Wills Flashcards

Question

Execution Harmless error

Answer 1

Test: Clear and convincing evidence that T intended this document to be her will

Answer 2

* Intent to make a will * How one wishes to leave her assets

Answer 3

* It’s written by the testator’s hand and is signed by the testator * it doesn’t need to be signed by witnesses * Permitted in CA

Answer 4

if there is no date on the holographic will, and there is lack of capacity at any point, the will is invalid.

Answer 5

If an informal document contains evidence of the decedent’s intent to make a posthumous gift, that document is enforceable as a will even though the document also contains language that is not testamentary in nature.

Answer 6

Court held that printed portions of a will form can be incorporated into a holographic will where the trial court finds a testamentary intent, considering all of the evidence in the case

Answer 7

In almost all states that permit holographs, the testator may sign anywhere on the document. But if it is not signed at the end, there may be doubt whether the testator intended his name to be a signature

Answer 8

* A little more than a third of states permitting holographs still require that a holograph be “entirely” in the handwriting of the testator. (no forms) * About ⅓ of states require that the signature and material provisions be in the handwriting of the testator. Other parts can be preprinted * At a minimum the “who and the what”. Ex. Car to Jake.

Answer 9

A letter that conveys a decedent’s testamentary intent to make a specific bequest is enforceable as a holographic codicil to the decedent’s formal will.

Answer 10

1. Execute a new will 2. Physical act 3. By operation of law

Answer 11

* This is the best way to revoke a will * If the subsequent will does not make a complete disposition of the testator’s estate, it is instead viewed as a codicil, and any property not disposed of under the codicil is disposed of in accordance with the prior will * A codicil is a testamentary instrument that supplements, rather than replaces, an earlier will

Answer 12

* Destroying or defacing the will * \*\*must have intent to revoke at the same time you destroy it * Someone else may destroy your will, but it must be in your presence and you must ask them to do it * Direction * Presence * Best way to revoke physically: * “X” out each page of the will, sign it, and write “I revoke this will” * \*\*\*Harmless error does not apply to revocation by physical act.

Answer 13

* Divorce * In almost every state, statute says if provision to spouse, it is revoked upon divorce * Includes stepchildren under UPC * California- presumes revocation unless it can be shown that a relationship was maintained * Marriage * Will is revoked to the extent that the spouse will take an intestate share * Have children * To disinherit a child, it must be mentioned in the will. Otherwise the will is revoked in some way to allow the child to inherit. Varies by state.

Answer 14

In all states you can revoke parts of a will by subsequent will Can do partial revocation by physical act in california * Can cross out a piece/gift * Can tear a piece out

Answer 15

* A duplicate is an executed copy of a will. * A photo-copy is not a duplicate. * All duplicates need not be destroyed to revoke a will. * California: if a duplicate survives, then there is no presumption that the will was revoked

Answer 16

* ...... a weak presumption arises that the T revoked the will. * Must be rebutted by the proponent- they must prove why it’s missing * A photo copy is a good way to prove the contents of a lost will (but a copy cannot be probated)

Answer 17

* a testator who revokes a prior will under a belief that a new will is valid, but in fact for some reason unknown to the testator, the new will is invalid. * For example, if they only have 1 witness sign

Answer 18

* When a revocation is premised upon mistake of law or fact and the testator would not have revoked but for the mistake. The earlier will is revived. * “Doctrine of second best” * Is will #2 (which isn’t valid for some reason) closer to will #1 (that was mistakenly revoked) or intestacy? Because can’t have will #2.

Answer 19

* 1. Mistake must be recited in the revoking instrument (will#2) (appear on the face) * 2. Would it require dangerous extrinsic evidence to prove? * Dangerous = too much room for fraud

Answer 20

* Minority: will #1 is always revived when will #2 is revoked * Minority: will #1 is revived only if it is re-executed after will #2 is revoked * **Majority: will #1 is revived only if testator so intended**

Answer 21

1. Testator intended thing to be part of will 2. The thing was physically present Everything to be integrated should be stapled and numbered

Answer 22

Useful because when it’s a codicil, it can bring the 1st will up to the date of the codicil 1. Need a valid will 2. Need intent to apply doctrine

Answer 23

* Common law * 1. Doc was in **existence** at execution of will * Cannot modify the document after, or this doesn’t work * 2. The will must evidence an intent to incorporate the doc * 3. The will must sufficiently identify the doc to be incorporated * UPC (modern) * 1. Doc to be incorporated must be **signed** * 2. Doc can’t pass real property. Limited to **tangible personal property** * 3. The will must evidence an intent to incorporate the doc * 4. The will must sufficiently identify the doc to be incorporated

Answer 24

Is there a significance apart from passing property through the will? * Can leave something to “oldest sister” * But cannot leave to “envelope w/name on it” because this is only related to passing property via will

Answer 25

Divide at children's level. If 3 children (deceased or alive), then the shares are 1/3 each. Shares of deceased child go to their issue.

Answer 26

Divide at first living generation. If D has two deceased children, then first living generation is grandchildren. Divided equally among grandchildren who are alive or with living heirs.

Answer 27

Equally near, equally dear If 3 children (2 deceased), living child gets 1/3, and 3 grandchildren of deceased children get 2/9 each

Answer 28

* If decedent dies, spouse takes * Conduit theory * If the kids are mutual, the surviving spouse takes * If kids are minors- because the spouse will provide for the children * If the kids are grown- the older surviving spouse will need the money and pass the remainder to the kids * If the kids aren’t mutual, then the decedent’s kids get more of the share

Answer 29

* Spouse first * Then Issue takes everything * If no kids, go to parents * If none of above, go to siblings (or descendants of siblings’ representation) * If none of above then grandparents or issues of them (aunts, uncles, cousins) * If none of above, property goes to state (aside from step kids)

Answer 30

* 1/3 of states * Division into shares begins at the generational level immediately below the decedent. * Universal * When dividing into shares we only give to 2 kinds of people: the living and the dead with living descendants. (universal rule) * Taker’s take as representatives of their pre-deceased ancestor the share that the pre-deceased ancestor would have taken had he survived.

Answer 31

* 1/2 of states * Divide into shares begins at the generational level where _someone is alive_. Then divide equally between the "alive" generation * Universal * When dividing into shares we only give to 2 kinds of people: the living and the dead with living descendants. (universal rule) Taker’s take as representatives of their pre-deceased ancestor the share that the pre-deceased ancestor would have taken had he survived.

Answer 32

* 12 states * the initial division of shares is made at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Thus, **persons in the same degree of kinship to the decedent always take equal shares**.

Answer 33

* Parentellic * Go up to 1st ancestor * 1st line is the ancestor 1 gen up and all their descendants * Parents, siblings, nieces, nephews * 2nd line is 2 gen up * Grandparents, aunts, uncles, cousins * If someone is alive in the 1st line, no one else takes * Degree of kinship * Draw out family tree. Assign a number based on how many people away from D. * Lowest number wins.

Answer 34

* Legal fiction * Treats it as if they survived each other * CA- need compelling evidence that they survived 5 days * Default rule, can specify otherwise in will (ex. 60 days)

Answer 35

* Common law * Advanced share taken out of descendant’s take * Modern law (and California) * Advanced share only taken out if writing specifies it * If recipient predeceases T, the share is not taken into account unless a writing provides otherwise * Writing must be by intestator or the recipient (signed, but no other formalities required)

Answer 36

Example * $10k advancement to A * $50k intestate estate. * Add $10k to $50k and divide by children A, B, C * A = $10k * B = $20k * C = $20k

Answer 37

* Do not want a guardianship, but it’s the default * Guardianship * 1. Child gets property at 18 * 2. Guardian does not have authority to sell or change nature of the property * 3. Can’t use the principal for the child * Custodianship * Leave gift to child pursuant to UGMA * Flexible, not managed by the court * custodian has inherent authority as would a trustee * can invade property for the benefit of the child, * child gets automatically at 18 or 21 (depending on the state) * Trust * Make inter vivos trust * Not subject to supervision * All the virtues of custodianship * Can make restrictions (ex. Inherit at age 30)

Answer 38

* Slayer can’t take * CA: intentional + feloniously kills = won’t take * Abandonment * In some states a parent who has abandoned their child can’t inherit * Elder Abuse * If you abuse your parent, can’t inherit in some states

Answer 39

* When an heir doesn’t want a gift * Have 9 months to disclaim * Why? * To avoid estate tax when you die * To pass it to your kids without having to pay tax on death * To avoid creditors * To pass it to your kids instead of creditors * How? * Treated as pre-deceasing children

Answer 40

* What happens when a gift fails because the beneficiary predeceases T? * 1. What kind of gift is it? * Specific, general, demonstrative gifts: pass to residuary * Residuary- what’s left over * Class gifts: the other class members absorb the gift * 2. Is there an anti-lapse statute that applies? * 3. Does a no-residue-of-a-residue rule exist?

Answer 41

* Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary * (i) was in a specified degree of relationship to the testator, and * (ii) left descendants who survived the testator. The beneficiary’s descendants take by substitution under the anti-lapse statute. * The statute itself will tell you relationship b/w the testator and beneficiary to which it applies. * (most common- limits to grandparents and descendants of grandparents) so won’t affect strangers/neighbors. * CA’s is most broad- applies to kindred of testator or kindred of testator’s spouse (kindred = blood related) * Are there substitute takers? * If no, go back to c/l result * If yes, do the statute

Answer 42

Does a residue of a no residue rule exist? * If yes, The lapsed gift falls out of the will and passes by intestacy (common law) California and modern rule: other residuary devisees absorb the gift.

Answer 43

* specific * gift of particular item that can be identified as part of the estate * general * quantity or type of property (ex. money) * demonstrative * type of property or quantity payable from specific item of estate (100k to you from the pay of the sale of my home)

Answer 44

Can be any type of gift, the class part of it beats the other type. If one person dies in the class, it gets absorbed by other members of class.

Answer 45

* Means the _gift fails because the property is not in the testator’s estate at death_ (e.g., it was destroyed, sold, given away, or lost) * Ademption applies only to **specific devises**. * Does not apply to general or demonstrative. For those, other property is sold to pay for the gift

Answer 46

Abatement is the process of reducing testamentary gifts in cases where the estate assets are not sufficient. Estates in most jurisdictions abate (reduce gifts) in the following order (after creditors are paid): * (i) Property passing by intestacy; * (ii) The residuary estate; * (iii) General legacies, which abate pro rata; * (iv) Specific devises and bequests. Within each category, some states provide that personal property abates before real property. Note that specific bequests and devises will not be sold or asked to contribute to satisfy general legacies. * Specific bequests and devises would abate to pay costs of administration, creditors’ claims, family allowance, or some other item with priority.

Answer 47

* -majority rule: can’t reform will for a mistake * -don’t fix mistakes in wills but do fix mistakes in trusts * In CA- pretty open to hearing extrinsic evidence and fix mistakes if clear and convincing evidence that: * It was a mistake * What testator wanted

Answer 48

* Nullification of a general gift from a will because it’s already been given * Identical to advancement * Satisfaction only applies to general gifts

Answer 49

* 4 perfect will substitutes. Replaces probate systems w/financial institutions * Revocable inter vivos trust * Life insurance * Various types of pay-on-death bank accounts * Transfer on death securities accounts * Pension accounts, primarily of the individual-account variety * 1 imperfect * Joint tenancy * Must give up 50% ownership during life

Answer 50

* A beneficiary of a revocable trust has no legally enforceable interest while the trust is revocable * The beneficiary has a mere expectancy rather than a cognizable legal right * The trustee is subject to the control of the settlor, and only the settlor may enforce the trustee’s fiduciary duties * If the settlor is also the trustee, then any action that diminishes the interest of a beneficiary cannot be a breach of trust but rather is an implied revocation to that extent * The settlor trustee of a revocable trust cannot be compelled by a beneficiary to account or to provide info and is not subject to liability for breach of trust * In almost every state a revocable trust is valid to transfer property at the settlor’s death without Wills Act formalities

Answer 51

* Majority view is that an inter vivos trust is revocable unless declared to be irrevocable * Majority view is that a revocable trust can be amended or revoked in any manner that clearly manifests the settlor’s intent to do so, unless the trust instrument specifies a particular method of amendment or revocation and makes that method exclusive

Answer 52

* Creditors can reach the settlor’s funds in a trust during life and death * However, they cannot reach life insurance payments, joint tenancy, and retirement benefits

Answer 53

* 1. No will; * 2. Will fails (denied probate); or * 3. Will does not dispose of all probate property * (i.e., undisposed-of property is subject to intestacy rules); or * 4. Will specifies intestate distribution

Answer 54

* 1. In all states, surviving spouse takes the entire intestate estate if no descendants survive and, in most states, one-half or one-third of the estate if descendants survive * 2. Some states and UPC provide for a dollar amount plus one-half or one-third if descendants survive * 3. UPC—surviving spouse takes entire estate if all surviving descendants are surviving spouse’s descendants

Answer 55

* 1. Descendants take share of estate not passing to surviving spouse * a. Majority—per capita with representation * b. Modern trend—per capita at each generation * c. Minority—strict per stirpes (i.e., division always at child level) * 2. If no descendants survive, the intestate estate passes: * a. To parents * b. If no parents, to descendants of parents * c. If no descendants of parents, to grandparents or their descendants * d. If no grandparents or their descendants, divided into maternal and paternal shares and pass to nearest kin (watch for laughing heir statute) * e. If no relative capable of taking, the estate passes to the state (escheat)

Answer 56

* 1. Adopted children—treated same as natural child in adopting family; all inheritance rights cut off in family of natural parents * 2. Stepchildren and foster children—no inheritance rights unless adopted, but may be exception for adoption by estoppel * 3. Posthumous children—child in gestation at decedent’s death inherits as if born in decedent’s lifetime * 4. Nonmarital children—can inherit from father if: * a. Father and mother married after child’s birth, * b. The man is adjudicated the father in a paternity suit, or * c. After the man’s death, he is proved to be the father of the child * 5. In most jurisdictions, siblings of the half blood and the whole blood inherit equally

Answer 57

* 1. Under the Uniform Simultaneous Death Act (“USDA”), property of each person passes as though he survived the other person * 2. Applies to probate and nonprobate transfers (e.g., wills, trusts, insurance) * 3. About half of the states have adopted 120-hour rule—must survive by 120 hours to take as a beneficiary, heir, etc., and avoid application of USDA * 4. Governing instrument can make different provision

Answer 58

* 1. Disclaimed property passes as though disclaimant predeceased decedent * 2. Disclaimer must describe the property and must be in writing, signed by the disclaimant, and filed within nine months * 3. Estoppel of disclaimer if benefits accepted

Answer 59

* 1. Lifetime gift presumptively not advancement of intestate share or in satisfaction of gift under will unless: * a. Intent is shown by a contemporaneous writing by donor (or will provision in case of satisfaction) or * b. There is a written acknowledgment by the donee

Answer 60

* 1. Testator age 18 and of sound mind (testamentary capacity) * 2. Testamentary intent—present intent to make a will * 3. Writing * 4. Signature of testator

Answer 61

* 2. Two attesting witnesses * a. Testator must acknowledge will or signature in witnesses’ presence * b. Witnesses must sign in testator’s presence * c. If witness is also a beneficiary, will is valid but gift to interested witness is purged unless: * 1) Witness is supernumerary * 2) Witness would take without the will (takes lesser gift) * 3) UPC provision (minority view) allows interested witness to keep gift * 3. UPC harmless error: defectively executed will can be given effect if clear and convincing evidence testator intended it to be his will

Answer 62

Pages present at execution are part of will if so intended

Answer 63

1. Must be executed with same formalities as a will 2. Republishes will 3. Revocation of will revokes codicils; 4. Revocation of codicil revokes only codicil—not will

Answer 64

* 1. The document must be: * a. In existence at the time the will was executed, * b. Sufficiently described in the will, and * c. The will must show intent to incorporate * 2. Signed list of tangible personal property is valid even if made or altered after will’s execution

Answer 65

Will may identify beneficiaries or property by reference to acts or events that have significance apart from the will

Answer 66

1. Cannot be disposed of by will 2. Includes life insurance, property passing by right of survivorship, property in trust

Answer 67

* 1. In most states, afterborn or after-adopted children take an **intestate share** * 2. Exceptions: * a. Omission appears intentional * b. At execution, testator had other children and left nearly all of his estate to other parent of omitted child * c. Testator provided for omitted child outside of the will * 3. UPC: omitted child may be limited to same bequest as to other children

Answer 68

* 1. Contest may be brought by any person whose interest would be directly affected by the will’s admission to probate * 2. Grounds: * a. Defective execution * b. Will offered has been revoked * c. Testator lacked testamentary intent or capacity * d. The will or gift is a product of undue influence * e. The will or gift was procured by fraud * f. The document was executed or gift made because of mistake

Answer 69

* 1. Testator must be at least 18 years old at date of execution * 2. Contestant must prove that testator could not understand: * a. Nature of act * b. Nature and extent of property * c. People who are the natural objects of testator’s bounty * d. Nature of disposition * 3. Capacity determined at time of will execution * 4. Insane delusion invalidates will only to extent delusion caused disposition

Answer 70

* 1. Requirements: * a. **Influence** exerted on testator, * b. **Overpowered** the mind and free will of testator, and * c. Product was **will that would not have been made** but for the influence * 2. Presumption of undue influence arises when: * a. There is a **confidential** relationship between the testator and beneficiary, and * b. The beneficiary participated in a **significant activity related to execution of the will**

Answer 71

* 1. Willful deceit as to character or content of will or as to a material fact * a. Fraud in execution—contents of instrument misrepresented * b. Fraud in the inducement * c. Fraudulent prevention of execution—possible constructive trust remedy * 2. Will or gift as result of fraud is invalid

Answer 72

* 1. Mistake as to instrument (did not know it was a will)—extrinsic evidence admissible * 2. Mistake in inducement—no relief unless mistake appears on face of will * 3. Mistake in contents * a. No relief for mistaken omission * b. Evidence not admitted to contradict plain meaning * c. Latent ambiguity (ambiguous as applied)—evidence admissible * d. Patent ambiguity (on face of will)—gift fails under traditional view, but modern view allows evidence of intent * 4. Reformation—UPC and Restatement permit court to reform will terms (even if will unambiguous) to conform to testator’s intent if clear and convincing evidence that testator’s intent or will terms were affected by fraud or mistake

Answer 73

Will be enforced unless contestant had probable cause to challenge will

Answer 74

A pour-over will devises property to the trustee (as trustee) of an inter vivos trust to be distributed in accordance with the terms of the inter vivos trust.

Answer 75

... among a group described such that membership in the class can fluctuate based on lifetime events. * yes: to my children alive at my death A gift that specifies the takers by name or number is presumptively not a class gift * no: to my 3 children, or to "bill, bob, and kathy"

Answer 76

... the administrative terms of a trust, such as a restriction on the trustee's investment power, if due to circumstances that the settlor did not foresee, the administrative direction threatens the primary purposes of the trust. This is in theory an inent promoting doctrine.

Answer 77

Yes, if the jx applies the harmless error doctrine. "Clear and convincing evidence that the testator intended the document to be his will" California: Clear and convincing evidence that the testator intended the document to be his will _when he signed it._

Answer 78

No. the property is imputed to them. Can only disclaim to avoid taxes and creditors.

Answer 79

... a resulting trust in favor of the T's heirs or residuary takers

Answer 80

No one is under an affirmative obligation to offer a will for probate unless requested to do so by an interested person.

Answer 81

* A gift of a specific item that cannot be found in the Ts estate at his death is adeemed only if the testator intended for the gift to be adeemed. * The UPC adopts a presumption against ademption when "replacement" property for the specifically devised property is found in T's estate at his death.

Answer 82

...doing so will carry out the intent of the testator.

Answer 83

Statutes require that nuncupative wills be made in the last sickness of the decedent, and they require witnesses.

Answer 84

The UPC revokes all testamentary gifts to an ex-spouse and to the ex-spouse's relatives. The property passes as if the spouse and her relatives disclaimed.

Answer 85

Demonstrative gifts abate with **specific** gifts to the extent that the specified asset identified in the gift is available to satisfy the gift, and they abate with **general** gifts for amounts beyond that.

Answer 86

Yes, but it must be within a reasonable time.

Answer 87

The UPC does not give anything to a pretermitted spouse if _the premarital will leaves all the property to children of the testator._

Answer 88

... a general residuary clause expresses an intent to exercise the power. (UPC)

Answer 89

general gifts. But the UPC provides that ademption by satisfaction is not limited to general gifts.

Answer 90

secret = constructive (unjust enrichment) semi-secret = resulting (does not specify what should happen with the property)

Answer 91

The beneficiary, even if they were divorced. ERISA trumps the law.

Answer 92

.... grantor / settlor

Answer 93

No To revoke by physical act, even in a harmless error jx, the revocation must touch the words of the will.

Answer 94

No. Even if the T believes a beneficiary has died. Exception: Under DRR, the mistake of fact must appear on the face of the will for a correction to be made.

Answer 95

The parent must have promised to adopt the child and must be raising the child with the child's biological parent. The child can only take in intestacy from the parent. (the parent cannot take in intestacy from the child) The child cannot inherit from the parent's relatives

Answer 96

You can't. You must leave all of the property to someone else. May not disinherit by negative will.

Answer 97

Can make a negative will. The heir is then treated as if they disclaimed.

Answer 98

B's estate. There were no words of survivorship.