Wills

Question 1

Valid will

Answer 1

A valid will must be in writing and signed with present testamentary intent by the testator in the joint presence of two witnesses

Question 2

codicil

Answer 2

a codicil is a supplement to a will that alters, amends, or modifies it

Question 3

codicil - execution

Answer 3

a codicil must be executed with the same formalities as a will

Question 4

valid codicil - effect on original will

Answer 4

a validly executed codicil republishes the will as of the date of the codicil

Question 5

a validly executed codicil may validate an invalid will if …

Answer 5

the codicil refers to the will with sufficient certainty to identify & incorporate it,

OR

if the codicil is on the same paper as the invalid will

Question 6

a will may incorporate by reference …

Answer 6

another writing, provided:

1. the other writing existed at the time the will was executed
2. is intended to be incorporated, &
3. is described in the will with sufficient certainty so as to permit its identification

Question 7

intestacy

Answer 7

intestacy is the default statutory scheme that applies when an individual dies without effectively disposing of all of his property by other means

Question 8

intestacy statutes generally favor…

Answer 8

the decedent’s surviving spouse & issue, followed by the d’s other relations

Question 9

a party cannot take property from a decedent when…

Answer 9

the party was responsible for the d’s death

Question 10

specific bequest

Answer 10

A specific bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate

Question 11

If the subject matter of a specific bequest is missing or destroyed (“extinct”)…

Answer 11

the beneficiary takes nothing - property is adeemed regardless of T’s intent

BUT, under UPC - bequest is adeemed ONLY IF the facts & circumstances establish that ademption was intended
–> UPC permits a b of a specific extinct gift to take the property acquired by the T as replacement property

Question 12

at common law, a stock dividend is…

Answer 12

a property interest distinct from stock given by a specific bequest

Question 13

a bequest of stock owned by T when T’s will is signed excludes …

Answer 13

subsequently acquired shares of the same stock

Question 14

under UPC, a bequest of security that was owned at time will was executed will include…

Answer 14

any additional shares of that security as long as the action was initiated by the corporate entity

Question 15

A will may be revoked wholly or partially in three ways:

Answer 15

1. subsequent writings
2. physical destruction of the will
3. by operation of law

Question 16

what must be proven to yield a valid revocation by destruction

Answer 16

both the act + a simultaneous intent to revoke

Question 17

pretermitted heir statute

Answer 17

permits children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will

–> birth/adoption after execution of will, then T dies without revising to include child - presumption that omission of child was accidental

Question 18

an omitted child statute does not apply if…

Answer 18

1. it appears that the omission of the child was intentional
2. testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child, OR
3. testator provided for the child outside of the will and intended this to be in lieu of a provision in the will

Question 19

when a trust fails (void) …

Answer 19

a court may create a resulting trust requiring the holder of the property to return it to the settlor’s estate

Question 20

the most common statutory intestacy scheme assumes ….. (re: surviving spouse)

Answer 20

assumes that the decedent would wish for the surviving spouse to succeed to all of his property if he had no surviving issue, and otherwise to share his property with his surviving issue.