Wills Flashcards
a will is
an instrument that directs the disposition of a person’s property when they die
when is a will operative
upon death
when may a will be amended or revoked
until testator’s death
what rights do named beneficiaries in a will have
none - just an expectancy interest
requirements of a will (“formalities”)
in writing
signed by testator
signed by two witnesses
requirements regarding “signed by two witnesses” for a will
- witnesses must see testator sign the will
- must sign in testator’s presence within a reasonable time
attestation clause
clause included immediately between testator and witness signatures that sets forth that the signing requirements were met
What must Testator have to create a valid will
capacity
testamentary intent
capacity to will
person must be 18+ and have mental capacity
what is mental capacity
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
what is testamentary intent
T must have present intent that the instrument operates as his will
witness requirements
witnesses must be competent and not be subject to a limitation as to who can sign the will
when are witnesses competent to sign
when they are of sufficient maturity and mental capacity to understand and appreciate the nature of what they witness and attest to
interested witnesses
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
exceptions to interested witness rule under the majority approach
interested W may still take there was either 2 other disinterested witnesses, or W would take if there was no will
codicil
an amendment, modification, or alteration of a previously executed will
required formalities for a codicil
same as will - in writing, signed by T, presence of 2 Ws
Effect of Codicil
will is deemed republished and effective date becomes date of codicil
Holographic Will
handwritten, unwitnessed will
holographic will requirements
in T’s writing (at least material parts)
signed by T
reflect T’s intent to make a will
effect of holographic will
replaces and revokes any prior will
oral wills
not permitted generally
Methods of revocation of a will (5)
- by written instrument
- by physical act
- by proxy
- by partial revocation
- by operation of law
revocation by written instrument
must show present intent to revoke and adhere to the same formalities as will execution (writing, singed by T, sufficient witnesses)
revocation by physical act
burning, tearing, or otherwise destroying the will so long as T has the present intent to revoke at the time of the act
revocation by proxy
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
partial revocation
revocation may be accomplished by making marks of cancellation on the will (crossing out provisions)
revocation by operation of law arises when…
- omitted spouse
- divorce following execution of will
- omitted children
marriage following execution of a will (omitted spouse)
- no effect on the existing will in most states
- UPC: spouse takes intestate share
divorce following execution of a will
revokes all bequests made in favor of the former spouse unless the will expressly provides otherwise
Pretermitted Children
most states give child a share of T’s estate equal to what they would’ve got through intestate succession
Revival
where a will is revoked and the revoking instrument is subsequently revoked, the original will is presumed revived
re-execution of a will
a revoked will may be re-executed by a subsequent will or codicil if testamentary formalities are satisfied
Dependent Relative Revocation (DDR)
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
When will a court apply DDR
when this would come closer to satisfying T’s intent than intestate succession
Requirements of DDR
- revocation based on mistake
- revocation wouldn’t have happened absent mistake
- originally revoked will closer to T’s intent that intestate succession
Lapsed Gifts
a gift provided in a will lapses where the beneficiary predeceases testator
effect of lapse
gift ill go back into the residue of T’s estate
anti-lapse statute
a gift that would otherwise lapse vests in the predeceased beneficiary’s descendants
Class Gifts where one or more predecease T
surviving class members take predeceased’s gift unless an anti-lapse statute exists to vest the gift in the predeceased’s descendants
Ademption
a gift of specific property in a will fails if it is no longer in T’s estate at time of death
Abatement
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
Order of Abatement
- property not disposed of by will
- residuary estate
- general devises (abate pro rata)
- specific devises
In what ways may a will’s validity be challenged (5)
- lack of capacity
- lack of testamentary intent
- defective execution
- undue influence, fraud, or mistake
- will has been revoked
who has standing to contest a will
beneficiaries, someone who should be a beneficiary, and someone who would’ve taken if T died intestate
No Contest Clause
provides a B will lose their gift in the will if they challenge it
validity of no contest clauses
maj - no forfeiture of interest if contest is made in good faith on the basis of probable cause
min - clause given full effect
undue influence
a will is invalid if executed while T was subject to undue influence that effectively overrode his free will
requirements for undue influence
- influence was exerted over T
- Ts mind and free will were overpowered
- T’s will would not have been executed absent the undue influence
when does a presumption of undue influence arise
- confidential relationship
- B participated to a significant degree in executing, drafting, or procuring T’s will
requirements for fraud
- T has been intentionally deceived (contents of will or attendant facts)
- T acted in reliance on the misrepresentation
fraud
where one or more of the provisions of the will are the result of fraud, that part or provision will be invalid
Life Insurance Rule
T cannot change the beneficiary of a LI payout via will
Responsibilities of executor/representative
all matters generally related to winding up the estate
living will
doc specifying life-sustaining and pain-alleviating measures one does or does not want if he is indefinitely incapacitated
Durable Healthcare Power of Attorney
doc that appoints an individual as agent to make healthcare decisions on behalf of principal
