Wills

Question 1

A durable health-care Power of Attorney (POA)

Answer 1

empowers a designated agent to make health-care decisions for the principal in the event of the principal’s incapacity.

All states have adopted statute authorizing advance directives and durable heatlth care powers. An advance directive (sometimes called a Will) specifies the patients (non)treatment preferences should he or she become incapacitated.

Unless a POA specifies otherwise, a designated agent is empowered to make health-care decisions for the principal whenever the principal lacks capacity; the power is not limited to a particular illness or for a particular time period.

Question 2

When a patient does not execute a durable health-care power

Answer 2

a majority of the siblings would have to agree upon health-care decisions for their mother.

Question 3

Health care means

Answer 3

any care, treatment, service or procedure to maintain, diagnose, or otherwise affect an individuals physical condition.

Question 4

Liability of an Agent

Answer 4

State laws governing durable heath-care powers of attorney typically insulate an agent who has acted in good faith from civil and criminal liability.

A health care decision includes directions “to provide, withhold, or withdraw all other forms of health care.

Question 5

The Slayer Statute

Answer 5

The state statue provides: No person shall share in the estate of a decedent when he or she intentionally caused the decedents death,

Question 6

UNIF. HEALTH-CARE DECISIONS ACT

Answer 6

provides that death resulting from the withholding of health care in accordance with this Act does not for any purpose constitute suicide or homicide.

Moreover, medical ethicists do not typically regard withholding of treatment as the cause of death, and this perspective has found judicial support.

Question 7

Immunity provision in power of attorneys statutes

Answer 7

Uniform Health-Care Decisions Act immunizes agents action in good faith from civil liability, and disinheritance is akin to civil liability.

Question 8

Who governs real property estates at the time the decedent dies?

Answer 8

The law of the state where the real property is located governs the disposition of real property. This approach reflects the situs state’s interest in the regulatory of titles and the interests of third parties who rely on local land records.

Question 9

Who governs the disposition of personal property?

Answer 9

The law of the state in which the decedent was domiciled at his death governs the disposition of personal property.

Question 10

Adopted children

Answer 10

At common law, only blood relations could inherit from an intestate decedent. Although all states today grant adopted children inheritance rights in at least some circumsnances, there is typically an explicit statutory command that achieves this result.

In the absence of a statue, a court might conclude that had the legistalute intended to give adopted children the same rights as biological children, it would have said so; alternatively, it might conclude, based on general nondiscrimination goals, that the legislature must have intended to give adopted children the same rights as biological children.

Question 11

Non-marital children

Answer 11

All states grant non marital children the right to inherit from their mothers and to inherit from their fathers when at least one statutory defined method of establishing paternity has beeb satisfied. The Supreme Court has held that a statue disallowing inheritance by a non marital child from her father when the fathers paternity has been adjudicated during his lifetime is unconstitutional.

Question 12

Under the doctrine of integration

Answer 12

a multi-page will is valid even if only the last page is executed as long as the proponent of the will cn establish that all pages were physically present and together when the testator and witnesses signed the last page of the will and that each page was intended by the testator to be part of his will.

Question 13

Under the doctrine of dependent relative revocation

Answer 13

if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation is ineffective if it appears that the testator would not have revoked the bequest had he had accurate information.

Question 14

State laws generally provide that the word “children” in a will should be interpreted consistently with the definition of the word “children” used in determining rights to intestate succession

Answer 14

Biological children born to a married couple and adopted children are included within the category of children entitled to take through intestate succession.

Question 15

In all states, a non marital child is included within a bequest to children only if paternity is established under the relevant state.

Answer 15

In most states, paternity for purposes of intestate succession may be established by evidence of subsequent marriage of the parents, by acknowledgment by the father, by an adjudication of paternity during the life of the father, or by clear and convincing evidence.

Question 16

Although the “controlling consideration in determining the meaning of a donative document is the donor’s intention” a majority of jurisdictions

Answer 16

bar the admission of extrinsic evidence to vary the literal meaning of the words used in a will and refuse to allow reformation of a will to correct a mistake.

Under the formalist approach, the only means for ascertaining the intent of the testator are the words written and the acts done by him.” In recent years, a few states have begun to move away from the formalist approach and toward the more liberal approach adopted in the Restatement (Third) of Property.

Question 17

Under the Restatement Third of Property, a court may reform even an unambiguous donative document based on clear and convincing evidence of:

Answer 17

(a) a mistake of fact or law, or (b) the donor’s intention.

Using this approach, a court would admit the testimony of possibly the attorney who drafted the will, to explain the testator intention. However, it is unclear whether such testimony would meet a clear and convincing evidentiary standard.

Question 18

A holographic will

Answer 18

is a handwritten will by the testator and singed by the testator.

Most states do not recognize holographic wills, and require that at least two uninterested witnesses attest and sign the will.

Question 19

Some states provide by statute that a bequest to an interested witness is void unless

Answer 19

the will is witnessed by two disinterested witnesses. The policy undeerlying these interested-witness statues is to discharge fraud or undue influence. However, under the republication-by-codicil doctrine, defects in a previously validly executed will can be cured if the will is “republished” in the properly executed codicil.

Question 20

The “republished by codicil doctrine”

Answer 20

effectively treats the portions of the original valid will that are not inconsistent with the terms of the codicil as recited in the codicil and witnessed by the witnesses to the codicil. Curing an interested witness problem by codicil is a classic example of the republication-by-codicil doctrine.

Question 21

Some states that follow the Uniform Probate code, in regards to republished codicils

Answer 21

permit interested witnesses to take their bequests.

Question 22

An unattested memorandum at common law

Answer 22

is invalid if its executed after the will and the codicil were signed, and thus not incorporated by reference into either of those documents.

Under the incorporation-by-reference doctrine, only documents in existence when the will was signed can be incorporated by reference.

Many states, however, have enacted statutes allowing a testator to dispose of tangible personal property by a memorandum signed after the execution of the will if the will evidences an intent to dispose of the tangibles in that manner.

Question 23

Under the common law Rule Against Perpetuities with respect to wills, the beneficiaries interest is created

Answer 23

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 24

A class gift will vest for purposes of the RAP when

Answer 24

the class is closed and all members of the class have met any conditions precedent.

Question 25

At common law, which state law will control on a will?

Answer 25

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 26

Under the Uniform Probate Code, a will is valid

which state’s law controls

Answer 26

a will is valid if it complies either with the law of the state in which its was executed or with the law of the place where the testator was domiciled when he signed his will or when he died.

Question 27

In determining whether a will is conditional or contingent,

Answer 27

a court must first determine whether the happening of the possibility of the happening was only a statement of the motive or inducement which led to the preparation and execution of the instrument.

Question 28

In determining whether a will is conditional or contingent, a number of factors can be considered in resolving this issue

Answer 28

including where the will was kept after the purported condition lapsed, whether there were any other testamentary documents, whether setting aside the will would result in intestacy, and whether effectuating the terms of the documents would result in an inequitable distribution.

Question 29

When a will is ambiguous,

Answer 29

courts allow extrinsic evidence to resolve the ambiguity. To resolve ambiguities, the facts and circumstances surrounding the execution of the will may be taken into account.

Question 30

Anti-lapse statutes

Answer 30

when applicable, typically substitute a deceased beneficiary’s issue as the beneficiaries of the bequest to the deceased beneficiary. The typical anti-lapse statute extend anti-lapse protection only to blood relatives of the testator.

Question 31

Unborn children at the time of creating of a will

Answer 31

All states have a statute providing a forced share of an estate for a child who was born after the will was signed but was not provided for in the will. These statutes vary, however, on the size of that committed child’s share.

Question 32

Life insurance proceeds

Answer 32

although the owner of a life insurance police typically retains the right to change the named beneficiary without obtaining that beneficiary’s consent, the owner must do so in accordance with procedures specified in the life insurance contract.

Life insurance contracts almost never permit a change of beneficiary by will, and courts have almost invariably upheld such restrictions.

Courts have sometimes found that a beneficiary change that does not comply with the terms of the insurance contract is valid the policy holder has “substantially complied” with the contract by taking all reasonable steps within his or her power to make the change in accordance with the contracts terms.

Question 33

In most jurisdictions, a writing that exists at the time a will is executed may be incorporated by reference into the will

Answer 33

the will must describe the writing with sufficient particularity that it can be identified, but the writing need to be witnesses or executed with testamentary formalities.

Question 34

Under a typical Anti-lapse statute

Answer 34

if a beneficiary dies before the testator and the beneficiary was both related by blood to the testator within a certain degree of relationship and had issue who survived the testator, the bequest to the deceased beneficiary is saved from lapse and the deceased beneficiaries issue takes in lieu of the deceased beneficiary.

Question 35

Bequests abated

Answer 35

when the assets of a testator’s estate are insufficient to pay all of the bequests payable under the testator’s will, these bequests are reduced, or abated.

Under a common law and in most states, unless the testator specifies a different abatement scheme, testamentary bequests abate in the following order: (1) residuary bequests, (2) general bequests (i.e., bequests of a fixed dollar amount), and (3) specific bequests (i.e., identifiable property such as “my jewelry”). Abatement within each category is pro rata.

Question 36

A valid partial will, or codicil that refers to an earlier will is said to republish that will

Answer 36

when republication takes place, the republished is deemed to be executed on the same day as the codicil. Republication car cure defects that might otherwise affect the validity of bequests made under a will.

However, by most accounts, a document that is not a valid will cannot be republished by codicil.

A writing that is not valid as a will but is in existence when a will is executed may be incorporated by reference into the will if the will manifests an intent to incorporate the writing and the writing to be incorporated is identified with reasonable certainty.

“I republish my will” is not the type of reference to a prior document that an (experienced attorney) would use to incorporate a document by reference; “republish” is a term of art that has legal consequences.

Question 37

Slayer statute

Answer 37

the statue will apply when the person killed the decedent whose estate is at issue.

Question 38

Common law ademption doctrine

Answer 38

if specifically devised property (specific property deserved in will) is not in the testator’s estate when the testator dies, the bequest adeems (i.e., fails) Under this common law doctrine, the testator’s intentions are irrelevant; all that matters is whether the testator owned the specifically devised asset at his or her death.

Some modern courts have rejected the common law “identity test” for ademption in favor of an intent test. Under the intent test, a beneficiary of specifically devised property is entitled to substitute property that was owned by the testator at his or her death if the beneficiary proves that the testator intended the beneficiary to take the substitute property.

Under the Uniform Probate Code, a specific devisee has the right to any “real . . . property owned by the testator at death which the testator acquired as a replacement for specifically devised real property.

Question 39

Under the common law, a devisee of common stock was

Today, virtually all jxs

Answer 39

entitled to additional shares of that stock obtained by the testator through a stock split, but no additional shares acquired as a stock dividend.

Today, virtually all jxs treat stock splits and dividends the same way; in each case, additional shares obtained by the testator go to the specific devisee.
(Ex: Under this approach, Aunt would be entitled to all 600 shares of XYZ common stock.)