Wills And Estates Flashcards
What are non-probate assets?
Life transfers that pass outside of the will/intestacy process.
What is required to make a will?
- testamentary capacity
- testamentary will
- appropriate formalities (vary based on type of will)
What capacity is required to make a will?
- over 18
- of sound mind
What is required to be of sound mind to make a will?
Must have the ability to understand:
1. The nature, condition, and extent of your property
2. The nature of the disposition that testator is making of your property
3. The names of and testator’s relationship to their descendants
How does an insane delusion affect a will?
An irrational belief with no basis in fact or reality.
Doesn’t necessarily negate soundness of mind.
A particular gift or will is invalid to the extend it was the product of the insane delusion
What is testamentary intent?
At execution, a testator must intend that the particular document under discussion be his or her will.
What negates testamentary intent?
- Undue influence
- Fraud
- Mistake
When is undue influence sufficient to void a will?
The wrongdoer overcomes the testator’s free will, and the influence causes the testator to make a transfer that they would not have otherwise made
When does a presumption of undue influence in the execution of a will arise?
The alleged wrongdoing was in a confidential relationship with the donor
There were suspicious circumstances surrounding the preparation, formulation, or execution of the will
When does fraud invalidate the will?
Fraud in the execution - as to the nature or contents of the writing itself
Fraud in the inducement - as to intrinsic facts that induces the testator to make a gift that they wouldn’t have made if they knew the true facts
When does mistake invalidate a will?
Mistake in the execution - as to the nature of the document
In the inducement - no affect on testamentary intent —> doesn’t invalidate a will
What are the formalities required for a valid attested will?
- In writing
- Signed by the testator or in their name in the testators presence and direction
- Witnessed by at least 2 people or public notary
What is the harmless error rule for wills?
Even if the formalities are not met, the will is valid if the proponent proves by clear and convincing evidence that the testator intended the document to be their will.
What is the integration rule for a will?
Any pieces of paper present at execution that are intended to the be a part of the will, will be part of the will.
How does the signing of a will by an interested witness affect the will?
Doesn’t invalidate it - may purge the interested party’s share.
Under Uniform Probate Code - has no effect at all.
What is a holographic will?
Written by the testator entirely in their own handwriting. UPC requires only the material portions to be in handwriting.
Does not require any witnesses