Wills

Question 1

Do adopted children inherit through intestate?

Answer 1

At common law, ONLY blood relatives inherited from an intestate decedent.

Today, adopted children are entitled to receive the same share, under intestacy laws, as biological children.

Question 2

What is equitable adoption?

Answer 2

In some states, a child may be informally adopted through adoption by estoppel when a person takes a child in and assumes parental responsibilities.

If such a surviving child can establish an adoption by estoppel, equity holds that she can inherit from the decedent as if she were a legally adopted child.

Question 3

What factors does a court consider to determine whether a relationship constitutes adoption by estoppel?

Answer 3

1. The parent’s bestowal of love and affection on the child;
2. The parent’s performance of parental duties toward the child;
3. The child’s obedience and companionship toward the parent;
4. The child’s reliance on the relationship; AND
5. The parents holding out the child as their own.

Question 4

What happens to the biological parent’s assets when a child is adopted?

Answer 4

Generally, adoption in fact, or by estoppel terminates the adopted child’s right to inherit from her biological parents. However, a child adopted by her stepparent may usually inherit from her biological parents are well.

Question 5

Under common law, what do children born out-of-wedlock receive?

Answer 5

At common law, a child born out-of-wedlock was prohibited from inheriting from an intestate decedent.

Question 6

Under modern law, what do children born out-of-wedlock receive?

Answer 6

Today, non-marital children may inherit from either parent so long as the facts establish a legal parent-child relationship (non-marital children inheriting from a father must first establish paternity).

Question 7

Under common law, what do half-blood children receive?

Answer 7

At common law, ONLY full-blood children were entitled to inherit from an intestate decedent.

Question 8

Under modern law, what do half-blood children receive?

Answer 8

Today, in almost every state, half-blood children (i.e., two people who share one parent, but not the other) are treated equally as whole-blood children.

Note: In a minority of jurisdictions, they are treated less favorably and sometimes excluded if whole-blood kin exists.

Question 9

^Define

Incorporated by Reference

Answer 9

Incorporated by reference deals with the incorporation of extrinsic documents into the will (rather than pages or portions of the original will).

Question 10

When will a document or writing be incorporated into a will by reference?

Answer 10

If:

1. The testator intended to incorporate the document into the will;
2. The document was in existence at the time the will was executed; AND
3. The document is sufficiently described in the will.

Question 11

^Define

Codicil

Answer 11

A codicil is a supplement or addition to a will that is made after a will is executed.

Question 12

What can a codicil do?

Answer 12

A codicil can explain, modify, amend, or revoke provisions of an existing will.

Question 13

How is a codicil created?

Answer 13

A codicil MUST satisfy the same formalities as a will in order to be valid

Question 14

What happens to the original will after a codicil is created?

Answer 14

At the time a person executes a codicil, the original will is treated as republished and is deemed to have been executed on the date the codicil is executed.

Question 15

What effect does republishing through codicil have on a will?

Answer 15

Republication can cure defects in a will that might affect the validity of specific devises (e.g., in a jurisdiction that prohibits devises to interested witnesses, republication by a codicil that is properly witnessed could save the devise.)

Question 16

Can republishing through codicil revive an invalid will?

Answer 16

No

Most courts hold that a codicil CANNOT republish an invalid will as a whole

Question 17

What three ways can a will be revoked by physical act?

Answer 17

1. Subsequent written instrument
2. Cancellation
3. Partial Revocation

Question 18

When can a will be revoked by a subsequent instrument?

Answer 18

By either:

1. A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR
2. A subsequent will/codicil containing a revocation clause or provisions that are inconsistent with those of the prior will (only revokes to the extent it conflicts with the prior will)

Question 19

How can a testator “cancel” a will?

Answer 19

A will is revoked if the testator or another person in his presence and at his direction burns, tears, obliterates, or destroys the will WITH the intent to revoke the will.

Question 20

What does common law require for revocation by cancellation?

Answer 20

Under common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will (e.g., words of cancelation are written over the original terms of the will).

Question 21

What does the UPC require for revocation by cancellation?

Answer 21

Under the Uniform Probate Code, words of cancellation need NOT touch any of the words of the will, but they must be somewhere on the will to validly revoke.

Question 22

Under common law, what forum controls a will’s execution?

Answer 22

At common law, the validity of a testator’s will was determined under the law of the state where the testator was domiciled at the time of his death.

Question 23

Under the UPC, what forum dictates a will’s execution?

Answer 23

Under the Uniform Probate Code (UPC), a will is valid if it complies either with the law of the state in which it was executed or with the law of the place where the testator was domiciled when he signed his will or when he died.

Question 24

What is required for a holographic will?

Answer 24

Sign My-Pruny Hand

A valid holographic will includes the:

1. Signature,
2. Material Provisions (persons and property), and be in the
3. Handwriting of the testator.

Note: The date is not required, but may present inconsistency or capacity issues.

Question 25

What does the Dependent Relative Revocation (DRR) provide?

Answer 25

It disregards a prior revocation (physical act or subsequent instrument) that was caused by mistake.

Question 26

What is required for DRR to apply?

Answer 26

Requirements:

• T revoked the will in the mistaken belief that a substantially identical will or codicil effectuated the testator’s intent.
• By operation of law, revocation of the first is deemed conditional, dependent, and relative to the second will effectuating T’s intent.

Question 27

Under DRR, what happens if it is proven the second will was created through fraud or execution?

Answer 27

If Will-2 is invalid because of fraud or execution, then the revocation of Will-1 is invalid too, and Will-1 was never revoked.

Question 28

Under common law, what is required to show undue influence?

Answer 28

SOUP

1. Susceptible to Influence
2. Opportunity to Influence
3. Unnatural Bequest
4. Active Participation

Question 29

^Define

Lapse

Answer 29

A beneficiary dies before the testator.

The gift fails because it doesn’t matter if it’s real or personal, property can’t be conveyed to dead people.

Question 30

What is an anti-lapse statute?

Answer 30

Anti-lapse operates to save the gift if the beneficiary who:

1. Was a blood relative and
2. Left descendants who survived the testator.

• The beneficiary’s descendants are substituted and take by representation.
• Does not apply if there is a contrary will provision that expressed intention otherwise.

Question 31

When does a Slayer Statute apply?

Answer 31

Slayer Statutes apply when the heir kills the decedent whose estate is at issue

Note: Does not apply to bar someone from taking a share of an estate because she killed another person - even if that person is the source of the decedent’s property.

Question 32

How does a Slayer Statute affect intestacy?

Answer 32

The property passes as though the killer predeceased the decedent.

The portion of the estate not passing to the surviving spouse passes to the decedent’s children and descendants of the deceased children.

Question 33

What does the Ademption Doctrine provide?

Answer 33

Under the Doctrine of Ademption, when the specifically bequeathed property is not in the testator’s estate at death, the bequest fails.

Question 34

What is the Identity Theory under Ademption?

Answer 34

At common law, the testator’s intentions were irrelevant.

Today, a specific devise will adeem ONLY IF the testator intended to fail

Question 35

^Define

Abatement

Answer 35

When an estate’s assets are not sufficient to pay all claims and satisfy all bequests and devises, gifts (abate (are reduced)

Question 36

What is the order in which gifts abate?

Answer 36

1. Intestate property
2. The residue estate
3. General legacies
4. Specific Devises and Bequests

Question 37

Under the modern Identity Theory, what happens to the devise if the testator did not intend for the devise to fail?

Answer 37

The beneficiary is entitled to:

1. Any property in the testator’s estate, which the testator acquired as a replacement for the specific devise; OR
2. A monetary devise equal to the value of the specific devise.

Question 38

What happens if a device uses generic language?

Answer 38

Any property described in generic terms is interpreted under the circumstances existing at the time of the testator’s death, rather than when the will is executed.

Example: A device of “my car” is interpreted as a device of the testator’s car at the time of death, not the testator’s car at the time of will execution.

Question 39

Under common law, how is stock distributed?

Answer 39

Under the common law rule, a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend.

Question 40

Under the UPC, how are stocks distributed?

Answer 40

Under UPC and the statutes of many states, a specific request of stock includes stock dividends.

Question 41

What is the effect of a divorce on a will?

Answer 41

All states provide that if, after the execution of a decedent’s will, the decedent is divorced, a bequest in favor of the decedent’s former spouse is revoked by operation of law.

Exception: the typical statute does not apply if a divorce proceeding is pending when one of the spouses dies.

Question 42

How does RAP effect wills?

Answer 42

The beneficiary’s interests are created at the testator’s death

not at the time the will is executed

because wills are ambulatory and can be revoked or changed at any time up to the testator’s death.

Question 43

^Define

Undue Influence

Answer 43

Unde influence occurs when a person exerts such control and influence over the mind of the testator as to overcome the testator’s free will.

Question 44

What is the presumption of undue influence?

Answer 44

A rebuttable presumption arises when:

1. There is a confidential relationship between the testator such that
2. The circumstances surrounding the drafting of the will were suspicious.

(Look for a close relative, attorney or caretaker involved in drafting the will)

Question 45

What does a contestant have to prove to succeed in undue influence?

Answer 45

SOUP

1. The testator was susceptible to undue influence (e.g., health, finance);
2. The wrongdoer had the opportunity to exert undue influence over the testator;
3. The will evidence a result that appears to be the effect of undue influence (e.g., an unnatural result occurred; AND
4. The wrongdoer actively participated in drafting the will

Question 46

Is life insurance a probate asset?

Answer 46

No

Life insurance proceeds are a non-probate asset and pass to the beneficiary outside of the estate