Wills Flashcards

Question

Life insurance proceeds

Answer 1

A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent’s estate, unless they are payable to the decedent’s estate as beneficiary. In most states, life insurance proceeds are payable to the beneficiary named in the beneficiary-designation form filed with the insurance company, even if the insured names a different beneficiary in a later-executed will. This rule is typically justified as a matter of contract: life insurance policies generally provide that policy proceeds will be paid only to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract.

Answer 2

THREE METHODS: - subsequent writings (latter will, codicil) (UPC says must qualify as either a valid codicil or attested will) - physical destruction of the will (prove intent to revoke and destroying act) -- majority rule is that act must deface the language (UPC disagrees; must only affect some part of will) - operation of law Cannot orally revoke a will. INCONSISTENCY: To the extent possible, the will and any codicils are read together. If there are inconsistencies, then the later document controls and revokes the prior inconsistencies. If a later will contains a residuary clause (e.g., “I leave all remaining assets of my estate to my brother”), then it revokes the first will by inconsistency. If a later will has an express revocation clause, then the first will is revoked.

Answer 3

If a will once known to exist cannot be found at the testator’s death, or is found mutilated, then there is a rebuttable presumption of revocation. The presumption is inapplicable if a duplicate original is found. Extrinsic evidence is permitted to rebut the presumption. The attorney-client privilege does not apply to a lawyer’s testimony concerning the contents of a will. The prevailing view is that the effective revocation of the original or a duplicate original presumptively revokes all other copies of the will, but that destruction of an unexecuted copy does not.

Answer 4

A third party can revoke on behalf of the testator as long as the revocation is: i) At the testator’s direction; and ii) In the testator’s conscious presence. If a testator calls his attorney requesting that she tear up his will, then the revocation is not valid because it was not done in the testator’s conscious presence. An attorney can be subject to liability for failing to advise her client regarding the proper revocation or execution of his will.

Answer 5

- Divorce - revokes all provisions in favor of former spouse unless shown that testator intended for will to survive - --- other jxs: In some states, however, divorce revokes a will provision for the former spouse only if the divorce is accompanied by a property settlement agreement. - --- If a divorced couple remarries before the testator dies, then the will provisions relating to the former spouse or domestic partner are revived. - --- The UPC takes a broader approach than many jurisdictions and revokes provisions containing devises to the relatives of the ex-spouse. Furthermore, the UPC also applies the revocation by operation of law doctrine to will substitutes. Unif. Probate Code § 2-804. However, due to federal express preemption, note that divorce will not automatically revoke the designation of a spouse as beneficiary of an employee benefit plan governed by the Employee Retirement Income Security Act

Answer 6

- Cannot increase a gift by canceling words in his will, but can decrease so long as the alteration is made to EXISTING LANGUAGE rather than addition of new language.

Answer 7

The majority of jurisdictions and the UPC permit partial revocation to revoke a provision of a will. The majority of jurisdictions provide that if the revoked gift falls outside of the residuary, it is not given effect until re-execution (signed again) or republication (new document) of the will. The UPC, however, provides that partial revocation is permissible regardless of the effect, even if it increases a gift outside of the residuary clause.

Answer 8

A holographic will can be altered or revoked in whole or in part by holographic changes and without a new signature. States that allow holographic wills also allow their revocation by formal wills and vice versa. On the other hand, some state statutes require both the holographic will and any changes be signed. If a subsequent holographic will disposes of part of an estate already disposed of in a typewritten will, then the typewritten will is revoked only to the extent that it is inconsistent with the later holographic will.

Answer 9

If the decedent had possession of her original will before her death, but the will is not found among her personal effects after death, jurisdictions are split as to whether a rebuttable presumption arises that the decedent destroyed the will with the intent to revoke it. 1. Duplicates and Copies Duplicate originals are two copies of the same will executed in the same manner, each complying with the same formalities. A duplicate original may be admitted to probate. A copy of a will, such as a photocopy, cannot itself be admitted to probate, although it may be used as proof of testamentary intent in the case of a lost or missing will. 2. Burden on the Proponent If a will cannot be found, then the burden is on the proponent of the existence of a will to prove the will’s existence by clear and convincing evidence. An attorney’s copy of an original is sufficient, whereas testimony by an interested witness is not. 3. Absence of Intent to Destroy If there is proof that a will has been destroyed, but there is no evidence that the testator intended to revoke the will, then the will can still be probated if there is clear and convincing evidence of the lack of intent to revoke and of the contents of the will.

Answer 10

Revocation of a will revokes all codicils thereto, whereas revocation of a codicil does not revoke a will, but rather revives it.

Answer 11

Revocation of a will revokes all codicils thereto, whereas revocation of a codicil does not revoke a will, but rather revives it.

Answer 12

REPUBLICATION - At CL (not many states), revocation that had revived another will revived the previous - MAJ: no-revival approach, The second will functions as (1) a revoking instrument that is effective upon its execution and also (2) a dispositive instrument effective upon the testator’s death. Therefore, even if the second will is revoked before the testator’s death, the revocation of the first will remains in effect. - Modern UPC approach: look at T's intent, considering (i) whether second will was revoked by an act or by another later will and (ii) if the second will is revoked by an act, whether the first will was wholly or partially revoked by the second will. If the second will is revoked by another new will, the previously revoked will (or its revoked parts if it was only partially revoked by the second will) is only revived if the terms of the new will show that the testator intended the previous will to take effect. In other words, the court will not consider any extrinsic evidence (e.g., oral statements by the testator) in determining whether the testator intended to revive the first will. If the second will is revoked by a physical act (i.e., burning, tearing, etc.), the burden of establishing the testator’s intent depends on whether the first will was wholly or partially revoked by the second will. If the second will wholly revoked the first will, the court will presume that the testator did not intend to revive the first will, and the burden will be on the proponent of the first will to prove that the testator intended to revive that will. Unif. Probate Code § 2-509(a). If the second will partially revoked the first will, the court will presume that the testator intended to revive the revoked parts of the first will, and those portions of the first will are revived unless the challenger of the first will establishes that the testator did not intend them to be revived. Unif. Probate Code § 2-509(b). In either case, the court is permitted to consider extrinsic evidence (e.g., the circumstances of the revocation, testator’s contemporary or subsequent statements) to determine the testator’s intent.

Answer 13

Under certain circumstances, many jurisdictions employ the equitable doctrine of dependent relative revocation (“DRR”), 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. Typically, courts apply this doctrine only when there is a sufficiently close identity between the bequest that was revoked and the bequest that was expressed in the invalid subsequent will.

Answer 14

- Subject to K law WRITING REQ Proof of contract can be established if: i) The will states the material provisions of the contract; ii) The terms are contained in a written contract; or iii) Express reference is made in the will to the contract, and extrinsic evidence proves the terms. UPC: The UPC requires that the contract be in writing and be within the will to be enforced through probate. Unif. Probate Code § 2-514. Otherwise, the contract must be enforced through contract law. CONSIDERATION: As with any other contract, consideration must be given for a will contract to be enforceable. Situations in which the beneficiary promises to care for the testator in exchange for a bequest provide sufficient consideration and make the contract enforceable.

Answer 15

To be enforceable in most states, a contract relative to making or not making a will must be in writing and signed by the party sought to be charged; otherwise, the plaintiff may recover only his consideration, including the fair market value of any services rendered. Whether the contract is breached will not generally be known until after the testator’s death. Thus, there is no remedy for a breach while the testator is still alive.

Answer 16

A joint will is a will signed by two or more persons that is intended to serve as the will of each. A joint will that is not reciprocal is merely the individual will of each of the persons signing the same document (and is treated as if there were several separate wills). A will that is both joint and reciprocal is executed by two or more persons, with reciprocal provisions, and shows on its face that the devises were made in consideration of the other. Reciprocal wills are wills with identical or reciprocal provisions. Because reciprocal wills are separate, there is no contract between the parties to dispose of the property in a particular way, which means that either party can modify his will without knowledge of the other.

Answer 17

In most jurisdictions, and under the UPC, the mutual execution of a joint or mutual will does not create a presumption of a contract not to revoke the will. Unif. Probate Code § 2-514. However, if a contract not to revoke is proved, and the second party attempts to make an inter vivos transfer not in accordance with the contract, or attempts to revoke her will after accepting the benefits under the first party’s will, then a constructive trust may be imposed for the benefit of the original beneficiaries. In a joint will contract, on the death of one party, the transaction is said to become an irrevocable contract as to the survivor.

Answer 18

1. Specific A specific legacy, devise, or bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate. 2. General A general legacy is a gift of personal property that the testator intends to be satisfied from the general assets of his estate. 3. Demonstrative A testator intends that a demonstrative legacy be paid from a particular source, but if that source is insufficient, then he directs that the legacy be satisfied out of the general assets of the estate. 4. Residuary A residual legacy is a legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.

Answer 19

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing: i) Existed at the time the will was executed; ii) Is intended to be incorporated; and iii) Is described in the will with sufficient certainty so as to permit its identification. Unif. Probate Code § 2-510. The UPC waives the requirement that the document have been in existence at the time the will was executed if the document disposes only of the testator’s tangible personal property. The will, however, must expressly state the testator’s intent.

Answer 20

1. In General A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator’s death, if the act or event has some significance apart from the will. Unif. Probate Code § 2-512 (“Events of Independent Significance”). The act may be in relation to the identification of property or of beneficiaries. EXAM NOTE: When analyzing a testator’s acts on the exam, look to the timing of the event. Recall that the doctrines of republication by codicil and incorporation by reference apply only to events that occurred in the past. For example, republication by codicil looks at a will executed before the codicil, and incorporation by reference requires the document to be in existence before the execution of the will (unless the UPC exception applies). The acts of independent significance doctrine, however, is the only doctrine that applies to future acts or events. 2. Independent Legal Significance If the testator, the beneficiary, or some third person has some control over the act or event, it may still have independent legal significance if it is unlikely that the testator or other person would perform such act solely for testamentary reasons. The execution or revocation of a will of a third person is an act of independent significance.

Answer 21

1. Common-Law Rule Under common law, if a beneficiary died before the testator, or before a point in time by which he was required to survive the testator under the will, then the gift failed and went to the residue unless the will provided for an alternate disposition. Absent a residuary clause, the gift passed through intestacy. A gift made by will to an individual who was deceased at the time the will was executed was treated as a lapsed gift. 2. Anti-Lapse Statute Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests. Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary. Most statutes require that the devisee who failed to survive was a grandparent, descendant of a grandparent, or a stepchild of the testator. Unif. Probate Code § 2-603. Most jurisdictions allow the statute to apply only to testamentary gifts. Under the UPC, however, the statute may also apply to nonprobate transfers. Unif. Probate Code §§ 2-706; 2-707. Example: T’s will provides, “I give $50,000 to my brother, B.” B predeceases T. Under anti-lapse, B’s issue would take the $50,000. 3. Class Gift Rule When a gift is to an entire class and one member of the class dies, only the surviving class members take. However, if an anti-lapse statute applies (because the predeceased class member was related to the testator), then the issue of the predeceased member also will take. The majority of states and the UPC apply the anti-lapse statute first, before the determination of a class gift. Unif. Probate Code §2-603. The UPC extends anti-lapse to life insurance policies in which the beneficiary predeceases the policyholder. Unif. Probate Code § 2-706. 4. Residuary Rule and Future Interests Under the UPC, if the residue is left to two or more persons and one dies, and if anti-lapse does not apply, then the remaining beneficiaries take in their proportionate shares. Unif. Probate Code § 2-604(b). This is contrary to the common-law “no residue of a residue” rule, under which the testator’s heirs succeeded to any lapsed portion of a residual bequest. Likewise, if a future interest is left to two or more persons and the gift to one of them lapses, then her share passes to the other future interest holders unless anti-lapse applies. 5. Void Gifts Although there may appear to be no difference between a void gift and a lapsed gift, the law sometimes makes a distinction and treats them differently. A gift is void if, unbeknownst to the testator, the beneficiary is already deceased at the time the will is executed. As noted above, a lapsed gift occurs when the beneficiary predeceases the testator after the will has been executed. Most states allow anti-lapse statutes to apply to void gifts.

Answer 22

Gifts by will are abated (i.e., reduced) when the assets of the estate are insufficient to pay all debts and legacies. The testator may indicate his intended order of abatement, but if he fails to do so, the law prescribes an order. If not otherwise specified in the will, gifts are abated in the following order: i) Intestate property; ii) Residuary bequests; iii) General bequests; and iv) Specific bequests. Unif. Probate Code § 3-902. Demonstrative legacies are treated as specific legacies for abatement purposes to the extent that they can be satisfied, and otherwise as general legacies. Within each classification, abatement is pro rata. 2. Specific Bequests A specific bequest may abate to satisfy a general legacy only if such intent was clearly indicated by the testator.

Answer 23

1. Ademption by Extinction The doctrine of ademption applies only to specific bequests. If the subject matter of a specific bequest is missing or destroyed (“extinct”), then the beneficiary takes nothing, not even the insurance proceeds or the equivalent in cash. This rule does not apply when the testator was incompetent, unless the will was executed prior to the incompetency. a. Traditional approach—“identity theory” The intent of the testator is not relevant in most states if the bequest is extinct. If the specifically bequeathed item is not a part of the estate at the testator’s death, then it is adeemed. 1) Substantial change A substantial change in the nature of the subject matter of a bequest will operate as an ademption, but a merely nominal or formal change will not. 2) Ademption disfavored Courts are inclined to avoid ademption by a variety of means, including the classification of a specific bequest as general or demonstrative, the classification of an inter vivos distribution as a mere change in form, and the creation of other exceptions to the doctrine. b. UPC approach—“intent theory” Under the UPC, the testator’s intent at the time he disposed of the subject matter of the bequest is examined. The UPC has essentially created a “mild presumption” against ademption and has created several doctrines to avoid it. The bequest to the beneficiary is adeemed if the facts and circumstances establish that the ademption was intended. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money relating to the extinction, the outstanding balance. Unif. Probate Code § 2-606(a). If neither the replacement property nor the outstanding balance doctrine applies, then the UPC provides that a beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition if ademption is inconsistent with the testator’s: i) Intent; or ii) Plan of distribution. Example: X’s will devises 123 Main St. to his son, Y. At the time of the will’s execution, X owned the property, but he later sold the property and used the proceeds to buy bonds. X still owned the bonds at this death. Under the majority rule and common law, Y would not receive the bonds at death, as the specific devise of property was adeemed. Under the UPC, Y would receive the bonds under the replacement property exception. c. Beneficiary entitlement If a gift is adeemed, then the beneficiary is entitled to: i) Whatever is left of the specifically devised property; ii) The balance of the purchase price owing from the purchaser of the property; iii) Any amount of condemnation award for the taking of the property, to the extent unpaid upon death; or iv) Property acquired from the foreclosure of a security interest on a specifically devised note. 2. Exoneration of Liens Under the common-law doctrine of exoneration, the specific devisee of encumbered real property was entitled to have the mortgage on the property paid from the estate as a debt of the decedent, unless there was evidence of a contrary intent on the part of the testator. However, in most states, the specific devisee of encumbered property takes subject to the mortgage, notwithstanding the fact that the will contained a clause directing the executor to pay the decedent’s debts. A specific devisee of encumbered property is not entitled to have the debt paid off by the residual estate unless the testator’s intent to do so is clear in the will. Unif. Probate Code § 2-607. A testator can specifically require that a lien be exonerated, in which case the encumbered property will not abate to exonerate the lien unless specifically stated in the will. Note: A general directive to pay debt is insufficient to direct the exoneration of liens. 3. Ademption by Satisfaction A general, specific, or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to the devisee after the execution of the will, if it was the testator’s intent to satisfy the devise by the transfer. a. Intent controls The testator’s intent to adeem must exist before the legacy or bequest is rendered inoperative. b. No presumption The UPC presumes no ademption by satisfaction, absent an express writing, and it limits the sources of evidence of the testator’s intent to adeem. Unif. Probate Code § 2-609. 4. Securities a. Pre-death changes At common law, the treatment of a gift of securities depended on whether it was a specific or general bequest. Many states hold that a stock dividend, like a cash dividend, is a property interest distinct from stock given by a specific bequest. A bequest of stock owned by a testator when the testator’s will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares of a security that were owned by the testator at the time the will was executed is deemed to include any additional shares of that security or of another security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions. If the bequest is a generic gift (e.g., does not specify a number of shares), then the beneficiary does not take any additional shares. Under the UPC, which rejects the common-law approach of classifying the type of bequest, a bequest of a security that was owned at the time the will was executed will include any additional shares of that security or of another security as long as the action was initiated by the corporate entity. A stock dividend is treated like a stock split instead of a cash dividend. Unif. Probate Code § 2-605. b. Post-death changes The classification of a gift controls the disposition of any income earned on the gift after the testator’s death. Specific bequests carry with them all post-death income, such as interest, dividends, and rent. General bequests carry with them interest earned on the amount bequeathed beginning one year after the decedent’s death, at a rate set by statute. Residual bequests are not interest-bearing.

Answer 24

Traditionally, there was a distinction between patent and latent ambiguities: patent ambiguities appeared on the face of the will and were required to be resolved within the four corners of the instrument but without extrinsic evidence; latent ambiguities were not apparent from a reading of the will and were allowed to be resolved by extrinsic evidence. Many states no longer distinguish between patent and latent ambiguities and allow both to be resolved by extrinsic evidence. If the ambiguity cannot be resolved, then the gift in question becomes part of the residue. A few states have adopted the Restatement (Third) of Property’s more liberal approach, which allows a court to reform a donative document based on clear and convincing evidence of (a) a mistake of law or fact or (b) the donor’s intention.

Answer 25

Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when the testator is unaware that she was signing a will. In a case of the wrong will being signed, courts are divided as to whether relief should be granted, although the modern trend is moving in the direction of granting relief. No extrinsic evidence is allowed and no relief is granted if the mistake involves the reasons behind the testator making the will or a particular gift. For example, if a testator would normally make a will leaving his estate to his two siblings, but, under the mistaken belief that one of his siblings has died, he instead makes a will devising his entire estate to only the other sibling, the court would not allow evidence of the mistake, and only the one sibling would take the estate. There is an exception to this rule if the testator was fraudulently induced or the mistaken inducement appears on the face of the will. If a will is missing provisions, then the court will not allow extrinsic evidence to show that the omission was accidental and will not grant relief. The court’s rationale is that the testator presumably knew of the will’s contents when he signed it.

Answer 26

Under the general rule of construction that a will “speaks” as of the time of death, a bequest of a generically described property applies to property that meets the generic description at the testator’s death.

Answer 27

1. Spousal Support The surviving spouse is entitled to the following means of support: Social Security, pension plans, homestead exemption, personal property, and family allowance. a. Social Security Only a spouse can receive a worker’s survivor benefits from Social Security. b. Pension plans Pension plans governed by the ERISA are required to give spouses survivorship rights. Unlike Social Security, a surviving spouse can waive her rights in the spouse’s pension plan, but such waivers are subject to strict requirements. c. Homestead exemption Under homestead exemption statutes, which vary by state, a certain acreage or value of real property is exempt from creditors’ claims, is inalienable during the life of the owners without consent, and passes upon death by statute, not by will. The amount of the homestead exemption differs by state, but the UPC as amended in 2008 recommends a lump sum payment of $22,500, up from $15,000. Any minor child or children of the decedent are entitled to the exemption amount in the absence of a surviving spouse. d. Personal property set-aside Some states have a statutory list of tangible personal property or a monetary limit to which the surviving spouse or, if none, any minor child or children of the decedent are entitled. e. Family allowance The surviving spouse has a right to a family allowance during probate, the amount of which varies by jurisdiction. Some jurisdictions permit minor children also to receive a family allowance. Depending on the jurisdiction, the family allowance is either a set amount or one based on the marital standard of living.

Answer 28

The application of the elective share, and the property to which it applies, varies depending on the jurisdiction. In common-law states, the elective share gives the surviving spouse a fraction (often one-third) of the decedent’s estate if the surviving spouse elects to take the elective share rather than any gift contained in the will. The elective share applies to all property of the decedent, regardless of when it was acquired. The elective share does not exist in community-property states. Instead, the surviving spouse is entitled to a forced share of one-half of the community property and quasi-community property. The spouse must elect to take this share in lieu of all other interests she may have under the testator’s will and must file a notice of election within a specified time period. The elective share is personal to the surviving spouse. c. Waiver The right of the surviving spouse to take her elective or forced share can be waived in writing if the writing is signed after fair disclosure of its contents.

Answer 29

1) Increasing share Under the UPC, the surviving spouse may take an elective-share amount equal to 50% of the value of the marital-property portion of the augmented estate. The marital-property portion is calculated by applying to the augmented estate a schedule of percentages that increase as the length of the marriage increases (e.g., 6% for the first year, 30% at five years). Unif. Probate Code § 2-203(a). 2) Satisfying share The elective share is satisfied first from property already received by the surviving spouse, then from the rest of the estate. Life estates granted to the surviving spouse are considered support and do not count in the valuation. Unif. Probate Code § 2-209.

Answer 30

In many states, the surviving spouse can set aside inter vivos transfers by the decedent made during the marriage, without spousal consent, if the decedent initiated the transfer within one year of his death, retained an interest in the property transferred, or received less than adequate consideration.

Answer 31

1) Scope A spouse may waive in whole or in part, before or during the marriage, the right to receive any of the following from the estate of his spouse: i) Property that would pass by intestate succession or by testamentary disposition in a will executed before the waiver; ii) Homestead, exempt property, or family allowances; iii) The right to take the share of an omitted spouse; or iv) The right to take against the testator’s will. 2) Validity requirements The terms of the waiver must be objectively fair and reasonable to both parties. a) Must be in writing The waiver must be voluntary and in writing and must be signed by the surviving spouse. It can be revoked or altered only by a subsequent writing signed by both parties, unless the waiver specifies other means of revocation. b) Independent legal counsel The surviving spouse must be represented by independent legal counsel at the time the waiver is signed. c) Adequate knowledge The surviving spouse must have had adequate knowledge of the property and financial obligations of the decedent at the time of the signing of the waiver.

Answer 32

While a marriage after the execution of a will does not invalidate the will, a spouse who is not mentioned in a will is entitled to an intestate share of the testator’s estate if the marriage began after the execution of the will, 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. Unif. Probate Code § 2-301. a. General rule When a spouse is omitted from a will, a rebuttable presumption is created that the omission was a mistake. b. Traditional doctrine The traditional view is that the presumption cannot be rebutted unless the intent to omit the spouse is apparent from the language of the will or the spouse was provided for outside of the will. c. UPC approach Under the UPC, an omitted spouse has the right to receive no less than her intestate share of the deceased spouse’s estate from that portion of the testator’s estate that is not already devised to a child or descendant of the testator if: i) The child is not a child of the surviving spouse; and ii) The child was born before the testator married the surviving spouse. The UPC expands the allowable evidence to include any other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse. Unif. Probate Code § 2-301.

Answer 33

The doctrine of advancements usually applies only to intestate succession. However, there is some authority for the proposition that the doctrine of advancements would apply if a will leaves property to the testator’s heirs. a. Common law At common law, any lifetime gift to a child was presumed to be an advancement of that child’s intestate share and was binding on those who would have succeeded to the child’s estate had the child predeceased the decedent. 1) Burden The child had the burden of demonstrating that the lifetime transfer was intended to be an absolute gift that was not to be counted against the child’s share of the estate. 2) Hotchpot 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. The advancement is then deducted from the total share of the child to whom it was given. If a child receives an inter vivos share that exceeds the hotchpot share to which each child is entitled, then that child does not take but is not required to pay back into the estate. b. Modern trend The UPC approach, which is the modern trend, provides that a gift is an advancement only if: i) The decedent declared in a contemporaneous writing (or the heir acknowledged in a writing) that the gift was an advancement; or ii) The decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift was to be taken into account in computing the division and distribution of the decedent’s intestate estate. Unif. Probate Code § 2-109. The value of an inter vivos gift is determined at the time the recipient takes possession or enjoys it, whichever is first. Unlike the common-law approach, the UPC applies to all heirs, not just the decedent’s children. c. Satisfaction of legacies Lifetime gifts to beneficiaries who take under a will are examined in a similar manner and follow the same rules as advancement of intestate shares. An inter vivos transfer occurring between the testator and beneficiary will satisfy the gift if (i) the testator intends that the transfer satisfy a testamentary gift and (ii)there is a written acknowledgment of such satisfaction by the testator or beneficiary. Inclusively, situations in which the testator’s intent is not apparent and cannot be proven will satisfy the legacy and give rise to the doctrine of ademption, if the testator makes an inter vivos transfer to the beneficiary of the specifically bequeathed item. See § V.F.3., supra.

Answer 34

A guardian has minimal power over property and must go through a difficult process to obtain the necessary court approval to act on behalf of a minor. The modern trend is to transform this function into a conservatorship, wherein the conservator acts as a trustee for the minor, with annual accounting to the court.

Answer 35

The Uniform Transfers to Minors Act, enacted in all states, appoints a custodian to use the property of a minor at the custodian’s discretion on the minor’s behalf without court approval and with no accounting requirement. The custodian must turn any remaining property over to the minor upon the minor’s attainment of age 21. If the beneficiary was a minor at the time the will was executed but attains age 21 prior to the testator’s death, then the property passes directly to the minor absent an instruction otherwise contained in the will.

Answer 36

1. General Doctrine Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the deceased testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental. a. Exceptions The omitted child statute does not apply if: i) It appears that the omission of the child was intentional; ii) The testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or iii) The testator provided for the child outside of the will and intended this to be in lieu of a provision in the will. Mention of a child in only one of two instruments that are being read together or the republication of a will by codicil after the birth of a child will preclude that child from claiming as an omitted heir, although this rule is flexibly applied. 2. UPC a. Adopted children The UPC rule applies to children adopted or born after the execution of the will. b. Presumption Unlike the UPC omitted-spouse doctrine, the omitted-child doctrine does not expand the scope of evidence admissible to show the testator’s intent to omit the child. However, extrinsic evidence is permitted to show the testator’s lack of intent to omit the child, and ambiguities are resolved in the child’s favor. The UPC does not permit the presumption to be overcome when a substantial portion of the estate is transferred to the other parent of the omitted child. c. Omitted child’s share If the testator had no other children when the will was executed, then the child takes her intestate share. If the testator has at least one other child living at the time of the execution of the will, and the will devised property to at least one of those children, then the omitted child’s share is taken from that portion of property already devised to the other child, and it must equal the share the other child receives. While the UPC does not extend the protection of the omitted-child statute to children of whom the testator was unaware, it does extend omitted-child status to children whom the testator believed to be deceased. Unif. Probate Code §2-302.

Answer 37

A party cannot take property from a decedent when the party was responsible for the decedent’s death. This includes an intestate share, an elective share, an omitted spouse’s share, exempt property, a homestead allowance, and a family allowance. Additionally, a joint tenant loses the right of survivorship benefits. The UPC and the majority of jurisdictions treat the killer as if he had predeceased the decedent. Unif. Probate Code § 2-803(b). a. Intentional and felonious The killing must have been intentional and felonious to bar the killer from taking. For example, involuntary manslaughter and self-defense killings do not fall within the homicide doctrine, although assisted suicide killings do. If a conviction fails, the court nonetheless may make a determination as to the lawfulness of the killing, using a preponderance of the evidence standard. Killings that were not intentional and felonious may result in the court imposing a constructive trust. b. Killer’s issue Jurisdictions are split as to whether the killer’s issue should also be barred from taking. The UPC treats the killer as if he disclaimed the property, which allows the killer’s issue potentially to take under the anti-lapse, per stirpes, and per capita doctrines, if the issue qualify. Unif. Probate Code § 2-803(b). c. Scope Under the UPC, the homicide doctrine applies to all property, whether probate or nonprobate. Purchasers of such property for value and without notice are protected, but the killer is liable for the proceeds.

Answer 38

Because acceptance of a testamentary gift is presumed, a party must actively disclaim if she wishes not to accept it. The disclaiming party is treated as if she had predeceased the decedent, and the property is distributed to the next eligible taker. a. Requirements Most disclaimer statutes have specific requirements that must be followed for the disclaimer to be effective. For example, an interest cannot be disclaimed once an heir or beneficiary has accepted the property or any of its benefits. Most jurisdictions require that the disclaimer be in writing, signed, and filed within nine months of the decedent’s death. The nine-month period begins to run at the later of the death of the decedent or the date the interest becomes vested. However, under federal law, and for the disclaimer to be valid for tax purposes, the disclaimer must be filed nine months from the later of the decedent’s date of death or the heir’s or beneficiary’s attainment of age 21. When disclaiming an interest acquired through joint tenancy, the surviving joint tenant has nine months from the date of the other joint tenant’s death to disclaim the interest. With future interests, while certain jurisdictions allow an heir or beneficiary up to nine months from the date the interest vests in possession to disclaim an interest, to avoid federal taxation, the interest must be disclaimed within nine months of its creation. When the future interest being disclaimed is a life estate, the testator’s remaindermen are determined at the testator’s death rather than the life tenant’s death as would generally be the case. The remainder is accelerated because the interest passes as though the disclaimant, in this case the life tenant, predeceased the decedent. Jurisdictions vary as to whether the disclaimer statute applies to probate property (the traditional approach) or whether it also includes nonprobate property (the modern approach) and must identify the decedent, describe the interest being disclaimed, and state the extent of the disclaimer. b. Who may disclaim A disclaimer can be made by a third party, such as a guardian, custodian, trustee, or personal representative, on behalf of a minor, incompetent, or decedent. A spendthrift clause in a will does not preclude a disclaimer.

Answer 39

Some states bar an individual from taking if she is guilty of elder abuse. Jurisdictions vary on the requirements, with some barring a taker when the conduct is only short of homicide and others barring a taker after a showing of abandonment. Most jurisdictions treat the abuser as if they have predeceased the decedent.

Answer 40

A few states restrict the inheritance rights of nonresident aliens.

Answer 41

Generally, a will contest must be filed within six months after the will is admitted to probate. Proper notice should also be given to all heirs and legatees under the will, as well as to creditors of the estate. Will contests must be made within the specified period after probate is opened, or the claims are barred.

Answer 42

Only directly interested parties who stand to benefit financially may contest a will, such as beneficiaries under the current or prior will. Creditors of beneficiaries, spouses of beneficiaries under prior wills, and pretermitted heirs cannot contest. 1. Decedent’s Creditors Because the decedent’s creditors have the same rights regardless of whether the will is contested, general creditors cannot contest, though a judgment creditor of a beneficiary under a will may be able to contest. 2. Spouse of a Beneficiary Under a Prior Will Neither a spouse nor any other prospective heir of a beneficiary under a prior will may contest. 3. Omitted Heir Because the omitted heir’s share is the same regardless of whether the will is contested, no omitted heir can contest a will.

Answer 43

To execute or revoke a will, the testator must be at least 18 years old and possess a sound mind at the time of execution or revocation. The testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know the: i) Nature of the act; ii) Nature and character of his property; iii) Natural objects of his bounty; and iv) Plan of the attempted disposition. The testator need only have the ability to know; actual knowledge is not required. Old age alone is insufficient to constitute lack of capacity. Courts will uphold wills of elderly testators who at least grasp the big picture about their financial affairs. Adjudication of incompetence is not dispositive on the issue of testamentary capacity; the above-listed factors must also be applied. The burden of proof is on the party alleging testamentary incapacity. Only those parties that would financially benefit, if successful, have standing to contest a will. Some states also require a deficiency in one of the following areas to prove lack of capacity: alertness and attention, information processing, thought processing, or mood modulation. Such deficiencies are also considered only if they significantly interfere with the individual’s ability to understand and appreciate the consequences of his actions.

Answer 44

Even if a person has testamentary capacity, a defect in the testator’s capacity may invalidate all or part of a will. An insane delusion is a belief for which there is no factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. Courts, however, will generally not apply the doctrine to religious or spiritual beliefs. Both undue influence and fraud require misconduct by a third party, whereas an insane delusion arises independently. 1. Rational-Person Test The majority rule is that a belief is an insane delusion if a rational person in the testator’s situation could not have reached the same conclusion. 2. “But For” Causation Once it is determined that the testator suffered from an insane delusion, it must be shown that this was the sole cause of the testamentary disposition. The majority view requires “but for” causation, such that the testator would not have disposed of the property in the same manner but for the insane delusion. EXAM NOTE: Remember to discuss causation when analyzing whether an insane delusion exists. Unless the insane delusion was the cause of the strange disposition, there is no defect in capacity.

Answer 45

Undue influence is mental or physical coercion exerted by a third party on the testator with the intent to influence the testator such that he loses control of his own judgment. Circumstantial evidence, without any direct evidence, is insufficient to establish undue influence. Simply having an opportunity to exert influence or demonstrating the testator’s susceptibility to being influenced (e.g., due to old age, poor health, or memory problems) does not establish that the testator’s mind was overpowered. Several factors are considered in determining the extent of a beneficiary’s involvement in procuring the will. Among them are the beneficiary’s recommendation of an attorney and providing the attorney with instructions, the beneficiary’s presence during the writing and execution of the will, and the beneficiary’s securing of witnesses. Once a will is determined to have been the product of undue influence, it may be invalidated in whole or in part, as long as the overall testamentary scheme is not altered thereby. Most courts will invalidate only those portions that are infected by undue influence. 1. Burden of Proof The burden of proof rests on the contestant to show (i) the existence and exertion of influence and (ii) that the effect of the influence was to overpower the mind and will of the testator. The result must be a will that would not have been executed but for the influence. 2. Presumption a. Confidential relationship Because the defendant is in the best position to provide evidence, the majority of jurisdictions require a burden-shifting approach. If the elements of the jurisdiction’s statute are satisfied, then a presumption of undue influence arises that shifts the burden to the defendant. A presumption of undue influence arises when the principal beneficiary under a will stands in a confidential relationship to the testator (such as the testator’s attorney or physician), when he participated in executing the will, and when the gift to the beneficiary is unnatural or consists of the majority of the estate. Some jurisdictions also include whether the testator was of a weakened intellect. No confidential relationship exists between husband and wife. To have a confidential relationship, the testator must confide, trust, or rely upon the other party as a result of his weakened or dependent state. b. Burden of proof shifts When a presumption of undue influence arises, the burden shifts to the beneficiary to show by a preponderance of the evidence that such influence was not exercised. Some courts have held that a higher standard applies, especially in cases involving alleged physician or attorney misconduct. c. Treatment of a beneficiary A beneficiary who is shown to have exerted undue influence is treated as having predeceased the testator to the extent that the gift to her exceeds her intestate share of the testator’s estate. 3. Traditional Doctrine Under the majority view, the undue influence doctrine has the following elements, all four of which must be shown: i) Susceptibility (the testator was susceptible to being influenced); ii) Motive or predisposition (the influencer had reason to benefit); iii) Opportunity (the influencer had the opportunity to influence); and iv) Causation (the influencer caused an unnatural result). EXAM NOTE: As with insane delusions, undue influence is extremely fact-sensitive. Remember to discuss causation and the specific facts of the particular case when analyzing whether the will was a product of undue influence. Unless the undue influence is the cause of the strange disposition, there is no defect in capacity.

Answer 46

Fraud, like undue influence, must have been present when the will was executed. The burden of proving fraud is on the contestant. 1. Elements The misrepresentation must be made by the beneficiary with both: i) The intent to deceive the testator; and ii) The purpose of influencing the testamentary disposition. The result must be a will that would not have been executed but for the fraud. 2. Fraud in the Inducement Fraud in the inducement is a knowingly false representation that causes the testator to make a different will than he would have otherwise made. A fraudulently procured inheritance or bequest is invalid only if the testator would not have left the inheritance or made the bequest had he known the facts. 3. Fraud in the Execution Fraud in the execution (or “fraud in the factum”) is fraud as to the very nature of the instrument or its contents. 4. Constructive Trust A constructive trust can be imposed upon the defendant to rectify any alleged fraud or undue influence perpetrated upon the testator. A constructive trust is sometimes said to be a fraud-rectifying trust. However, a constructive trust may also be imposed when no fraud is involved but the court believes that unjust enrichment would result if the defendant retained the property. 5. Probate Must Be Contested A person who objects to a will based on fraud or undue influence must contest its probate; the will may be partially probated if the fraud or undue influence goes only to certain provisions. If the fraud or undue influence prevented the execution of a will in favor of the plaintiff, then she may request the imposition of a constructive trust, although some courts impose intestate succession laws.

Answer 47

A no-contest clause (also called an in terrorem clause) is an express clause within a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so. The majority of states and the UPC have held no-contest clauses to be unenforceable against claimants as long as the claimant had probable cause to contest. If the claim is spurious, then the clause is enforceable. Unif. Probate Code §§ 2-517; 3-905. A minority of states give the no-contest provision full effect, regardless of whether probable cause to challenge existed.

Answer 48

In some jurisdictions, the proportion of the estate that a testator who is survived by a spouse, parent, or child may leave to charity is statutorily limited. In others, a will that bequeaths property to charity may be required to have been executed more than a specified length of time before the testator’s death in order to be effective. Laws containing such requirements are known as Mortmain Acts. Most states impose no such limitations on charitable bequests due to either legislative reform or judicial invalidation by reason of unconstitutionality under the Equal Protection Clause.

Answer 49

a. Absolute restrictions are prohibited Provisions in a will imposing a forfeiture of a gift if the beneficiary should ever marry are invalid as against public policy. Similarly, requirements that a beneficiary may marry only with the consent of executors or trustees who would profit under the terms of the will by withholding consent have been held invalid. b. Partial restraints are generally valid Most provisions, however, that might initially be viewed as absolute restraints on marriage have been construed by the judiciary as mere statements of the testator’s motives or attempts by the testator to provide for a person until marriage and, as such, have been upheld. Conditions in partial restraint of marriage are not against public policy if they merely impose reasonable restrictions on marriage or attempt to prevent an ill-advised marriage (e.g., to a specific individual). A provision conditioning a gift upon the beneficiary’s not marrying a person outside his own religious group has been held to be valid. In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009).

Answer 50

A decedent’s assets as of the date of his death are divided between probate and nonprobate property. Probate property is property that passes under intestacy or under the decedent’s will. Nonprobate property passes under an instrument other than a will (e.g., joint tenancy property, life insurance, and pension plan proceeds). Probate provides evidence of transfers of title, protects creditors by requiring payment of debts, and directs distribution of the decedent’s property after creditors are paid. EXAM NOTE: When analyzing how to distribute property, first pass any nonprobate property to those identified in the nonprobate instrument. Any remaining property is probate property, and the takers of probate property depend on whether there is a valid will. If the decedent did not have a valid will (or if there is property not properly disposed of in the will), then the property is distributed intestate, pursuant to the jurisdiction’s statute on distribution.

Answer 51

1. Jurisdiction The administration of the decedent’s probate estate is governed by statute. a. Primary jurisdiction The county in which the decedent was domiciled at the time of his death has jurisdiction over the decedent’s personal property and over any real property within that jurisdiction. b. Notice Most jurisdictions require that notice be given to interested parties before the administrator is appointed. c. Ancillary jurisdiction Ancillary jurisdiction applies to real property located in another jurisdiction for the purpose of protecting local creditors and ensuring adherence to the jurisdiction’s recording system. d. Administration After the court issues its “letters testamentary” or “letters of administration,” the personal representative is authorized to begin performing his duties on behalf of the estate. Bona fide purchasers from personal representatives or heirs are protected after the granting of letters of administration, even if the will presented at the time the letters were granted is subsequently invalidated. 2. UPC Under common law, a will could be probated at any time, even decades after the testator’s death. The UPC provides that probate proceedings must be brought within three years of death, after which there is a presumption of intestacy. The party requesting probate can choose to have it occur through either ex parte probate or notice probate. Unif. Probate Code § 3-102. a. Ex parte probate (informal or no notice) Ex parte probate is informal and requires no notice for the representative to petition for appointment. The original will must accompany the petition, and the executor must swear that, to the best of his knowledge, the will was validly executed. Within 30 days of appointment, the personal representative must give notice to all interested persons, including heirs apparently disinherited by the will. b. Notice probate (formal) Notice probate is a formal judicial determination made after notice is given to interested parties. Any interested party can demand formal probate. 1) Reasons A formal proceeding may be used to probate a will, to block an informal proceeding, or to secure a declaratory judgment of intestacy. 2) Final Formal proceedings are final if not appealed.

Answer 52

1. Period of Limitations Each state has nonclaim statutes that bar creditors from filing claims after a specified time period has elapsed. If a claim is not made within that specified period after probate is opened, then the claims are barred. 2. Notice The personal representative must provide notice to creditors of the estate, advising them of when and where to file claims. Failure to give the proper notice to creditors extends the time period they have to file a claim against the estate. 3. Priority of Claims All jurisdictions have statutes that provide the order in which expenses and debts are to be paid: i) Administrative expenses; ii) Last medical expenses and funeral expenses; iii) Family allowance; iv) Tax claims; v) Secured claims; vi) Judgments against the decedent; and vii) All other claims.

Answer 53

A personal representative is either named in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent’s affairs. Any person with the capacity to contract may serve as a personal representative. Each state has a detailed statutory procedure for authorizing an executor or administrator to act on behalf of the estate. If an executor is not named in a will, then the court will appoint an administrator. In either case, the authority of the personal representative to act on behalf of the estate comes from the court. Generally, the personal representative must also file a bond, unless the will states otherwise. 1. Priority for Appointment Persons who are not disqualified to serve as the personal representative should have priority for appointment in the following order: i) the person named in a probated will; ii) the surviving spouse of the decedent who is a devisee of the decedent; iii) other devisees of the decedent; iv) the surviving spouse of the decedent; v) other heirs of the decedent; vi) 45 days after the death of the decedent, any creditor. Unif. Probate Cord § 3-203. 2. Principal Duties The principal duties of the personal representative are to: i) Provide notice to legatees, heirs, and claimants; ii) Inventory and collect the assets of the decedent; iii) Manage the assets during administration; iv) Receive and pay claims of creditors and tax collectors; and v) Distribute the remaining assets to those entitled thereto. The scope of power to administer the estate varies among jurisdictions. Some jurisdictions permit unsupervised administration absent special circumstances with a final accounting to the court, while others require constant supervision and authorization. 3. Fiduciary Duty The personal representative of an estate is a fiduciary and owes the highest duty of loyalty and care to those whose interests he represents, which means that he cannot profit from the trust instilled in him. The personal representative is not discharged from his fiduciary duties until the court grants such discharge. Common law permits a personal representative to be held personally liable for the actions of the estate. Under the UPC, personal representatives can be sued in their representative capacity only for a breach of the fiduciary duty. Unif. Probate Code § 7-306. 4. Closing the Estate The personal representative is expected to complete the administration and distribute the assets promptly, including paying creditors and tax collectors. Judicial approval of the personal representative’s actions is required to release the personal representative from potential liability. The personal representative may receive compensation for his services. The compensation is determined by statute based on the estate’s value or by the court. However, the court may deny compensation if the personal representative has breached his fiduciary duties.

Answer 54

A power of appointment describes the ability of the testator (donor) to select an individual (donee) who may be given the authority to dispose of certain property under the will, similar to an agent. The power is personal to the donee, meaning the donee cannot transfer the power to anyone else. The power may be (i) testamentary (i.e., exercisable only by the donee’s will) or (ii) presently exercisable (i.e., the donee may exercise the power during his lifetime). Types There are two general categories of powers of appointment: general powers of appointment and special powers of appointment. 1. General Power of Appointment A power of appointment in which there are no restrictions or conditions on the donee’s exercise of the power is a general power of appointment. Thus, the donee may appoint himself, his estate, his creditors, or the creditors of his estate as a new owner. As such, if the donee exercises a general power, then the donee’s creditors can reach the appointive property. The same holds true if the donee is also the donor of the power. Failure to exercise a general power of appointment causes the appointive property to revert back to the donor’s estate. See, Unif. Probate Code §2-608. 2. Special Power of Appointment a. Exclusive A special power of appointment is a more limited power than a general power of appointment in that it allows the donor to specify certain individuals or groups as the objects of the power, to the exclusion of others. This makes the power an exclusive special power of appointment. As such, the donor may decide to exclude the donee, the donee’s creditors, the donee’s estate, or the creditors of the donee’s estate. In fact, a special power is presumed to be exclusive because it may favor some objects over others. In addition, the donor may make the donee’s exercise of the power conditional on whatever factors, within legal bounds, the donor desires. Unlike with a general power, creditors are prevented from reaching the appointive property—even if the donee exercises the power—unless the transfer of property was intended to defraud the creditors. b. Nonexclusive A nonexclusive special power of appointment allows the donee to exercise the power to appoint among a class of individuals (e.g., grandchildren). It is nonexclusive because the donee cannot exclude a member of the class; he must appoint an equitable share to all appointees to prevent favoring one or two appointees over all others. When the donee fails to exercise the power, and when no gift in default of appointment is provided for in the will, the court will imply a gift to the objects of the special power and direct a distribution.

Answer 55

1. Exercising Power Any instrument, unless the donor directs otherwise, may be used to exercise a power of appointment. However, if the power is testamentary, then it may be exercised only by a will. Most jurisdictions hold that a residuary clause alone is insufficient to exercise any power of appointment held by the testator as donee. If there is a blanket power of appointment included within the residuary clause, then the courts will give effect to the power. A phrase such as “including any power of which I may have a power of appointment” would constitute a blanket power of appointment. A blanket exercise clause is effective to exercise powers unless the donor of the power of appointment specifically requires the donee to refer to the instrument creating the power when exercising the power. Most states allow a donee to exercise his power of appointment to create a trust for the benefit of the object of the power rather than transferring the property outright. 2. Contracting the Power When a donee is given a testamentary power of appointment, a contract to make an appointment is invalid because it would defeat the donor’s purpose of having the donee exercise the power of appointment at the donor’s death. On the other hand, if a donee is given a presently exercisable power of appointment, then a contract to appoint would be valid.

Answer 56

The Uniform Power of Attorney Act (2006) (UPOAA), which has been adopted by 26 states, articulates the general requirements for powers of attorney in most states. A power of attorney is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent. To be valid, a power of attorney must be in writing, signed, and dated. The principal must be mentally competent at the time she signs the document. Reasonable compensation is allowed based on the responsibilities to be performed and reimbursement of costs. UPOAA §§ 102, 105, 112. Types 1. General A general power of attorney allows an agent to handle all affairs during a period of time when the principal is unable to do so. This power of attorney is very broad and provides extensive powers to the agent, such as those related to financial matters, filing tax returns, buying and selling property, etc. Additional powers may also be granted, such as the powers to make gifts, maintain business interests, and make transfers to revocable trusts. 2. Special A special power of attorney limits the powers to a specific function and duration, such as selling a particular piece of property when the principal is traveling or otherwise unavailable. 3. Advance Healthcare Directives An advance healthcare directive may encompass a living will, a durable power of attorney for healthcare, or both. A living will dictates to a medical provider the healthcare that an individual wants in the event that the individual is unable to make those wants known. A healthcare power of attorney appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions. Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal. a. Execution requirements An advance healthcare directive must be in writing, signed by the individual who is to receive the care, and either witnessed by at least two individuals or notarized. In many states, the agent or the healthcare provider cannot be a witness; in some states, a spouse, heir, or beneficiary of the individual cannot be a witness. Some states require the use of a specific form or a substantially similar form. Under the Uniform Health-Care Decisions Act (UHCDA), which has been adopted by seven states, instructions regarding future healthcare can be oral as well as written, but the appointment of a healthcare agent must be in a signed writing. UHCDA § 2. b. Revocation In most states, an individual may revoke an advance healthcare directive at any time. A living will may be revoked by tearing, obliterating, burning, or destroying the instrument. Revocation becomes effective when it is communicated to the testator’s primary physician. Under the UHCDA, to revoke the designation of an agent, the revocation must be contained in a signed writing or be made personally to the supervising healthcare provider. UHCDA § 3. In the case of a former spouse, revocation is automatic upon annulment or dissolution of the marriage. c. Eligible agents and surrogates In most states, the agent must be at least 18 years old. In addition, unless he is a spouse or close relative, the agent cannot be the individual’s healthcare provider or an employee of the provider. The agent may be related to the principal and may even be a devisee under the principal’s will or an heir of a principal without a will. If an agent has not been appointed or cannot serve, a surrogate may make a decision on behalf of the patient. Under family consent laws, a family member may act as a surrogate. Under the UHCDA, a hierarchy, running from the (i)patient’s spouse (unless legally separated) to (ii) his adult child to (iii) his parent to (iv) his adult brother or sister, is established. If none of these relatives is reasonably available, then an adult who exhibited special care and concern for the patient and who is familiar with the patient’s personal values may serve as surrogate. UHCDA § 5. d. Authority of an agent In most states, a healthcare power of appointment, unlike a typical power of appointment, is durable; that is, the agent’s power to act on the principal’s behalf is not terminated by the incapacity of the principal. Under the UHCDA, a healthcare agent’s authority becomes effective only upon the incapacity of the principal and ceases to be effective upon the recovery of capacity by the principal. UHCDA § 2. An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest. UHCDA § 2.

Answer 57

1. Durable Power of Attorney Unless the agency states an earlier termination date, the agency continues until the death of the principal. In the majority of jurisdictions and under the Uniform Power of Attorney Act, a power of attorney is presumed to be durable, which means that it will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). The power can expressly provide that it is not durable, in which case it is terminated by the incapacity of the principal. UPOAA § 104. 2. Duties An agent has the following fiduciary duties: i) Exercise the powers for the benefit of the principal and in accordance with the principal’s reasonable expectations; ii) Act in good faith; iii) Separate the assets of the principal from the agent; iv) Exercise reasonable care, competence, and diligence; v) Account for all transactions made on behalf of the principal; and v) File an accounting of his administration whenever so directed by the court. UPOAA § 114. 3. Liability The typical durable healthcare power of attorney statute shields the agent from civil liability for healthcare decisions made in good faith. Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney. In general, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong. This type of protection is included in most power of attorney documents to help encourage people and organizations to accept the responsibility of being an agent. 4. Revocation Powers of attorney may be revoked by the principal at any time, regardless of the principal’s mental or physical condition. UPOAA § 110.