Wills and Estates Flashcards
What is the Purge Theory?
Many states now use a purge theory and invalidate the portion of the will providing an excess to the interested witness.
How do you calculate the excess portion of the interest witness?
To determine the excess portion, calculate the amount the interested witness would receive if the will were invalid (i.e., under the intestacy statute or prior will) and the amount the witness stands to receive under the will. If the amount to be received under the will is greater, then the excess interest is purged. There are two exceptions: (i) the interested witness is a third witness signing along with two other disinterested witnesses, or (ii) the interested witness would have taken had the will not been probated.
What is the difference in compliance with statutory requirements between UPC and Common Law jurisdictions?
Common law—strict compliance
UPC—substantial compliance if there is clear and convincing evidence of T’s intent
What is Probate?
Probate property is property that passes under Testator’s will or by intestacy
In a conflict of state laws, which state law applies to the validity of the will?
At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.
Under the UPC, validity is determined under the law of the place where (i) the will was executed, or (ii) the testator is domiciled, has a place of abode, or is a national at the time of death.
What is a conditional will? When does it apply? And what does the court look at?
The validity of a will can be conditioned on a particular event or circumstance.
However, whenever possible, the court will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument.
The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will.
The court considers factors such as where the will was stored after the purported “condition” lapsed, whether setting the will aside would result in intestacy, and whether effectuating the will would result in an inequitable distribution.
Ambiguities in Wills
Under the general rule of construction, a will “speaks” as of the time of death.
Courts are reluctant to disturb the plain meaning of a will regardless of mistake.
However, if there is an ambiguity, courts allow extrinsic evidence to resolve it.
Traditionally, courts distinguished between patent and latent ambiguities; however, many states no longer make this distinction.
What is a Pretermitted heir statutes?
Pretermitted heir statutes allow children of a testator to claim a share of the estate even though they were omitted from the testator’s will.
While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will.
If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.
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Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.
When does a Pretermitted heir statute not apply?
An omitted child statute does not apply if:
(i) it appears that the omission of the child was intentional;
(ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or
(iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.
How may a will be revoked?
Subsequent Writings
Physical Destruction of the Will
By Operation of Law
