Wills

Question 1

Limits on Disposition

Answer 1

“Court should balance freedom of disposition against other social values…if a provision is unnecessarily punitive or unreasonably intrusive into significant personal decisions or interest, the provision may be invalid.”

Question 2

Probate Property

Answer 2

1. Real Property
2. Personal Property
3. Bank Accounts
4. Interest
5. Testamentary Trusts
6. Life Insurance policy that names the decedent or estate as beneficiary

Question 3

Non-Probate Property

Answer 3

1. Property held in joint tenancy or tenants by the entirety
2. Bank or Brokerage Accounts held in joint tenancy or with payable on death or transfer on death beneficiaries
3. Intervivos Trusts
4. L.I. or brokerage accounts that list someone other than the decedent as the beneficiary
5. Retirement Accounts

Question 4

Location of Probate: Real Property

Answer 4

RP is covered by the law of the state in which the property exists

Question 5

Personal Property

Answer 5

is covered by the law of the state where the D is domiciled at death

Question 6

Ancillary Probate

Answer 6

3. If the RP and PP are in different states, Ancillary Probate in the RP jurisdiction is req’d

Question 7

SOL for creditors

Answer 7

UPC S 3-803 says it is 4 months after death, as long as there is notice given (Due Process)

Question 8

Size of estate to pass without probate

Answer 8

“small” estates of up to 25k in UPC S 3-1201 and as much as 50k or 100k in some states.

Question 9

An attorney has a duty of ______ and negligence will be taken up in _______.

Answer 9

Reasonable Care; Tort and Contract Suits

Question 10

Intestacy generally favors

Answer 10

Intestacy generally favors > decedent’s spouse, then descendants > then parents > then collaterals > then more remote kin.

Question 11

Share of Spouse

Answer 11

1. The entire intestate estate if:
   a. no descendant or parent of the decedent survives the decedent; OR
   b. all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent
2. The first 300k plus ¾ of any balance of the intestate estate, if
   a. no descendant of the decedent survives the decedent, BUT
   b. a parent of the decedent survives the decedent;
3. The first 225k plus one-half of any balance of the intestate estate, if
   a. all of the decedent’s surviving descendants are also descendants of the surviving spouse AND
   b. the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
4. The first 150k plus one-half of any balance of the intestate estate, if
   a. one or more of the decedent surviving descendants are not descendants of the surviving spouse.

Question 12

Share of Heirs other than Surviving Spouse

Answer 12

1. Any part of the intestate estate not passing to a decedent’s surviving spouse under section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent.
   a. To the decedent’s descendants by representation
   b. If there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent if only one survives.
   c. If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
   d. If there is no surviving descendant, parent, or descendants of decedent’s parents, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
   i. Half to decedent’s paternal grandparents equally if both survive, to the surviving grandparent if only one survives, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants of grandparents.
   ii. Same to maternal grandparents.
   e. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal side but not the maternal side, or vice versa, to the decedent’s relatives on the side with one or more surviving members in the manner described in paragraph (4).

Question 13

Simultaneous Death, generally

Answer 13

A person succeeds to the property of a Decedent only if the person survives the decedent for an instant of time.

Question 14

Uniform Simultaneous Death Act

Answer 14

a. If there is no sufficient evidence of the order of deaths, each was deemed to have predeceased the other
b. If they died simultaneously, half of the property was distributed as if A survived and half as if B survived
c. If an insured and a beneficiary of a L.I. contract died simultaneously

Question 15

UPC 2-104 provide that an heir, devisee, or LI beneficiary who fails to survive by ______ is deemed to have predeceased the defendant.

Answer 15

120 hours

Question 16

Burden: Def must show survivorship by

Answer 16

Clear and Convincing Evidence

Question 17

English (strict) Per Stirpes

Answer 17

each line of descent is treated equally, beginning with the first generation of the testator’ issues, even if all are dead. (If A had four kids, and all predeceased him, B’s descendants would divide B’s ¼ share, C’s descendants would divide C’s ¼ share, D’s descendants would share D’s ¼ share, E’s descendants would share E’s ¼ share, and so on.)

Question 18

Modern Per Stirpes

Answer 18

the distribution begins at the first generation of the testator’s issues which has a living member, and is divided per stirpes

Question 19

Per Capita at each generation

Answer 19

begins with the first generation with living descendants, (and anyone living can peace out) and then the next whole generation takes what is left, and then so on down at the next generation.

Question 20

Parents Intestacy UPC States

Answer 20

Parents only take if no descendants; UPC 2-102 says the spouse will take her share and the rest is dist to parents

Question 21

Parents intestacy other half of states

Answer 21

spouse takes and excludes the parents

Question 22

If no spouse, descendants, or parents…

Answer 22

First line collaterals (descendants of the decedent’s parents) and if none, second line collaterals (descendants of the decedent’s grandparents)

Question 23

Parentelic system

Answer 23

the intestate estate passes to grandparents and their descendants

Question 24

Degree of relationship system

Answer 24

the intestate estate passes to the closest of kin, counting degrees of kinship.

Question 25

Intestacy: Stepchildren and in laws

Answer 25

a. UPC § 2-103: stepchildren take if there are no surviving grandparents or descendants of grandparents or more closely related kin.

Question 26

Half bloods

Answer 26

a. UPC § 2-107: a relative of half is treated the same as a relative of the whole. In some states, a half is given a half share. In some, a half takes only when there are no whole blood relatives of the same degree.

Question 27

Disinheritance by Negative Will and Intestacy: UPC rule

Answer 27

authorizes a NEGATIVE WILL by way of an express disinheritance provision. J would be treated as if he predeceased D.

Question 28

Intestacy to Formally Adopted Children

Answer 28

the child is a child of the parent and the parent is a parent of the child if there is a parent child relationship. Once a child is adopted, its new parents are its adopted parents and its rights of heirship is severed from its genetic parents. Unless one of the adoptive parents is wed to one of the genetic parents.

Question 29

Adopted Adults

Answer 29

a. Adopted adult may be entitled to a share in “parent’s” estate as a child (Tinney v. Tinney)

Question 30

Adoption for the purpose of (1) cheating a will and (2) preventing will contest

Answer 30

d. Court has held that adoption by the testator for the purpose of preventing a will contest was perfectly proper, but adoption to cheat a will was struck down (Minary v. Citizens Bank)

Question 31

What to consider when a donor makes a gift to “A’s children” when A has an adopted child.

Answer 31

i. Was C adopted after B’s death? (if so, probably not – unless generally C wanted to give A’s kids money because it would make A happy)
ii. Did B recognize the fact that A may adopt? (if so, probably yes)
iii. Did B make an express provision for only natural kids? (if so, no)

Question 32

How “paternity” is established for will purposes for non-marital children

Answer 32

i. Evidence of subsequent marriage of the parents
ii. Acknowledgement of parenthood by the father
iii. Adjudication during the life of the father OR
iv. Clear and convincing proof of fatherhood after death

Question 33

b. Hypo: A gift is made by T to “the children, issue, descendants, or heirs” of A. Is the nonmarital child of A entitled to a share?

Answer 33

Only if A functioned as a parent of the child before the child reached the age of 18. +

Question 34

To determine whether gifts are advancements

Answer 34

i. Courts infer likely or expressed intent
ii. Class notes say “Gifts are NOT advancements unless there is a contemporaneous writing by the decedent or heir that states the contrary.”
1. A gift to someone who is not an heir apparent at the time of the gift will also not be an advancement

Question 35

Hotchpot

Answer 35

Method for ensuring equal shares to all children.

Question 36

Hypo: i. Assume O leaves 3 children and an estate worth 50k.
1. A daughter, A, received an advancement of 10k.

Answer 36

2. To calculate shares, the 10k is added to the pot of 50k, and the resulting amount (60k) is distributed to all three kids equally, so 20k each.
3. Then, the 10k is subtracted from A’s share. So B and C each get 20k and A gets 10k.
4. If A’s gift was more than what her share would be, (so she would get “negative dollars” when her gift is subtracted) then the 50k is not distributed amongst all three, only the other two.

Question 37

a. The Core Formalities of Attested Wills (3)

Answer 37

The core formalities are (1) writing, (2) signature, and (3) attestation. They have been interpreted and augmented by additional formalities in carrying ways.

Question 38

The Meaning of Presence (2 theories + UPC)

Answer 38

i. Line of Sight: in these jurisdictions, testator must be at least “capable of seeing the witness in the act of signing.” (In re Groffman)
ii. Conscious Presence: in these jurisdictions, witness is in the “presence” of the testator “if through sight, hearing, or general consciousness of events, the testator comprehends that the witness is in the act of signing.” Mental apprehension. Idea is that if everyone in the room/around the room at the time of the signing was aware of what was going on, valid. (Stevens v. Casdorph)
1. UPC § 2-502(a): does not require at all that the witness sign in the presence of the testator. For a signature by another at the testator’s direction, the UPC requires “conscious presence.”

Question 39

Delayed Attestation Clause

Answer 39

A witness must sign within a reasonable time

Question 40

Purging

Answer 40

interested witnesses must be purged (normal rule) UPC does not disqualify witnesses but says that they may be challenged on grounds of undue influence

Question 41

Signature by another

Answer 41

must be in the presence of the testator and at the testator’s direction

Question 42

Order of signing

Answer 42

T must sign before the witness, and both witnesses must witness the signing

Question 43

Subscription rule (and if the t adds language at the foot or after the signature.)

Answer 43

signature must be at the foot or after the text. if the t adds language after the signature, it may be struck or the will may not be probated.

Question 44

Timing of signing

Answer 44

the T must write text before signing. if he adds info, the will is still valid but the added portion would be ineffective as a subsequent codicil.

Question 45

The Harmless Error Rule: If an error was made in the completion of the will, it is disregarded if the document or writing establishes by _________that the decedent intended the document to be:
…
And strategy for this argument on the exam

Answer 45

Clear and Convincing Evidence;
i. his will
ii. a partial or complete revocation of the will
iii. an addition to or an alteration of the will; or
iv. a partial or complete revival of his or her formerly revoked will or of a formerly revoked portion of the will. Hall and MaCool.
—
only fall back on this as a last resort, if it fails under strict compliance and you can’t win under 2-502 (UPC Rules), then try 2-503.

Question 46

Self Proved Wills

Answer 46

A will that is executed with attesting witnesses may be simultaneously executed, attested, and made self-proved by acknowledgement of the T and affidavits of the witnesses, and each made before an officer authorized to administer oaths under the laws of the state, with a self-proving clause

Question 47

UPC 3-406. If a will is self-proved, __________ may not be contested, unless __________

Answer 47

due execution; evidence of fraud or forgery affecting the acknowledgment or affidavits

Question 48

In states that have not adopted UPC 3-406, self-proved will may give rise to only a __________ of __________.

Answer 48

rebuttable presumption; undue influence

Question 49

Model Execution Ceremony (2-506):

Answer 49

recognizes as valid a will that has been created under a certain procedure.

Question 50

Model Execution Ceremonies make a will valid no matter

Answer 50

in what state the testator was domiciled at the time of death or of making the will or where his property is located.

Question 51

Location of Real Property (this state governs….)

Answer 51

….the validity of a disposition by will of that property

Question 52

Location at time of death (this state governs…)

Answer 52

this state governs the validity of a disposition by will of that property

Question 53

Holographic Will Requirements

Answer 53

(1) Handwriting

(2) Testamentary Intent

Question 54

Holographic handwriting requirements UPC

Answer 54

1. Material Portions must be in testator’s handwriting – but UPC says that “A holograph may be valid even though immaterial parts such as date or introductory wording may be printed or stamped.”
2. “I give, bequeath, and devise __________ to _________.” Would be sufficient if the blanks were filled in in handwriting.

Question 55

All states permit revocation by: (2)

Answer 55

All states permit revocation by (1) subsequent writing, or (2) a physical act such as burning, obliterating, or destroying. An oral revocation is not sufficient.

Question 56

T/F: A burning, tearing, etc. is revocatory whether or not it touches any part of the will.

Answer 56

T

Question 57

When a will is last in the control of the testator and is not found after the testator’s death, then there is a rebuttable presumption that

Answer 57

the will was destroyed

Question 58

If the will looks damaged and is found after death,

Answer 58

there is a rebuttable presumption that it was intended to be revoked

Question 59

ii. The standard of proof is “preponderance of evidence” to show

Answer 59

that the opponent was alone with the will at one time

Question 60

If T undertakes to revoke his will upon a mistaken assumption of law or fact, under the doctrine of _________, the revocation is ineffective if __________________.

Answer 60

dependent relative revocation; the testator would not have revoked the will but for the mistaken belief.

Question 61

DRR Situation

1. There is a…
2. that is premised on a condition which…
3. but the condition …
4. The result is that the revocation is treated as if ….

Answer 61

DRR Situation

1. There is a valid revocation (written or physical)&raquo_space;
2. that is premised on a condition which (perhaps that an old will will be revived or that a new will is valid)&raquo_space;
3. but the condition doesn’t actualize (the old will is not revived or the new will is flawed)&raquo_space;
4. The result is that the revocation is treated as if…it never took place (the destroyed or revoked will is reinstated.)

Question 62

Hypo: T destroys a prior will under a belief that the new will is valid but, in fact, it is not.

Answer 62

i. IF the court found that T would not have destroyed his prior will had he known that his new will was invalid, then the doctrine of DRR would apply to revive the prior will.

Question 63

Hypo: T destroys a subsequent will under a belief that its destruction will automatically revive the prior will.

Answer 63

In this case, DRR would revive the prior will. If the court finds that if T had known that his it would not revive the prior will, then he would not have destroyed the new will, the court will treat the new will as not having been destroyed.

Question 64

1. If a subsequent will that wholly revoked a previous will is therefore revoked by a revocatory act under UPC 2-507, the previous will

Answer 64

a. remains revoked until revived UNLESS
b. it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that
c. the testator intended the previous will to take effect as executed.

Question 65

2. If a subsequent will that partly revoked a previous will is therefore revoked, then

Answer 65

a. the revoked part of the previous will is actually revived UNLESS
b. evidence is that T did not want it to be revived.

Question 66

3. If a subsequent will that revoked a previous will in whole or in part is revoked by another, later will,

Answer 66

a. the previous will remains revoked UNLESS

b. T’s intent is otherwise.

Question 67

Integration - define and three considerations

Answer 67

Where all papers that are present at the time of execution and are intended to be a part of the will are treated as a part of the will. (In re Estate of Rigsby: where two documents did not have enough cohesion to prove that they were intended to be a part of the will.)

i. Pages are fastened
ii. Numbers are in sequence
iii. Language carries over

Question 68

Republication by Codicil

Answer 68

b. Republication by Codicil: A will that has been formerly revoked may be republished if a valid codicil to it is created, even if the codicil does not have express revival language, unless doing so would be contrary to the testator’s intent.

Question 69

Incorporation by Reference

Answer 69

c. Incorporation by Reference: The majority of states have adopted this. It states that “specific writing referencing a document in existence at the time of the will, sufficiently described, may be incorporated into the testamentary framework”

Question 70

Incorporation by Reference - existing writings

Answer 70

Incorporation by reference allows for a writing that at the time of execution and that was not itself executed with testamentary formalities to be absorbed into the testator’s will. Typically this is done with an intervivos trust, creating a superwill.

Question 71

What happens when T makes Will A, then revokes it with Will B, then makes a codicil to Will A?

Answer 71

Will A is republished and Will B is squeezed out.

Question 72

Acts of Independent significance: ii. If the will says “A will get my car at death” and drafts will when he has a Ford Explorer, then goes out and buys a Mazarratti

Answer 72

there was an independent significance to the act (he wanted the car because it was fucking sweet and not because he wanted to void the gift to the nephew) so the nephew will still get the Mazarratti.

Question 73

Capacity: The Cunningham Test

Answer 73

Must be capable of understanding generally: The Cunningham Test (Breeden)

i. The nature and extent of property
ii. Natural objects of his bounty
iii. The disposition he is making of that property, and must have the
iv. Capability to relate these elements to one another from an orderly desire regarding the disposition of the property

Question 74

Mental Capacity for Lifetime Gift, Deed, Marriage

Answer 74

i. Lifetime Gift: must be able to make a will and understand the effect that the gift may have on the donor and anyone dependent on the donor
ii. Deed: A deed requires contractual power, while a will just requires a lucid interval
iii. Marriage: easier to get married than it is to make a will.

Question 75

c. Capacity cannot be disproven by showing a few isolated inconsistencies or foibles or oddities. They must:

Answer 75

bear upon and have influenced the testamentary act

Question 76

A person may satisfy the test but nonetheless be suffering from an insane delusion that causes the will to fail for lack of capacity. It applies to ______________. Test:

1. Testator labored under an insane delusion that renders the afflicted party incapable of understanding the ____________ or of ____________in the transaction AND
   ii. (2) The will or some part thereof was _________________.

Answer 76

False conceptions of reality;

nature and effect of the agreement;

acting rationally;

a product of the delusion

Question 77

Undue Influence is a factor considered in

Answer 77

undue influence

Question 78

Direct evidence of undue influence is rare, so courts will consider

Answer 78

circumstantial evidence

Question 79

iii. Contestant bears initial burden but is entitled to a “presumption of undue influence” if can show:

Answer 79

1. Confidential relationship AND

2. Suspicious circumstances:

Question 80

Suspicious Circumstances factors

Answer 80

a. Susceptibility of victim
b. Participation of wrongdoer in preparation of the will
c. Independent advice from an attorney for a donor or not
d. Secrecy or haste
e. Attitude change toward others
f. Discrepancy between new and old wills
g. Unnatural, unjust or unfair distribution

Question 81

Confidential relationship in undue influence or similar situations such as….

Answer 81

fiduciary, reliant, or dominant-subserviant (presence of influence or contract)

Question 82

Duress:

Answer 82

Undue influence that crosses the line into coercion

Question 83

A donative transfer is procured by duress if (2)

Answer 83

1. the wrongdoer threatened to or did perform a wrongful act
2. that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Question 84

Preventing a new will from being made is automatically a form of duress.

Answer 84

duress.

Question 85

A donative transfer is procured by fraud if the wrongdoer _________ made a ____________ to the donor about a __________ that was intended to and did lead the donor to _________________ that ____________.

Answer 85

A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer that she would not otherwise have made.

Question 86

Fraud in the Execution

Answer 86

a person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent.

Question 87

Fraud in the Inducement

Answer 87

A misrepresentation causes the testator to execute or revoke a will, to refrain from doing so, or to include a particular provision in the wrongdoer’s favor. This is different from undue influence because the testator retains her full faculties and makes the will of her own volition.

Question 88

Plain Meaning Rule

Answer 88

Under the plain meaning or no extrinsic evidence rule, extrinsic evidence may only be admitted to resolve ambiguities in the will. The plain meaning of the will may not be disturbed.

Question 89

Patent Ambiguity

Answer 89

Evident from the face of the will. E.g., “…give 25,000 (two hundred and fifty thousand).” Extrinsic evidence is not allowed to clarify.

Question 90

Latent Ambiguity

Answer 90

evident only from actual facts. Extrinsic evidence is allowed to clarify.

Question 91

Equivocation

Answer 91

when two or more persons or things fit the description exactly. E.g., a gift to “my niece ‘Alicia’” when the testator has two nieces with the name Alicia. Evidence would be admitted to show whether the testator intended one niece rather than the other.

Question 92

Personal Usage

Answer 92

If extrinsic evidence shows that T used a term in an idiosyncratic manner, that evidence may be admitted to show that T meant it one way.

Question 93

No Exact Fit

Answer 93

When nobody really fits the description of the donnee. Will devised to “Mr. and Mrs. Wendell Hess at 17 Barbara Circle” when Glenda was Mrs. Hess. After will was drawn, Glenda and Wendell divorced and Wendell married Verna. Verna never resided at 17 Barbara Circle and therefore couldn’t claim. Glenda was no longer Mrs. Hess and therefore couldn’t claim. Court admitted extrinsic evidence to give to Glenda because neither fit the will.

Question 94

Correcting Mistake by Ad Hoc Relief

Answer 94

To avoid false negatives in cases of overwhelming evidence of mistake, courts sometimes correct a mistake under the guise of extrinsic evidence to construe a supposedly ambiguous term.

Question 95

Falsa demonstratio non nocet

Answer 95

Where a description of a thing or person consists of several particulars and all of them do not fit any one person or thing, less essential particulars may be rejected provided the remainder of the description clearly fits.

Question 96

Reformation to Correct Mistakes

Answer 96

The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by CC evidence (1) what the transferor’s intention was and (2) that the terms of the governing instrument were affected by mistake of fact or law, whether in expression or inducement.

Question 97

Reformation to Correct Mistakes case examples

Answer 97

1. In re Estate of Herceg: The name of the intended beneficiary was accidentally eliminated. Court filled in an entire beneficiary (the one from the old will.)

Question 98

An unambiguous document is entitled to a “strong but not irrebuttable” presumption of correctness, and it needs

Answer 98

CC evidence to show that intent differed

Question 99

Specific Devise
General Devise
Residuary Devise

Answer 99

My diamond ring
$25k
All the residue

Question 100

T’s will devises a specific devise to A, a general devise to B, and a residuary devise to C. A and B predecease T.

Answer 100

Under the common law, the specific and general devises go into the residue and go to C.

Question 101

No residue of a residue rule:
and
hypo:
After several specific and general devises, T devises the residue half to B and half to C. B predeceases T

Answer 101

If the residuary devise lapses, the heirs of the testator take by intestacy…
B’s one-half share goes to T’s heirs by intestacy, not to C.

Question 102

Class Gift and hypo:

T devises a class gift to the children of A. One child of A, B, predeceases T.

Answer 102

if a devise is to a class of persons, and one member of the class predeceases the testator, the surviving members of the class devise the gift. Hypo:
The other children of A split B’s share.

Question 103

Void devisee (dead)

Answer 103

If a devisee is already dead at the time the will is executed, or the devisee is ineligible, the devise is void. Same rules as lapse apply.

Question 104

Antilapse statutes

Answer 104

Antilapse statutes substitute other beneficiaries in the event of a lapse, usually the dead beneficiary’s descendants. A gift-over, instead of intestacy

Question 105

Antilapse statute applies: Hypo - T devises residue “one half to my son A and one half to my daughter B.” B predeceases T, leaving a child, C. At T’s death, B’s share …

Answer 105

If antilapse statute applies, B’s share would pass to C. Antilapse statutes rest on the assumption that T would rather substitute the gift to C than for it to pass by intestacy or all to A.

Question 106

Scope of Antilapse and Hypo: T devises home to her niece, B, and the residue to A. B predeceases, leaving a child, C, who survives T.

Answer 106

Antilapse Stat only applies if the devisee bears the particular relationship to the testator specified in the statute. The antilapse statute in the 1969 UPC applies to a devise to any grandparent or a lineal descendant of a grandparent. The 1990 UPC adds a devise to a stepchild.
Hypo: Under the UPC antilapse statute, C takes T’s home because B is a descendant of T’s grandparent.

Question 107

Words of Survivorship in Antilapse: T grants Blackacre to his son A “if he survives me” and the residue to his wife W. A dies before T, leaving a daughter, D. - Answer under UPC and Rationale.

Answer 107

“If he survives me” preclude antilapse in most states, so the estate would go to W. BUT under UPC § 2-603(b)(3) that language is not enough to impose a condition of survivorship, and an antilapse statute applies nonetheless, substituting D for A.
Rationale: It is equally plausible that the T used those words purposefully or just because they are boiler-plate.

Question 108

Applying anti-lapse statutes to class gifts - Hypo: T dies and leaves Blackacre to “my sisters” (A, B, and C) and residuary to her stepson, S. C predeceased and left a stepson, F. A predeceased and left two children, D and E.

Answer 108

i. If antilapse statute applies only to sisters, in most states B takes one third, D and E split one third, and F takes one third.
ii. If antilapse statute did not apply to class gifts, B, as the sole surviving member, would take Blackacre.

Question 109

Ademption: definition + applies to what kind of devises?

Answer 109

Applies where T devises a property to B, but sells the property before he dies and changes his will - a specific devisee has a right to any balance of the purchase property, any amount of a condemnation award for the property, or any money, etc, received by the T in exchange for the property. If all of these fail, then a pecuniary devise equal to the value of the property at the date of its disposition.
Applies to only specific, not general, demonstrative, or residuary devises. (property, not money)

Question 110

Doctrine of Satisfaction; T’s will devises 50k to her son S and residuary to her daughter D. After the will, T gives S 30k.

Answer 110

there is a presumption that this was a partial satisfaction of the legacy, so S will only take 20k at T’s death. Does not apply to specific bequests.

Question 111

Abatement: order of properties used to abate

Answer 111

Residuary devises are reduced first, general devises are reduced second, and then specific devises are reduced pro rata.

Question 112

T executes devises 300k to charity B, 100k to charity C, and rest to her son, A. At time of execution, estate is total 800k. This is reduced to 300k before deaSpth.

Answer 112

At traditional abatement rules, B takes 225k, C takes 75k, and A takes nothing. Add shares of B and C to get total. Divide B/total and then C/total. Multiply B/total by 100 and reduce B by that amount. Multiply C/total by 100 and reduce C by this amount to get to To do this UPC § 3-902 says that if the plan would be defeated by abatement, “the shares of the distributes abate as may be necessary to give effect to intent of T.

Question 113

Typical Elective Share for Spouses in separate property

Answer 113

1/3 of all probate property plus non-probate transfers

Question 114

typical elective share for spouses in community property

Answer 114

a. Spouses retain separate ownership of property brought TO the marriage, but own all earnings and acquisitions from earnings during the marriage in equal, undivided shares. At death of one partner, the deceased partner may dispose of half of the shares by testament. The surviving partner owns the other shares.

Question 115

UPC Elective Share of Surviving Spouse

Answer 115

A decedent who disinherits his or her spouse is seen as having reneged on the bargain. If divorce, all state follow equitable distribution system:

a. Discretion to trial courts to find who earned what
b. Recognizes value of contributions of a nonworking spouse or homemaker

Question 116

Life Estates in Elective Shares

Answer 116

b. UPC says that it is included in the elective share calculation (reduces the elective share).

Question 117

UPC Elective Share of a Surviving Spouse

Answer 117

the elective share of a surviving spouse is 50% of the value of the marital property portion (for our purposes, mp is 100%) of the augmented estate

Question 118

Augmented Estate

Answer 118

“the sum of the decedent’s net probate estate (§2-204) plus the decedent’ non-probate transfers to others (§2-205), plus decedent’s non probate transfers to the surviving spouse (§2-206), plus the surviving spouse’s property and non-probate transfers to others (§2-207).”