Wills

Question 1

3 ways to pass property at death

Answer 1

• Intestacy- government’s plan drafted default plan unless you get out of it. What would a typical person in this situation would want to happen.
• Will- document that has to comply with formalities thru probate
• Nonprobate transfers
  
  • Inter vivos trust

Life insurance

Pay-on-death and transfer-on-death contracts

Joint tenancy

Question 2

Discriminatory restrictions on testamentary gifts

Answer 2

Courts often uphold discriminatory restrictions on testamentary gifts if there is no state action

But no effect on provision with a divorce, illegal behavior, or disruption of family relations.

Question 3

A testamentary restriction with regards to marriage will be upheld

Answer 3

• if it is reasonable
  
  • It’s less reasonable if it is hard to meet
• It’s void if
  
  • the restriction is *not* getting married to inherit
  • divorce is necessary to inherit
  • it encourages illegal behavior
  • it encourages destruction of family relationships

Question 4

Who has standing to challenge a will?

Answer 4

Must have a direct pecuniary interest in the success of the will contest (contestant will receive more money if it is successful)

Moral interest is not enough

(Examples of interested parties are intestate heirs and legatees under earlier wills. Creditors do not have standing to contest a will because their claims can be asserted whether the decedent left a will or died intestate.)

Question 5

2 things are needed to make a will

Answer 5

1. Comply with formalities
2. State of mind
   
   1. Intent to make a will
      
      1. present intent
   2. Intent to leave property

Question 6

5 ways that defeat intent to make a will

Answer 6

• Lack of Mental Capacity
• Insane Delusion
• Undue Influence
• Fraud
• Duress

Question 7

What is mental capacity?

Answer 7

Amount of memory and understanding necessary to execute a will

• Mental capacity may come and go.
• Must be present at execution of will
• Must be lucid
• **Bizarre and eccentric behavior does not negate capacity if the behavior does not speak to the mental capacity test

Question 8

If a person is adjudicated incompetent, may she still be able to make a will?

Answer 8

Yes, because the standard is different

• But, a conservator can execute an estate plan in some instances. California says yes, but a court must approve it

Question 9

Test for testamentary (mental) capacity

Answer 9

Testator must be capable of knowing and understanding in a general way

• The nature and extent of her property
• The natural objects of her bounty (children, etc)
• That she is making a will
• Understands the first three at the same time

Question 10

Insane delusion

Definition

How does it affect the will?

Answer 10

Such a delusion is a belief in facts that do not exist and that no rational person would believe existed.

• Example: A belief that all children are spies for Communist China is an insane delusion. A belief that all children are cruel and mean, however, may not be an insane delusion if the testator’s life experiences are such that a sane person could come to that conclusion.

Only the parts affected by the delusion are stricken from the will

Question 11

Insane delusion

causation requirement

Answer 11

A will can be set aside on the ground of insane delusion if

• the delusion caused the testamentary disposition.
  
  • The contestant must show that the testator would not have made the disposition in question but for the insane delusion.

Question 12

Undue influence exists if…

Answer 12

…the influence exerted over the donor overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.

Only the parts affected by Undue Influence are stricken from a will. It does not invalidate the whole will.

Question 13

2 tests for Undue Influence

Answer 13

• Indicia
  
  • 4 factors
• Presumption (of UI)
  
  • Burden shifting approach. The defendant must show that they did not exercise undue influence.

Question 14

Undue Influence

Indicia test:

A trier of fact may infer undue influence from circumstantial evidence that shows that:

Answer 14

• 1. The donor was susceptible to undue influence
     * Factors relevant: young, old, weak, trusting. Look at the nature of the testator
• 2. The alleged wrongdoer had an opportunity to exert undue influence
     * Simple to show this element
• 3. The alleged wrongdoer had a disposition to exert undue influence; and
     * Was the D willing to do something improper?
• 4. There was a result appearing to be the effect of undue influence
     * Result is unnatural. Based on empirical evidence of what testators have historically done

Question 15

Undue Influence

Presumption test:

In most jx, contestant is entitled to a presumption of undue influence if the contestant shows the:

Answer 15

(1) existence of a confidential relationship and
(2) suspicious circumstances

Question 16

Undue Influence

A confidential relationship exists if:

Answer 16

A confidential relationship is found where one exerts dominant influence over another due to the other’s weakness of mind or body.

Factors

• Fiduciary (always confidential)
• Trustee (always confidential)
• dominant/subservient
  
  • Dependent for care or essentials
• Reliant
  
  • Like doctor/patient

Question 17

Avoiding a will contest

general notes

Answer 17

• A lawyer should take extra precautions at the will execution
• Use witnesses who will present well in court
• Have client to tell witnesses about the plan
• Have witnesses sign affidavits relating their impressions of the testator
• Make multiple wills across an extended period of time with the same disposition so that a contestant would have to overcome each of those wills
• Instead of a statement of reasons in the will, client should hand-write a letter to the lawyer setting forth in detail the disposition she wants to make
• A video recording if appropriate
• Hold a family meeting
• Use a no-contest clause
• Use an inter vivos trust with an institutional trustee
• Some states allow ante-mortem or living probate- declares a will to be sound

Question 18

Duress

Answer 18

When undue influence becomes physical coercion

• Threatened to perform
  
  • Or performed
• A wrongful act

Question 19

Fraud

test

Answer 19

5 elements:

• 1. Misrepresentation
• 2. Intentional
• 3. Intended to mislead
• 4. Intended to influence will
• 5. It does influence the will

Fraud in the execution

• Misrepresents the thing being signed

Fraud in the inducement

• Makes the testator change the will by misrepresentation

Question 20

Execution of wills

3 universal requirements

Answer 20

• Writing
• Signed by testator
  
  • Exception: someone may sign on behalf of T
    
    • 1. Testator asks them to sign on his behalf
    • 2. Must sign in presence of testator
• Will must be attested (have witnesses)
  
  • Exception: holographic will

Question 21

How perfect does execution need to be?

Answer 21

Harmless error standard (11 states, including CA)

• Will give effect if there is clear and convincing evidence that T intended the document to be his will

Question 22

Attestation

Presence

Answer 22

Test

• Line of sight
  
  • Could the T have seen them sign?
• Conscious presence
  
  • Telephone is not ok
  • Could the T understand through his senses that the will was signed

Question 23

Attestation

Signature

Answer 23

If the mark is intended to be a signature, then it is a signature

Question 24

Attestation

Interested witness

Answer 24

Interested witness: Person who will get something from the will

• Traditional purging statute
  
  • an interested witness is purged of their gift
• Majority modern purging statute
  
  • an interested witness will lose excess over what they’d take in intestacy

Question 25

Execution

Harmless error

Answer 25

Test:

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

Question 26

A valid will requires 2 kinds of testamentary intent:

Answer 26

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

Question 27

holographic wills

Answer 27

• 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

Question 28

holographic wills

date

Answer 28

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

Question 29

Can a letter or an informal written document be a will?

Answer 29

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.

Question 30

Can a pre-printed form work as a hologrphic will?

Answer 30

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

Question 31

holographic will

signature- where?

Answer 31

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

Question 32

holographic wills

handwriting

Answer 32

• 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.

Question 33

holographic wills

a letter

Answer 33

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.

Question 34

Revocation of will

3 ways

Answer 34

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

Question 35

Revocation of Wills

1. Execute a new will

Answer 35

• 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

Question 36

Revocation of Wills

2. Physical Act

Answer 36

• 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.

Question 37

Revocation of Wills

3. By operation of law

Answer 37

• 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.

Question 38

Partial revocation

Answer 38

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

Question 39

Revocation of Wills

Duplicates

Answer 39

• 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

Question 40

If a will can’t be found….

Answer 40

• …… 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)

Question 41

A typical DRR case involves:

Answer 41

• 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

Question 42

Dependent Relative Revocation

Answer 42

• 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.

Question 43

DRR

Mistake of fact

Answer 43

• 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

Question 44

Revival of a will

3 approaches

Answer 44

• 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

Question 45

Components of a Will

Integration

Answer 45

1. Testator intended thing to be part of will
2. The thing was physically present

Everything to be integrated should be stapled and numbered

Question 46

Components of a Will

Republication by codicil

Answer 46

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

Question 47

Components of a will

Incorporation by reference (of a document)

Answer 47

• 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

Question 48

Components of a Will

Acts of independent significance

Answer 48

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

Question 49

Classic per stirpes

Answer 49

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.

Question 50

Modern Per Stirpes

California approach

Answer 50

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.

Question 51

Per capita at each generation

Answer 51

Equally near, equally dear

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

Question 52

Intestacy

UPC Concepts

Answer 52

• 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

Question 53

Intestacy

basic scheme

Answer 53

• 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)

Question 54

Intestacy

Classic Per Stirpes

Answer 54

• 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.

Question 55

Intestacy

Modern Per Stirpes & California

Answer 55

• 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.

Question 56

Intestacy

Per Capita at each Generation

Answer 56

• 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.

Question 57

Intestacy

Collateral taking (when there are no issue)

Answer 57

• 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.

Question 58

Intestacy

Simultaneous Death

Answer 58

• 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)

Question 59

Intestacy

Advancement

Answer 59

• 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)

Question 60

Intestacy

Advancement

Hotchpot

Answer 60

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

Question 61

Managing a minor’s property

Answer 61

• 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)

Question 62

Bars to Succession

Answer 62

• 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

Question 63

Disclaimer

Answer 63

• 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

Question 64

Lapse

Answer 64

• 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?

Question 65

Lapse

Anti-Lapse Statute

Answer 65

• 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

Question 66

Lapse in the residuary gift

Answer 66

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.

Question 67

What types of gifts pass to the residuary when they fail?

Answer 67

• 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)

Question 68

Class gifts

Answer 68

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.

Question 69

Ademption

Answer 69

• 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

Question 70

Abatement

Answer 70

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.

Question 71

Openly Reforming Wills for Mistake

Answer 71

• -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

Question 72

Satisfaction

Answer 72

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

Question 73

Will substitutes

Answer 73

• 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

Question 74

Revocable trust

in general

Answer 74

• 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

Question 75

Revoking or amending a revocable trust

Answer 75

• 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

Question 76

Creditors and Revocable trusts

Answer 76

• 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

Question 77

Apply intestacy rules when

Answer 77

• 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

Question 78

intestacy

surviving spouse’s share

Answer 78

• 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

Question 79

Intestacy

Share of Descendants and other Heirs

Answer 79

• 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)

Question 80

Intestacy

Special cases

Answer 80

• 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

Question 81

Problems Common to Intestacy and Wills

Simultaneous Death

Answer 81

• 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

Question 82

Problems common to intestacy and wills

Disclaimers

Answer 82

• 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

Question 83

Advancement and Satisfaction

Answer 83

• 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

Question 84

Requirments for all wills

Answer 84

• 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

Question 85

Requirements for Attested wills

Answer 85

• 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

Question 86

Components of a will

integration

Answer 86

Pages present at execution are part of will if so intended

Question 87

Components of a Will

Codicils

Answer 87

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

Question 88

Components of a Will

Incorporation by reference

Answer 88

• 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

Question 89

Components of a Will

Acts of Independent Significance

Answer 89

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

Question 90

Nonprobate assets

Answer 90

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

Question 91

Pretermitted Child Statutes

Answer 91

• 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

Question 92

Will Contests

Standing and Grounds

Answer 92

• 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

Question 93

Will Contests

Testamentary capacity

Answer 93

• 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

Question 94

Will Contests

Undue Influence

Answer 94

• 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

Question 95

Will Contests

Fraud

Answer 95

• 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

Question 96

Will Contests

Mistake

Answer 96

• 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

Question 97

Will contests

No contest clause

Answer 97

Will be enforced unless contestant had probable cause to challenge will

Question 98

pour-over will

Answer 98

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.

Question 99

A class gift is a gift to be divided…

Answer 99

… 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”

Question 100

Under the doctrine of administrative deviation, a court may modify…

Answer 100

… 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.

Question 101

Can a holographic will be probated in a jx that does not recognize holographic wills?

Answer 101

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.

Question 102

Can one disclaim to avoid ineligibility for public assistance?

Answer 102

No. the property is imputed to them.

Can only disclaim to avoid taxes and creditors.

Question 103

The usual remedy with respect to a semi-secret trust is…

Answer 103

… a resulting trust in favor of the T’s heirs or residuary takers

Question 104

Is one required to offer a will for probate?

Answer 104

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

Question 105

UPC intent theory of ademption

Answer 105

• 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.

Question 106

The doctrine of republication by codicil should only be applied if…

Answer 106

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

Question 107

nuncupative wills

(oral wills)

Answer 107

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

Question 108

revoking gifts to an ex-spouse

Answer 108

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.

Question 109

Abatement: Demonstrative gifts

Answer 109

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.

Question 110

Under the UPC, may a witness sign after the T’s death?

Answer 110

Yes, but it must be within a reasonable time.

Question 111

Under the UPC, can a pretermitted spouse claim a share if the T is survived by children?

Answer 111

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

Question 112

UPC: If one has a testamentary general power of appointment, and there are not takers in default…

Answer 112

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

Question 113

ademption by satisfaction ususally applies to which type of gift?

Answer 113

general gifts.

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

Question 114

remedy for

secret trust vs. semi-secret trust

Answer 114

secret = constructive (unjust enrichment)

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

Question 115

Under the UPC, Will a signature attached to an affidavit be considered attached to a will?

Answer 115

Yes

Question 116

Under the UPC, who takes the employee pension plan / life insurance proceeds?

Answer 116

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

Question 117

A spendthrift provision will not be enforced against the creditors of the….

Answer 117

…. grantor / settlor

Question 118

Does the harmless error principle apply to acts of revocation?

Answer 118

No

To revoke by physical act, even in a harmless error jx, the revocation must touch the words of the will.

Question 119

Under common law, will a court correct a will on the grounds of mistake of fact?

Answer 119

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.

Question 120

equitable adoption

Answer 120

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

Question 121

How to disinherit someone under intestacy (Common Law)

Answer 121

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

Question 122

How to disinherit someone under intestacy (UPC)

Answer 122

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

Question 123

Testator’s will provides “I leave blackacre in trust to A for life, then to B.” At common law, if B fails to survive A, who will get blackacre at A’s death?

Answer 123

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