Wills and Intestacy (MAGIC) Flashcards
in order to create a valid will, the testator must have?
A valid will requires that testator have testamentary capacity (presumed to exist) and intent
i. Testamentary capacity: T must be 18+ and of sound mind—no mental disorder or lack of mental capacity
1. 18+, understand nature of testamentary act, nature and extent of property, relations to beneficiaries
ii. Testamentary intent (mere reluctance not enough to prevent intent): Intent can be prevented by…
1. Undue influence (UI) over T: Physical or mental coercion that controls T’s dispossession of property. Factors: opportunity to influence T (confidential relationship), susceptibility of T, active participation by influencer, unnatural result (successful influence of dispossession)
2. Fraud in the execution: Misrepresentation of document, deception, switching papers
3. Fraud in the inducement: Misrepresentation of law or facts induces T in reliance
4. Mistake in the execution: Carelessness, accidentally signing wrong document
5. Mistake in the inducement: Innocent misrepresentation, mistaking true facts (extrinsic evidence (EE) is admissible). Rest of will is valid unless enforcement would grossly distort T’s intent.
6. Sham will: C&C evidence showing the document was not intended to be a will invalidates it
7. Conditional will: If explicit condition precedent to will taking effect does not occur, will is invalid
what are the formalities of a valid will?
A valid will requires certain formalities
i. Formal (attested) will: Formally witnessed will 1) in writing, 2) signed by T (or another at T’s direction and presence), 3) signing or acknowledgment in joint presence of 2+ witnesses, 4) signed by 2+ witnesses during T’s lifetime (can be separate), 5) witnesses understand instrument being witnessed is T’s will
1. Interested witness (beneficiary): Unless 2+ other disinterested signing witnesses, presume fraud/duress/UI. If presumption not rebutted, gift to interested witness fails, may only take intestate share. If gift acquired through actual fraud/duress/UI, not entitled to any portion of gift
2. After 1/1/2009, a will not meeting witnessing requirements may still be admitted to probate if there is clear and convincing evidence that T intended the document to be his will
ii. Holographic will: Will 1) signed by T with 2) material provisions in T’s handwriting. No witnesses needed
iii. Codicil: Alteration to existing will – valid if executed with required formalities as attested/holographic will
1. Can have holographic codicil to attested will and vice versa
stuff that might make it into a will
Other valid contents of a will:
i. Incorporation by reference: T may incorporate by reference a separate document into a will when 1) the document is in existence at execution, 2) will shows intent to incorporate, and 3) the writing is described
1. A will can also refer to a document not yet in existence at the time of execution if 1) an unrevoked will refers to the writing, 2) the writing is dated and in T’s handwriting or signed by T, and 3) the writing describes the items and the recipients of the property with reasonable certainty
ii. Facts of independent significance: A will may dispose of property by reference to acts and events that take place after the execution and without formalities that attend to the will itself, i.e., things can happen (variables) after execution that can affect disposition without formalities (e.g., a will to pass a gift in equal shares to T’s employees. This provision is valid even if the employees change after execution)
iii. Pour-over provision: T may dispose of property by will to an existing inter vivos (established during lifetime) trust. Hence, an inter vivos trust may be a “will substitute,” provided the will is valid
1. This trust must be clearly identified in the will and executed before/concurrently with the will
2. This trust may be amended or revoked after execution of the will
3. This trust may be unfunded during T’s lifetime
iv. Ambiguity: Consider extrinsic evidence (EE) if T’s intent or language is ambiguous
revocation and revival
a. A will may be revoked in whole or in part by a subsequent will that revokes it expressly or by inconsistency
i. Subsequent instrument: T makes new will or codicil (Will 2) that expressly or impliedly revokes previous will (Will 1). Attested will can be revoked by holographic will/codicil and vice versa
ii. Physical act: Physical destruction—burn, tear, obliterate, interlineate—with concurrent intent to revoke
1. T may direct another to destroy the will in his presence
2. If only part of will destroyed, EE admissible to show whether T intended part/full revocation
3. If there are copies, destruction with intent of either the original or a copy is a valid revocation
b. Dependent relative revocation (DRR: didn’t really revoke) cancels a revocation based on mistake of law or fact
i. If T revokes on the mistaken belief that another disposition would be effective, and but for this mistake T would not have revoked his will, the revocation is set aside, and the original will remains in force
ii. If revoked by subsequent instrument, EE not admissible to show the mistake
iii. If subsequent instrument is defective in the first place, revocation is also ineffective—DRR inapplicable
c. Revival: If new Will 2 is revoked, Will 1 remains revoked unless evident from circumstances of Will 2 revocation
i. If Will 2 revoked by Will 3, Will 1 revived to extent of Will 3 showing intent for Will 1 to take effect
ii. If Will 2 revoked by physical act, can admit EE to prove T’s intent to revive Will 1
iii. Revival by republication by codicil: Making a codicil to the voided will (will speaks @ date of codicil)
things that can change up the distribution of property
a. Abatement (estate insufficient to pay all debts and claims): Gifts are reduced (abated) pro rata under a will to satisfy the debts and claims of an estate in the following order by default—intestate property, residuary devises, general devises [non-relatives, then relatives], demonstrative devises, specific devises [non-relatives, then relatives]
b. Ademption by extinction: Specific devise fails (is adeemed) when T no longer owns the gift at death, BUT look to T’s intent. May occur intentionally (sale, gift) or involuntarily (fire, theft). Or T may collect balance of any sale price he intended the property to go to original beneficiary despite it no longer existing
c. Ademption by satisfaction: An inter vivos gift in advance will be treated as a satisfaction of a testamentary gift if 1) instrument specifies deduction of the lifetime gift from the testamentary gift, or 2) T declares in a contemporaneous writing that transfer is to be deducted from the testamentary gift, or 3) transferee acknowledges so in writing
d. Lapse: If a beneficiary predeceases T, the gift lapses (into residue of estate)
i. Anti-lapse statute provides a substitute beneficiary: Unless intended by will, the gift passes to the issue of the intended beneficiary who is kindred (including issue) to testator or spouse
e. Simultaneous death with intended beneficiary: If it cannot be established by C&C evidence that one survived the other (by 120 hours by default), the property is administered as if the intended beneficiary predeceased T
f. Disclaimer: Intended beneficiary disclaims—irrevocably refuses a gift. Disclaimer must be in writing (identify T, describe interest being disclaimed, and declare the disclaimer) and signed by the beneficiary. Treated as predeceased
family protections
a. T’s premarital or prebirth will inadvertently fails to provide for surviving spouse or child
b. Pretermitted child receives intestate share, unless 1) the will shows omission was intentional, 2) T provided substitute transfer outside will, or 3) T had other children and left estate to parent of omitted child
i. (2) Substitute transfer means T provided for the omitted child outside the will when T leaves substantially all estate to SS who is child’s parent
c. Omitted spouse receives other half of CP and QCP (total 100% CP) + up to ½ share of SP, unless 1) will shows omission was intentional, 2) T provided substitute transfer outside will, or 3) waiver agreement
bars to distribution
a. Slayer statute: A person who feloniously and intentionally kills decedent is not entitled to benefit from his estate
b. Elder abuse: A person found liable by C&C evidence of elder abuse (physical, neglect, fiduciary) is treated as if he predeceased decedent
c. No-contest clause (causing a beneficiary to forfeit right to take) will be enforced, unless beneficiary, with probable cause, brings contest on grounds of forgery, revocation, interested witness, improper execution, or fraud/UI/duress
intestacy
occurs when there’s no will or the will fails
a. Advancement: Inter vivos property given to heirs during decedent’s lifetime is treated as an advancement against an heir’s share of the intestate estate, only if 1) decedent declares in a contemporaneous writing that the gift is an advancement against the heir’s share, or 2) heir acknowledges it in writing
b. Passing SP without decedent’s testamentary distribution scheme
i. The distribution manner may be…
1. Per stirpes (per capita with right of representation): Each “root” gets equal share; each “root” of each “root” gets equal share
2. Per capita (equally by headcount): Each living member of a class of beneficiaries (at each surviving generation of issue, unless stated in will) gets equal share
ii. Any presumptive distribution manner may be overridden by specifying in a will or trust
c. Surviving spouse gets ½ CP and QCP (total 100% CP) + at least 1/3 SP depending on surviving kindred or issue
i. Decedent survived by SS only → all SP to SS
ii. Decedent survived by parents or issue of parents → ½ SP to SS, remainder to parents
iii. Decedent survived by 1 child or issue of child → ½ SP to SS, remainder to issue
iv. Decedent survived by 1+ child and/or issue of child → 1/3 to SS, remainder to issue
d. No surviving spouse: If spouse does not survive decedent, SP passes to issue, then to parents, then to parents’ issue, then to grandparents’ or their issue, then to predeceased spouse’s issue . . .
e. Adopted person dies intestate: Property is distributed among those who would have been kindred
f. Child born out of wedlock: A natural parent may not inherit from the child, unless the parent 1) acknowledged the child and 2) contributed to support or care of the child
