gift

69
Q

Beneficiary Predeceases Testator: Cy Pres (charitable gifts)

A

Ability of court to substitute equitably equivalent charity upon finding testator had general charitable intent – court must find general charitable intent broader than charitable purpose which cannot now be carried out

70
Q

Interpretation and Construction: Who can raise?

A

(a) Personal representative who wants to do the right thing and thus avoid liability for improper administration
(b) Beneficiaries (or heirs) who would take under various interpretations

71
Q

Interpretation and Construction: Construction maxims

A

(1) Fact of will, especially with residuary clause, indicates intent not to die intestate
(2) Among two or more contradictory provisions, the last one prevails
(3) Will is construed as a whole
(4) Words are given ordinary meaning and grammatical meaning, unless clear from will testator intended otherwise
(5) Technical words are given their technical meaning, unless clear from will testator intended otherwise
(6) Attempt to give effect to all the words testator included in the will

72
Q

Interpretation and Construction: Ambiguity

A

(1) Patent (obvious) ambiguity: if ambiguous on face, court will consider extrinsic evidence to resolve; but will not use extrinsic to fill in blanks
(2) Latent (hidden) ambiguity): provision conveys sensible meaning on face but can’t be carried out without further clarification – court will consider extrinsic evidence
(3) No apparent ambiguity (differs by jurisdiction): (a) Plain meaning rule: no extrinsic evidence; (b) Modern rule: allows extrinsic evidence

73
Q

Interpretation and Construction: Incorporation by reference - Effect

A

Testator may incorporate extraneous document into will by reference, with the effect that it be treated as if it were in the will to begin with

74
Q

Interpretation and Construction: Incorporation by reference - Elements

A

(1) Intent to incorporate
(2) Writing in existence when will executed
(3) Writing clearly identified in will: must be sufficiently identifiable

75
Q

Interpretation and Construction: Acts or Facts of Independent Significance

A

Something outside of a will which has a legal purpose other than disposing of property at death – law may require certain items represented by title documents be transferred in a particular manner

76
Q

Interpretation and Construction: Separate Writing of Disposing of Tangible Personal Property

A

Half of the states permit the testator’s will to refer to a written statement or list to dispose of tangible personal property not otherwise disposed of by the will even though the list was not in existence when the testator executed will

77
Q

Interpretation and Construction: Conditional Wills

A

Will which operates only if a certain event occurs or does not occur

Presumption against conditional wills (court will construe as general no conditional)

78
Q

Interpretation and Construction: Republication by codicil

A

A codicil acts to republish the will except for the parts of the will that are inconsistent with the codicil

Wills and codicils are treated as one instrument speaking form the date of the codicil

Proof of codicil acts as proof of will

79
Q

Interpretation and Construction: Pour Over Provision

A

Provision in will making gift to inter vivos trust

Modern Rule under Uniform Testamentary Additions to Trusts Acts: trust into which property pours over may be created before or after the testator executes the will (property will be governed by all trust amendments, even those made after the testator executed the will or dies). If trust is revoked, gift fails (lapses)

80
Q

Interpretation and Construction: Internal Integration

A

Must be able to show that the pages present at time of execution are those present at time of probate (e.g., staple together, sentences flow page to page, testator and witnesses’ initials on each page, ex toto pagination, avoid blank spaces)

81
Q

Interpretation and Construction: Combination Wills - Joint Wills

A

Single testamentary document containing wills of two or more persons

82
Q

Interpretation and Construction: Combination Wills - Reciprocal Wills

A

wills of two persons containing parallel dispositive provisions

83
Q

Interpretation and Construction: Combination Wills - Contractual Wills

A

Will executed or not revoked as the consideration for a contract

Proof of contract: (a) Common law: all relevant extrinsic evidence; (b) Modern law: some type of writing needed

Revocation of contract: contractual joint will can be revoked while both parties are alive; deceased spouse’s estate cannot revoke a contractual will on behalf of the deceased spouse

Breach of contract: Injured beneficiaries may sue to impose a constructive trust on the property they should have received under the contract

84
Q

Revocation by Operation of Law: Marriage - Common Law Marital Property States

A

(1) Forced or Elective Share: Surviving spouse is entitled to a certain amount, regardless of what will provides
(2) Computation method varies among states (e.g., straight percentage, percentage varies by number of children, percentage varies by length of marriage)
(3) Augmented estate: many states compute surviving spouse’s based on more assets than contained in the probate estate

85
Q

Revocation by Operation of Law: Marriage - Community Property Marital Property States

A

Surviving spouse owns undivided interests in property acquired from earnings after married

86
Q

Revocation by Operation of Law: Divorce after will execution

A

Majority Rule: all provisions in favor of ex-spouse are void (and many states void gifts to other ex relatives)

(a) Final divorce required
(b) Remarriage automatically voids
(c) passage of property: property left to ex-spouse passes as if ex-spouse predeceased the testator

87
Q

Revocation by Operation of Law: Pretermitted or Omitted Children - Purpose

A

Purpose of statute is to provide a share for these left out children on assumption testator would have made provision for the children had the testator thought about it

88
Q

Revocation by Operation of Law: Pretermitted or Omitted Children - Shares

A

(1) Potential to receive a forced shared: (a) born or adopted after will executed, most provide forced share; (b) Born or adopted before will execution (only a few states give share)
(2) Determination of forced share: very tremendously by jurisdiction
(3) Circumstances usually providing no protection: (a) entire estate left to other parent; (b) intentional omission, (c) testator provided for pretermitted child in will or with a non-probate transfer

89
Q

Revocation by Operation of Law: Beneficiary Murders Testator

A

Beneficiary who murder the testator will not be able to take

90
Q

Revocation by Physical Act - Requirements

A

(1) Intent to revoke (cannot be by mistake)
(2) Mental capacity (ineffective if undue influence, duress, or fraud)
(3) Physical act: (a) Act required (burning, tearing, cutting, canceling, obliterating etc); (b) Proxy revocation: may direct someone else to destroy/cancel but must be in his presence

91
Q

Partial Revocation by Physical Act

A

Many states give effect to changes if there is sufficient evidence that testator made the changes

92
Q

Revocation by Subsequent Will or Codicil

A

(1) Express revocation

(2) Revocation by inconsistency:
(a) if new will completely disposes of testator’s property, old one revoked by inconsistency;
(b) if new will partially disposes of testator’s property, old will is revoked only as to inconsistent parts

93
Q

Revocation: Presumptions

A

(a) Presumption of non-revocation: will found in a normal place and no suspicious circumstances
(b) Presumption of revocation: if unable to produce the original will or is found in a damaged condition; lost wills can over come this presumption, but hard to do

94
Q

Revival

A

Fact pattern: T executes valid will 1; T executes valid will 2, which expressly revokes will 1; T validly revokes will 2. Does will 1 revive? Depends on the jurisdiction…

Revival approach: Will 1 will revive (will 2 never took effect because it was revoked prior to death)

No revival approach: Revocation clause is effective when executed

Intent approach: depends, look at facts to determine what the testator intended

95
Q

Conditional Revocation

A

(1) Express conditional revocation: T may state in revoking instrument that a revocation is effective upon the happening/non-happening of a named event
(2) Implied Conditional Revocation or Dependent Relative Revocation: T executes 1, T validly revokes 1, T executes 2 but it’s invalid - does will 1 remain (was revocation of 1 impliedly conditioned on validity of 2?) - depends on testator’s intent: (a) the more similar the two wills, more likely court would apply DRR; (b) more different the wills, more likely testator would have preferred intestacy to will 1

96
Q

Will Contests: Standing

A

Heir: if will is invalid, estate passes by intestacy

Beneficiary of a prior will: if testator’s will is invalid,, property then passes under testator’s prior will

97
Q

Will Contests: Burden of Proo

A

Contestant has burden to prove will invalid

98
Q

Will Contests: Grounds

A

(1) Failure to meet elements of a valid will
(2) Insane delusions
(3) Undue influence
(4) Duress
(5) Fraud
(6) Mistake

99
Q

Will Contests: Grounds - Insane Delusions

A

Definition: a persistent belief in supposed facts that are against all evidence, probability, and control

Delusions must have nexus to property disposition to invalidate will

100
Q

Will Contests: Grounds - Undue Influence

A

Will or portion of will that is product of undue influence is void

Person(s) contesting the will have the burden to establish undue influence:

Elements:

(1) Influence must exist and be executed
(2) Overpower testator’s mind and will
(3) T must execute a will which he would not have executed but for the influence

Presumption of undue influence:

(1) A confidential relationship existed between the testator and the beneficiary who was alleged to have exercised undue influence;
(2) Beneficiary participated in procuring or drafting the will; and
(3) The provisions of the will appear to be unnatural and favor the person who allegedly exercised the undue influence
- ->Burden shifts to proponent of will to prove no undue influence

Evidence to prove:

(a) Direct (rare)
(b) Circumstantial: unnatural disposition, opportunity, confidential or fiduciary relationship between parties, ability of testator to resist, beneficiary involved in drafting or execution
* Mere opportunity to exert is not enough
(c) Attorney as drafter and beneficiary: many states void the gift unless closely related; bar license may be in jeopardy

101
Q

Will Contests: Grounds - Duress

A

Like undue influence, but connotes violent conduct (e.g. under threat of physical harm)

102
Q

Will Contests: Grounds - Fraud

A

Elements:

(1) False representation made to testator
(2) Knowledge of falsity by person making statement
(3) Testator reasonably believed statement
(4) Caused testator to execute will testator would not have made but for the misrepresentation

Types:

(a) Fraud in the factum: T deceived as to identity or contents of instrument (lack of testamentary intent)
(b) Fraud in the inducement: T knew was executing a will and what it contained, but deceived as to some extrinsic fact and made will based on the erroneous fact

103
Q

Will Contests: Grounds - Mistake

A

Definition: T’s error when there was no evil conduct of someone causing the mistake to arise

Types:

(a) Mistake in the Factum/Execution: T is in error regarding identity or contents of instrument (lacked testamentary intent)
(b) Mistake in the Inducement: T mistake as to extrinsic fact and makes will based on that

Generally no remedy

104
Q

Will Contests: In Terrorem, NoContest, or Forfeiture Provisions

A

Basic idea: If beneficiary contests will and loses, beneficiary forfeits the gift. Goal is to scare beneficiary who would get more by intestacy into not contesting.

General rule: most states enforce in terrorem clauses unless the contestant was in good faith and had probably cause to file the contest

105
Q

Basic Strategy for Wills Questions

A

(1) Handle non-probate assets
(2) Did decedent die testate or intestate?
(3) If intestate, determine identity of heirs.
(4) If testate, determine validity of will.
(5) Use facts to determine proper distribution of property
(6) If surviving spouse in common law marital property jurisdiction, determine whether spouse should file for an elective share

106
Q

Ademption of Specific Bequest - Test

A

(1) Majority: Objective test - whether the specifically bequeathed property is part of the testators estate at her death
(2) Minority: Intent test - beneficiary is entitled to substitute property owned by testator if the beneficiary can prove that testator intended beneficiary to have the substitute property

107
Q

General Gifts - Applicable Time

A

A will operates upon circumstances and properties as they exist at the time of the testator’s death

General gift is determined by what was in existence at the time of testator’s death (e.g., “my automobile”)

Bar Exam (19 decks)

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