Wills Flashcards
Essay
What are the four requirements of a will?
- Legal capacity (18 or older, married, or armed forced).
- Testamentary capacity (of sound mind at time of will execution).
- Testamentary intent (intended the document to dispose of property, letters of will preparation do not qualify, neither can documents that are operative during lifetime - contract).
- Comply with formalities.
What makes a will formalities valid?
In writing; signed by T (or by someone at T’s direction and in her presence—proxy signature) before the witnesses or in the same contemporaneous transaction; 2 witnesses must sign the will in T’s presence (conscious presence is sufficient). Codicil (later amendment or supplement to a will) must be executed with the same formalities. Codicil republishes the will at the later date.
What does Texas law not require?
- That witnesses know they are witnessing a will 2. That T sign in the witnesses’ presence (T can have signed the will earlier) 3. That witnesses sign in each other’s presence 4. That T sign “at the foot or end” of the will.
What is a self-proving affidavit?
A notarized statement by the T and the witnesses affirming under oath all the requirements of a valid will have been satisfied. Substitute for live testimony of the attesting witnesses. Two-step: double signatures, one on the will and one on the SPA (if there is only one signature, it can be used on the will, but then SPA is not valid). One-step: SPA is inside the will and only requires one signature.
What are the requirements of a Holographic Will?
Wholly in the handwriting of the T (all or nothing rule) and signed by the T. Can be proved by two people who can testify to the identify of T’s handwriting. Don’t need date.
What is the Surplusage Rule?
Extraneous printed words, not necessary to complete the will or its meaning, can be disregarded and the will is still valid
Are Oral Wills valid in Texas?
No, was repealed in 2007. If someone starts speaking their will – you should make it for him and sign it as a proxy signature.
Where is proper venue?
Where T resided; if T (a non-resident) had no domicile or fixed place of residence in the state, then in the county where principal property located OR county where T died.
What if a will is located in a safe deposit box?
The safe deposit box can be examined, without court order, in presence of bank official.
Do beneficiaries have a cause of action against T’s attorney?
No, because no privity of contract. The attorney’s duty runs to the client who contracted for his services. But, an executor can sue an attorney for loss to estate of excess estate taxes paid because of attorney’s negligence, or loss to estate resulting from allegedly negligent mischaracterization of assets.
What happens if an attesting witness is a beneficiary?
Never affects the will’s validity only the bequest to the witness is void UNLESS 1. Will can be proved without the interested witness’s testimony (other W is alive) or 2. The interested Witness’s testimony is corroborated by the testimony of a disinterested and credible person or 3. The interested witness would be an heir if this will were not probated, in which case the interested witness takes whichever is least: the lesser of (i) the legacy under the will or (ii) intestate share.
To whom does the anti-lapse § apply? What does it do?
The anti-lapse § applies (if no survivorship language) only when there is a will to Bs who predecease T & are descendants of the T’s parents. The § prevents bequests to Bs from lapsing by allowing the descendants of the B to take B’s share. Descendants have to survive T by 120 hours. Statute names the substitute taker, not the predeceased B’s will.
What is the Surviving Residuary Beneficiaries rule?
When the residuary estate is devised to 2 or more persons, and the gift to one of them lapses (B of residuary dies before T and anti-lapse doesn’t apply), the remaining residuary Bs take the whole residuary estate in proportion to their interests – imply survivorship language in the residual clause. Only applies to residuary estate! Anti-lapse will trump the SRB rule, and save a gift.
What is the class gift rule?
A gift in a will to a class of persons. Only member of the class who survive the T take. The class is determined when the first class member is entitled to take property, usually when T dies. Anti lapse statute will save class gifts. A bequest to “children” prima facie includes marital children only.
Intestate leaving spouse: did D have any descendants?
No descendants: SS gets all CP & personal SP, & ½ fee simple interest in all separate real property. The decedent’s other ½ passes to parents, siblings, sibling’s kids – Usually goes to parents, if only one parent then split between parents and siblings. If no parents or their descendants, then all goes to SS.
Children and all are from the decedent & SS: SS takes all CP, 1/3 of personal SP, & a life estate in 1/3 in all separate real property. The children take 2/3 of personal SP & the remainder of the real SP property (2/3 outright and remainder of SS life’s estate).
Children but at least one child not from the SS: SS gets none of D’s CP and will only end up with her ½ of CP, and D’s children get his share of CP, & all of the SP interests are the same as above.
