Wills

Question 1

If a will fails to dispose of all property

Answer 1

Analyze the rest through intestacy rules

Question 2

Surviving Spouse Rules (UPC)

Answer 2

1. ) If all descendants are SS’s and SS has no others - takes entire estate
2. ) No parents or descendants - takes entire estate
3. ) No descendants of D, bu surviving parent - 300,000 + 75%
4. ) All of D’s issue are issue of SS, but SS has other issue - 225,000 + 50%
5. ) D has issue not related to SS - 150,000 + 50%

Question 3

Community Property

Answer 3

In CP state, 50% of property is given to/stays with SS, and separate property is then distributed.

Question 4

Effect of separation

Answer 4

Doesn’t make a difference until the divorce is finalized.

Question 5

Putative spouses

Answer 5

putative spouse may qualify if SS believes in GF that it’s valid

Question 6

120 Hour Rule, Simultaneous Death

Answer 6

Must show CCE that survived by 120

If not, each is treated as having predeceased the other

Question 7

Determination of Death

Answer 7

• At CL: Irreversible cessation of circulation and respiratory functions means death
• Modern Rule: Look for brain death.

Question 8

Posthumous Children

Answer 8

• Child is presumed to be the decedent’s child if born within 280 days (some jxs: 300)
• POSTHUMOUSLY CONCEIVED CHILDREN: No usually recognition of inheritance rights

Question 9

Effect of adoption

Answer 9

Severs previous relationship (except stepparent adoption)

Question 10

Foster Parents and Stepparents

Answer 10

Generally, no right of inheritance unless ACTUAL OR EQUITABLE ADOPTION.

Question 11

Equitable Adoption

Answer 11

TWO METHODS:

• Relationship started during child’s minority and established by CCE that a legal barrier prevented the adoption; or
• Foster parent agreed w/ genetic parents to adopt child, and child was treated as own

EFFECT:

• Effect of Equitable Adoption: Child can inherit from, but not through; equitable parents cannot inherit through or from child

Question 12

Out-of-Wedlock Children

Answer 12

MODERN: Cannot inherit from father unless (i) father subsequently married the natural mother; (ii) father held the child out as his own and lived with the child or provided support; (iii) paternity is proven by CCE after father’s death; (iv) paternity is adjudicated during the father’s lifetime by P/Ev.

UPA:

• Proof of parentage is needed to inherit
• PRESUMPTION of parentage when father holds out child to be his own (and child can bring action to establish parentage any time)
• • if no presumption, then child must bring action within three years of age of majority

Question 13

Share Calculation

Answer 13

• Per Capita with Representation - divide equally among first generation w/ at least one living member
• Per capita at each generation - divide equally among first generation w/ at least one living member, then repool the share and repeat w/ each generation
• Per Stirpes - issue equally share the portion that the deceased ancestor would have taken if living (so divide among number of decedent’s children still living or with issue)

Question 14

Ancestors and remote collateral rules

Answer 14

• PARENTELIC APPROACH: Follow collateral lines until a living taker is found, then distribute within line
• DEGREE OF REPRESENTATION APPROACH: Count number of relatives between living taker and decedent, using closest common ancestor
• COMBINED APPROACH: Those in the collateral line take to exclusion of those in a more remote line
• UPC APPROACH: 1) D’s parents equally, 2) descendants of D’s parents, 3) D’s living grandparents, 4) descendants of D’s deceased grandparents, 5) D’s nearest relative, 6) escheats

Question 15

Execution requirements

Answer 15

1. ) Signed (at bottom or anywhere depending on jx, but if not at bottom, nothing after will stand
   - formal name not required
   - can get signature by someone else in presence and at D’s direction

2.) Capacity - 18+, of sound mind, must understand nature and extent of property, persons who are the natural object of his bounty, disposition they’re trying to make, and the testamentary plan

3. ) 2+ witnesses
   - some jxs require joint signatures simultaneously; others w/in a reasonable time thereafter.
   - need not sign at bottom
   - PRESENCE: traditionally tested by “line of sight test”; UPC uses conscious presence test (be aware through any sense)

• INTERESTED WITNESS RULE: At CL, invalid unless 2 other disinterested witnesses. Some jxs use a “purge theory,” purging the amount that witness would receive in excess of their intestacy share. UPC abolishes this rule.

4. ) PRESENT TESTAMENTARY INTENT
   - and must generally know of and approve of contents, though doesn’t have to understand the precise legal provisions

5.) INTEGRATION - must have all intended pages at execution

Question 16

Compliance

Answer 16

• CL: Strict Compliance

- UPC: Substantial compliance with CCE of intent

Question 17

Holographic wills

Answer 17

• Handwriting req: Some jxs require the whole thing to be in T’s handwriting, others just the material provisions
• No witnesses
• Date: some jxs
• Signature: Has to be T, no proxy
• Testamentary intent: jxs are split on proof w/ contents or extrinsic evidence - UPC says testator’s intent can be discerned from other parts of the will (A jurisdiction requiring strict compliance, however, will require that the testator’s intent be discernible by the handwritten parts of the will as opposed to preprinted parts on a form will)
• MODIFICATION: OK if in handwriting of T; interlineations are effective in most jxs

Question 18

Self-proved wills

Answer 18

Will executed w/ attesting witnesses may be self-proved by the acknowledgment of the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form.

EFFECT: removes necessity for testimony of attesting witness in formal probate

Question 19

Oral wills

Answer 19

ONLY FOR -

1. ) Disposition of personal property,
2. ) in contemplation of immediate death. (BOTH MUST BE MET)

Not recognized in most jurisdictions.

Where valid, require two witnesses, and can devise only a limited amount of personal property. Some require T die within certain amount of time

Question 20

Codicils

Answer 20

• republishes will
• can validate a will in certain circumstances (if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will)
• must be executed with same formalities.

Courts look to the intent of the testator to determine whether to read the provisions of the will as having been republished as of the date of the codicil.

Question 21

Foreign wills

Answer 21

Under the Uniform International Wills Act (UIWA), a will is valid irrespective of the place where it was made, the location of the testator’s assets, and his nationality, domicile, or residence, provided it complies with the act. The UIWA requires that the will be in writing, signed, and witnessed by two individuals plus a third person who is authorized to act in connection with international wills and who must prepare a certificate to attach to the will. The testator must declare the instrument to be his will and demonstrate knowledge of its contents.

Question 22

Incorporation by reference

Answer 22

Under the common-law doctrine of “incorporation by reference,” if a will refers to an unattested document that is in existence at the time the will is signed, then the terms of that document could be given effect in the same manner as if it had been properly executed. Under this doctrine, for example, the terms of an amended revocable trust would not apply to the disposition of the probate estate assets (because the amendment was not in existence at the time the will was executed). However, the necessity for this doctrine has been obviated under the Uniform Testamentary Additions to Trusts Act (UTATA), codified at the Uniform Probate Code (UPC) § 2-511. Under the UTATA, a will may “pour over” estate assets into a trust, even if the trust instrument was not executed in accordance with the Statute of Wills, as long as the trust is identified in the will, and its terms are set forth in a written instrument. Furthermore, if these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable. UPC §2-511.

Question 23

Deeds as an alternative to a will

Answer 23

A deed can effect a nonprobate transfer of property upon the death of the grantor if the deed is executed with the present intent of transferring a property interest to the grantee (e.g., a remainder interest). If so, then the deed need not comply with the requirements for execution of a will. However, in a majority of jurisdictions, if the grantor intends that the grantee have the property interest only upon the grantor’s death (i.e., a testamentary intent), the deed is not effective to transfer the property interest unless the deed complies with requirements for the execution of a will.

A minority of jurisdictions allow for the transfer of real estate on death using a transfer on death (TOD) deed, which merely requires the same formalities as an intervivos deed, as opposed to will formalities.

Question 24

Joint bank accounts

Answer 24

Amounts on deposit in a bank account may be transferred at death by means of a joint or multiple-party account designation. The surviving tenant or tenants have an absolute right to the account proceeds, unless extrinsic evidence is introduced that the decedent added the tenant or tenants for convenience purposes only. For example, creating a joint account in order to give the cotenant check-writing privileges, such as can be case with the child of elderly owner of an account is considered a convenience. In such case, the cotenant is treated as agent of the original owner of the account. In that case, some courts, including those following the UPC, set aside the joint tenancy in the bank accounts. Unif. Probate Code § 6-212 cmt. Other courts still affirm the joint tenancy, relying on the parol-evidence rule to exclude evidence of the depositor’s intentions. Still other courts have created a presumption that cotenants who have a present right to demand payment from a joint or multiple-party account, whether the account is in the form of a joint and survivor account or an agency account, own the account in proportion to their contributions to the account.

Question 25

Life insurance proceeds

Answer 25

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.

Question 26

Revocation

Answer 26

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.

Question 27

Presumption of revocation

Answer 27

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.

Question 28

Revocation by 3P

Answer 28

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.

Question 29

Revocation by operation of law

Answer 29

• 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

Question 30

Alteration of gifts

Answer 30

• 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.

Question 31

Partial revocation

Answer 31

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.

Question 32

Revocation or alteration of holographic wills

Answer 32

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.

Question 33

Lost wills

Answer 33

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.

Question 34

Revocation of a codicil

Answer 34

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

Question 35

Revocation of a codicil

Answer 35

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

Question 36

Methods of revival

Answer 36

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.

Question 37

dependent relative revocation

Answer 37

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.

Question 38

Will contracts

Answer 38

• 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.

Question 39

enforceability of will contract

Answer 39

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.

Question 40

Joint Wills, Reciprocal wills

Answer 40

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.

Question 41

Contract Not to Revoke

Answer 41

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.

Question 42

Types of devises

Answer 42

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.

Question 43

Incorporation by Reference

Answer 43

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.

Question 44

Acts of Independent Significance

Answer 44

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.

Question 45

Lapse

Answer 45

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.

Question 46

Abatement (First to Last)

Answer 46

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.

Question 47

Ademption

Answer 47

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.

Question 48

Resolving Ambiguities

Answer 48

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.

Question 49

Mistakes

Answer 49

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.

Question 50

Will “speaks” at time of death

Answer 50

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.

Question 51

Rights of Surviving Spouse

Answer 51

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.

Question 52

Elective Share or Forced Share

Answer 52

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.

Question 53

Augmented estate

Answer 53

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.

Question 54

Right to set aside transfers

Answer 54

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.

Question 55

Waiver of spousal share

Answer 55

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.

Question 56

Omitted Spouse

Answer 56

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.

Question 57

Advancements

Answer 57

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.

Question 58

Guardianship

Answer 58

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.

Question 59

Uniform Transfers to Minors Act (UTMA)

Answer 59

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.

Question 60

Omitted Children

Answer 60

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.

Question 61

Homicide

Answer 61

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.

Question 62

Disclaimer

Answer 62

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.

Question 63

Elder Abuse

Answer 63

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.

Question 64

Aliens

Answer 64

A few states restrict the inheritance rights of nonresident aliens.

Question 65

WILL CONTESTS

Period of Limitations

Answer 65

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.

Question 66

Standing to Contest

Answer 66

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.

Question 67

Testamentary Capacity

Answer 67

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.

Question 68

Insane Delusion

Answer 68

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.

Question 69

Undue Influence

Answer 69

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.

Question 70

Fraud

Answer 70

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.

Question 71

Forfeiture Clause

Answer 71

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.

Question 72

Mortmain Acts

Answer 72

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.

Question 73

Restraints on Marriage

Answer 73

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).

Question 74

Probate Basics

Answer 74

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.

Question 75

Probate Procedure

Answer 75

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.

Question 76

Creditor’s Claims

Answer 76

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.

Question 77

Personal Representative

Answer 77

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.

Question 78

POWERS OF APPOINTMENT

Answer 78

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.

Question 79

Scope of power of appointment

Answer 79

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.

Question 80

POWERS OF ATTORNEY

Answer 80

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.

Question 81

Scope of power of attorney

Answer 81

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.