Wills and Decedents Estates

Question 1

How can an extrinsic document be incorporated into the will by reference? (Incorporation by Reference)

Answer 1

To incorporate a document by reference:
(1) document must EXIST at the time of will execution
(2) will manifests an INTENT TO INCORPORATE the document
(3) document is SUFFICIENTLY IDENTIFIED in the will

Question 2

What is the UPC exception for Incorporation by Reference?

Answer 2

(1) Will must refer to
(2) a SIGNED MEMORANDUM
(3) which describes TANGIBLE PERSONAL PROPERTY,
(4) can be prepared before or after will execution.

Question 3

When does anti-lapse statute apply?

Answer 3

If a beneficiary does not survive the testator, the gift will lapse (fail) and either fall into the residuary OR pass through intestate succession.

Question 4

Anti-Lapse Statute Requirements

Answer 4

If a beneficiary dies before the testator, and

(1) was a SPECIFIED BLOOD RELATIVE of the testator; AND
(2) had ISSUE (children) who survived,

the gift to the beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.

Question 5

What affect to words of survivorship have on anti-lapse statute? (Traditional vs. UPC)

Answer 5

Under traditional rule, words of survivorship NEGATE the anti-lapse statute (NO anti-lapse, go to will)

Under the UPC, “if he survives me” is not enough to negate the anti-lapse statute (YES anti-lapse)

Question 6

Per capita at each generation

Answer 6

UPC
Cousins treated alike

Find the first generation where there are issue living. Give one share to each living issue and predecessor that left issue surviving. Combine the shares belonging to the predecessors and divide it equally at the next generational level.

Question 7

Per capita with representation

Answer 7

Traditional Rule
Cousins not treated alike

Find the first generation where there are issue living. Give one share to each living issue, and pass each deceased person’s share on to her issue(s).

Question 8

Who is a Child for purposes of intestate succession?

Answer 8

Adopted children, children born out of wedlock, and half-bloods (but not stepchildren unless adoption by estoppel applies!)

Question 9

Who does Pretermitted Child Statute apply to?

Answer 9

(1) Children born or adopted after the will

(2) Child who is believed to be dead but actually alive

Question 10

Pretermitted Child’s Share IF Testator has NO CHILDREN

Answer 10

The child takes an intestate share of the decedent’s estate

Question 11

Pretermitted Child’s Share if Testator HAS OTHER CHILDREN

Answer 11

If the testator has other children when executing the will, the child shares in the children’s gift (i.e. gets an equal share as the others)

Question 12

Exceptions to Pretermitted Child Statute

Answer 12

State will withhold pretermitted child’s forced share if:

(1) the child’s surviving parent takes the entire estate
(2) the child was provided for w/ a different testamentary transfer OR
(3) the omission was intentional

Question 13

What are the elements of a Valid Will?

Answer 13

(1) testamentary capacity (18 yrs or older + sound mind)
(2) testamentary intent (present intent to create will)
(3) writing
(4) signed by testator
(5) 2 witnesses that attest

Question 14

What are the elements of a Holographic Will?

Answer 14

Testamentary Capacity and Testamentary Intent, plus…
(1) material provisions in the testator’s handwriting or at testator’s direction
(2) signed by testator

Question 15

What is a Codicil?

Answer 15

alters, amends, or modifies a previously valid will AND must be executed with the same formalities as a will

Question 16

What is Republication by Codicil?

Answer 16

A previous will is treated as having been executed (republished) on the date of the last validly executed codicil

Question 17

How can a Prior Invalid Will be Validated?

Answer 17

Codicil can incorporate a prior defective will by reference (ANALYZE INCORPORATION BY REFERENCE ELEMENTS TO SEE IF CODICIL HAS INCORPORATED THE PREVIOUS WILL)

Question 18

What is Ademption? (Traditional Rule)

Answer 18

If specifically devised property (i.e. property listed in the will) is not in the testator’s estate when the testator dies, the gift adeems (i.e. fails).

The ademption doctrine is an objective test that DOES NOT take the testator’s intent into account.

Question 19

What is an Abatement?

Answer 19

When the assets of an estate are insufficient to satisfy all gifts made by someone’s will, then the gifts to the beneficiaries will be REDUCED (abated) in the following order: intestate property, residuary gifts, general gifts, and then specific gifts.

Question 20

How can a will be REVOKED?

Answer 20

A will may be FULLY OR PARTIALLY revoked:

(1) by subsequent writing
(2) by physical act w/ present intent to revoke

Question 21

Revocation by Subsequent Writing

Answer 21

A will may be fully or partially revoked
(1) by a subsequent WILL OR CODICIL
(2) that is executed with same formalities as a will

Question 22

Revocation by Physical Act

Answer 22

Can be done by either testator or testator’s proxy (at his direction)

(1) destroying will or canceling a material provision of the will (writing “X” or “VOID”)
(2) present intent to revoke at the time of physical act

Question 23

Dependent Relative Revocation

Answer 23

if a testator revokes a will based on a mistaken assumption of law or fact, the REVOCATION IS INVALID if the testator wouldn’t have revoked the will if he had the accurate information

Question 24

What are the grounds to Contest a Will?

Answer 24

(1) Insane Delusion (Lack of Testamentary Capacity)
(2) Undue Influence
(3) Fraud
(4) Mistake/Ambiguity

Question 25

Insane Delusion

Answer 25

Testator is otherwise sane but a particular provision of the will is a product of insane delusion.

Elements:
(1) Delusion is based on false sense of reality; AND
(2) Testator would not have made gift BUT FOR insane delusion

Question 26

Undue Influence

Answer 26

Exists when…

(1) influence exerted on testator
(2) overpowered the mind and free will of testator; AND
(3) will would not have been made BUT FOR influence

Question 27

When does a PRESUMPTION of Undue Influence arise?

Answer 27

Presumption arises when…there is CONFIDENTIAL RELATIONSHIP between testator/beneficiary AND BENEFICIARY PARTICIPATED in some activity related to executing the will

Question 28

Fraud in the Execution

Answer 28

misrepresentation of the contents of the instrument at execution

Question 29

Fraud in the Inducement

Answer 29

misrepresentation causing testator to execute, revoke or refrain in wrongdoer’s favor

Question 30

What if a will devises the RESIDUARY ESTATE to 2 or more beneficiaries and one of the dies before the testator?

Answer 30

If anti-lapse applies…deceased beneficiary’s descendants take

If anti-lapse DOES NOT apply…survivors divide the deceased’s share among them

Question 31

Ademption (UPC Exceptions)

Answer 31

Under the UPC, if the beneficiary can receive:

(1) insurance proceeds from the loss of the gift;

(2) condemnation award (if eminent domain);

(3) sale proceeds, if testator becomes incompetent and the property is sold by the guardian;

he would receive that in place of the property.

Question 32

Effect of Divorce of Spouse’s Share

Answer 32

If a testator is divorced after making will, all gifts to former spouse are revoked.

Those gifts pass by intestacy.

Question 33

Effect of Divorce on Spouse’s Relatives Share (Traditional vs. UPC)

Answer 33

Under traditional rule, testator’s divorce only revokes bequests to ex-spouse.

Under the UPC, a divorce revokes bequests to ex-spouse AND relatives of ex-spouse.

Question 34

What is a Class Gift?

Answer 34

A gift to a GROUP of persons

Question 35

When does a Class Gift Close?

Answer 35

Class gifts generally close at the DEATH OF THE TESTATOR.

Question 36

Hypo - Class Gifts: Class members are NAMED AS A GROUP, and one of the members of the group dies before the testator. What happens to that dead member’s share?

Answer 36

If class members are NAMED AS A GROUP (i.e. “my children”), the dead member’s share will be DIVIDED AMONG OTHER MEMBERS unless anti-lapse applies.

Question 37

Hypo - Class Gifts: Class members are SPECIFICALLY NAMED, and one of the members dies before testator. What happens to that dead member’s share?

Answer 37

If class members are SPECIFICALLY NAMED (i.e. to Tom, Mary, and Joe), the gift will LAPSE and fall into the RESIDUARY ESTATE unless an anti-lapse statute applies.

Question 38

What effect does divorce have on the will provisions in favor of the EX-SPOUSE?

Answer 38

Divorce revokes any gifts in favor of the ex-spouse in the will.

Question 39

What effect does divorce have on the will provisions in favor of EX-SPOUSE’S RELATIVES? (Common Law vs. UPC)

Answer 39

CL: Any gifts in favor of the former spouse’s relatives remain intact.

UPC: provisions in favor of the ex-spouse’s relative are ALSO REVOKED

Question 40

What is the effect of Ademption on Stock Splits and Dividends? (Common Law vs. UPC)

Answer 40

CL: person is entitled to additional stocks from stock split, but not dividends

UPC: person is entitled to additional stocks from stock split and dividends

Question 41

Which specific blood relatives does the anti-lapse statute apply to? (UPC)

Answer 41

Applies to children, grandparents, and siblings