Wills Flashcards
Non-Probate Property
(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
Intestacy: Definition
(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
Intestacy: Basic Idea
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
Intestacy: Marital Rights - Applicable Law
Law of domicile at the time the property was acquired apply
Intestacy: Marital Rights - Common Law
What you own is yours
Intestacy: Marital Rights - Communal Property
What you earn is half yours, half your spouse’s
Intestacy: Succession Rights - Applicable Law
Personal property: Intestate’s domicile at death
Real property: law of state where the property is physically located
Intestacy: Share of Surviving Spouse - Common Law
(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
Intestacy: Share of Surviving Spouse - Modern Law
(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
Intestacy: Share of Descedants
Descendants receive all of the intestate’s property that does not pass to the surviving spouse
Intestacy: Share of Descendants - All children survive the intestate (or deceased children have no surviving descendants)
Each child receives an equal or per capita share
Younger generation (grandchildren) cannot take if older generation (child) is still alive
Intestacy: Share of Descendants - At least one descendant is predeceased by the intestate and is survived by a descendant who survives the intestate
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
Intestacy: Share of Descendants - Per Sitrpes
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
Intestacy: Share of Descendants - Per Capita with Representation (“Modern Per Stirpes)
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
Intestacy: Share of Descendants - Per Capita at Each Generation
Uniform Probate Code
Divides intestate’s property into shares at first generation with survivors but then gives all equally related persons the same share
Intestacy: Ancestors and Collaterals - No Descendants
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)
Intestacy: Ancestors and Collaterals - Parents and First-Line Collaterals (i.e. descendants of parents) - Both parents survive
Each parent receives half
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) Some states and UPC give entire estate to parent
(b) Some states give half to surviving parent and half to first-line collateral
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
All property divided among first-line collaterals
Intestacy: Ancestors and Collaterals - Grandparents, Second-Line Collaterals, and More Distant Relatives
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
Intestacy: Ancestors and Collaterals - Escheat to State Government
If no heirs, property passes to state government
Intestacy: Adopted Child
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
Intestacy: Adoptive Parents
Adoptive parents do take from and through adopted child
Intestacy: Biological parents of adopted child
Biological parents do not take from adopted child
Intestacy: Adoption by Estoppel/Equitable Adoption
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
Intestacy: Non-Marital Children
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
Intestacy: Stepchildren
Generally not included in intestate distributions
Intestacy: Half-blooded Heirs
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
Intestacy: Posthumous child
Jurisdictions vary as to whether they will take and the time by which the child needs to be conceived or born
Intestacy: Unworthy Heirs - Heir Killing Intestate
If heir murders the intestate, cannot take because of slayer statute or through the application of a constructive trust to prevent unjust enrichment
Intestacy: Unworthy Heirs - Parent’s Failure to Support Child
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
Intestacy: Unworthy Heirs - Abuse
A few states limit inheritance rights of heirs who physically or financially abuse the intestate
Intestacy: Unworthy Heirs - Adultery
A few states limit the inheritance rights of a spouse who committed adultery
Intestacy: Advancement
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
Intestacy: Survival
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
Intestacy: Disclaimers
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.
Intestacy: Negative Wills
A few states permit a person to disinherit an heir without leaving a will giving property to someone else
Will Validity
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)
Will Validity: Applicable Law - Real Property
Law of Situs - where the property is
Will Validity: Applicable Law - Property Property
Law of domicile at death
Will Validity: Applicable Law - Savings Stattue
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
Will Validity: Requirements
(1) Legal Capacity
(2) Testamentary Capacity (Sound Mind)
(3) Testamentary Intent
(4) Formalities: attested, holographic, nuncupative
Will Validity: Requirements - Legal Capacity
Typically, 18 years old or older, but some states use other proxies (e.g. married)
Will Validity: Requirements - Testamentary Capacity Elements
(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
Will Validity: Requirements - Testamentary Capacity Issues
(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
Will Validity: Requirements - Testamentary Intent
Must intend the very instrument executed to be the will
Will Validity: Requirements - Formalities, of Attested or Formal Will
(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
Will Validity: Requirements - Formalities of Attested or Formal Will, Self-Proving Affidavit
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
Will Validity: Requirements - Formalities of Holographic Will
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
Will Validity: Nuncupative or Oral Wills
Recognized in a few states under very limited circumstances
Types of Testamentary Gifts: Devise
Gift of real property
Recipient is devisee
Types of Testamentary Gifts: Bequest
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
Types of Testamentary Gifts: Legacy
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
Types of Testamentary Gifts: Residuary Gift
Remainder of the estate
Types of Testamentary Gifts: Private gift
Non-charitable beneficiaries
Types of Testamentary Gifts: Charitable gift
Charitable beneficiary
Ademption Of Specific Gifts by Extinction
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
Ademption: Exceptions
(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
Ademption by Satisfaction
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
Changes in value of testator’s property: specific gifts
Appreciation and depreciation of specifically gifted property between will execution and death is normally irrelevant
Changes in value of testator’s property: Securities Acquired after Will Execution
(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
Exoneration of debts owned on specific gifts
Majority view: receive equity only; must assume debt if want the item
Abatement - What gifts fail when estate property inadequate to satisfy all gifts
Typical order (when will is silent)
- Intestate property
- Residuary property (“The rest I leave to…”)
- General gifts
- Demonstrative gifts
- Specific gifts
Within a class, abatement is pro rata
Beneficiary’s Disclaimer
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
Survival
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
Beneficiary Predeceases Testator: Lapse
Beneficiary fails to survive testator (or is treated as such)
Distribution
- Under express terms of the will
- Gift saved by rule of law (anti-lapse statute or cy pres)
- Via residuary clause)
- Via intestacy
Beneficiary Predeceases Testator: Lapse - Anti-Lapse Statutes (Private Gifts)
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
Beneficiary Predeceases Testator: Partial Lapse in Residual Clause
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
Beneficiary Predeceases Testator: Cy Pres (charitable gifts)
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
Interpretation and Construction: Who can raise?
(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
Interpretation and Construction: Construction maxims
(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
Interpretation and Construction: Ambiguity
(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
Interpretation and Construction: Incorporation by reference - Effect
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
Interpretation and Construction: Incorporation by reference - Elements
(1) Intent to incorporate
(2) Writing in existence when will executed
(3) Writing clearly identified in will: must be sufficiently identifiable
Interpretation and Construction: Acts or Facts of Independent Significance
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
Interpretation and Construction: Separate Writing of Disposing of Tangible Personal Property
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
Interpretation and Construction: Conditional Wills
Will which operates only if a certain event occurs or does not occur
Presumption against conditional wills (court will construe as general no conditional)
Interpretation and Construction: Republication by codicil
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
Interpretation and Construction: Pour Over Provision
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)
Interpretation and Construction: Internal Integration
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)
Interpretation and Construction: Combination Wills - Joint Wills
Single testamentary document containing wills of two or more persons
Interpretation and Construction: Combination Wills - Reciprocal Wills
wills of two persons containing parallel dispositive provisions
Interpretation and Construction: Combination Wills - Contractual Wills
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
Revocation by Operation of Law: Marriage - Common Law Marital Property States
(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
Revocation by Operation of Law: Marriage - Community Property Marital Property States
Surviving spouse owns undivided interests in property acquired from earnings after married
Revocation by Operation of Law: Divorce after will execution
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
Revocation by Operation of Law: Pretermitted or Omitted Children - Purpose
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
Revocation by Operation of Law: Pretermitted or Omitted Children - Shares
(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
Revocation by Operation of Law: Beneficiary Murders Testator
Beneficiary who murder the testator will not be able to take
Revocation by Physical Act - Requirements
(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
Partial Revocation by Physical Act
Many states give effect to changes if there is sufficient evidence that testator made the changes
Revocation by Subsequent Will or Codicil
(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
Revocation: Presumptions
(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
Revival
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
Conditional Revocation
(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
Will Contests: Standing
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
Will Contests: Burden of Proo
Contestant has burden to prove will invalid
Will Contests: Grounds
(1) Failure to meet elements of a valid will
(2) Insane delusions
(3) Undue influence
(4) Duress
(5) Fraud
(6) Mistake
Will Contests: Grounds - Insane Delusions
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
Will Contests: Grounds - Undue Influence
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
Will Contests: Grounds - Duress
Like undue influence, but connotes violent conduct (e.g. under threat of physical harm)
Will Contests: Grounds - Fraud
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
Will Contests: Grounds - Mistake
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
Will Contests: In Terrorem, NoContest, or Forfeiture Provisions
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
Basic Strategy for Wills Questions
(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
Ademption of Specific Bequest - Test
(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
General Gifts - Applicable Time
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”)
