Wills

Question 1

Intestate succession: Share of the surviving spouse when descendants survive?

Answer 1

(a) most states: (1/3 – 1/2, the rest to descendants); (b) some states: fixed $ + 1/3 – 1/2); (c) UPC states: if all descendants are the children of surviving spouse and there are no other children, 100% to surviving spouse.

Question 2

Intestate succession: share between surviving children and other descendants - Majority rule:

Answer 2

Per capita with representation: Equal division at first generational level with living takers (and then splitting down the line).

Question 3

Intestate succession: share between surviving children and other descendants - Classic minority rule

Answer 3

classic per stirpes: Equal division applies to each child of the decedent (dead or alive, if dead their descendants).

Question 4

Intestate succession: share between surviving children and other descendant - modern trend

Answer 4

Equal split at each generation with living takers.

Question 5

Intestate succession: Share of adopted children as to adopting family

Answer 5

An adopted child is treated the same as a natural child of the adopting parents, and inheritance goes both ways. But a child adopted after the execution of a will is considered to be a pretermitted child within the meaning of a pretermitted child statute.

Question 6

Intestate succession: share of adopted children as to natural parents

Answer 6

No inheritance either way, except where (meaning they still get to inherit from natural parent) there is: adoption by the spouse of a natural parent.

Question 7

Intestate succession: share of share of adopted children as to natural parents

Answer 7

No inheritance either way, except where (meaning they still get to inherit from natural parent) there is: adoption by the spouse of a natural parent.

Question 8

Intestate succession: half-bloods v whole-bloods

Answer 8

Most jurisdictions (including UPC states) draw no distinction between half and whole blooded siblings.

Question 9

Intestate succession: step-children

Answer 9

General rule: no inheritance rights either way, unless adoption by estoppel applies. Adoption by estoppel: invoked where step-parents gain custody of a child under an agreement with the natural parent that they will adopt the child.

Question 10

Intestate succession: half-bloods v whole-bloods

Answer 10

Most jurisdictions (including UPC states) draw no distinction between half and whole blooded siblings.

Question 11

intestate succession: Disinheritance clauses:

Answer 11

Majority rule: ineffective as to partial intestacy i.e. if testator did not make a complete disposition of her estate, then the undisposed of property passes by force of statute to the heirs, even those who has been disinherited. Minority rule (and that followed in UPC and several non-UPC states): testator may exclude the right of individual to succeed to property passing by intestate succession.

Question 12

intestate succession: advancements:

Answer 12

Most states reverse the presumption by providing that a lifetime gift is presumptively not an advancement unless shown to be intended as such. UPC approach: no lifetime gift considered an advancement unless it is: (i) declared as such in a contemporaneous writing by the donor; or (ii) acknowledged as such in a witing by the donee.

Question 13

Disinheritance clauses:

Answer 13

Majority rule: ineffective as to partial intestacy i.e. if testator did not make a complete disposition of her estate, then the undisposed of property passes by force of statute to the heirs, even those who has been disinherited. Minority rule (and that followed in UPC and several non-UPC states): testator may exclude the right of individual to succeed to property passing by intestate succession.

Question 14

Intestate succession: simultaneous death

Answer 14

• One half of states have adopted the Uniform Simultaneous Death Act–where no evidence as to the order of death, property of each person is disposed of as if he had survived (applies to distributions of any means, e.g. will joint tenancy, life insurance etc); this will not apply when someone dies even a few minutes after the other (only applies where unclear). - Other half of states have adopted the Revised Uniform Simultaneous Death Act (i.e. the 120 hour rule)– an heir or beneficiary must survive the property owner by 120 hours in order to take.

Question 15

Wills–what is the applicable law?

Answer 15

1. Real Property – Law of situs—the State where the property is situated 2. Personal Property – Law of domicile at death.

Question 16

What are the three overarching requirements for a will to be valid?

Answer 16

1. Testamentary intent; 2. Testamentary and legal capacity; 3. Valid execution in compliance with the applicable execution requirements.

Question 17

What is required for testamentary intent:

Answer 17

The testator must have present intent that the instrument operate as his will. If it is unclear then testamentary intent will only be found if it shown that the testator:

1) intended to dispose of the property;

2 ) intended the disposition to occur only upon his death; and

3) intended that the instrument in question accomplish the disposition. Parole evidence is admissible to show that an instrument was not meant to have any effect (i.e. it was a sham will.

Short: Intended to dispose of their property upon their death via the intrument in question.

Question 18

What is required for legal and testamentary capacity for making will?

Answer 18

Legal: To be 18 years old and of sound mind at the time the will is made. Testamentary: a. Understand the and comprehend the Action; b. Know General Nature and Extent of Property c. Recognize Natural Objects of Bounty (family members)–e.g. Must know who spouse and children are. d. Simultaneously Hold those Elements in Mind

Question 19

What are the required formalities for a valid attested or formal will in most states?

Answer 19

Most states require : 1) Signed by the testator 2) 2 attesting competent witnesses 3) testator signs the will (or acknowledges their previous signature) in each of the witnesses’ presence; 4) the witnesses sign in the testator’s presence. Some states also require 1) testator to sign at the end of the will; 2) testator to “publish” the will” (declare it to be their will); and 3) witnesses to sign the presence of each other.

Question 20

What is required for the competency of a witness?

Answer 20

No minimum age. Competency means that the witness is mature enough and of sufficient mental capacity to understand and appreciate the nature of the act she is witnessing and attestation, so that she could testify in court if required.

Question 21

What is the effect of an interested witness to a will?

Answer 21

Majority rule (purging statutes): Will is valid, but the bequest to the interested witness is void, unless (i) the witness was supernumerary; or (ii) the witness would take anyway if the will was admitted to probate, in which case the witness takes the lesser of the legacy and his intestate share.

Question 22

What is integration and what must be shown when a question as to integration is raised?

Answer 22

Integration goes to what sheets were present at the time of execution and thus comprise part of the will. Must be show PI (Presence & Intent) (i) present (when will executed); and (ii) intended to be part of the will. Presence and Intent are presumed when there is a physical connection (staple, paper clip etc), when there is an internal coherence of provisions running from one page to the next, or when the pages, read together, set out an orderly disposition plan. Initialing each page also works, as does ex toto pagination, e.g., page x of y .

Question 23

What is a holographic will and what are the requirements for it to be recognised?

Answer 23

Holographic wills are recognised in the UPC and the majority of states - To be valid it must be

(i) entirely in the testator’s handwriting;
(ii) signed (anywhere); and
(iii) clearly be intended as a will - if ambiguous then extrinsic evidence is admissible to establish that it was intended to be a will - the test is whether some future writing was contemplated (i.e. a letter to lawyer asking for will would not qualify).

Question 24

What is the significance of a codicil for the (date of a will?

Answer 24

Republication of codicil applies: The will is deemed to have been executed as of the date of the later executed codicil. The codicil and the will are treated sa one instrument.

Question 25

What is effect does a codicil on an invalid will?

Answer 25

A valid codicil may boostrap an otherwise invalid will i.e. it makes the will valid.

Question 26

To incorporate a document by reference, three requirements must be met:

Answer 26

1. the document must have been in existence at the time the will is executed​(except for a reference to a list of tangible personal property, which may be before or after execution, provided the listit is signedand describes theitemsanddivseeswithreasonable certainty);
2. the language of the will must sufficiently describe the writing to permit its identification; and
3. the will must manifest an intent to incorporate the document.

Question 27

What is the “act or facts of independent significance doctrine”

Answer 27

• Will may dispose of property by reference to acts, facts and events that have significance apart from their effect on the dispositions made by the will. e.g. a. Specific Gifts of a General Nature b. Class Gift Designations (gift to all employees) c. Gift to “My Spouse” d. Gifts of Contents (e.g. “contents of safety deposit box”).
• NB: a gift of “house and contents” does not include intangibles (e.g. stock certificates) in house.
• Doctrine has also been extended to acts of third-persons (e.g. the will of another person, generally integrated if will is written by the time of death of testator).

Question 28

What is a surviving spouse entitled to in a common law marital property state?

Answer 28

A forced or elective share in lieu of what they would have received under the will (varies between states but usually 1/3 or 1/2 or based on duration of marriage). The election is lost if the surviving spoue dies before they elect.

Question 29

What property is subject tot the elective share of a surviving spouse?

Answer 29

Most states: Net estate (probate estate - debts and expenses)

In some states: applied to augmented estate, which includes lifetime transfers.

In most states: election also extends to lifetime transfers by testator to revocable trusts - in UPC states this will apply to other lifetime transfers in which decedent retained an interest.

Question 30

What is a pretermitted child?

Answer 30

A child that has been accidentally omitted from the will. - in most states this is a child that is born or adopted after the will was executed.

Question 31

What will a pretermitted child get?

Answer 31

In most states, if born or adopted after the will was executed the child will get an intestate share (i.e. what he would have taken if the decedent died intestate), unless one of the exceptions apply.

Gifts are abated (therefore revoked) to extent necessary to make up share of pretermitted child.

Question 32

What are the exceptions that mean a pretermitted child will not get anything

Answer 32

1) omission appears intentional - e.g. child was around at the time of execution of will;
2) testator had other children at the time of execution and devised substantially all of the estate to the other parent of the pretermitted child;
3) child otherwise provided for by testator out of the will.

Question 33

What is the doctrine of dependent relative revocation?

Answer 33

DRR applies when a testator revokes his will under the mistaken belief that another disposition of property is effective. If other deposition fails (e.g. another will which is improprely executed) then will remains in foce.

Note though: only applies if revoked will is closer to what testator tried to do (but failed) than intestacy.

The more similar the provisions of will 1 and will 2 the mor likely the court will apply DRR.

Question 34

What is the effect of marraige following execution of a will?

Answer 34

Most states: no effect on earlier will

Some states and under the UPC: new spouse takes an intestate share as an ommitted spoues: unless (i) otherwise provided for, (ii) intentional ommission or (iii) will made in contemplation of marriage.

Where UPC rule applies, gifts are abated to make up spouse’s share.

Question 35

What is the effect of divorce or annulment on a will?

Answer 35

In most states: It revokes provisions in favor of former spouse; will read as if former spoues predeceased (i.e. they are dead to them);

in UPC states: rule extends to former spouse’s relatives.

But a final divorce is required!

Question 36

What are the requirements for revocation by physical act?

Answer 36

1. intent to revoke (i.e. not a mistake)
2. mental capacity (e.g. not induced by fraud)
3. physical act (e.g burning) by testator. May be done via proxy on testator’s instruction but only if done in tesator’s presence..

Note that testator cannot accidentally destroy will and then later decide they wish to revoke. Intent to revoke must be present at the time of the revocation.

Question 37

Was is the effect of partial revocation by physical act (testator crosses out name and initials change)?

Answer 37

Most states give effect to changes if sufficient evidence that testator made the changes. Other states give no effect to (i.e. ignore) changes.

Question 38

What is the effect of a later will that does not expressly revoke the earlier?

Answer 38

The two are read together and the later revokes the earlier only to the extent there are inconsistent provisions.

Question 39

When are wills presumed to have been provoked?

Answer 39

Last seen in possession of testator or found in damaged condition. But presumption reversed if:

the will is (i) found in a normal location and (ii) under no suspicious circumstnaces.

Question 40

What happens if a will that revoked a prior will is itself revoked?

Answer 40

Revival approach: will 1 revived, because will 2’s revocation claues is treated as have nesver taken effect.

Under UPC : Prior will remains revoked unless evident from circumstances or testator’s statements that they inded to revive the first will.

If first will only partially revoked, then the revoked provisions are revived unless from circumstances testator intended otherwise.

Some states (no revival approach): no revival unless first will re-executed;

Question 41

What happens to a testamentary gift if a beneficiary predeceases the testator?

Answer 41

The gift lapses, but nearly all states have anti-lapse statutes to save the gift if the predeceasing beneficairy was in a specificed degree of relationship (e.g. child of deceased, states vary on this point and in some states not required at all), so that the gift passess to the descendants by substitution—this is subject to a contrary will provision (words of surivorship are considered contrary in most states, but not the UPC).

Question 42

What happens if there is a lapes of the residuary of an estate?

Answer 42

Some states: unwilling to imply surivorship language

many states: imply survivorship language (e.g. other beneficiary’s shares of residuary increase).

Question 43

What is the doctrine of Cy Pres

Answer 43

The ability of the court to substitute equitably equivalent charities (for a gift to a charity that lapses).

Question 44

What will a court do if there is obvious ambiguity or latent on the face of a provision in a will?

Answer 44

Obvious ambiguity: The court will consider extrinsic evidence but it cannot be used to fill blank spaces or supply ommitted gifts.

Latent ambiguity (“I leave X to my sister pat” but sister is called Emma and brother is called Pat): Court will consider extrinsic evidence to resolve the ambiguity.

Question 45

What is ademption and what is the general rule?

Answer 45

Ademption is where a specifically gifted item is not in probate estate. The general rule is that the gift fails.

Question 46

What are the exceptions to the general rule for ademption?

Answer 46

Gifted item was replaced by a similar item (e.g. they buy a new computer)–some states allow this

Gited item sold, but purchaser still owes testator–money goes to beneficiary

Proceeds of condemnation or insurance–benfeiciary gets any condemnationor insurance proceeds of gifted items (e.g. houes burns down, you get the proceeds).

Question 47

What is ademption by satisfaction?

Answer 47

Where a testator advances a gift in their will. Many states require a writing or specific instructions in will before gift is deemed a satisfaction.

Question 48

What does a benficiary get if the tesator leaves them a house that is subejct to a mortgage?

Answer 48

Jurisdictions are divided but the majority view is that the beneficiary just gets the equity.

Question 49

What gifts fail (the order) if the property of an estate is insufficient to satisfy all gifts?

Answer 49

Assuming will silent, order of failure is as follows:

• Intestate property,
• Residuary property,
• General gifts,
• Demonstrative gifts, and
• Specific gifts.

Within a class, abatement is pro rata.

Question 50

What is a specific bequest?

Answer 50

A gift of property that is to be satisfied only by the particular property described.