Wills Flashcards

Question

In Virginia, what are the implications if a witness to a will is interested?

Answer 1

Virginia does not imposes any restrictions on interested witnesses

Answer 2

Additions to an earlier will, which must be executed with same formalities as underlying witnessed or holographic will

Answer 3

As long as the witness is giving legal effect to the document with her signature, it does not matter whether she knows it's a will

Answer 4

1. Handwritten 2. Wholly in testator's handwriting * As proven by at least 2 disinterested persons 3. Signed by testator 4. Including death talk - i.e., indication that it is intended to be a will

Answer 5

Must demonstrate the finality of the instrument, so probably needs to either: * Have name _at the end_ of the will * Have a _statement of finality_, such as: * "This is my last will and testament." If not, maybe a chance that the harmless error statute could apply if clear and convincing evidence of intent, because there is at least some sort of a signature here - but unlikely

Answer 6

Not a valid codicil because not a final act - attorney must actually make changes and have the testator execute

Answer 7

Rare situation in which there is a full judicial proceeding with notice to all interested parties to decide whether there is a valid will

Answer 8

If at the time of execution or afterwards, the following formalities are met: 1. Testator acknowledges the will 2. Witness acknowledges the will 3. Before a notary public This demonstrates that the will is not lacking in any formalities, assuming that the proper formalities were acknowledged in the affidavit, so it cannot be challenged as lacking in probate

Answer 9

6 months after will admitted to (or denied from) probate * If order from a clerk or court deputy 1 year after will admitted to (or denied from) probate * To file bill in equity

Answer 10

No time limit

Answer 11

If the property is _real property_, the bona fide purchaser is protected unless the property is probated _within one year_ of the decedent's death

Answer 12

Holographic will * 2 disinterested witnesses to testify about handwriting Witnessed will * 1 witness, whether interested or disinterested, to testify about presence during signature * Doesn't matter if the other witness denies

Answer 13

Probate takes place wherever the decedent was domiciled If real property is located out of that state, the personal representative must file ancillary probate where the real property was located (i.e., the situs) in order to pass title

Answer 14

Virginia Rule * Unless a will includes a contrary intention * If a beneficiary, including one under a class gift, is both: * A relative of the testator (blood) * Dead at the time of either: * Execution of the will * Death of the testator * The beneficiary's descendants who survive the testator take the bequest in place of the beneficiary (per stirpes) Application * Only wills * Not: * Intestate succession * Non-probate instruments Common law * Under common law, the beneficiary's interest would lapse when he predeceased

Answer 15

Class gift * Gift to class of persons (e.g., brothers and sisters, etc.) Not class gift * Gift to group of individuals (e.g., Al, Bill, and Carl) Rules 1. Predecease * When one class member predeceases (and the anti-lapse statute doesn't apply), surviving members of the class take on that member's interest 2. Administrative convenience * Under this rule, the class closes when some other member is entitled to a distribution (usually when testator dies)

Answer 16

With a class gift, when one member predeceases and isn't saved by the anti-lapse statute, his share goes to the other members With a gift to a group of individuals, when one individual predecases and isn't saved by the anti-lapse statute, his share goes back to the residuary estate

Answer 17

Only if both: 1. They are in gestation when the testator dies 2. They are bornw within ten months later

Answer 18

Virginia provides for an _omitted spouse_, thereby including the spouse at the time of death, unless: 1. Testator _stipulates otherwise_ in the will 2. Testator _executes new will_ after marrying omitted spouse 3. New _spouse disclaims_ interest in testator's estate 4. New spouse _does not survive_ testator 5. New _spouse deserts or kills_ decedent and is barred

Answer 19

Assuming that the divorce results from a final decree, Virginia treats the former spouse as having _predeceased_ the testator Notes * Only those portions of the will that would have gone to the former spouse are revoked * This rule also applies to _ALL DEATH BENEFITS_, including non-probate instruments * So property held in tenancy by entirety or join tenancy becomes held as joint tenants (half and half)

Answer 20

If testator had _no other living children_ when will was executed * Child receives what he would have gotten under intestate succession * _Unless_ the will provides otherwise If testator had _other living children_ when will was executed * Child receives lesser of: * What he would have gotten under intestate succession * The largest bequest to any child * _Unless_ the will provides otherwise

Answer 21

1. _Physical destruction_ 2. Valid _subsequent will_ that revoked the previous will and its codicils either: * Expressly * Impliedly 3. _Divorce or annulment_ revoked portions of a will in favor of the former spouse

Answer 22

Yes, but to be valid, the act by another must be both: 1. At the testator's request 2. In the testator's presence E.g., cannot call lawyer who is out of state and tell the lawyer to destroy the will - must have physical presence of testator _Note_: but Virginia's harmless error statute might apply to the physical act if there is clear and convincing evidence of the testator's intent to revoke

Answer 23

Lost will * If the will can be traced to the testator's possession or control, but cannot be found, it is presumed to have been revoked by physical act * If presumption rebutted by clear and convincing evidence, a copy of the will may be used Mutilation * If the will can be traced to the testator's possession or control, and it is found mutilated, it is presumed to have been revoked by physical act

Answer 24

Not unless either: 1. Will #1 is re-executed 2. Republication by codicil applies (i.e., testator validly executes a codicil to Will #1 and revives it)

Answer 25

If physical revocation of a will is done based on an assumption (albeit invalid) that it will be succeeded by another will, the revocation is reversed, provided that the revoked will is still consistent with the testator's intention

Answer 26

By meeting the _proof of lost wills_ test: 1. Establish due execution 2. Prove cause of non-production (i.e., DRR) 3. Prove contents of will by clear and convincing evidence

Answer 27

* Inconsistent provisions in otherwise valid wills, * Or wholly inconsistent wills that are otherwise invalid, * Result in revocation of the earlier provision or will * By the later provision or will

Answer 28

1. Pay expenses from the following sources, _first personal property, then real property_, in order: * Intestate assets * Testate assets * Residuary gifts * General legacies * Demonstrative legacies * Specific bequests 2. Distribute testate assets 3. Distribute intestate assets _NOTE_: estate taxes exception

Answer 29

1. Residuary gifts * Remainder of estate 2. General legacies * General amount of money 3. Demonstrative legacies * General amount of money from specific source 4. Specific bequests * Specific item

Answer 30

Personal property is "abated" (i.e., reduced) in order to pay creditors before real property

Answer 31

Estate taxes are _equitably apportioned_ among all estate beneficiaries (i.e., everyone's interest is reduced pro rata) Exception: * The following gifts are excluded because they do not generate tax: * Gifts under the marital deduction * Gifts under the charitable deduction

Answer 32

Ademption by extinction * If a _specific_ item of land or personal property that is devised or bequeathed in a will is not included in the decedent's estate at the time of death, the devisee or legatee _gets nothing_ Exceptions 1. Virginia has _abolished equitable conversion_ for purposes of ademption by extinction * So if the property is sold before death, but the buyer still owes money on that sale, the devisee or legatee gets to collect the unpaid balance, provided the will does not state otherwise 2. Fire or casualty _insurance proceeds paid after_ the decedent's death * So if the property is stolen before death, and the estate receives insurance proceeds after death as a result, the devisee or legatee gets those 3. _Condemnation awards paid after_ the decedent's death * So if the property is condemned before death, and the estate receives an award after death as a result, the devisee or legatee gets that 4. _Guardian or conservator sells_ property after decedent becomes disabled or incompetent * So if the guardian or conservator after the decedent becomes incompetent or disabled sells the property, the devisee or legatee gets a general legacy and can get the proceeds 5. Bequests of _securities_ * If the form of securities changes (i.e., via stock split, takeover, etc.) the legatee still gets whatever substance remains

Answer 33

In 2007, Virginia _reversed the common law rule_ that allowed for exoneration of liens * So, unless the will states otherwise, any specific devise of real or personal property passes subject to any mortgage or other security interest or lien * Exceptions: * If lien was created by either: * Agent acting under durable power of attorney * Testator's conservator, guardian or committee

Answer 34

1. Extrinsic writing must be _in existence_ when will executed 2. Will must show an _intent to incorporate_ the writing 3. Will must _describe_ the writing with _reasonably certainty_

Answer 35

A separate list of can pass items to named recipients in a will _even if created after execution_ of the will if the list: 1. Refers only to _tangible personal property_ (i.e., not money) 2. Describes the items with _reasonable certainty_ 3. Signed by _testator_ 4. Is referenced in the _will_ and the will is _valid_

Answer 36

The will can include property described in a way that allows it to _change between the time of execution and death_ E.g., my car, the paintings in my living room, etc.

Answer 37

Does the mistake create a _plain meaning_? * Plain meaning in language of the will _cannot be altered_ or changed through extrinsic evidence * E.g., 200 shares of ABC stock, rather than 300 Does the mistake create an _ambiguity_? * _L__atent ambiguity_ - i.e., defect doesn't appear on face * Can be altered through extrinsic evidence * E.g., my favorite nephew * _P__atent ambiguity_ - i.e., defect appears on face * Can be altered through extrinsic evidence * E.g., $25,000 (Twenty-Five Dollars)

Answer 38

1. Facts and circumstances 2. Testator statements of intent to third parties (e.g., lawyer)

Answer 39

No. Virginia takes the minority approach here. But an action could be brought against the attorney under the bar disciplinary code.

Answer 40

1. Both tangible and intangible personal property 2. Tangible personal property only * General words that follow specific items include only the types of property of the same type as the specific items

Answer 41

Definition * When a testator gives someone a life estate and then asks that person to _pick someone_ to receive the remainder at the end of the life estate Parties * Donor * Testator who gives the power of appointment * Donee * Beneficiary who takes the power of appointment * Takers in default of appointment * People who take the property if power of appointment is not exercised Types * General * Donee not limited in beneficiaries she can appoint * Special * Donee limited in beneficiaries she can appoint * Testamentary * Donee can only exercise power upon death by will * Power presently exercisable * Donee can exercise power at any time

Answer 42

Under the majority rule followed in Virginia, there is no exercise of the power Exception: * Power of appointment exercised by implication if in donee's will she attempted to dispose of property subject to the power as though it was her own * Only way to give effect to that provision in her will

Answer 43

When there is _clear and convincing evidence_ of a contract either: * In the will * From extrinsic evidence * By clear implication from surrounding circumstances

Answer 44

1. Apply wills law * Try to admit the contractual will to probate using contest and revival arguments 2. Apply contract law * Try to impose a constructive trust in favor of the beneficiary of the contractual will by arguing breach of contract

Answer 45

* Survivorship accounts * E.g., property passing by right of survivorship, including tenancy by entirety, joint tenancy, etc. * Payable on death transfers * E.g., Property passing by contract, including life insurance benefits, employee retirement benefits * Intervivos trusts * E.g., property held in trust and trust terms govern * Powers of appointment * E.g., property over which decedent held power of appointment NON-PROBATE INSTRUMENTS ALWAYS TRUMP WILLS

Answer 46

Permits _augmenting the probate estate_ with: * Non-probate transfers * Gifts to the decedent's spouse within a few years So as to allow the decedent's surviving spouse to reach a portion of the non-probate assets

Answer 47

If descendants * 1/3 of augmented estate If no descendants * 1/2 of augmented estate _PLUS_ interest at _6%_ from date of death until share is satisfied

Answer 48

* Spouse * Court (if spouse incapacitated, so state can get medicaid) NOT: * Conservator or guardian of spouse * Spouse's estate after she dies

Answer 49

File _notice_ of election within _6 months_ after: * Will admitted to probate * Administrator of intestate estate appointed _Note_: court can extend to up to 90 days if a suit is brought to construe the will or augment the estate

Answer 50

All _contribute ratably - i.e., equitable apportionment_

Answer 51

1. Probate estate * Property passing by will or intestacy, net of debts and expenses 2. Transfers to spouse * Lifetime gifts to spouse if still owned or sold by spouse at time of death * Exception: * Exclude tangible personal property (e.g., jewelry, birthday gifts, etc.) 3. Transfers to third parties * **STRINGY LEGS**) * Strings-attached lifetime transfers * Life insurance * Employee death benefits * Gifts in excess of $14,000 * Survivorship estates

Answer 52

(**JOG**) * Joinder * Transfers that the spouse agreed to * Old transfers * Irrevocable transfers to 3d parties before Jan. 1, 1991 * Gifts to decedent * Separate property acquired by gift, will, or inheritance from anyone other than surviving spouse

Answer 53

(augmented estate - property already passing to spouse) / (elective share - property already passing to spouse)

Answer 54

Only an _interested party_ - i.e., person with _economic interest_ that would be _adversely affected_ by will's probate

Answer 55

The entire will is denied probate There is a presumption that a _witnessed will_ resulted from testamentary capacity But for a _holographic will_: * The _proponent_ of the will must prove that at the time of execution, the testator did not/was not: 1. Understand the _nature_ of the act he was doing 2. Know the _extent_ of his wealth 3. Know the _natural objects_ of his bounty 4. Able to _interrelate_ the above three issues

Answer 56

No. This is not sufficient to establish lack of capacity. The proponent of the will must fail to establish the four elements

Answer 57

_Only the provisions_ of the will resulting from undue influence are denied probate (cf. lack of testamentary capacity) Test * Someone with standing - i.e., economic interest that will be adversely affected, must show: * Suspicious circumstances * That demonstrate a desire to overcome the mind and will of the testator * And the provisions at issue were the result of this

Answer 58

* Mere _opportunity_ to exert undue influence * Mere _susceptibility_ to influence (e.g., age, illness) * Mere _fact of unnatural disposition_ (e.g., excessive gift)

Answer 59

Initially, a party with standing - i.e., economic disadvantage But it _shifts_ if that party proves a _confidential relationship_ between the alleged influencer and the testator, thus creating a _presumption of undue influence_

Answer 60

1. Relationship of trust 2. Priest-penitent 3. Doctor-patient 4. Guardian-ward 5. Attorney-client

Answer 61

Creates a presumption of undue influence, that the person can only rebut by showing by a _preponderance of the evidence_ that the testator was able to resist and make his own decisions

Answer 62

Under the majority common law rule, yes unless the contest was made in good faith and there is probable cause to contest The law in Virginia is unsettled, but it probably does not recognize the probable cause exception, so no contest clauses are likely to always be effective in Virginia Exceptions: * The following are not contests: * Elective share * Petition for ommitted spouse * Petition for ommitted descendant

Answer 63

Generally, where he was domiciled at death _Unless_ he was moved to a nursing home, then it is where he was domiciled before the move, because that's where he intended to be

Answer 64

1. Take an oath * That as far as you know, this is decedent's _last will_ * That you will _faithfully perform_ your duties 2. Post bond * Equal to value of decedent's personal estate and any real estate to which you have a power of sale 3. Provide surety on the bond * Unless the will waives this requirement

Answer 65

Yes, provided that they: * Appoint a Virginia resident agent for service of process * Are not a non-Virginia bank

Answer 66

During first 30 days after death 1. Spouse if no descendants 2. Spouse with written consent of all descendants 3. Any distributee that is sole heir 4. Any distributee with written consent from other distributees After those 30 days * Any distributee as clerk of court sees fit

Answer 67

Generally, yes. However, Virginia has enacted a statute that requires any interest in a multi-party account to be included in probate, even if held in joint tenancy (in which case half is included)