Wills and Estates Flashcards
intestate succession
any property not passing by a valid will or by operation of law will be governed by a state’s applicable intestacy statute
Under the UPC when is a written will valid
if its execution complies with the law of the place (a) where executed; or (b) of the testator’s domicile, abode, or nationality at the time of death or signing of the will
Under the UCC, a will must be
- in writing
- signed by the testator
and - either (a) signed by at least 2 individuals within a reasonable time after witnessing the signing of the will or (b) notarized
UPC harmless error rule
an improperly executed is valid if the party seeking to have it validated proves (1) by clear and convincing evidence (2) that the decedent intended the writing to be his will
*generally, the greater the departure from the necessary execution formalities, the harder it is to prove the testator’s intent
Doctrine of Integration
a document will be integrated into a will if the testator (a) intended it to be part of the will AND (2) the document was physically present at the will’s execution
is extrinsic evidence admissible to prove intent to form a will?
yes
is a will with an interested witness valid? and what happens to bequests to the interested witness?
yes -
gift to the interested witness will be void unlesss it fits into an exception
Exception 1 - if the interested witness is an heir - any gift to that witness will be the lesser of (I) their intestate share or any gift under the prior will or (ii) the gift under the current probated will; or
Exception 2: if another disinterested witness was present so that there were still a total of two disinterested witnesses
codicil
an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil MUST satisfy the same formalities as a will to be valid. A codicil republishes a will, meaning courts will consider the original will to have been executed on the same date as the codicil. Most courts hold that a codicil cannot republish an invalid will
holographic will
a holographic will is a handwritten will that is NOT witnessed. Not all states recognize holographic wills. in the states that do, some require that the writing also be subscribed by the testator (signed at the end of the will). In the states that recognize holographic wills, a valid holographic codicil revokes any earlier valid will to the extent it conflicts with the codicil.
Incorporation by reference
- a bequest through an unattested document is valid if it meets the requirements to be incorporated into the will by reference. in most states, a document or writing may be incorporated into a will by reference if (1) it was in existence at the time the will was executed (2) it is sufficiently described in the will AND (3) the testator intended to incorporate it into the will
UPC permits a document or writing bequeathing tangible property to be incorporated into the will if it:
(1) was signed by the testator; and 2 describes with reasonable certainty the items and devisees
a will be revoked by a physical act if:
(1) the testator intended to revoke the will AND (2) the will is burned, torn, destroyed, or cancelled by the testator (or someone at his direction and in his presence)
under common law words of cancellation are valid only if they come in physical contact with words of the will. under UPC words of cancellation are valid even if they did not physically contact the words of the will
how can a testator revoke a will
by executing a subsequent valid will or codicil. revokes only to the extent that the previous will conflicts with the new will UNLESS the new will expressly revokes the previous will in its entirety
Dependent relevant revocation doctrine
cancels a previous revocation that was made under a mistaken belief of law or fact by testator. Applies when the testator would not have revoked his original will or bequest but for the mistaken belief that another he he prepared would be valid. ONLY applied when there is asufficiently close identity to the revoked request and the bequest in the invalid subsequent will .
