Wills and Estates

Question 1

What is a spouse entitled to upon another spouses’ death?

Answer 1

• Spouse + shared descendants of Spouse + no one –> Spouse takes 100%
• Spouse + parent –> Spouse takes $300k + 75%
• Spouse + shared descendants + issue of Spouse –> Spouse takes $225k + 50%
• Spouse + issue of D –> Spouse takes $150k + 50%

Question 2

What are the methods for calculating issue’s share?

Answer 2

• Per capita with representation—divide the property equally at the first generation with a living member who survived D; for those at that level who did not survive D, their share goes to their issue who survived D (if there are issue)
• Per stirpes—divide the property into the total number of children who survive or leave issue who survive; the issue take in equal portions the share their deceased ancestor would have taken if living
• Per capita at each generation (UPC)—divide the property into as many equal shares as there are members of the nearest generation of issue who survive the decedent and include deceased members of that generation with issue who survive D

Question 3

What happens if heir dies at the same time as a testator?

Answer 3

120-hour rule requires clear and convincing evidence the heir survived D by 120 hours; without sufficient proof, the heir will be treated as having predeceased D

Question 4

What is required for an attested will?

Answer 4

1. Signed writing
   * Signed with intent by the testator (T) or by someone in his presence and at his direction; the signature need not be formal (e.g., “X” is okay) so long the mark is as intended as a signature
   * Signature must be at the end to be valid (some states), or (UPC) can be anywhere on the instrument
2. Intent—testator must intend the instrument to function as her will
3. Capacity—testator must be 18 or older and of sound mind
4. Witnessed—the will must be signed in the joint presence of, and attested to by, at least two witnesses; the UPC does not require the witnesses be present when each other signs, but each must sign within a reasonable time after witnessing T sign or acknowledge the will.

Question 5

What is required for a witness’ signature to a will?

Answer 5

Presence is either “line of sight” or “conscious presence” (majority); UPC applies the “conscious presence” rule only when someone signs on behalf of T
* Interested witness (Trigger fact: One of the witnesses is also a beneficiary)
◦ Effect on validity—at C/L the will was invalid; UPC/majority: the will is valid;
◦ Witness’ share (analyze the validity of the gift to the witness)
♦ If there are two other disinterested witnesses or under UPC, the gift is not affected
♦ If there are not two other disinterested witnesses (in non-UPC states):
a. The gift will stand if the witness is an intestate heir
b. If the witness is not an intestate heir, the gift will be “purged” beyond the amount that would be her intestate share (purge theory)

Tip: If the will is contested on grounds of fraud or undue influence, the existence of an interested witness creates a rebuttable presumption the testator was subject to undue influence. Analyze whether the witness would otherwise be entitled to an intestate share to rebut the presumption. While the UPC has abolished the interested witness doctrine, applying the UPC rule should not prevent a discussion of the issue so the grader will know you otherwise understand the rule and concept.

Question 6

What is required for a holographic will?

Answer 6

Intent + handwritten + signature = holographic will
1. Requirements—must be entirely in T’s handwriting and signed, though some states also require it be dated; UPC: only “material provisions” must be in handwriting
2. Intent—it must be clear the document was intended as T’s will (e.g., “I bequeath”); UPC: words of intent need not be in T’s handwriting and can be shown by extrinsic evidence

Question 7

What is the effect of a codicil on a will?

Answer 7

CODICILS—a testamentary addition to a will, executed with the same formalities as a will
1. Effect—a valid codicil republishes the will as of the date of the codicil
2. Holographic codicil to an attested will is valid as is an attested codicil to a holographic will

Question 8

What is the substantial compliance rule?

Answer 8

Under minority/UPC’s “harmless error” doctrine, a document that substantially complies with the formality requirements will be recognized as valid, if shown by clear and convincing evidence T intended it to serve has his will

Question 9

What is the time limit for a 1) will contest and 2) probate in general?

Answer 9

1) Six months
2) Three years

Question 10

Who has standing to contest a will?

Answer 10

Yes: Beneficiaries under the current or prior will have standing to contest the will
No: Creditors, spouses of beneficiaries under prior wills, and pretermitted heirs cannot contest a will

Question 11

Is a no contest clause enforceable?

Answer 11

Enforceable unless the claimant has probable cause to contest (majority/UPC)

Question 12

What is the test for lacking testamentary capacity?

Answer 12

Claimant must show, at the time (when)T made the will, T lacked the ability to know the following:
◦ Nature of the act (why);
◦ Nature and character of his property (what);
◦ Natural objects of his bounty (who); and
◦ The plan of the attempted disposition (how)

Question 13

What is the test for insane delusion?

Answer 13

Test—a rational person in T’s situation could not have reached the same conclusion
◦ Causation required—but for the insane delusion, T would not have disposed of the property in the same manner

Question 14

What is the test for undue influence?

Answer 14

Burden of proof—claimant must show the elements below with direct evidence:
♦ Exertion of influence by another;
♦ The effect of which was to overpower the mind and will of T; and
♦ But for the influence, T would not have made the will.
◦ Presumption arises when one who is in a confidential relationship with T participates in the will’s execution and receives an unnatural gift; recipient must overcome presumption by proving the will was not a product of his influence
◦ Elements:
♦ Susceptibility (T susceptible to influence);
♦ Motive (the influencer had reason to benefit);
♦ Opportunity (the influencer had the opportunity to influence); and
♦ Causation (the will would not have been executed but for the influence).
◦ Effect if proven—the influencer will be treated as having predeceased T

Question 15

What is the test for fraud?

Answer 15

Elements: Must prove the elements existed at the time the will was executed:
♦ Misrepresentation—by the beneficiary with intent to deceive T and with a purpose to influence T’s will
♦ Causation—but for the misrepresentation, the will would not have been made
♦ Types—in the inducement (makes a different will than she would have had she known the facts) or in the execution (as to the character or contents of the will

Question 16

How do you distinguish a codicil from a new will?

Answer 16

Look for a residuary clause. A will typically has a residuary clause whereas a mere codicil will not.

Question 17

How can a will be revoked?

Answer 17

• Subsequent instrument (later will controls)
• Physical act
• Operation of law (subsequent divorce revokes any provision in favor of the prior spouse; UPC also invalidates any gift to the prior spouse’s relatives)

Question 18

When does a physical act revoke a will?

Answer 18

T commits a physical act (tearing, burning, obliterating) with intent to revoke, or (by proxy) a third party acting on behalf of T does so at T’s direction and in T’s presence
* Lost wills—jurisdictions are split as to whether a will not found at T’s death creates a presumption that it was revoked by physical act
◦ Burden is on the proponent to establish the existence of a will by clear and convincing evidence
◦ Evidence—duplicate originals may be used, however duplicate copies will not be admitted
* Destruction of a copy—revocation of a duplicate original revokes all copies, but destruction of an unexecuted copy does not serve as a revocation of all copies

Question 19

What is dependent relative revocation (DRR)?

Answer 19

Rule: A will or portion that is revoked on a mistaken basis of law or fact can be revived.
Test: But for the mistake would T have revoked? If no, revive the revoked will or provision.
Partial—Applied when (i) an alternative disposition stated in a subsequent document fails, or (ii) the mistake causing the document’s revocation is reiterated in the revoking instrument

Question 20

When can a will incorporate a document by reference?

Answer 20

The document must have existed at the time the will was executed, was intended by T to be incorporated, and is sufficiently described in the will to permit its identification
UPC exception: A list of tangible personal property can be made after the will’s execution

Question 21

What is the rule/test for showing mistake?

Answer 21

Common Law: Extrinsic evidence is allowed to show a mistake in will execution (e.g., T is unaware she was signing a will); if the wrong will is signed, courts are split as to whether relief should be granted; no extrinsic evidence allowed to show a mistake in the testator’s intent or that an omission was accidental
UPC: More liberal approach—a court may reform a donative document, even if unambiguous, based on clear and convincing evidence of (i) a mistake of law or fact that affected specific terms of the document, and (ii) the donor’s intention.

Question 22

When does an antilapse statute apply?

Answer 22

If the predeceasing beneficiary is a relative of T (most states require that the beneficiary be a grandparent, descendant of a grandparent, or a stepchild of T);
◦ Who dies leaving issue;
◦ The issue will take the predeceased beneficiary’s share.
* UPC also applies the statute to non-probate transfers

Question 23

What does a devisee of encumbered property take?

Answer 23

The specific devisee of encumbered property takes subject to the mortgage unless T specifically directs otherwise; a general directive to pay debts will not suffice to exonerate a lien (UPC/maj.)

Question 24

When is a beneficiary entitled to an increase in securities?

Answer 24

1. Pre-death: Whether the beneficiary is entitled to the increase depends upon the jurisdiction
   * Common Law—beneficiary of a general bequest is not entitled to any dividends or shares issued before death; a beneficiary of a specific bequest (number of shares is specified) is entitled to additional shares from a stock split or merger but is not entitled to cash or stock dividends (i.e., stock split yes, dividends no)
   * UPC—specific or general beneficiary is entitled to any additional shares paid as a stock dividend or resulting from a stock split but is not entitled to a cash dividend
2. Post-death: Any increase (cash or stock dividends, or shares produced by a stock split) post-death goes to the specific beneficiary; a general beneficiary will only receive earned interest beginning one year after T’s death

Question 25

What is a spouse’s elective share?

Answer 25

A spouse may elect to take a share (often 1/3) of the net probate estate (after expenses and allowances) in lieu of any gift under the will; if an election is made, the other devises may be abated
* Augmented estate (UPC) spouse may take a 50% share of the value of the marital property portion of the augmented estate, defined as including property acquired before marriage (unlike CP states) as well as property transferred to the spouse and others
* Right to set aside transfers—many states allow the spouse to set aside qualifying inter vivos transfers made without spousal consent

Question 26

When can an elective share be waived?

Answer 26

The spouse may waive in writing the right to a forced or elective share only after fair disclosure of the assets/debts and consultation with independent counsel

Question 27

When can a spouse not take an elective share?

Answer 27

• UPC: Terms of will indicate omission was intentional or spouse was provided for outside of will

Question 28

When can an omitted child not tkae an intestate share?

Answer 28

It appears from the will the omission was intentional;
◦ The testator had other children when the will was executed and left most or all of the estate to the other parent; or
◦ The testator otherwise provided for the child outside the will with intent it be in lieu of a testamentary gift

Question 29

When will advancement count against a child’s intestate share?

Answer 29

C/L—lifetime gift is treated as satisfying all or part of the child’s intestate share
* UPC—requires a contemporaneous writing by D or an acknowledgment by the donee, indicating the gift was to be considered when determining the heir’s intestate share

Question 30

What is the order of abatement of assets?

Answer 30

When the assets of an estate are insufficient to pay its debts and satisfy the devises, the gifts abate in a specified order, unless the testator otherwise indicates.
Order in which to abate assets:
* Intestate property
* Residuary bequests
* General bequests
* Specific bequests
Priorities:
* Abatement within a category is pro-rata
* Favor the spouse and relatives over other gifts in the same category
* Non-probate property (e.g., insurance policy, payable on death account) does not abate