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Wills & Trusts > Wills and their creation > Flashcards

Wills and their creation Flashcards

1
Q

Will

A

A written document by which an individidual sets out their wishes to dispersion of probate property at death and appoints a fuduciary (executor or personal rep.) to oversee the probate process

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2
Q

3 requirements for a valid will

A
  1. Testamentary intent
  2. testamentary mental capacity
  3. formalities
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3
Q

testamentary intent

A

the document is intended to be a will

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4
Q

3 key formalities

A
  1. A written document
  2. the decedents signature
  3. witnessing (attestation)
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5
Q

What in the last months of the decedent can help prove testamentary intent

A

Their actions

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6
Q

Testamentary capacity

A

Refers to the testators ability to “be capable of knowing and understanding in a general way”

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7
Q

A typical definition of testamentary capacity requires that the testator know what 4 things

A
  1. The nature and extent of his or her property
  2. The natural objects of his or her bounty
  3. The disposition that he or she is making of that property
    AND
  4. Must be capable of understanding how these elements relate
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8
Q

All that is needed for capacity when making a will:

A

A lucid moment

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9
Q

Lucid moment

A

A bried time when the testator has the requisite capacity even if she appears to not have it most of the time.

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10
Q

You can be lacking mental and physical capacities when writing you will, as long as

A

they have a decided and rational desire to the disposition of his property

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11
Q

Testamentary capacity age requirement

A

Must be 18 years or older to execute a valid will, unless you are an empancipated minor

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12
Q

Empancipated Minor

A

Children who are deemed by the court as free from parental control and no longer the financial responsibility

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13
Q

Age requirement on emanicpated minors on making a will

A

The age requirement is removed

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14
Q

UPC test for someone signing the will that is not the testator: what test do you use?

A

The “concious presence” test

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15
Q

The conscious presence test eliminates the need for

A

the witnesses to sign in the presence of the testator

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16
Q

“Conscious Presence”

A

The testator is aware of the act of the signing, even if the person who is signing is not visable at the very moment the signing is performed

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17
Q

The conscious presence test is satisfied when the

A

witnesses are so near at hand that they are within any of the testators senses, so that he knows what is going on

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18
Q

Witnesses by signing the will is attesting that

A

the will is the testators, they saw the testator sign the will, or acknowledging the signature of the will

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19
Q

To testify about a will’s execution, the witness must be

A

competent

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20
Q

competancy and interested witnesses

A

an interested witness is not competent

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21
Q

Interested witness

A

an individual who is identified as a beneficiaryor nominated to serce as a fiduciary to the terms of the will

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22
Q

problems with interested witness testimony

A

may not be impartial and independant

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23
Q

If a state requires a disinterested witness and a witness is interested, what happens

A

The interested witness can still receive at least a portion of the nomination

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24
Q

What decides if a witness has to be disinterested

A

The state

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25
Q

If they are a supernumary witness, what can a interested witness get

A

May receive a full testamentary gift or acceptable gift

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26
Q

Supernumerary witness

A

A extra witness after the 2 required disinterested witnesses

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27
Q

How many witnesses do a state require to testify about will execution

A

2

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28
Q

What satire can allow an interested witness receive all or a portion of a gift

A

Purging statute

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29
Q

Purging Statute

A

Removes or purges the testamentary gift that a interested witness would recieve under the terms of the will

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30
Q

The effect on the interested parties status with a purging statute

A

If they lose their interes, the witness no longer has interest in the will and can testify impartially to the events of the will execution

31
Q

What it is called when a purging statute only removes part of the testamentary gift

A

the interested parties “extra benefit”

32
Q

Purging statute

Extra benefit

A

Referred to a testamentary gift in excess of what the interested witness would have recieved if the decedent had died intestate

33
Q

When a purging statute only takes away the extra benefit of a interested witness how much can they recieve

A

Can recieve up to his or her intestate share

34
Q

Purging statutes that remove the extra benefit from interested witnesses, allows who to recieve a testamentary gift

A

the interested witness, only if they are a intestate heir

35
Q

4 functions of formalities

A
  1. Protective
  2. Cautioning or ritual
  3. Evidentiary
  4. Channeling
36
Q

Function of Formalities

Protective Function

A

helps testators potential valunrability.
- By asking the testator during the ceremony if they know they are signing their will.

37
Q

Function of Formalities

Cautioning or Ritual Function

A

Impressing upon the testator the seriousness of the occasion and that her actions and statements will have important consequences

38
Q

Function of Formalities

Evidentiary Function

A

Creates a record of the free will and intent of the testator to which witnesses can testify

39
Q

Function of Formalities

Channeling function

A

Puts the testators wishes into standardized forms and testamentary language which are immediately recognizable and understandable to professionals

40
Q

Traditional rule for witnesses witnessing the will

A

Line of vision test: the testatoe must be capable of seeing the witness sign the will.

41
Q

UPC recognizes wills that are not witnessed but ____ as valid

A

notorized

42
Q

Holographic Wills

A

handwritten wills signed and dated by the testator

43
Q

How holographic wills are useful

A

they are useful in allowing testors to express their final wishes in extreme circumstances, when unexpected incidences occur, and the context of military service.

44
Q

Formalities of a online preprinted form/will and what formality people struggle with

A
  • same formalities of a will
  • Typically fail to get them witnessed
45
Q

Holographic wills and online preprinted forms/wills show what prefrence in the law?

A

Testancy over intestancy

46
Q

The unform electronic wills act:

A electronic will must be:

A

a record that is readable as text at the time of signing

47
Q

The unform electronic wills act:

How an electronic will must be signed

A

signed by the testator or another intheir physical presence by their direction

48
Q

The unform electronic wills act:

How a electronic will must be witnessed

A
  1. Signed by two individuals (who are residents and physically located in the state) within a reasonable time of signing
    OR
  2. Acknowledged by a notery
49
Q

The unform electronic wills act:

What the witnesses of a electronic will is testifying to:

A
  1. Witness: the signing of the electronic will or the testators acknowledgement of the signing of the will
  2. Notery: Acknowledging the testator before and in the physcial presence of signing
50
Q

The unform electronic wills act:

How the intent of the testator is established

A

can look at extrinsic evidence

51
Q

The unform electronic wills act:

Electronic wills: audio and video

A

has to be in text, does not count unless it is transcribed prior to the testators signature.

52
Q

2 doctrines that allow the probate of wills that do not strictly meet the formality requirements

A
  1. Substantial compliance doctrine
  2. Harmless error
53
Q

Substantial compliance doctrine

A

allows a non-conforming will to be admitted to probate not withstanding certain defects in execution

54
Q

The substantial compliance needs

A

clear and convincing evidence that the purposes of the will formalities have been satisfied

55
Q

Harmless error doctrine

A

Allows a nonconforming will to be admitted to probate if there is clear and convincing evidence that the decedent intended the document to be their will

56
Q

UPC Harmless Error Doctrine: Need clear and convincing evidence that the decedent intended the documents or writings to constitute:

A
  1. The decedents will,
  2. partial or complete revocation of the will,
  3. an addition to or an alteration of the will, or
  4. a partial or complete revival od his formally revoked will or of a portion of the will
57
Q

The Uniform Electronic will Act: Harmless Error Doctrine: Need clear and convincing evidence that the decedent intended the record to be:

A
  1. The decedents will,
  2. partial or complete revocation of the will,
  3. an addition to or an alteration of the will, or
  4. a partial or complete revival od his formally revoked will or of a portion of the will
58
Q

Acts of Independant Significance

A

events that occur in everyday life, can change how a will is interpreted

59
Q

Events of Independant Significance

A will may be explained by such evidence:

A

1) as to the person intended
2) The thing intended
3) The intention of the testator to each

60
Q

UPC 512 Events of Independant Significance

A will may dispose of property by

A

refrence to acts and events that have significance apart from their effect upon the dispositions made by the will

61
Q

UPC 512 Events of Independant Significance

Timing

A

can occur before or after the execution of the will
or
before or after the testators death

62
Q

UPC 512 Events of Independant Significance

Execution or revocation of another individuals will

A

Can dispose of property by refrence to acts and events that has significance apart from the dispositions made by the will

63
Q

3 basic req’s for a valid will

A
  1. Testamentary capacity
  2. compliance with formalities
  3. no illicit interference with donative intent
64
Q

Plain meaning doctrine

A

does not look outside the plain meaning of the words on the page to find testators intent
only look to extrinsic evidence if language is unclear.

65
Q

The word “heirs” does not prevent

A

one individual from taking the entire gift

66
Q

intent of the testator

testimony may be employed to resolve

A

contradictory provisions in the will

67
Q

testators intent

direct evidence of the testators intention should be considered

A

only if the ambiguity or contradiction persists

68
Q

intent of testor

extrensic evidence is to be used to determine

A

What the testator meant by the words used in the instrument

69
Q

Equivocation

A

where several people or objects fit a discription in hte will

70
Q

misdiscription

A

where no person or object fits the description in the will

71
Q

UPC 805 Reformation to Correct Mistake

The court may reform the terms of a governing intrument, even if ambiguous, to

A

conform to the trannsforor’s (ex. attourney writing the will) intention if it is proved by clear and convincing evidence

1) what the transforor’s intention was
AND
2) That the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement

72
Q

UPC 805 Reformation to Correct Mistake

court may reform the terms of the instument to conform to the transforors intention if it is proved by clear and convicing evidence:

A

1) what the transforor’s intention was
AND
2) That the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement

73
Q

Will checklist

A
  1. will is valid (testamentary intent, capacity, execution formalities)
  2. no challenges
  3. interpret will provisions
74
Q

when the language of the will is susptible to more then one meaning

A

use extrisic evidence

Wills & Trusts (26 decks)

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