Wills and Decedents Estates Flashcards
How can an extrinsic document be incorporated into the will by reference? (Incorporation by Reference)
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
What is the UPC exception for Incorporation by Reference?
(1) Will must refer to
(2) a SIGNED MEMORANDUM
(3) which describes TANGIBLE PERSONAL PROPERTY,
(4) can be prepared before or after will execution.
When does anti-lapse statute apply?
If a beneficiary does not survive the testator, the gift will lapse (fail) and either fall into the residuary OR pass through intestate succession.
Anti-Lapse Statute Requirements
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.
What affect to words of survivorship have on anti-lapse statute? (Traditional vs. UPC)
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)
Per capita at each generation
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.
Per capita with representation
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).
Who is a Child for purposes of intestate succession?
Adopted children, children born out of wedlock, and half-bloods (but not stepchildren unless adoption by estoppel applies!)
Who does Pretermitted Child Statute apply to?
(1) Children born or adopted after the will
(2) Child who is believed to be dead but actually alive
Pretermitted Child’s Share IF Testator has NO CHILDREN
The child takes an intestate share of the decedent’s estate
Pretermitted Child’s Share if Testator HAS OTHER CHILDREN
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)
Exceptions to Pretermitted Child Statute
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
What are the elements of a Valid Will?
(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
What are the elements of a Holographic Will?
Testamentary Capacity and Testamentary Intent, plus…
(1) material provisions in the testator’s handwriting or at testator’s direction
(2) signed by testator
What is a Codicil?
alters, amends, or modifies a previously valid will AND must be executed with the same formalities as a will
What is Republication by Codicil?
A previous will is treated as having been executed (republished) on the date of the last validly executed codicil
How can a Prior Invalid Will be Validated?
Codicil can incorporate a prior defective will by reference (ANALYZE INCORPORATION BY REFERENCE ELEMENTS TO SEE IF CODICIL HAS INCORPORATED THE PREVIOUS WILL)
What is Ademption? (Traditional Rule)
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.
What is an Abatement?
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.
How can a will be REVOKED?
A will may be FULLY OR PARTIALLY revoked:
(1) by subsequent writing
(2) by physical act w/ present intent to revoke
Revocation by Subsequent Writing
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
Revocation by Physical Act
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
Dependent Relative Revocation
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
What are the grounds to Contest a Will?
(1) Insane Delusion (Lack of Testamentary Capacity)
(2) Undue Influence
(3) Fraud
(4) Mistake/Ambiguity
Insane Delusion
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
Undue Influence
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
When does a PRESUMPTION of Undue Influence arise?
Presumption arises when…there is CONFIDENTIAL RELATIONSHIP between testator/beneficiary AND BENEFICIARY PARTICIPATED in some activity related to executing the will
Fraud in the Execution
misrepresentation of the contents of the instrument at execution
Fraud in the Inducement
misrepresentation causing testator to execute, revoke or refrain in wrongdoer’s favor
What if a will devises the RESIDUARY ESTATE to 2 or more beneficiaries and one of the dies before the testator?
If anti-lapse applies…deceased beneficiary’s descendants take
If anti-lapse DOES NOT apply…survivors divide the deceased’s share among them
Ademption (UPC Exceptions)
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.
Effect of Divorce of Spouse’s Share
If a testator is divorced after making will, all gifts to former spouse are revoked.
Those gifts pass by intestacy.
Effect of Divorce on Spouse’s Relatives Share (Traditional vs. UPC)
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.
What is a Class Gift?
A gift to a GROUP of persons
When does a Class Gift Close?
Class gifts generally close at the DEATH OF THE TESTATOR.
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?
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.
Hypo - Class Gifts: Class members are SPECIFICALLY NAMED, and one of the members dies before testator. What happens to that dead member’s share?
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.
What effect does divorce have on the will provisions in favor of the EX-SPOUSE?
Divorce revokes any gifts in favor of the ex-spouse in the will.
What effect does divorce have on the will provisions in favor of EX-SPOUSE’S RELATIVES? (Common Law vs. UPC)
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
What is the effect of Ademption on Stock Splits and Dividends? (Common Law vs. UPC)
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
Which specific blood relatives does the anti-lapse statute apply to? (UPC)
Applies to children, grandparents, and siblings
