Wills Flashcards
1
Q
Execution under Wills Act
A
Requires:
(1) Testator >= 18 yo
(2) Must be written
(3) Must have testamentary intent
(4) T must sign will - Any mark/initials is OK if so intended; other person can sign if at T’s direction and in presence
(5) 2 attesting/signing witnesses OR T’s acknowledgment of previous signature of will
2
Q
Special UPC Provisions
A
- Court can validate defective will if establishes by lear and convincing evidence that T intended doc to be will
- No witnesses needed if T AND notary sign
- Clauses after T’s signature:
(a) Present at time of execution: - Some states - Not OK
- UPC/majority - OK
(b) Added after - Not OK
- UPC/majority - OK
- Holographic wills:
(a) 1/2 of states - No unless 2 witnesses
(b) UPC/1/2 - OK if ~material provisions~ are in T’s handwritten AND is signed - Witness presence req:
(a) Minority - Scope of vision/line of sight test
(b) UPC/majority - Conscious presence test (conscious of where T is and what T’s doing) - Ability of will to dispose of real estate in other states if not properly executed under that state’s law:
(a) CL/minority - No
(b) UPC/majority - Yes if valid in 1 of: (1) place of execution, (2) domicile at death, or (3) domicile at execution - Interested witnesses:
(a) Older/majority - Will is valid but witness purged of interest UNLESS: (1) supernumerary rule, OR (2) witness would be an heir if intestate, in which case takes lesser amount
(b) UPC/modern - OK
3
Q
Self-Proved Wills
A
When will is signed, T+witnesses sign self-proving affidavit before notary => Formalities of execution are conclusively presumed
4
Q
Revocation - By Physical Act
A
- Reqs:
(1) Intent to revoke, AND
(2) Physical act (burned, torn, canceled, obliterated, destroyed) - Sufficiency of act:
(a) By written cancellation (e.g. void/crossing out): - Most states - Cancellations MUST cross out some language
- UPC - More permissive
- Presumptions:
(a) If will was in T’s possession from execution to death and found in mutilated state, T mutilated w intent to revoke
(b) If will was in T’s possession from execution to death and not found after death, T destroyed w intent to revoke
5
Q
Revocation - By Proxy
A
- Revocation by another person must be: (1) at T’s direction, (2) in T’s presence, and (3) with an act
- What if will destroyed by another but w/o meeting the reqs? - Lost Wills Statute
(a) Formal proceeding where proponents have burden of proving contents - What if attorney fucks up revocation? - Attorney sued in negligence
6
Q
Revocation - By Inconsistency
A
- Inconsistent codicil (amendment):
(a) To extent possible, try to read will and codicil together
(b) To extent inconsistent, later document controles - Later second will:
(a) No residuary clause - Presumptively a codicil that creates an implied revocation only to the extent of the inconsistency
(b) Residuary clause - Revokes first in its entirety - Revocation of will revokes codicils, but revocation of codicils doesn’t revoke will
7
Q
Revocation - By Divorce
A
- UPC/most states - Divorce following will revokes all provisions in favor of ex; construe as if ex were dead
(a) If re-marry, ex comes back
(b) If separate but not divorce, no change UNLESS there’s a complete property settlement
8
Q
Revocation - By interlineation
A
- Interlineation = Changing a figure/term
- Interlineation revokes modified part
- Interlineation NOT given effect UNLESS:
(1) T reexecutes will after change, OR
(2) T republishes the will by codicil, reaffirming changes - Dependent Relative Revocation - Can disregard a revocation (like interlineation) if:
(1) Based on, induced by, or premised on a mistake of law or fact, and
(2) But for the mistake, T wouldn’t have done it
9
Q
Revocation - Reviving
A
- E.g. Will 2 revokes Will 1, then Will 2 revoked; Will 1 revived?
- Some states - No; must reexecute/republish by codicil
- UPC - Not automatically, UNLESS:
(1) W1 still exists,
(2) T wanted reviving, AND
(3) W2 revoked by physical act - But maybe can revive under DDR
10
Q
Incorporation by Reference
A
- To incorporate extrinsic document by reference:
(1) Writing must be in existence at time will was executed
(2) Will must manifest an intent to incorporate
(3) Will must describe the writing sufficiently to permit its identification - UPC/statutory exception - Will CAN refer to existing OR future statement/list that disposes of tangible personal property not specifically disposed of by the will
(a) List must be signed by T and describe property w reasonable certainty - Doctrine of Independent Significance - Lifetime acts having an independent lifetime motive can impact will (e.g. leaving stuff to your employees and firing some employees before death)
11
Q
Lapse
A
- When beneficiary dies before (or within 120 hrs, for UPC) T, gift lapses/falls to residue UNLESS saved by ~anti-lapse statute~
- UPC Anti-Lapse Statute - Applies when predeceasing beneficiary is T’s grandparent OR a lineal descendent of a grandparent who leaves issue who survive T
(a) Gift goes to issue regardless of what beneficiary put in their own will - Lapse applies to residuary
(a) UPC - If residuary estate is devised to >=2 ppl and gift to 1 falls, surviving residuary devisees take entire residuary estate in proportion to relative interests - Class Gift Rule - Where a gift to a group of ppl described as a class and some member predeceases T ~and the anti-lapse statute~ doesn’t apply, surviving class members take
12
Q
Types of Gifts
A
- Specific devise/bequest - Gift of a specific (or specifically determinable at death) asset and that asset only
- Demonstrative legacy - Gift of pecuniary amount, but with funding instructions
- General legacy - Pecuniary amount
- Residuary bequest - All rest of estate
- Intestate property - When partial intestacy and anti-lapse doesn’t apply
~Order of Satisfaction~ = Bottom up
13
Q
Ademption
A
- If subject of ~specific devise~ is sold/longer available, devisee SOL
- CL/most states - T’s intent irrelevant
- UPC - T’s intent relevant, and several ways to avoid ademption:
(a) If T declared incompetent and conservator then sells/gets proceeds re property => Devisee gets general legacy equal to net sale price, condemnation award, or insurance proceeds UNLESS:
(1) T’s incompetence adjudicated to have ceased, AND
(2) T survives adjudication by 1 year
(b) Devisee gets remaining specifically devised property AND:
(1) Balance of purchase price owed when K is still executory at death
(2) Unpaid condemnation award
(3) Unpaid fire/casualty insurance proceeds
(4) Real or tangible property acquired as replacement for similar property
(5) Property acquired as a result of a foreclosure of a security interest on specifically devised note - NB re: stocks: If devise says “my X shares,” and shares are sold/changed/whatever, ADEMPTION b/c specific gift
14
Q
Increase - Securities
A
- Stocks:
(a) CL:
(1) Stock splits - Devisee gets increase
(2) Stock dividends - Devisee doesn’t
(b) UPC - Devise gets increase in both cases (action initiated by the corp entity) - If there’s a merger:
(a) CL - Devisee has no right to new stock
(b) UPC - Devisee does
15
Q
Exoneration of Liens
A
- CL - Specific devisee IS entitled to demand executor exonerate lien from residuary estate on devised property
- UPC - NO, unless will shows such intent
(a) Intent does NOT include a general direct to pay debts
