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Trusts & Estates > Wills > Flashcards

Wills Flashcards

1
Q

a will is

A

an instrument that directs the disposition of a person’s property when they die

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2
Q

when is a will operative

A

upon death

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3
Q

when may a will be amended or revoked

A

until testator’s death

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4
Q

what rights do named beneficiaries in a will have

A

none - just an expectancy interest

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5
Q

requirements of a will (“formalities”)

A

in writing
signed by testator
signed by two witnesses

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6
Q

requirements regarding “signed by two witnesses” for a will

A
  • witnesses must see testator sign the will

- must sign in testator’s presence within a reasonable time

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7
Q

attestation clause

A

clause included immediately between testator and witness signatures that sets forth that the signing requirements were met

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8
Q

What must Testator have to create a valid will

A

capacity

testamentary intent

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9
Q

capacity to will

A

person must be 18+ and have mental capacity

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10
Q

what is mental capacity

A

T must understand, at the time of execution:

  • nature of his act
  • nature and extent of his property
  • persons who are natural objects of his bounty
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11
Q

what is testamentary intent

A

T must have present intent that the instrument operates as his will

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12
Q

witness requirements

A

witnesses must be competent and not be subject to a limitation as to who can sign the will

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13
Q

when are witnesses competent to sign

A

when they are of sufficient maturity and mental capacity to understand and appreciate the nature of what they witness and attest to

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14
Q

interested witnesses

A

CL: if a W stands to benefit under a will, entire will probated
UPC: interested W is of no consequence
Maj.: if a W stands to benefit under a will, will is valid, but gift to W is void

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15
Q

exceptions to interested witness rule under the majority approach

A

interested W may still take there was either 2 other disinterested witnesses, or W would take if there was no will

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16
Q

codicil

A

an amendment, modification, or alteration of a previously executed will

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17
Q

required formalities for a codicil

A

same as will - in writing, signed by T, presence of 2 Ws

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18
Q

Effect of Codicil

A

will is deemed republished and effective date becomes date of codicil

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19
Q

Holographic Will

A

handwritten, unwitnessed will

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20
Q

holographic will requirements

A

in T’s writing (at least material parts)
signed by T
reflect T’s intent to make a will

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21
Q

effect of holographic will

A

replaces and revokes any prior will

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22
Q

oral wills

A

not permitted generally

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23
Q

Methods of revocation of a will (5)

A
  • by written instrument
  • by physical act
  • by proxy
  • by partial revocation
  • by operation of law
24
Q

revocation by written instrument

A

must show present intent to revoke and adhere to the same formalities as will execution (writing, singed by T, sufficient witnesses)

25
Q

revocation by physical act

A

burning, tearing, or otherwise destroying the will so long as T has the present intent to revoke at the time of the act

26
Q

revocation by proxy

A

T may direct another to revoke his will by physical act and this will validly revoke as long as it is done in T’s presence by his direction

27
Q

partial revocation

A

revocation may be accomplished by making marks of cancellation on the will (crossing out provisions)

28
Q

revocation by operation of law arises when…

A
  • omitted spouse
  • divorce following execution of will
  • omitted children
29
Q

marriage following execution of a will (omitted spouse)

A
  • no effect on the existing will in most states

- UPC: spouse takes intestate share

30
Q

divorce following execution of a will

A

revokes all bequests made in favor of the former spouse unless the will expressly provides otherwise

31
Q

Pretermitted Children

A

most states give child a share of T’s estate equal to what they would’ve got through intestate succession

32
Q

Revival

A

where a will is revoked and the revoking instrument is subsequently revoked, the original will is presumed revived

33
Q

re-execution of a will

A

a revoked will may be re-executed by a subsequent will or codicil if testamentary formalities are satisfied

34
Q

Dependent Relative Revocation (DDR)

A

doctrine under which a court disregards a revocation that was done to create an alternative disposition in another will, but was based on a mistake of law or fact

35
Q

When will a court apply DDR

A

when this would come closer to satisfying T’s intent than intestate succession

36
Q

Requirements of DDR

A
  • revocation based on mistake
  • revocation wouldn’t have happened absent mistake
  • originally revoked will closer to T’s intent that intestate succession
37
Q

Lapsed Gifts

A

a gift provided in a will lapses where the beneficiary predeceases testator

38
Q

effect of lapse

A

gift ill go back into the residue of T’s estate

39
Q

anti-lapse statute

A

a gift that would otherwise lapse vests in the predeceased beneficiary’s descendants

40
Q

Class Gifts where one or more predecease T

A

surviving class members take predeceased’s gift unless an anti-lapse statute exists to vest the gift in the predeceased’s descendants

41
Q

Ademption

A

a gift of specific property in a will fails if it is no longer in T’s estate at time of death

42
Q

Abatement

A

where an estate’s value is insufficient to pay its obligations and provide for disposition of property under a will, it must reduce (abate) gifts in order to pay those obligations

43
Q

Order of Abatement

A
  1. property not disposed of by will
  2. residuary estate
  3. general devises (abate pro rata)
  4. specific devises
44
Q

In what ways may a will’s validity be challenged (5)

A
  • lack of capacity
  • lack of testamentary intent
  • defective execution
  • undue influence, fraud, or mistake
  • will has been revoked
45
Q

who has standing to contest a will

A

beneficiaries, someone who should be a beneficiary, and someone who would’ve taken if T died intestate

46
Q

No Contest Clause

A

provides a B will lose their gift in the will if they challenge it

47
Q

validity of no contest clauses

A

maj - no forfeiture of interest if contest is made in good faith on the basis of probable cause

min - clause given full effect

48
Q

undue influence

A

a will is invalid if executed while T was subject to undue influence that effectively overrode his free will

49
Q

requirements for undue influence

A
  • influence was exerted over T
  • Ts mind and free will were overpowered
  • T’s will would not have been executed absent the undue influence
50
Q

when does a presumption of undue influence arise

A
  • confidential relationship

- B participated to a significant degree in executing, drafting, or procuring T’s will

51
Q

requirements for fraud

A
  • T has been intentionally deceived (contents of will or attendant facts)
  • T acted in reliance on the misrepresentation
52
Q

fraud

A

where one or more of the provisions of the will are the result of fraud, that part or provision will be invalid

53
Q

Life Insurance Rule

A

T cannot change the beneficiary of a LI payout via will

54
Q

Responsibilities of executor/representative

A

all matters generally related to winding up the estate

55
Q

living will

A

doc specifying life-sustaining and pain-alleviating measures one does or does not want if he is indefinitely incapacitated

56
Q

Durable Healthcare Power of Attorney

A

doc that appoints an individual as agent to make healthcare decisions on behalf of principal

Trusts & Estates (3 decks)

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