Wills

Question 1

Formalities for wills

Answer 1

• T must be 18 or older
• Will must be in WRITING
• must have testamentary intent
• T MUST SIGN the will
• two attesting witnesses who witness T sign the will

Question 2

Formalities of a will under the UPC

Answer 2

• • a court can validate a defectively executed will if the will proponent establishes by clear and convicting evidence that the testator intended the document to be his will
• -a will that is signed by the Testator and a notary is valid WITHOUT the need for any witnesses

Question 3

what happens if a portion of the will follows a T’s signature on the will?

Answer 3

(1) if the clause was present at the time of execution:
- - some states will say everything above the signature is good and anything below is not
- -UPC and MAJORITY of states say no problem and include everything above and below T’s signature

(2) if the clause was added after execution:
- -the will is valid but the additional clause is NOT
- -once a will is executed cannot go back and add things to it willie nillie

Question 4

Are holographic wills (hand written by T) valid?

Answer 4

half of the states –> holographic wills are not valid – not entitled to probate unless you had 2 attesting witnesses present

UPC and other half of the states–> will is valid if the material provisions are in the testator’s own handwriting and it’s signed by the testator (even without the two witnesses)

Question 5

what is required for the witness’s “presence”

Answer 5

(MAJORITY RULE AND UPC) “Conscious presence”–> if the witnesses are conscience of where T is and what T is doing

(MINORITY rule) “Scope of vision–> the witnesses witness T signing only if they can see T sign were they to look (NO IMPEDIMENTS TO VISUAL CONTACT BETWEEN WITNESS AND T)

Question 6

what happens if T owns land in one state X, is domiciled in Pennsylvania. While vacationing in Florida, T executes a will that meets the requirements for a valid will in Pennsylvania but not in State X. Later T dies after having changed his domicile to New York.

Answer 6

Common Law–> in order to control State X property, the will has to conform to State X law.

MAJORITY and UPC–> the will will be given effect if it complies with the law in any of the 3 tests below

(1) place of execution = Florida
(2) domicile at death = New York
(3) domicile at execution = Pennsylvania

Question 7

What happens when one of the witnesses is interested. (I give to Nellie; but Nellie is one of the two witnesses for the will)

Answer 7

MAJORITY RULE–> interested witness situation does NOT result in denial of probate of will, but that beneficiary-witness will lose he legacy UNLESS:
(1) there were two disinteredsted attesting witnesses already present
or
(2) the witness-beneficiary would be an heir if there was no will, in which case she will take the lesser of the amount between whats given in the will or intestate share

UPC and modern trend–> a will or any provision thereof is not invalid because the will is signed by an interested witness (NELLIE WINS)
—check for undue influence in these cases tho!

Question 8

Self-proved wills

Answer 8

at the time will is signed by T and attesting witnesses, T and witnesses sign self-proving affidavits under oath before a notary public
–formalities of the execution (but not the lack of capacity and undue influence defenses) will be conclusively presumed

Question 9

revocation of a will by physical act

Answer 9

requires
1) intent to revoke
and
2) a physical act done to the will

–typically a burning, tearing, obliterating, canceling, destroying

Question 10

can you revoke a will on a duplicate or copy?

Answer 10

YES
–an act of revocation on one copy revokes ALL executed copies of the will

–> revocation of a DUPLICATE OR XEROX COPY WILL NOT REVOKE A WILL

Question 11

Will writing “VOID” on the back of a will revoke it?

Answer 11

most states– no revocation because cancellations must cross some of the language of the will

UPC – act of cancellation can appear anywhere on the will

Question 12

rebuttable presumptions when dealing with revocation of a will

Answer 12

1) a will in T’s possession from time of execution until death and found in mutilated condition AFTER t’s death — T is presumed to have intended to revoke
2) Will last seen in T’s possession and control and now cannot be found after T’s death—> T is presumed to have destroyed it with intent to revoke it.

Question 13

Can someone other than the testator revoke a will?

Answer 13

Yes only if the revocation is :
1) done at T’s direction
AND
2) in T’s presence

Question 14

Lucas v. Hamm – can lawyers be held liable for screwing up someone’s will?

Answer 14

yes!! attorneys can be sued in negligence for messing up their client’s will

Question 15

Revocation by codicil

Answer 15

–where a codicil makes no reference to a will but contains slightly inconsistent provisions to the extent possible the will and codicil are read together

–but to the extent of any inconsistent provision, the later document controls and thereby revokes by inconsistency the prior will.

Question 16

revocation by a subsequent will

Answer 16

–if the second will has no residuary clause, it is presumptively a codicil to the first –> there is implied revocation only to the extent of the inconsistency

–if the second will has a residuary clause–> the second will revokes the first will in its entirety by inconsistency

Question 17

how does revocation work on a codicil and a will?

Answer 17

MAJORITY (UPC) rule : revocation of a will revokes all codicils thereto

BUT…
–revocation f a codicil to a will does NOT revoke the will (only the codicil is revoked)

Question 18

what is the impact of divorce on a will?

Answer 18

UPC and most states= divorce FOLLOWING a will revokes all provisions in the favor of the ex-spouse –> construe the will as if the ex-wife are dead

Question 19

what is the impact of just mere separation on a will?

Answer 19

mere separation does NOT affect the wife’s rights under the will

• -EXCEPT:
• separation with complete property settlements –> that agreement is treated as a waiver by the wife of her rights under the will

Question 20

What about when the T scratches off the amount of money given to a beneficiary and instead writes in a new number next to it?

Answer 20

• -the original amount the T scratched out has been revoked
• -The NEW NUMBER CANNOT be given effect UNLESS:
  (1) after the change, T re-executed the will
  (2) after the change, T republished the will by codicil

instead– the court would likely apply dependent relative revocation (DRR)

Question 21

what is dependent relative revocation?

Answer 21

this will allow the court to disregard the revocation which is based on a mistake of law or fact if the court finds that but-for the mistake, T never would have made the revocation

–court would reinstate the $10,000 which was scratched out because DRR would presume that he intended to leave his beneficiary with something rather than nothing (since he tried to replace $10,000 with $15,000 but it didn’t work)

Question 22

Revival rules

Answer 22

50 % of states — only way to revive a will would be to re-execute the will or republish it by codicil

UPC and other 50% of states – the will is revived if:

1) it still exists
2) T wanted to revive it (show intent to revive)
3) will 2 must have been revoked by physical act

Question 23

Incorporation by reference

Answer 23

to incorporate an extrinsic document by reference:

1) writing myself be in existence at time the will was executed
2) will must manifest an intent to incorporate the document
3) the will must describe the writing sufficiently to permit its identification

** where they are recognized, holographs can incorporate non-handwritten material by reference

Question 24

Incorporation of written list of tangible property by reference

Answer 24

Statutory exception founding UPC and many states:

• • a will may refer to written statements or lists that dispose of tangible person property (other than money) not specifically disposed of by the will
• -the written list must be signed by T and must describe the property with reasonable certainty

* these kinds of lists may be written BEFORE OR AFTER the will is executed and may be ALTERED at any time*

Question 25

Independent significance doctrine

Answer 25

acts which have an independent lifetime motive may impact on the will as well

• ex: father leaves to his son in a will the BMW but then later in life buys a brand new Lexus.
• -> the son would get the new Lexus because the father made an independent change (most people don’t make these types of changes just to change a will)

Question 26

Lapse

Answer 26

when a beneficiary named in a will dies before (in UPC states within 120 hours) of the Testator the gift is said to have lapsed UNLESSS.. it is saved by the state’s anti-tapes statute
–failed, falls into the residue and passes as part of the residuary estate

Question 27

anti-lapse statutes

Answer 27

UPC antilapse statute applies when:
–the predeceasing beneficiary is T’s grandparent, or a lineal decedent of a grandparent who left issue who survived T

–ex: Aliya leaves all her property to Me, but I have predeceased Aliya. I have three children. My three children would take under the anti-lapse statute because Aliya and I are sisters

–ex: my children would take even if I left a will devising all of my property to my Husband H

• –BUT…. the anti lapse statute therefore does NOT apply when a gift is given to someone NOT related to the Testator at all.
• -ex: Aliya devises to Lucas her brand new piano but Lucas predeceases Aliya. The piano would lapse and fall to Aliya’s residuary estate

Question 28

class gifts

Answer 28

when there is a girt by will to a group of persons generically described as a class (“children” or “nephews”) and some class member predeceases the testator and the lapse statute does NOT apply—> the surviving class members take only and not their descendants

–devising Blueacre to the children of your friend Allie.

** BUT… if the class gift is devised to a relative’s children or nephews, THEN the anti lapse statute would apply and the gift would be split in equal shares amongst surviving class members and descendants of pre-existing class members

Question 29

What happens when the residuary estate is devised to two people but one fails to take?

Answer 29

UPC (MAJORITY) rule– if the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue

Question 30

what is a specific devise?

Answer 30

a specifically identifiable asset which is being given to the beneficiary

• -I devise Blackacre to my son John.
• • the will speaks as of time of death so saying “I devise my car to my son” would be okay

WHAT FOR THE WORD “MY” IN FRONT OF THE GIFT

Question 31

what is a demonstrative legacy?

Answer 31

gift of a pecuniary amount but gives funding instructions

“to be paid out of”

Question 32

general legacy

Answer 32

specified pecuniary sum

“I give the sum of $100,000 to my daughter Susan”

Question 33

residuary bequest

Answer 33

whatever the remainder or residual funds are

Question 34

abatement

Answer 34

when T’s estate is partially insolvent, follow this order to abate the sum from the devises given in the will
-residuary, general legacy, demonstrative, specific

Question 35

adeemption

Answer 35

when whatever you were specifically devised in a will is no longer in the T’s possession
–> adeemption is restricted to specific devises only

Question 36

Under the UPC when do statutory provisions apply to AVOID ademption?

Answer 36

–Wille executed before T is declared mentally incompetent–> if the property is sold by a conservator the specific devisee has a right to a general legacy equal to the NET SALE price

Devisee would have the right to:

• -any balance of purchase price owing from purchaser when contract is still executory at T’s death
• -any amount of condemnation award for taking of the property, to the extent paid at T’s death
• -any amount of fire or casualty insurance proceeds unpaid at death
• -any real or tangible personal property acquired as a replacement for other similar property
• -property acquired as a result of a foreclosure of a security interest on specifically devised note

Question 37

What happens when T bequeaths stocks and they increase?

Answer 37

Common law:
–stock splits = you get whatever amount the testator has of that stock at death

–stock dividends = you would be limited to only the original amount of stocks bequeathed to you in T’s will

UPC: you get all of the stock shares owned by T at death regardless of whether it is stock split or dividends

Question 38

What if the stock was merged with another stock or bought out by another stock?

Answer 38

Common law–> nope, sorry you are out of luck. The stock T left you is gone so you get nothing

UPC–> YES! A specific devisee is entitled to securities of another entity owned by T as a result of merger, consolidation, reorganization, or other similar action initiated by the entity

Question 39

Latent ambiguity

Answer 39

when you go to apply the will, there is a problem
-ex: T uses the wrong name for his nephew

rule = extrinsic evidence is admissible to clear up a latent ambiguity
(could show that the T always called one of the nephews by that name or that he meant to write something else)

Question 40

mistake in the will left out by a dumb clerical error

Answer 40

most states = evidence of a mistake will be inadmissible because this evidence violates the plain meaning rule (you cannot disturbed the plain meaning of an ambiguous will with extrinsic evidence)

UPC states = evidence of the mistake IS admissible to conform the terms to the T’s intent if it is proved by CLEAR AND CONVINCING EVIDENCE that both the accomplishment of the T’s intent and the terms of the will were affected by a mistake of fact or law

Question 41

Inheritance (through intestate)

Answer 41

Decedent survived by a spouse =

• if survived by a spouse and no children then the entire estate goes to the surviving spouse
• if survived by a spouse and all of your children are with that spouse then the entire estate goes to that spouse
• -if survived by that spouse and one or more children NOT OF THAT SPOUSE then spouse is given a fixed amount off the top and 1/2 of any excess

Question 42

What if the person is not survived by a spouse?

Answer 42

• -to children if any
• -if no children, then to parents
• -if no parents then to children of the parents (brothers and sisters of Decedent)

Question 43

what is the majority rule for how to distribute an intestate share?

Answer 43

–children take per capita (equally) if all are of the same degree of relationship, otherwise they take by representation

= MOST STATES –> per capita with representation
–divide shares equally for every child(dead or alive) (if child is dead that that share drops down and gets split amongst their kids)

=UPC and modern trend –> per capita at each generational level
–divide estate into shares for the kids (but if kids are dead then combine their shares and split that amount equally amongst all surviving kids of the dead parents)

Question 44

what is per stirpes

Answer 44

if you die without kids than you don’t get allocated a share
–then divide the shares equally to the surviving kids based on the amount of siblings and such

Question 45

what is NOT included in a person’s probate estate?

Answer 45

• life insurance
• property held in trust
• right of survivorship property
• securities or bank accounts registered in payable on death (POD)
• property T did not own at death

Question 46

what is adoption by estoppel?

Answer 46

when the new spouse said that he was going to adopt the child but then for some reason never actually got around to signing the adoption papers

Question 47

adoption

Answer 47

• -an adopted child can inherit from his original birth parents AND from his new adopted parents
• -BUT.. his original birth parents CANNOT adopt from the adopted child anymore

Question 48

Original Simultaneous Death Act

Answer 48

if the testator and the spouse (heir) die simultaneously, then the T’s estate is distributed as if the heir spouse had predeceased.
–but if there is evidence that the heir spouse survived T (even for just a few minutes) then she takes the T’s shit as heir

Question 49

Revised Simultaneous Death Act (UPC)

Answer 49

120 hour rule
–when passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, person is deemed to have predeceased the decedent UNLESS the person survives the decedent by 120 hours (5 days)

Question 50

advancement

Answer 50

common law –> any lifetime gift to a child or descendants presumed to be an advancement of his intestate share, to be taken into account in distribution of the intestate’s estate

UPC (MAJORITY rule)–> no advancement UNLESS
1) declared as such in a contemporaneous writing by the T
or
2) acknowledged as such in writing by the heir

–> if considered an advancement then you do a hotchpot and add up the estate with the advancement and divide the shares equally among children (but deduct the amount already given from the child given the advancement)

Question 51

satisfaction

Answer 51

UPC (MAJORITY rule)–> a lifetime gift is not a prepayment of any interest under a will UNLESS:
1) the will providesfonr this treatment
2) the T declares in contemporaneous writing tat the gift is to be deducted from the devise or is in satisfaction of the devise
or
3) the devisee acknowledges in writing that the gift sin satisfaction

Question 52

surviving spouse’s rights to allowances

Answer 52

in most states, statutes give a surviving spouse one or more of the following if they have to share in the decedent’s estate:

1) homestead allowance –>the right to live in the home for as long as the spouse chooses
2) exempt property allowance–> household furniture, car, furnishings, appliances, etc.
3) family allowance –> reasonable allowance in money out of estate for maintenance of family during the administration

–> these may be waived by written agreement after full disclosure

Question 53

pretermitted spouse

Answer 53

–the will was written before the marriage and left the spouse out of the will

–in most states, marriage after the will is written has NO effect on the will

• -UNDER THE UPC–> the pretermitted spouse will be entitled to an intestate share UNLESS:
• -it appears from the will that omission was intentional
• -T made other provision for spouse by transfer outside the will and the intent that the transfer be in lieu of provision in the will is shown by statements of the T, the amount of the transfer, or other evidence

Question 54

elective share

Answer 54

an elective share is a fraction (1/3) of the elective estate but interests received by spouse which are included in the elective estate are treated as if in satisfaction of the elective share

UPC–> the max elective share is increased to 1/2 but the share the spouse ACTUALLY gets depends on the length of the marriage (3% for every year of marriage up to 50%)

–not automatic– the spouse must ELECT to take this share

Question 55

pretermitted children

Answer 55

–a child born or adopted after will is executed and in the UPC and some other states the child is entitled to take an intestate share UNLESS:
–it appears from the will that the omission was intentional
– H left substantially all of his estate to the parent of the pretermitted child
or
–H provided fro the child by transfer outside of the will and the intent that the transfer be in lieu of provision in the will is shown by statements of the T, the amount of the transfer, or other evidence

Question 56

what happens if the T believes that a child is dead so they leave him out of the will on that belief?

Answer 56

common law= no relief for the mistake in inducement to make or not to make provision in the will unless both mistake and what would have been done for mistake appear in terms of the will
ex: “I would have left my son Doughboy $100,000 but he is dead.”

UPC and some other states= if at the time of execution of will, T fails to provide in her will for a living child SOLELY BECAUSE SHE BELIEVES CHILD IS DEAD, the child is treated as pretermitted and may claim an intestate share

Question 57

what happens in the case where someone in the will is the person that killed the testator (HOMICIDE)

Answer 57

UPC and most states = a person who feloniously and intentionally kills the decent is NOT entitled to any benefit from the decedent’s estate by will, by intestacy, under life insurance contract or otherwise

• • the property passes as if killed predeceased T
• • requires an intentional killing
• -acquittal at criminal law is NOT controlling

jointly held property with right of survivorship = Killer gets 1/2 and then victim’s estate gets the other 1/2

Question 58

renunciation or disclaimer

Answer 58

before an acceptance, an heir can renounce his interested in whiting in whole or in part (and within 9 months of T’s death)

–results in the passing of property as if the person who renounced pre-deceased T

Question 59

Living will

Answer 59

a state of an adult individual’s desires with respect to life-sustaining procedures, artificial nutrition, and pain alleviating treatment when the individual becomes terminally ill

– must be in writing, signed by the T or at the T’s direction, most states require witnesses

–CAN be revoked by any manifestation to revoke at any time before death without regard to the principal’s mental or physical condition

Question 60

durable healthcare power

Answer 60

• -when you appoint someone to make the healthcare decisions for you
• -instrument does not become operative until the principal loses capacity
• -automatically revoked by a later executed durable healthcare power
• -an agent under durable health care power is not civilly or criminally liable or subject to discipline for unprofessional conduct for healthcare decision made in good faith

Question 61

what are the ways in which you can contest a will?

Answer 61

• lack of testamentary capacity
• insane delusion
• undue influence

Question 62

lack of testamentary capacity

Answer 62

BOP on contestant

test:
1) did T understand the nature of the act he was doing?
2) Did T know the nature and character of his property?
3) Did T know the natural objects of his bounty?
4) Did T understand the disposition he wished to make?

• -must relate to T’s capacity at the time the will was executed (or shortly before or shortly there after)
• -mere old age, physical frailty, sickness, failing memory are not enough

Question 63

insane delusions

Answer 63

where T is otherwise sane, by tiger will is a PRODUCT of an insane delusion, having no bias in fact or reason, which T adheres to against all reason and evidence, and where the will is the product of the insane delusion

–> did the delusion CAUSE the will or gifts in the will??

Question 64

undue influence

Answer 64

BOP on the contestant

test: ;
1) existence and exertion of the influence
2) effect is to overpower the mind and will of T
3) the result is a will that would not have been executed BUT FOR the influence

Usually circumstantial evidence but these examples below are not enough:

• • mere opportunity to exert influence
• -mere susceptibility to influence due to illness, age,
• -mere fact of unnatural disposition– that one child takes way more than all the other children

Question 65

when does a presumption of undue influence arise?

Answer 65

upon a showing that a principal beneficiary under the will who stands in a confidential relationship to the testator draws or procures the execution of the will

• -attorney-client
• -doctor-patient
• -priest-parishoner

Question 66

“no contest clauses”

Answer 66

if a beneficiary does contest and loses–> prevailing rule is that the clause will NOT be enforced against the beneficiary as long as he has probable cause for his contest (matter of public policy)

—> but if the court finds that the beneficiary’s claim is a fishing expedition, then the clause WILL be enforced against him