Wills Flashcards
Requirements for a valid will . . .
A. T must be 18 or over.
B. Will must be in writing. (do not give effect to oral statements)
C. T must sign will . . .
(Any mark-initials, “X” will serve as signature if so intended. Signature may be another person at T’s direction, in T’s presence.)
[PBQ: If such other person also signs her own name, she counts as one of the two necessary witnesses]
D. . . . at the end of the will . . .
E. . . . in the presence of two witnesses.
(OR, T must acknowledge previous signature in their presence)
F. . . . who sign in testator’s presence . . .
G. . . . and in the presence of each other. [PBQ]
NOTE: [PBQ2] No publication requirement. (W’s need to know that the document that they are witnessing is a will
(if they thought it was a deed or insurance policy etc., it doesn’t matter)
[PBQ] Order of signing is immaterial if attestation ceremony is all part of one continuous, contemporaneous transaction.
What happens if a portion of the will (e.g., clause naming personal representative) follows the testator’s signature? [PBQ]
a. Clause present at time of execution:
1. Majority view:Everything above is good; and everything below is bad. Signature is end of the will.
- Florida:[PBQ] The “end” is referring to a time sense, not a place on the document.
b. Clause added after execution:
uniform rule throughout the US - the Will is valid but the addition is not.
Rules on holographic wills . . .
a. Some states: Holographic wills allowed. Entitled to probate if in T’s own handwriting and signed by her.
b. Florida and most states: No special break for holographic wills (i.e. that the will is in the T’s own handwriting - we req. witnesses)
Compare: Handwritten will witnessed by two witnesses. [PBQ] - Valid.
Presence requirement tests for witnesses . . .
“Scope of vision” test (minority rule): in each other’s presence only if they could see each other sign were
they to look; HYPO: flunk b/c of screen”
Conscious presence” test (majority, better rule): if they are conscious of where each other is and what each other is doing.
Florida?
no definitive authority; NEED TO MENTION BOTH VIEWS
T writes a document in her own handwriting that reads: “This is my last will. I revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument. Is it admissible to probate? [PBQ2]
No witnesses.
T, a domiciliary of Spain, executes a will, written in Spanish, that complies with the law of Spain but not that of Florida. Thereafter, T dies owning Florida real estate. [PBQ2]
a. Must T’s estate be administered in Florida?
b. Is T’s will valid in Florida given the fact that _____ It is written in Spanish?
_____ It does not meet the Florida wills statute?
a. Yes. Primary admin will be domicile at death, but we have a side show - ancillary admin in each place owned real prop
b. Yes, but must provide court with translation
Yes, if it meets either the FL or the law of the decedents domicile at the time of execution.
NOTE: it cannot be an unattested holograph.
Effect of interested W . . .
will or any provision thereof is not invalid because the will is signed by an interested witness.” [PBQ]
“I give to my faithful nurse Nell the sum of $30,000.” Nell is one of two attesting witnesses to the will. Does Nell take the $30,000 bequest under the will?
Answer: ______ “A will or any provision thereof is not invalid because the will is signed by an interested witness.” [PBQ]
Yes. Bad practice b/c creates implication of undue influence. They have to prove it. If they do, then she can’t take.
Proof of wills at probate requires . . .
Oath of any one attesting witness taken before circuit judge or court clerk. If witnesses cannot be located or are incompetent or dead, oath of personal representative that he believes the writing to be the decedent’s last will. [PBQ]
Self proved wills require . . .
At time will is signed by T and attesting witnesses (or some time thereafter, in T’s lifetime), T and witnesses sign self-proving affidavit under oath before notary public. Affidavit recites all elements of due execution. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed. [PBQ]
No one can contest the will for want of formality . . . can still go after capacity etc.
NOTE: [Charry (1979)] Witness signature on self-proving affidavit can be used to satisfy the “signed by two witnesses” requirement.
Effect of SOL on probate . . .
STATUTE OF LIMITATIONS: Once administration of an estate is completed, everything is final. Thus, a later discovered will cannot be admitted to probate. [PBQ]
Revocation by physical act requires . . .
(i) intent to revoke; (ii) physical act: Florida statute refers to “burned, torn, canceled, obliterated, or destroyed.”
In 2009 T properly executed a will in duplicate giving all property to her children. In 2011 she wrote “VOID” on one of the copies of the 2009 will and drew many vertical lines across front of the one-page document.
a. Will revoked?
b. Compare: “VOID” written on back of will. [PBQ]
c. Compare: “I cancel this will” written and signed in margin of will.
d. Compare: “VOID” written on face of Xerox copy.
a. Writing void over language helpful b/c clarifies intent, BUT NOT CRITICAL Just drawing one line + intent is enough.
b. No good! Must cross SOME of the language
of the will.
c. No! Must be over some language.
d. NO. Must cross the language of the will itself.
An act of revocation on one executed copy revokes . . .
all executed copies.
Revocation presumptions . . .
1) Will in T’s possession from time of execution until death and found in mutilated condition after T’s death. Presumption: T did the act with intent to revoke.
2) Will last seen in T’s possession and control not found after T’s death. Reason it can’t be found is that T destroyed with intent to revoke.
NOTE: Rebutable . . . someone else had access to the will and might have done this.
T calls his attorney, the place where the will is located, and orders his attorney to destroy T’s will. The order is never carried out.
a. Will revoked?
b. What if on the above facts the attorney had destroyed the will pursuant to T’s order? Would the will have been effectively revoked?
Revocation by another person must be (i) _________________________________ and (ii)_____________________________________________________________
c. But if in this latter situation the will was not revoked, how could it be probated given the fact that it has been destroyed?
a. No. Revocation by act requires intent + act (intent alone is never enough)
b. No. B/c revocation by proxy must be done . . .
i. at T’s direction
ii. in T’s presence
c. by satisfying “lost wills” statute.
How do we satisfy the “lost wills” statute . . .
• Due execution must be proved by testimony of attesting witnesses.
• Contents must be “clearly and distinctly proved by the testimony of at least two
disinterested persons,” a correct copy being the equivalent of one of them.
[1980 case] “Correct copy” means carbon or Xerox copy, not a typewritten draft from which only a few minor changes had been made.
Additional issue raised by case where attorney bungs up revocation of will or where attorney bungs up execution of will: Lucas v. Hamm:
CA SC held and FL courts agree . . . attorneys can be sued in negligence. Tort liability.
T’s 2005 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T’s 2008 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?
1) AstoM:
2) AstoY:
3) AstoX:
4) AstoZ:
Revocation by inconsistency . . . .
a. Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will. Result on above facts:
- M gets the ring
- Y takes $5,000 but not the ring
- Still gets Blackacre
- Z gets the residue (NOTE: it’s a different residue)
b. Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not automatically revoke the will. Instead, in absence of contrary intent, it is presumed that testator intended his will as originally executed. [PBQ] pg. 5
Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not . . . .
automatically revoke the will. Instead, in absence of contrary intent, it is presumed that testator intended his will as originally executed. [PBQ]
Rule on divorce and separation following a will . . .
RULE: divorce, following a will, revokes all provisions in favor of the ex-spouse; construe the will as if ex-spouse
were dead.
Mere separation does not affect her rights under the will.
T’s will devises entire estate “to my wife, Sheila if she survives me; if she does not survive me, in trust for my children.” The will names Sheila as personal representative “if she is able”; otherwise X is to serve as personal representative. Two years later Sheila divorces T; T dies two years after that without having revoked or modified his will. T is survived by Sheila, by two children and by X.
a. Who takes what? Who serves as personal representative? [PBQ2]
b. What if T and Sheila merely separate without obtaining a divorce? [PBQ]
c. Compare: Separation with complete property settlement:
d. Will Sheila be allowed to take as a beneficiary of T’s non-probate transfers such as a revocable trust, an insurance policy, or bank accounts and securities registered in POD or TOD form?
e. What if T and Sheila marry each other again?
a. RULE: divorce, following a will, revokes all provisions in favor of the ex-spouse; construe the will as if Sheila
were dead.
b. Mere separation does not affect her rights under the will.
c. However, if in conjunction with separation, they enter into a prop settlement = waiver and construe as if she were dead.
d. No, she will not be allowed to take under any of those arrangements
e. She is back in these instruments.
Can an interlineation be given effect?
No, UNLESS . . .
- after the change was made T re-executes the will OR
- republishes the will by codicil (occurs when make the change on the will and then on sep sheet
of paper we write out reaffirmation to execute will as change and then do all the stuff that makes will
compliant) NOTE: bottom line, have to do all the formalities again with either.
T’s typewritten will made a bequest of “$10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure “$10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. [PBQ2]
a. Can the interlineation ($15,000 bequest) be given effect?
b. Has the $10,000 bequest to X been revoked?
c. Bottom line:
a. No, UNLESS . . .
1. after the change was made T re-executes the will OR
- republishes the will by codicil (occurs when make the change on the will and then on sep sheet
of paper we write out reaffirmation to execute will as change and then do all the stuff that makes will
compliant)
b. No. B/c in FL, there can be no partial revocation by physical act
(We can revoke in entirety by physical act; but not partial)
So X gets 10k.
We can revoke expressly: “I revoke xxxxxx of my will . . . “ and then do formalities.
c. bottom line, have to do all the formalities again with either.
In 2003, T executes WILL-1 which devises his residuary estate “in trust to pay the income to my grandson G until he attains the age of thirty, at which time to distribute the principal to G.” In 2008, T executes a new will, WILL-2, “hereby revoking all wills heretofore made by me.” WILL-2 devises his residuary estate to G outright. Important part of the story: T does not destroy WILL-1. In 2010 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper, “You know, I think the property should be held in trust for G after all.” With this he destroys WILL-2 with the intent of reviving WILL-1. T dies in 2012. He is survived by G and by his daughter, S, whom he detests.
a. Who takes what? [PBQ2]
b. Has WILL-1 been revoked?
c. Has WILL-2 been revoked?
d. Revival: Did revocation of WILL-2 “revive” WILL-1?
e. Should Dependent Relative Revocation [DRR] be applied to undo the revocation of Will-2? [PBQ2]
begin earliest in time when analizing and move to the present.
b. Yes, in 2008 at the execution of WILL-2.
c. Yes, by physical act.
d. NO! Have to re-execute or republish by codicil
e. HAS TO COMPLY WITH lost will statute . . . assuming it does then . . .
DRR allows us to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
1) Disregard a revocation (the destruction of Will-2).
2) Because it was based on a mistake of law (that Will-1 would be revived).
3) Provided the court thinks T would not have revoked Will-2 but for the mistake.
the BUT FOR test provides the key to this doctrine . . . compares the consequences of undoing the
revocation with not undoing. If we don’t = daughter who he detest; If we do = it goes to G outright
*he wanted to G in trust; going to G outright is closer, so the courts will go with that)
Another DRR example: T properly executes Will-1. Subsequently, T defectively executes a second instrument with similar terms. This second instrument is invalid, however, because there is only one witness. Nevertheless, believing the second instrument to be valid, T revokes Will-1 by physical act. On these facts, a court could apply DRR to _____, b/c _______.
undo the revocation of Will 1
b/c based on mistaken belief that Will 2 was valid. Compares the consequences of undoing the
revocation with not. Undoing the revocation of Will 1 will more closely follow intent.
Requirements to incorporate an extrinsic document by reference:
(i) Writing must be in existence at time will was executed.
(ii) Will must manifest an intent to incorporate the document.
(iii) Will must “describe the writing sufficiently to permit its identification.”
T’s will, after making several specific bequests, devised Blackacre “as designated in a memorandum, that I plan to write, and that will be found attached to this will.” After T’s death, her will and a signed but unwitnessed typewritten note were found in an envelope marked “My Will.” The accompanying note read: “I give Blackacre to the American Cancer Society.” The note was dated two months after the date on the will. T’s sole heir was a distant cousin, Henry, of whom she was not fond and from whom she had not heard for many years. Who takes Blackacre? [PBQ2]
NOT the American Cancer Society
Not executed with formalities, so the only way to give validity would be incorporation by reference . . . . first one is flunked under these facts.
Where do we go; need more facts . . . will go to residuary beneficiary but we don’t know who that is.
Statutory exception in FL and many states regarding extrinsic documents . . .
Statutory exception found in Florida and many states. Will may refer to written statement or list that disposes of tangible personal property (other than money, property used in trade or business) not specifically disposed of by the will. The written list must be signed by T and it must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.
the key is the type of property - tangible personal property (NOTE: no stocks and bonds)
What if the will made reference to “a memorandum that I plan to write that makes disposition of various items in my home that are dear to me.” The accompanying note, written two months after the will was executed, says, “I leave my golf clubs to my friend, Hobie Gates and $2,000 to my daughter Donna. /s/ Tom Testator.” Are these valid dispositions? [PBQ3]
Yes as to the golf clubs, no as to the cash.
Statutory exception found in Florida and many states. Will may refer to written statement or list that disposes of tangible personal property (other than money, property used in trade or business) not specifically disposed of by the will. The written list must be signed by T and it must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.
the key is the type of property - tangible personal property (NOTE: no stocks and bonds)
doctrine of independent significance:
acts, having an independent lifetime motive, may impact on the will as well.
(most people don’t sell cars for will purposes, they do it for lifetime reasons; same with employees . . . . if we can find
any lifetime motive, we allow it to impact the will - so Ned gets the new car and the new employees get the cash
they have even said that “the contents of my living room” is lifetime)
“I devise the automobile that I own at my death to my nephew, Ned. I give the sum of $1,000 to each person who is in my employ at death.” Three months after the will is executed T trades his Volkswagen in on a new Cadillac; the effect is to increase the value of the gift to Ned from $1,000 to $9,000. Six months after that T fires two longtime employees and hires three new ones. Then T dies. What is the effect of these events on T’s will? [PBQ2]
doctrine of independent significance: acts, having an independent lifetime motive, may impact on the will as well.
(most people don’t sell cars for will purposes, they do it for lifetime reasons; same with employees . . . . if we can find
any lifetime motive, we allow it to impact the will - so Ned gets the new car and the new employees get the cash
they have even said that “the contents of my living room” is lifetime)
[1987 Florida case] T devises “my home and its contents” to brother Bill.
a. _____ Does Bill take household furnishings and works of art found in house?
b. _____ How about stock certificates and savings accounts where certificates and passbooks found in dresser drawer in the house?
c. _____ How about the Cadillac located in the garage attached to the house?
a. Yes.
b. No. Home not intended to transfer anything manifested by cert of
title.
c. No. Only those things that turn a house into a home.
How do we construe the will in light of post execution/pre-death occurrences?
VERY IMPORTANT ISSUE . . . paragraph if essay . . .
When beneficiary named in the will or revocable trust dies before the testator, the gift lapses (term of art meaning the gift fails, falls to the residue, and passes to the residuary estate) . . . .
b. UNLESS
it is saved by the state’s anti-lapse statute
c. The Florida statute applies when the predeceasing beneficiary is he testator’s grandparent or a descendent thereof who leaves issue (issue = lineal descendants - children, grandchildren, great grand etc.
NOTE: (doesn't apply to someone who not related at all; or someone who is distantly related; and doesn't apply to the T's own spouse b/c won't be a grandparent or descendent of grandparent)
T executes will in 2004; it provides (inter alia) “I give the sum of $5,000 to my sister, Paula.” Paula dies in 2005; she is survived by her husband H and two children. Paula has a will which leaves all of her estate to H. T dies in 2010. Who takes the $5,000?
a. Result on above facts:
b. But what of fact that Paula left a will devising all her property to H?
c. What if will said “$5,000 to my sister Paula, if she survives me.”
a. Paula’s 2 kids split the 5k.
When beneficiary named in the will or revocable trust dies before the testator, the gift lapses (term of art meaning the gift fails, falls to the residue, and passes to the residuary estate) UNLESS
it is saved by the state’s anti-lapse statute. The Florida statute applies when the predeceasing beneficiary is he testator’s grandparent or a descendent thereof who leaves issue (issue = lineal descendants - children, grandchildren, great grand etc.
NOTE: (doesn't apply to someone who not related at all; or someone who is distantly related; and doesn't apply to the T's own spouse b/c won't be a grandparent or descendent of grandparent)
b. Why doesn’t H get the money? The anti-lapse statute tells us who takes. It does
not allow Paula to designates something else. Paula’s kids take the 5k.
c. The anti-lapse statute no longer applies. Gift fails under its own terms.
Class gift rule . . .
When there is a gift by will to a group of persons generically described as a class (“children,” “nephews” and nieces,” etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
“I devise Blueacre to the children of my good friend, John Bates. I leave the residue of my
estate to X.” At the time T executes his will, John Bates has three children: A, B and C. Thereafter, during T’s lifetime, Bates has another child (D), and his son A dies leaving a child A Jr. Then T dies; he is survived by John Bates; by Bates’s three children, B, C and D; by Bates’s grandchild A Jr. and by X. a. Who takes Blueacre?
b. What if in the above example, the gift were to the children of my brother John Bates?
Class gift rule: When there is a gift by will to a group of persons generically described as a class (“children,” “nephews” and nieces,” etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
a. ANSWER: B, C, and D (aka. Bates children at T’s death)
b. Now we are back under the anti-lapse - B, C, D and A Jr.
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason then . . .
the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue. (like class gift rule)
“I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my sister Carla Carter. Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T, a widower, is also survived by Bates and by Carter. Who takes the residuary estate? [PBQ2]
What if, in 18, it was T’s sister Carla who predeceased T leaving a child (Carla Jr.) who survived T? Andrews and Bates also survived T. [PBQ]
a. 1/2 Bates; 1/2 Carter
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason then the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue. (like class gift rule)
b. 1/3 each to A, B, and C Jr. Carla’s share of residue preserved for C Jr. by virtue of FL anti-lapse statute.
Specific devise or bequest and examples . . .
gift of specific asset and that
asset ONLY
“I devise Blackacre [my 2005 Cadillac] to my son John.”
How about “my car” or “all of my bank accounts”? these too are specific gifts b/c a will speaks as of the
date of death
Demonstrative legacy and example . . .
hybrid; pecuniary amount + funding
instructions.
“I give the sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah.”
General legacy and example . . .
gift of a specified pecuniary amount.
“I give the sum of $10,000 to my daughter Donna.”
Example of residuary bequest:
“I give all the rest, residue, and remainder of my property to my wife, Agnes.”
What if T’s estate is partially insolvent? In what order are the gifts sacrificed to satisfy funeral expenses, expenses of administration, creditors’ claims?
- intestate property
- residual bequest
- general legacy
- demonstrative legacy
- specific devise or bequest
Start at the bottom and work up. Not at the bottom of the will given, but at the bottom of the list above.
Pay the expenses first; then use the money for general legacies; if not enough, then sell demonstrative legacy etc.
“I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my sister Carla Carter. Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T, a widower, is also survived by Bates and by Carter.
a. Same will provisions. Some years before her death T sold Blackacre, which was specifically devised to John. What is the effect on the devise to John?
b. Also, T had sold her Acme stock and did not own any such stock at her death. Does ademption apply to the gift to Sarah?
a. John’s gift is adeemed. Beneficiary takes nothing.
Note: Abatement rules also apply in satisfaction of elective and pretermitted shares. [PBQ]
b. No. Ademption does not apply to demonstrative legacies. We take it out of whatever is available to us.
Broader point: doctrine of ademption is limited to specific gifts; if it is not specific, it is not adeemed; we fund
it with whatever we have available
Abatement rules also apply in satisfaction of . . .
elective and pretermitted shares.
FL statutory provisions “taking the edge off” the common law rule of ademption . . .
Every one of the following Florida provisions reverses the common law rule, which applied the doctrine of ademption to any case where the property specifically devised was not in the estate for any reason. At common law, T’s intent was deemed to be immaterial. However, under Florida law the following rules apply to gifts from a will or a revocable trust:
- Will executed before T declared incompetent: If specifically devised property is sold by guardian, or if condemnation award or insurance proceeds relating to the property are paid to the guardian, the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds unless testator’s disability has been adjudicated to have ceased and testator survives the adjudication by one year. [PBQ2]
- A specific devisee has the right to the remaining specifically devised property and:
“I give and bequeath my Rembrandt painting to my daughter Dora.” The Rembrandt painting was incinerated in 2012. The painting was insured, and the insurance company duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?
No. Dora is adeemed. The incompetency statute doesn’t come into play. (Any amount of fire or casualty insurance
UNPAID, but here he lived long enough to collect the insurance)
