WIlls Flashcards
What is required for a valid will?
- Signed by testator
- 2 or more witnesses
- Present testamentary intent
Where must the signature be located?
Some states, at the end, or else invalid; UPC is anywhere on will, but subsequent portions are invalid
What form must the signature take?
Any is fine if it expresses intent
Can someone sign the writing on the testator’s behalf?
Yes, if in presence and at direction of testator
What is required for a testator’s capacity?
At least 18 and of sound mind; capacity is presumed unless challenged.
What is the witness requirement for a will?
- Must be at least two competent witnesses;
- Who sign;
- In the presence of the testator
What is required for the witness signatures?
They must only sign in the presence of the testator, and under the UPC may sign within a reasonable time of witnessing the testator sign or acknowledge the will.
What are the two presence tests for witnesses?
LOS test and the conscious-presence test
What knowledge must the witnesses have of the instrument?
The witnesses must be aware that the witness is a will, but need not know its contents
What is the common-law interested witness doctrine?
An interested witness is not competent as a witness, and the will is invalid unless there are at least two disinterested witnesses.
What is the purge theory?
A gift to an interested witness is denied to the extent of the amount in excess of the witness’s intestate rights
Under the UPC, is there an interested witness doctrine?
No
What must the testator know about a will?
He must know and approve of its contents, but need not understand all of it
What is the integration requirement for a will?
A will consists of all pages present at the execution and intended to be a part of the will.
What is required for a holographic will?
- In testator’s handwriting, or (UPC), only material parts
- Signed by testator (no proxy)
- Witnesses are not required
- Date, often
- Testamentary intent
Are oral wills permitted?
Usually no (UPC), but some states permit for disposition of limited personal property made in contemplation of immediate death.
What is a codicil?
A later document that modifies or adds to a will.
What formalities are required for a codicil?
The same as a will.
What effect does a codicil have?
It republishes the will as of the date the codicil was executed and may validate an invalid will.
What are some will substitutes?
- Recovable trusts
- Pour-over wills
- Bank accounts and securities registered in beneficiary form
- POD clauses
- Life insurance
- Deeds
- Totten trusts
What is a pour-over wills?
A devise of the testator’s property to a trust created during the testator’s life.
What is a Totten trust?
A revocable trust set up with a bank, similar to a POD account
Are oral revocations of wills valid?
No
Can subsequent instruments revoke a will?
Yes, and inconsistencies between the two resolve for the latter.
When can a will be revoked by destruction?
When it is destroyed with the intent to revoke; most states require defacing the language, but the UPC requires only some part of the will
What effect does a lost will have?
There is a rebuttable presumption of revocation
What effect does divorce have on wills?
Under the UPC, it revokes will provisions for the former spouse unless contrary to testator’s intent
In other states, it revokes will provisions for the former spouse if there is a property settlement agreement
Is partial revocation permitted?
Yes, but if a revoked gift falls outside of a residuary, revocation is not given effect until re-execution or republication of will.
When can a testator alter a will?
The testator cannot increase a gift by cancelling words in a will, but he may decrease a gift so long as the alteration is made to existing language rather than additional language to the will
When are duplicates of lost wills permitted?
Duplicate originals, but not photocopies, are permitted, and the proponent must prove with C&C evidence
What effect does a revoked codicil have?
It revives the will; revoked wills, by contrast, revoke codicils too.
Under common law, when is a will revived?
A will is automatically revived upon revocation of a subsequent will, or when the testator expressly acknowledges a new one.
Under the UPC, when is a will revived
Proof of the testator’s intent to revive, and extrinsic evidence is only admissible if revocation was by physical act.
What is dependent relative revocation?
When the testator’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.
What are the four classifications of gifts?
- Specific
- General
- Demonstrative
- Residuary
What is a specific bequest?
Property distinguished with reasonable accuracy from testator’s other property
What is a general bequest?
Property coming from general estate assets
What is a demonstrative bequest?
A general bequest coming from a particular source
What is a residuary bequest?
Whatever is left after the other gifts are made
When does a will incorporate by reference?
- The other doc existed at the time of execution of the will;
- Is intended to be incorporated;
- Is described in the will with sufficient certainty to permit identification
What is an act of independent significance?
A testator can dispose of property based on some act or event that is unrelated to the execution of the will.
Under the common law, what happens if an intended beneficiary does not survive the testator?
The gift lapses and goes into the residuary.
What effect does an anti-lapse statute have?
It provides an alternative disposition for an otherwise lapsed gift. If the beneficiary was the testator’s relative and left issue, it succeeds to the beneficiary’s gift.
What is the order of abatement?
Intestate, residuary, general, general cash/stock/bonds, specific to other takers, specific to issue, specific to spouse.
Demonstrative bequests are treated as specific unless they cannot be satisfied.
What is ademption?
The denial of a gift to a beneficiary because the property is no longer in the testator’s estate
What is ademption by extinction?
A specific bequest no longer in the estate. Under common law, the devisee takes nothing; under the UPC, look to the testator’s intent.
What is ademption by satisfaction?
When a testator, intentionally and in writing, satisfies a specific or demonstrative gift, in whole or in part, with an inter vivos transfer.
What is the rule of construction?
A will “speaks” at the time of the testator’s death.
What rights does a surviving spouse have to transfer?
In a common law state, he can elect to take a share of the augmented estate rather than gifts left in the will.
In a community property state, he can get one half of community and quasi-community property.
What is an omitted spouse?
A spouse who married the testator after the will was executed
What rights to transfer does an omitted spouse have?
There is a rebuttable presumption that the omission was by mistake, and the spouse is entitled to intestate share
Under the common law, what effect does a lifetime gift have to a child?
Any lifetime gift is presumed to be an advancement of that child’s intestate share, and the child bears the burden of showing it was an outright gift.
Under the UPC, what effect does a lifetime gift have to a child?
A lifetime gift is an advancement only if the decedent declared, in a contemporaneous writing that the gift was an advancement, OR the writing indicates the gift should be taken into account in computing the division of property
What is the “hotchpot” for advancements of inheritance?
Add back into the intestate estate, divide, and deduct from the relevant children.
What is an omitted child?
A child born after the testator’s will is executed.
What rights do children have to the testator’s estate?
There is a rebuttable presumption that the omission was by mistake and intestacy operates similarly.
What is the Slayer Rule?
A beneficiary who murders the decedent is treated as though they predeceased the testator.
How can someone disclaim a testamentary gift?
- The disclaimer must be in writing, signed, and filed with a court, OR declared to the person in charge of distributing the estate
- Identify the decedent, describe the interest, and define the extent of the disclaimer
- Must be within 9 months of decedent’s death.
What effect does elder abuse have on inheritance?
Anyone who is convicted of abusing (etc.) a person under their care is prohibited from inheriting from that person.
Who has standing to contest a will?
Only directly interested parties who stand to benefit financially
What must a person show the testator lacked the ability of if they are challenging the capacity of the testator?
- Capacity at the time of will’s execution
- Nature of the act
- Nature and character of property
- Natural objects of bounty i.e. who
- The plan of attempted disposition
When does an insane delusion show a lack of capacity?
- When the testator acts contrary to that of a rational person in his position; and
- The delusion is a but for cause of the disposition
When does undue influence show a lack of capacity?
- Beneficiary received substantial benefit;
- Beneficiary had confidential relationship w/ testator;
- Testate had weakened intellect at time of execution
If undue influence is shown, what is the effect?
The beneficiary is treated as though he predeceased the testator to the extent the gift exceeds the beneficiary’s intestate share.
When is a forfeiture clause enforceable?
Only when a challenger has no probable cause to do so.
When does fraud show a lack of capacity?
when it results in a will that would not have been executed but for the fraud.
