Wills

Question 1

Integration

Answer 1

Paper constitutes a will or part of a will if both:

(1) Intent: T intended the papers to be part of the will
(2) Presence: Paper was actually/physically present at the time of execution

Question 2

Incorp by reference

Answer 2

Allows a non integrated writing to become part of the will.

4 elements:
(1) Need a document or writing;

(2) Doc/writing must have been in existence with the will was executed;
(3) Doc/writing must have been identified in the will;
(4) T must have intended to incorp doc into the will

Question 3

Facts of independent legal significance

Answer 3

Blanks in a will can be filled by reference to facts of significance independent of the will, using trustworthy parol evidence

Question 4

Pour-over wills

Answer 4

Where part or all of T’s estate is devised to an inter-vivos trust, the trust instrument may be admitted into probate and the pour-over effectuated

Question 5

How to validate pour-over provisions in a will

Answer 5

(1) Incorp by reference
(2) Facts of indep legal sig
(3) Uniform Testamentary Additions to Trusts Act (UTATA) - if there is a valid trust executed before or with the will, even if the trust is later modified.

Question 6

Where is the will probated? (2 types)

Answer 6

Primary probate – will take place at T’s domiciliary at time of death.

Ancillary probate – takes place wherever T owns real prop.

Question 7

Can the will be probated?

Answer 7

Yes, if it complies with the law of:

(1) the place where the will is to be probated, or
(2) the place where the will was executed, or
(3) the place of T’s domicile at the time of execution.

Question 8

Creation or revoking of a will: Capacity

Answer 8

4 elements:

(1) 18 years old
(2) T able to understand extent of his property
(3) T must know the natural objects of his bounty
(4) T must know the nature of his act (that he’s making a will)

Question 9

Consequences of no capacity to create a will

Answer 9

Entire will is invalid and prop passes by intestate succession

** Exception: T had a valid prior will that was purportedly revoked by a 2nd will (T didn’t have capacity), then the 1st will be probated b/c if T didn’t have capacity then the 2nd will could not have revoked 1st one.

Question 10

Fraud (generally)

Answer 10

(1) Misrepresentation of material fact
(2) Person committing fraud knows it is false
(3) Made for the purpose of inducing action or inaction, and
(4) Actually induces action or inaction.

Question 11

Fraud in the inducement

Answer 11

Def: The wrongdoer’s representations affect the content of T’s will.

Consequences: Only the part affected by the will is invalid. Ct has 3 options:

(1) Go to residuary clause.
(2) Go by intestate succession.
(3) Constructive trust.

Question 12

Fraud in the execution

Answer 12

Def: Someone forges T’s signature or T given doc to sign which is purportedly non-testamentary but it really.

Consequences: Entire will is invalid. Goes by intestate succession or prior valid will.

Question 13

Fraud in preventing T from revoking will

Answer 13

Consequences: Constructive trust – give to wrongdoer but make then give to intended ben

Question 14

Undue Influence (Definition and list three ways to establish)

Answer 14

Def: T’s free agency is subjugated.

Established in 3 ways: prima facie case, presumption, statutory. Discuss all 3.

Question 15

Undue influence: Prima Facie Case (SOAP UW)

Answer 15

Susceptible – some weakness like physical, emotional, financial.

Opportunity.

Active Participation – the wrongful act that gets the gift.

Unnatural result – not unnatural to prefer 1 kid over others.

Wrongdoer benefits financially – watch for substantial indirect benefit.

Question 16

Undue influence: Presumption (CRAP UW)

Answer 16

Confidential relationship – CA recognizes all incl whenever 1 person reas reposes trust in another (ie, 2 friends).

Active participation

Unnatural result

Wrongdoer benefits

Statutory

Question 17

Undue influence: Statutory rule

Answer 17

a donative transfer is presumed product of undue influence if to…

(1) drafter,
(2) fiduciary who transcribed instrument,
(3) “care custodian” of “dependent adult” if instrument executed during care or +/- 90 days, or
(4) a spouse, DP, cohabitant, employee or relative within 3rd degree of any of foregoing.

Presumption conclusive for drafter and associates, rebuttable for others.

Question 18

Undue influence: Statutory exception

Answer 18

presumption inapplicable to…

(1) spouse or cohabitant of transferor (even if person was the drafter), or
(2) any transfer if reviewed by independent attorney.

Question 19

Undue influence: Consequences

Answer 19

Transferee does not take gift. Instead, goes to residuary devisee or, if none, to heirs at law by intestate succession, or constructive trust.

(1) Transfer is made as if the disqualified person predeceased the transferor w/out spouse or issue but only to the extent that the value of the transfer exceeds the intestate share.
(2) The part that doesn’t pass to wrongdoer will go by residue, intestacy, or constructive trust.

Question 20

Insane delusion: Elements and consequences

Answer 20

(1) T had a false belief.
(2) That false belief was the product of a sick mind.

(3) 2 diff views for 3rd element:
a. CA: Must be no evid to support the belief, not even a scintilla.
b. A belief is delusional if no rational person would believe it (even if some factual basis for it).

(4) Delusion must have affected T’s will.

Consequences of no capacity
(a) Only the part of the will that is affected by delusion is invalid. Bad part drops into residuary clause (or if none then intestate succession).

Question 21

Mistakes: 6 types

Answer 21

In the execution
In the inducement
In description
In validity of subsequent testamentary instrument
Involving living children
In content

Question 22

Mistakes: In execution

Answer 22

T signs the wrong document

T signs will, mistaking it for non-testamentary instrument: will is not probated, as T did not intend document to be a will.

Two Ts (e.g., H & W) have reciprocal wills (each leaving all to the other) and each mistakenly signs wrong one: court may reform the will and substitute correct names.

Question 23

Mistakes: In inducement

Answer 23

Gift is made/not made on basis of mistaken belief: no relief.

Narrow exception where both the mistake and what T would have done but for mistake appear on the will (rare)

Question 24

Mistakes: In description

Answer 24

court will admit parol evidence of T’s intent

Question 25

Mistakes: In Validity of Subsequent Testamentary Instrument

Answer 25

If T revokes her valid will, or portion thereof, in mistaken belief that a substantially identical will or codicil effectuates her intent…

THEN by operation of law, the revocation of the first is deemed conditional, dependent, and relative to the second effectuating T’s intent (and being valid). If second doesn’t, first deemed never revoked.

Question 26

Mistakes: In Validity of Subsequent Testamentary Instrument - Revocation by Physical Act

Answer 26

Even if lost/destroyed, first will can be probated if at least one witness (e.g., attorney) testifies as to contents. Need not have been one of the attesting witnesses.

Question 27

Mistakes: Involving Living Children

Answer 27

mistaken omission of child from will

Rule: Child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for therein. Pretermitted child receives intestate share.

Corollary: if child is born/adopted before execution of all testamentary instruments, and those later instruments omit mention of him, child takes nothing unless reason for omission was T’s mistaken belief that child was dead or non-existent.

Question 28

Mistakes: In content

Answer 28

wrong beneficiary is named or wrong gift is made.

Omission: words mistakenly omitted: no remedy. But possible relief under DRR.

Addition: words mistakenly added: court may strike addition