Wills

Question 1

Dependent Relative Revocation

Answer 1

which allows a court to disregard a testator’s revocation that was based on a mistake of law or fact and would not have been made but for that mistake. The testator’s last effective will, prior to the set-aside revocation, will once again control his estate. The doctrine of DRR can apply to partial revocations as well.

Question 2

Inconsistencies between will and codicil

Answer 2

Codicil controls

Question 3

will cannot be found after the testator’s death, the burden is on the __________ to prove the will’s existence or non-existence by __________.

Answer 3

proponent, clear and convincing evidence

Question 4

will may be revoked wholly or partially in three ways

Answer 4

by subsequent writings, by physical destruction of the will, or by operation of law.

Question 5

valid revocation

Answer 5

Both the act and a simultaneous intent to revoke must be proven

Question 6

residuary clause

Answer 6

be able to distinguish a codicil to an existing will from a new will. If the subsequent document has a residuary clause, then it is likely a new will. If the subsequent document does not have a residuary clause but the first document does, then the subsequent document is likely a codicil.

Question 7

Revocation of will (effect)

Answer 7

Revocation of a will revoke all codicils; revocation of a codicil does not revoke the will to which it relates

Question 8

Revocation of codicil (effect)

Answer 8

Revocation of a will revoke all codicils; revocation of a codicil does not revoke the will to which it relates. REVIVES WILL.

Question 9

effect of divorce

Answer 9

divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive

Question 10

devise

Answer 10

refers to a gift of real property by will

Question 11

“bequest” or “legacy”

Answer 11

refers to a gift of personal property by will

Question 12

incorporation by reference

Answer 12

i) Existed at the time the will was executed;
ii) Is intended to be incorporated; and
iii) Is described in the will

Question 13

anit-lapse statute

Answer 13

will save the gift if:

(i) the gift was made to a beneficiary related to the Testator by blood within a certain degree of relationship, and
(ii) that beneficiary is survived by issue.

Question 14

abatement

Answer 14

if insufficient funds to pay for all, then goes in default order unless specified.

i) Intestate property;
ii) Residuary bequests;
iii) General bequests; and
iv) Specific bequests.

Question 15

ademption

Answer 15

denial of gift to beneficiary because the property is no longer in testator’s estate

Question 16

hotchpot

Answer 16

If a gift is treated as an advancement, the donee must allow its value to be brought into the hotchpot. The advancement is added back into the estate, and the resulting total estate is divided by the number of children taking.

Question 17

omitted spouse

Answer 17

Under the UPC, the spouse is entitled to 50% of the augmented estate. UNLESS:

i) A valid prenuptial agreement exists,
ii) The spouse was given property outside of the will in lieu of a disposition in the testator’s will; or
iii) The spouse was specifically excluded from the will.

Question 18

Time for interested party to file a will contest claim

Answer 18

6 mo.

Question 19

gifts are abated (reduced) in the following order:

Answer 19

gifts are abated in the following order:

(i) intestate property;
(ii) residuary bequests;
(iii) general bequests; and then
(iv) specific bequests. Abatement within each category is pro rata.