Wills

Question 1

Non-Probate Property

Answer 1

• Gratuitous Transfers - Not Governed by Will or Intestacy
• Inter Vivos Outright Gifts – will not pass under the will or by intestacy
• Inter Vivos Living Trusts – passes under terms of trust
• Co-ownership of Property
o Tenancy in Common – No Survivorship Rights
o Joint Tenancy – Survivorship Rights
• Pay on Death Property – Bank accounts and corporate securities – passes to designated person
• Contracts – benefits are payable on death (life insurance, 401(k), annuity, etc.)

Question 2

Intestacy - applicable law

Answer 2

o Marriage - Domicile law
o Succession Rights –
 Personal property = domicile at death
 Real Property – state where land located

Question 3

• Share of Surviving Spouse (intestacy(

Answer 3

 Spouse made an heir
 Share of surviving spouse depends on factors such as number of children and whether surviving spouse is the other parent of the deceased spouse’s children.
 Spouses share often lessened by existence of Childress
 Spouse’s share may be in dollars, percentages, based on length of marriage, and other approaches

Question 4

• Share of Descendants (instestacy(

Answer 4

o Methods of Computing Shares
 Per Stirpes (by right of representation) – divide into shares at first generation below decedent even if no survivors. One share for each surviving child and one share for each deceased child who left descendants who survive the intestate. Each surviving child receives one share and share of each deceased child passed to descendants.
 Per Capita with Representation (modern per stirpes) – Divide into shares at first generation with survivors. If all children deceased and property going to grandchildren, each grandchild takes an equal share rather than diving the share parent would have taken.
 Per Capita at Each Generation (UPC way) – divides the intestate’s property into shares at first generation with survivors then gives them all equally related person the same share.

Question 5

• Ancestors and Collaterals

Answer 5

o Generally – if no descendants all property not passing to surviving spouse passes to ancestors and collaterals
o Parents and first line collaterals
 Both parents survive – each receive half
 One parent and one sibling – some states and UPC give to parent, some do half and half
 No parent – all property among first line collaterals (bros)
o Grandparents, 2d line collaterals and distant relatives – property will pass to more remote relatives according to state intestacy law. Some get cut off at predetermined level.
o Escheats if no heirs

Question 6

Adopted Treatment in Intestacy

Answer 6

	Inheritance rights of adopted child – 
•	Vis a vis adopted parents
•	Biological parents – states split
	Inheritance rights of adopted parents – do take 
	Bio parents – don’t take
	Adoption by estoppel
	Adult adoption -no distinction on age

Question 7

Other inidivuals in intestacy

Answer 7

 Vis a vis mother – all treated the same
 Father – many impose determination of paternity or father acknowledging child as own.
o Stepchildren – not included in intestate distro
o Half-blood (Share only one ancestors) - some states cut them out if whole bloods or give em half
o Posthumous child – jurisdictions vary
o Unworthy heirs
 Heir Killing intestate – unjust enrichment, but lesser degrees – cts divided.
 Parents failure to support child
 Abuse - some
 Adultery – some

Question 8

o Advancements (intestacy)

Answer 8

Irrevocable gift intended by donor as prepayment of an inheritance
 Proof of Advancement – many states require writing signed by donor or done
 Effect – hotchpot

Question 9

Survival (intestacy)

Answer 9

 Most states require heir to outlive intestate period – UPC is 120 hours
 If insufficient evidence – treated is if the heir predeceased

Question 10

Disclaim (intestacy)

Answer 10

 Cannot be forced to accept inheritance or gift under a will
 Reasons to disclaim:
• Burdensome – liability
• Tax
• Creditors
 Typical Requirements –
• Written (not oral)
• Signed by disclaimant
• Acknowledged before a notary
• Filed with appropriate ct within 4 months after date of death
 Effect of acceptance – too late to disclaim
 Effect of disclaimer
• Passes as if disclaiming heir had predeceased the decedent. They’re irrevocable.

Question 11

Will validity (savings statute)

Answer 11

most states consider a will valid if it complies with 1)local law, 2)law where executed or, 3) law of decedent’s domicile at death or when executed. Only determined whether admissible in probate.

Question 12

Requirements of a valid will

Answer 12

o Legal Capacity
o Testamentary Capacity—Sound Mind
o Testamentary Intent - must intend the instrument is the will
o Formalities – depends on will: attested (witnessed), holographic (entirely in testators handwriting), noncupative (oral).

Question 13

LEgal Capacity

Answer 13

18 years unless married or military

Question 14

Testamentary capacity

Answer 14

(Sound mind)
o Elements:
 Understand the action – must understand the business in which testator is engaged (making the will)
 Comprehend the effect of the action – disposes of property on death
 Know general nature and extent of property (exact knowledge not needed)
 Recognize Natural Objects of Bounty (family members) – must know family situation an claims against him
 Simultaneously hold elements in mind – reasonable judgment
o Testamentary Capacity Issues –
 Mentally challenged individuals can make a will as long as they meet 5 elements.
 Lower standard than contractual capacity
 Adjudication of incapacity raises rebuttable presumption of lack of testamentary capacity (lucid interval)
 Sane person may lack capacity at certain time (drunk)

Question 15

Formalities – Attested or Formal Will

Answer 15

o In Writing
o Signed by Testator or Proxy – signature is any mark made with present intent to authenticate
o Proxy signatures often allowed if 1) in testator’s presence, and 2) by testator’s direction.
o Attestation (Witnessing)
 At least 2
 Capacity – credible (can testify in ct), age (some states impose minimum age)
 Publication – informing witness it’s a will
 Ramifications of using an interest witness – some state void
 Witnessing typically must occur in testator’s conscious presence – able to see it from his or her actual position
o Attestation Clause – no required.
o Self-proving affidavit –
 Definition – testator and witness swear under oath that the requirements for valid will are satisfied.
 Purpose – probate will without bringing witness in court
 May be separate document or combined with will depending on jurisdiction – (1) separate, or 2) whether it can be incorporated into will itself.
o Notarization – some states allow as substitute of witnesses

Question 16

• Formalities – Holographic Wills

Answer 16

o Definition – in testator’s handwriting
o Effect of Non-holographic material – states vary
o Witness not required n about one-half of states – don’t need wits
• Noncupative or Oral Wills
o Recognized in few states under limited circumstances (eg for personal property if testator was in last sickness at time the words were spoken or if the testator was in military)

Question 17

• Classification of Testamentary Gifts

Answer 17

o Based on Type of Property:
 Devise – gift of real property; recipient is devisee
 Bequest – gift or personal property –
• Specific bequest – distinguishable from rest of testator’s estate at time of will execution
• Specific Bequest of a General Nature – not distinguishable from rest of testator’s estate until testator dies
 Legacy – gift of personal property not sufficiently described to be specific
• Recipient is a legatee
• Most common is money
• General legacy/gift/bequest – I leave 10,000 to Walter
• Demonstrative legacy – gift of a sum payable out of a designated fund. If insufficient, balance will be paid from other assets of the estate.
 Residuary gift – remainder of the state
o Based on Type of beneficiary –
 Private fight – non-charitable beneficiaries
 Charitable gift

Question 18

• Ademption of Specific Gifts by Extinction

Answer 18

o Specifically gifted item not in probate estate
o General rule – gift fails – adeems according to identity rule. Beneficiary doesn’t take a substitute gift nor value of the gift. No tracing into proceeds even if they are identifiable.
 Sells computer that was in will.
o Exception
 Replacement property
 Balance of purchase price – purchaser still owes the testator money
 Proceeds of condemnation or insurance – any condemnation or insurance proceeds on gifted items foes to beneficiary.
 Proceeds from sale by a guardian or conservator – beneficiary will receive proceeds from specifically given property if the proceeds are traceable.

Question 19

• Ademption by Satisfaction

Answer 19

o Beneficiary Received gifted property before testator’s death – testamentary gift under the will given inter vivos. Analogous to advancements.
o Proof of satisfaction – states require a writing or specific instructions in the will before gift is deemed a satisfaction
o Satisfaction Issues Arise more often with money than specific gifts – intent for gift to be satisfaction expressed at time of gift. Most states require a writing

Question 20

• Securities Acquired After Will Execution

Answer 20

o Stock splits, dividends, mergers – beneficiary takes increase number of shares
o Newly purchased securities – beneficiary doesn’t take increased number of shares

Question 21

• Abatements

Answer 21

o	Issue – what gift fails when estate property inadequate to satisfy all testamentary gifts?
o	Typical abatement order (Assuming silent will)
	Intestate property
	Residuary property
	General gifts
	Demonstrative gifts, and
	Specific gifts
o	Within class – abatement is pro rata.

Question 22

Beneficiary Predeceases the Testator – Lapse

Answer 22

• Beneficiary Fails to Survive Testator – revoked by operation of law bc the beneficiary fails to survive testator
• Distribution of Lapsed Gifts – Generally
o Under express terms of will
o Gift saved by rule of law (anti lapse or cy pres)
o Via residuary clause
o Via intestacy
• Anti-lapse statutes (private gifts)
o Prevents lapse under certain conditions – substitutes descendants of the predeceased beneficiary for beneficiary
o Types:
 Lineal descendants qualify
 Related to testator somehow
• Partial Lapse in Residuary Clause
o Via intestacy – some courts unwilling to imply survivorship language thus A’s 1/3 passes by intestacy
o To surviving residual beneficiaries- imply survivorship language – many states imply survivorship language

Question 23

Cy Pres

Answer 23

ability of court to substitute equitably equivalent charity upon finding testator had general charitable intent
o Ct must find that testator had general charitable intent broader than charitable purpose which cannot now be carried out (polio example)

Question 24

• Basic Construction Maxims –

Answer 24

o Residuary clause indicates intent not to die intestate
o Among 2 or more contradictory provisions in a will, the last one prevails
o Will is construed as a whole, not from isolated parts out of context
o Words given ordinary and grammatical meaning unless clear from the will that testator intended otherwise
o Technical words are given their technical meaning unless clear from the will that testator intended otherwise
o Attempt to give effect to all the words the testator included in the will.

Question 25

• Ambiguity

Answer 25

o Patent (obvious ambiguity) – ct will consider extrinsic evidence to resolve ambiguity but evidence cannot be used to fill in blank spaces or supply omitted gifts
o Latent ambiguity – provision coveys a sensible meaning but cannot be carried out without clarification. Ct will consider extrinsic evidence.
o No apparent ambiguity – provision is clear on its face an can be carried out as written
 Plain meaning rule – extrinsic evidence cannot be used to disturb clear meaning of will. Enhances predictability for both testator and his atty.
 Modern rule – permits use of extrinsic evidence

Question 26

• Incorporation by Reference

Answer 26

o Basic idea – testator may incorporate the extraneous doc into the will by reference
o Effect – treated as if incorporate – legal fiction.
o Elements:
 Intent to incorporate
 Writing in existence when will executed
 Writing clearly identified in will

Question 27

• Separate Writing Disposing of Tangible Personal Property

Answer 27

o UPC – permits testator’s will to refer to a written stmt or list to dispose of items of tangible personal property not otherwise by the will even tho the list was not in existence when testator executed the will

Question 28

• Conditional Wills

Answer 28

o Will which operates only if certain event occurs or doesn’t’ occur
o Presumption against conditional wills – will construe as general, not conditional

Question 29

• Republication by Codicil

Answer 29

o Codicil acts to republish the will except for the parts of the will that are inconsistent with the codicil. Wills and codicils treated as one instrument speaking from the date of the codicil.
o Proof of codicil acts as proof of the will – valid codicil may bootstrap an otherwise invalid will

Question 30

• Pour over provision

Answer 30

o Definition – provision in will making gift to intervivos trust
o Modem rule – pours over can be created before or after the testator executes the will

Question 31

• Internal Integration

Answer 31

o Must be able to show that the pages present at time of execution are those present at time of probate
o Examples – fastening pages together, sentences flowing

Question 32

• Combination wills

Answer 32

o Joint wills - don’t do it
o Reciprocal wills – 2 persons containing parallel dispositive provisions
o Contractual wills –
 Defined – will executed or not revoked as consideration for a K
 Proof of K –
• CL – all relevant extrinsic evidence
• Modern Law – some type of writing needed
 Revocation of K – revoked by agreement b/w parties while they are alive, but deceased spouse’s estate cannot revoke a contractual will on behalf of the deceased spouse
 Brach of K – injured beneficiaries may sue to impose a constructive trust on the property they should have received under K

Question 33

• Revocation by operation of law

Answer 33

o Marriage –
 CL marital property states – forced or elective share
• Surviving spouse entitled to certain amount regardless of what will provides – elective share of the deceased’s spouse property
• Computation method varies:
o Straight percentage, % based on children, % varying based on length of marriage
• Augmented Estate – many compute surviving spouse share based on more assets than contained in probate estate – value of many non-probate assets may be included
 Community property marital property states – surviving spouse owns half of community
• Under these states, spouses undivided interests in property acquired from earnings after married
• Community property – provides sufficient protection as spouse owns 50 % of community upon death
o Divorce After Will Execution
 Majority Rule – all provisions in favor of ex-spouse are void
 Final Divorce required
 Passage of property – left to ex spouse as if ex spouse pre-deceased
o Pretermitted or Omitted Children – assumption that the testator would have made provision for children had the testator thought about it
 Potential to receive a forced share
• Born or adopted after will execution – most states provide forced share
• Born or adopted before will execution – only few states provide forced share
 Determination of forced share – vary a lot
 Circumstances usually providing no protection for pretermitted child
• Entire estate left to pretermitted child’s omitted __
• Intentional omission
• Testator provided for pretermitted child in will or with non-probate transfer
• Murder

Question 34

• Revocation by Act

Answer 34

o Requirements
 Intent to Revoke
 Mental Capacity – destruction induced by undue influence, duress, or fraud is likewise ineffective
 Physical act – act required – burning, tearing, cutting, cancelling, obliterating, or other act of mutilation
• Proxy – must be done at testators request and in testator’s presence
o Partial Revocation by Physical Act – many states give effect if insufficient evidence that testator made the changes. Other states give no effect

Question 35

• Revocation by Subsequent Will or Codicil

Answer 35

o Express revocation
o Revocation by inconsistency – if new will completely disposes of testator’s property, the old will is completely revoked by inconsistency
o If new will partially disposes of testator’s property, the old will is revoked only as to inconsistent parts

Question 36

Presumptions on Revocation/Non revocation

Answer 36

o Presumption on non-revocation –
 Will found in normal location, and will found in possession of a person to whom the testator delivered the will or among the testator’s valuable papers
 No suspicious circumstances
o Presumption of Revocation if unable to produce original will or is found in damaged condition – if testator had ready access to it or if found damaged condition, the presumption is the testator destroyed or damaged with intent to revoke

Question 37

Lost Will

Answer 37

Hard to overcome revocation presumption

Question 38

Revival of wills

Answer 38

o Fact pattern – testator executed will one, then executes will 2 which expressly revokes will one, testator validly revokes will 2, does will one revive?
o Jurisdictions split –
 some say yes – Will 2’s revocation clause never took effect bc revoked;
 Some say no – effective when executed. Treat as 2 legal documents. I
 Intent approach – depends on facts
o Condition Revocation
 Express Conditional Revocation – revocation effective upon the happening or nonhappening of a named event
 Implied conditional revocation or DRR
• Fact pattern – testator executes will 1, validly revokes will 1, and testator executes will 2 but is invalid (not published). Does will 1 remain
• Depends on Testator’s Intent
o The more similar the provisions of the 2 wills, the more likely they apply DRR
o The more dissimilar, the less likely’

Question 39

Will Contest Grounds

Answer 39

o Failure to meet elements of a valid will:
 Lack of legal capacity
 Lack of testamentary capacity
 Lack of testamentary intent
 Lack of necessary formalities
o Insane Delusions – destroys capacity only if there is a connection or nexus b/w the insane delusion and property disposition

Question 40

Undue Influence for will

Answer 40

o Elements:
 Influence must exist and be exerted
 Over power testator’s mind and will
 Causation – must execute will which he would’ve not executed but for the influence
o Evidence to prove undue influence
 Direct – seldom available
 Circumstantial –
• Unnatural disposition (cutting out close family)
• Opportunity (Access to testator)
• Confidential or fiduciary relationship b/w parties
• Ability of testator to resist
• Beneficiary involved with drafting or execution of the will
• Mere opportunity is not enough
o Atty is drafter and beneficiary –
 Still may be valid but many states void unless testator and atty/beneficiary are closely related
 Professional Responsibility Rules – attys law license could be in jeopardy unless closely related

Question 41

Durress for will

Answer 41

like undue influence, but connoted violent conduct

Question 42

Fraud for Will

Answer 42

o Elements of Fraud
 False Representation made to testator
 Knowledge of falsity by person making stmt
 Testator reasonably believed statement
 Caused testator to execute a will testator wouldn’t have made but for the misrepresentation
o Types:
 Fraud in the factum/execution – testator deceived as to identity and contents of instrument (lack of testamentary intent)
 Fraud in the inducement – testator knew testator was executing will and what it contained but was deceived about some extrinsic fact

Question 43

• Mistake (will)

Answer 43

o Defined – testator’s error when there was no evil conduct
o Types:
 Mistake in the factum/execution – in error regarding identity or contents of instrument and thus lacked testamentary intent
 Mistake in inducement – testator is mistaken as to some extrinsic fact and makes will based on erroneous fact. No remedy is generally available -cts have no right to vary or modify terms of a will or to reform it on grounds of mistake in the absence of evil conduct

Question 44

• In Terrorem, No Contest, or Forfeiture Provisions

Answer 44

o Basic Idea – IF beneficiary contest will and loses, beneficiary forfeits gift. Goal is to scare beneficiary who would get more by intestacy into not contesting for fear of getting nothing if contest fails.
o General Rule – most states enforce in terrorem clauses unless the contestant was in good faith and had prob clause to file the contest

Question 45

FRAMEWORK/STRATEGY

Answer 45

o Handle non-probate assets – remove them from probate estate and distribute them to appropriate persons
o Did decedent die testate or intestate?
o If intestate, determine identity of heirs?
o If testate, determine validity of will
o Use facts to determine proper distribution of property. May need to interpret will, resolve issues regarding heirs, decide effect of additional facts, etc.
o If there is no surviving spouse in a common law marital property jurisdiction, determine whether the spouse should file for an elective share