Wills Flashcards
What are the statutory formalities for executing a will?
1) must be over 18; 2) must be written; 3) have testamentary intent; 4) must be signed; and 5) must have two attesting witnesses who witness T’s signing.
What happens if part of the will follows T’s signature at the time of execution under the common law?
everything above the signature is good; below is void.
What happens if part of the will follows T’s signature at the time of execution under the UPC?
everything is valid.
What happens if part of the will follows T’s signature after time of execution under the common law or UPC?
it is void.
What is the rule regarding holographic wills under the UPC?
So long as the material portions of the will are handwritten, the will is valid.
What are the two tests for determining whether witnesses actually witnessed a testator sign their will?
Scope of Vision test; conscious presence.
Under the majority rule, an interested witness will not receive from a will they witness unless what?
1) there are two other disinterested witnesses; or 2) the WB would be an heir if there was no will, in which case she would take the lesser of a) the amount given in the will; or b) the intestate share.
Under the UPC, can an interested witness take?
Yes
What is a self-proved will?
Where the witnesses sign an affidavit attesting to the propriety of the will’s execution. It creates a presumption of propriety that must be rebutted.
What are the requirements for revocation by physical act?
1) intent to revoke; 2) physical act.
How do you revoke by physical act under the common law? UPC?
Must cross some of the language; may be voided anywhere on the document.
Voiding a copy of a will voids _______________.
all copies of the will.
Must a revocation of a will by physical act be done in the testator’s presence?
Yes
What happens if a testator directs someone to revoke their will by physical act, but does not actually see them do it?
The court will hold a hearing regarding the destruction of the will.
Where a subsequent will is inconsistent in part from the first will, what effect?
The subsequent will controls the inconsistencies, all parts of the first will which are not mentioned in the second will remain as they did in the first unless there is a clause in the second will which states they are revoked.
Revocation of a will revokes all ____________ thereto.
codicils
Revocation of a codicil to a will does not revoke ______________.
the will.
What is the effect of divorce on a will?
All provisions affecting the ex-spouse are void.
What happens if the ex-spouses remarry?
The will is made whole again.
Mere ___________ does not affect the rights of a spouse to a will unless . . .
separation; there has been a complete property settlement.
To properly amend a will, what must you do?
You must fulfill the requirements for executing the will (having witnesses; signing it; being over 18; etc.)
Dependent Relative Revocation —
allows a court to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that but for the mistake, the testator never would have made the revocation.
Explain the doctrine of revival —
a subsequent will which is revoked and is not revoked by a new will revives the original will; i.e. Will 2 revokes Will 1. When Will 2 is revoked, Will 1 is revived unless Will 2 is revoked by a Will 3.
What are the requirements for reviving a will under the UPC?
1) the original will must still exist; 2) the T must intend it to be revived; and 3) will 2 must be revoked by physical act.
To incorporate an extrinsic document by reference in a will:
1) the writing must be in existence at the time the will was executed; 2) the will must manifest an intent to incorporate the document; and 3) the will must describe the writing sufficiently to permit its identification.
Under a UPC, a list of tangible personal property which is not specifically devised via the will may be created _________________.
at any time, so long as it is generally referenced in the will; e.g. “a list I plan to make . . .”
Explain the doctrine of independent signficance —
The T modifies his will by his actions. Where there is a independent lifetime motive, the act taken for such motive impact the will as well.
Lapse —
where a gift is folded into the residuary estate because the person to whom it was devised either 1) under common law, died simultaneously or before the T, or 2) under the UPC, died before or within 120 hours of the T.
What can prevent a gift from being folded into the residuary estate?
The state’s antilapse statute.
Where a gift is set to lapse due to the death of the devisee, the UPC statute applies, i.e. pushes the gift to another devisee, if the new devisee is what?
the testator’s grandparent or a lineal descendant of a grandparent who leaves issue of the same testator.
Class Gift Rule —
when there is a gift by will to a group of persons generically described as a class, and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
Under the common law, where T leaves a certain amount of stock to the devisee, and there is a stock split, what is the result?
The devisee takes all of the stock resulting from the split, even if it is much more than was originally devised to him.
Under the common law, where T leaves a certain amount of stock to the devisee, and there is a stock dividend issued, what is the result?
The devisee only gets the stock he was devised.
How does the UPC treat stock splits and stock dividends?
It treats all stock as stock splits, i.e. if it is divided, you still get it.
Where T devises stock in one company to a devisee, an the stock is later traded in for another company’s stock before T’s death, what is the result under the common law?
Devisee will not be able to take because he was not devised that company’s stock.
Where T devises stock in one company to a devisee, an the stock is later traded in for another company’s stock before T’s death, what is the result under the UPC?
The UPC doesn’t care. Different stock or not, the devisee was still devised something. It is simply in a different form now.
Extrinsic evidence is admissible to clear up ______________.
latent ambiguities.
Where extrinsic evidence does not exist to clear up a latent ambiguity, what result?
The gift fails.
Where the will is unambiguous, but it was by mistake, what effect under the common law?
The court will not fix it. Under the Plain Meaning Rule, you cannot disturb the plain meaning of an unambiguous will.
Where the will is unambiguous, but it was by mistake, what effect under the UPC?
The court will fix the terms of the will if it can be proven by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were effected by a mistake of law or fact.
If a T is survived by their spouse and there is no issue or parents of the T alive . . .
the spouse gets the entire estate.
Where the T is survived by their spouse and their issue, and all issue are biological issue of the T . . .
the spouse gets the entire estate.
If T is survived by their spouse and issue, and at least one of the issue is not biological issue of the T and her spouse . . .
the spouse is given a fixed amount off the top of the estate and a fraction of the excess.
If the T is not survived by their spouse, but has issue . . .
the issue take all of the estate.
