Wills

Question 1

Intestacy – community property jurisdiction (UPC)

Answer 1

All property acquired during the marriage is jointly owned by both spouses unless it is a gift, inheritance, or devise given to only one spouse
- If D dies intestate, then D’s 50% of CP is given to SS

Question 2

Intestacy – surviving spouse

Answer 2

1. Marriage requirement – SS must have been legally married
   - Putative spouse – qualify if SS believes in good faith in the validity of an invalid marriage
   - Separation –spouses are still married until issuance of final dissolution decree
2. Survival requirement – SS must survive D to inherit
   - For CL, any length of time; for USDA, must have survived D by 120 hours
   IL DIS: no 120-hour requirement

Question 3

Intestacy –issue

Answer 3

1. Parent-child relationship
   - Inheritance rights between child of marriage and adopted child but not between child and foster parent or stepparent
   - Children born out of wedlock cannot recover unless the father subsequent married, held child out as his own, or paternity is proven after death or adjudicated during life (modern trend, which IL follows)
2. Capital share
   - Per capita – divided equally among first generation with at least one surviving member
   - Per stirpes (IL) – divided into total number of children of ancestor who survive or leave issue who survive
   - Per capita at each generation – equal shares for living members of nearest generation and deceased members with living issue

Question 4

Execution of wills – formalities

Answer 4

1. Writing signed by testator
   - Entire will must be in writing
   - Generally, signed at the end or will is invalid; in some states, anywhere but portion after signature is invalid
   IL DIS: anywhere on will
   IL DIS: language declaring it to be last will + attestation clause has been found sufficient to satisfy signature
   - T must of sound mind (knows nature/extent of property, disposition she is trying to make)
2. In presence of two or more witnesses
   - Presence – line-of-sight test (IL DIS) vs. conscious presence test
   - Ws must be aware that instrument is a will but need not know contents
   - CL – must be two disinterested Ws
   - Purge theory – gift to W is denied to extent of amount in excess of W’s intestate rights
   IL DIS: interested W does not automatically invalidate a will; merely invalidates portion of will giving an excess to interested W
3. T has present testamentary intent
   - Must understand that he is executing a will and intend that it have testamentary effect

Question 5

Integration

Answer 5

A will consists of all pages present at the execution and intended to be part of the will
- CL – strict compliance vs. UPC – substantial compliance

Question 6

Holographic will

Answer 6

A will in T’s handwriting

1. Handwritten document – entire will vs. material provisions
2. Must be signed by T
3. Witnesses – not required
4. Date – required by some states
5. Testamentary intent
6. Handwritten changes after completed – effective

IL DIS: not recognized but will be admitted into probate if validly executed in another jurisdiction

Question 7

Codicils

Answer 7

Changes or additions to a will

• Require same formalities as will
• May validate an invalid will

Revocation – revives the will

Question 8

Will substitutes

Answer 8

1. Revocable trusts
2. Pour-over trusts
3. Bank accounts registered in beneficiary form
4. Payable-on-death clause in K
5. Life insurance
6. Deeds
7. Totten trusts

Question 9

Revocation

Answer 9

Any time prior to T’s death
1. Subsequent instrument

2. Destruction with intent to revoke
   - Destruction = burning, cancelling, tearing, or destroying a material portion of will
   - Rebuttable presumption of revocation when a will once known to exist cannot be found
   - Destruction presumptively revokes all duplicates
3. Operation of law – divorce
4. Partial revocation
   IL DIS: not allowed if by physical act; may only do so via codicil and follow same formalities as will
5. Alteration – T cannot increase gift by cancelling words in the will but can decrease as long as alteration is made to existing language and not addition of new language

Question 10

Lost wills

Answer 10

• A duplicate original is permitted but not a photocopy
• Can be probated if clear and convincing evidence of lack of intent to revoke and of contents of will

IL DIS: rebuttable presumption that T destroyed a will with intent to revoke it if will is not found amongst T’s personal effects upon death

Question 11

Revival– republication

Answer 11

Implied

• CL – automatic revival of original upon revocation of subsequent
• UPC – look for intent to revive will

Express – T acknowledges the original will with testamentary formalities

Doctrine of dependent relative revocation – a court will disregard a T’s revocation if it was based on a mistake and would not have been made but for that mistake
- T’s last effective will, prior to the set-aside revocation, will once again control his estate

Question 12

Contract not to revoke

Answer 12

If evidence establishes (e.g., stating that devises were made in consideration of reciprocal devises), the K becomes irrevocable upon the death of the first party
- Constructive trust is imposed on property transferred by the second party in violation of K

Question 13

Incorporation by reference

Answer 13

Another writing not executed with testamentary formalities may dictate distribution of T’s property if it

• Existed at time of execution of will,
• Is intended to be incorporated, and
• Is described in the will with sufficient certainty

Question 14

Lapse

Answer 14

If the beneficiary dies before T, the gift lapses and passes to the residuary beneficiary, or if none, via intestacy

• Anti-lapse statute – if beneficiary was T’s relative and left issue, then issue succeeds to the beneficiary’s gift
• Class gift rule – only surviving members of class gift take

Question 15

Residuary lapse

Answer 15

CL – a lapsed residuary interest passes by intestacy

UPC – a lapsed residuary interest passes to the remaining residuary beneficiaries

Question 16

Void gifts

Answer 16

Gift to beneficiary, who unbeknownst to T, is already deceased when the will was executed
- Anti-lapse statute applies

Question 17

Abatement

Answer 17

Reduction/elimination of gifts when assets insufficient

- Order – intestacy property > residuary bequests > general bequests > specific bequests

Question 18

Ademption

Answer 18

The denial of a gift to someone because the property is no longer in T’s estate

1. Ademption by extinction – applies only to specific bequests
   - UPC and some state statutes permit a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property
   IL DIS: if, after executing a will, T enters a contract for the sale of specifically bequeathed property, and the contract has not been fully performed at the time of death, the beneficiary takes the T’s rights under the contract
2. Exoneration of liens – under CL, a beneficiary of encumbered property can have the lien paid off
   IL DIS: rejects exoneration of liens; passes subject to
3. Ademption by satisfaction – gift may be satisfied by inter vivos transfer of property after the execution of the will if that is T’s intent
   - UPC – presumes no ademption by satisfaction and limits the sources of evidence of T’s intent to adeem
4. Securities (stock)
   CL – a stock dividend, like a cash dividend, is a property interest distinct from stock given by a specific bequest
   - Bequest of stock owned by a T when the T’s will is signed excludes subsequently acquired shares of the same stock
   UPC – rejects CL approach; will generally include any additional shares

Question 19

Elective share or forced share

Answer 19

CL state – SS can elect to take a share of T’s augmented estate rather than the gifts left to SS in the will

CP state – SS is entitled to one-held of community and quasi-community property (forced share)

IL DIS: SS can renounce the will and receive a statutory share

Question 20

Omitted spouse

Answer 20

Spouse who married T after T’s will was executed and who is not a beneficiary of the will

• Rebuttable presumption that the omission was by mistake; entitled to intestate share
• Rebutted if apparent from language of will or if spouse was provided for outside the will

IL DIS: no omitted spouse doctrine; marriage after executing a will has no impact on the will

Question 21

Advancements of inheritance

Answer 21

CL – lifetime gift is presumed to be an advancement of the child's intestate share; child has burden to prove otherwise
Modern trend (IL follows) – advancement if D declared in contemporaneous writing or the heir acknowledges so

Question 22

Omitted child

Answer 22

Child born after T’s will was executed

• Rebuttable presumption that the omission was by mistake
• Rebutted by intentional omission; T had other children when will executed, left estate to other parent of omitted child; T otherwise provided for the child
• If only child, entitled to intestate share; if other children, entitled to equal share of property devised to others

Question 23

Bars to succession

Answer 23

1. Homicide – killer of D cannot take under D’s will or through intestacy (slayer rule)
2. Disclaimer – permitted but must be affirmatively done because acceptance of gift is presumed
   - Under disclaimer statutes, a disclaiming party is treated as if she had predeceased the decedent, and the bequest passes either to the disclaimant’s issue (if relative under anti-lapse statute) or to the residuary legatee
3. Elder abuse

Question 24

Will contests

Answer 24

Standing – only directly interested parties who stand to benefit financially

Question 25

Will contests – bases

Answer 25

1. Lack of testamentary intent
2. Insane delusion – belief for which there is no factual basis
3. Undue influence
4. Fraud – representation made by beneficiary with intent to deceive T
5. Forfeiture clause – designed to deter beneficiary from suing over his share by causing him to lose his share entirely if he does so
   - UPC – unenforceable if beneficiary has probable cause to contest

Question 26

Personal representative

Answer 26

• Executor (named in will) or administrator (appointed by court)
• Principal duties – provide notice; manage assets; receive and pay claims; distribute remaining assets
• Fiduciary duty –owes highest duty of loyalty and care

Question 27

Powers of appointment

Answer 27

The power to decide to whom property is given

• General power –no restrictions on power
• Special power – limitations on power

Question 28

Powers of attorney – general

Answer 28

Agent can handle all affairs when the principal is unable to do so

Question 29

Powers of attorney – special

Answer 29

Agent’s powers are limited to specific function and/or duration

Question 30

Durable power of attorney

Answer 30

Agency continues until the death of principal, even if the principal becomes incapacitated
- Only responsible for intentional misconduct

Question 31

Will Ks

Answer 31

Include contracts to make a will, contracts to revoke a will, and contracts to die intestate, all of which are controlled by contract law; proof can be established if

1. Will states the material provisions of the K;
2. Terms are contained in a written K; or
3. Express reference is made in the will to the K, and extrinsic evidence proves the terms

When one of the parties to a joint will contract dies, the transaction becomes an irrevocable contract as to the survivor

Question 32

Acts of independent significance

Answer 32

Will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the T’s death, if the act or event has some significance apart from the will
- Independent legal significance = unlikely that the T or other person would perform such act solely for testamentary reasons