Wills Flashcards
Integration
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
Incorp by reference
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
Facts of independent legal significance
Blanks in a will can be filled by reference to facts of significance independent of the will, using trustworthy parol evidence
Pour-over wills
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
How to validate pour-over provisions in a will
(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.
Where is the will probated? (2 types)
Primary probate – will take place at T’s domiciliary at time of death.
Ancillary probate – takes place wherever T owns real prop.
Can the will be probated?
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.
Creation or revoking of a will: Capacity
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)
Consequences of no capacity to create a will
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.
Fraud (generally)
(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.
Fraud in the inducement
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.
Fraud in the execution
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.
Fraud in preventing T from revoking will
Consequences: Constructive trust – give to wrongdoer but make then give to intended ben
Undue Influence (Definition and list three ways to establish)
Def: T’s free agency is subjugated.
Established in 3 ways: prima facie case, presumption, statutory. Discuss all 3.
Undue influence: Prima Facie Case (SOAP UW)
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.
Undue influence: Presumption (CRAP UW)
Confidential relationship – CA recognizes all incl whenever 1 person reas reposes trust in another (ie, 2 friends).
Active participation
Unnatural result
Wrongdoer benefits
Statutory
Undue influence: Statutory rule
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.
Undue influence: Statutory exception
presumption inapplicable to…
(1) spouse or cohabitant of transferor (even if person was the drafter), or
(2) any transfer if reviewed by independent attorney.
Undue influence: Consequences
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.
Insane delusion: Elements and consequences
(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).
Mistakes: 6 types
In the execution In the inducement In description In validity of subsequent testamentary instrument Involving living children In content
Mistakes: In execution
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.
Mistakes: In inducement
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)
Mistakes: In description
court will admit parol evidence of T’s intent
Mistakes: In Validity of Subsequent Testamentary Instrument
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.
Mistakes: In Validity of Subsequent Testamentary Instrument - Revocation by Physical Act
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.
Mistakes: Involving Living Children
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.
Mistakes: In content
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
