Wills and Trusts Flashcards
Intestate Succession
Without having written a valid will
Testate Succession
Testator
Wills in General
- A will is a document executed by a testator or testatrix that takes effect on the death of the testator or testatrix.
- Usually, a will disposes of a person’s property, but need not actually do so in order to constitute a valid will.
- A will may also include any codicil and testamentary instrument that:
a. appoints an executor;
b. nominates a guardian;
c. revokes or revises another will; or
d. expressly excludes or limits the rights of an individual or class to succeed to property of the decedent passing by intestate succession. - Questions pertaining to testate succession generally fall into one of four categories:
a. making a will;
b. revoking a will;
c. challenging a will; and
d. comprising and construing a will.
There are three types of wills:
a) attested or formal will. will with witness
b) holographic. unattested will.
c) oral will
While the formal requirements of a will depend on what type of will is in issue, all wills require:
a) testamentary capacity
b) testamentary intent
c) appropriate formalities
Capacity to Execute a Will
Age: over 18
Mental capacity
Testator must be of sound mind.
b. Sound mind is determined at: the time the will is executed
The fact that a testator may be eccentric or may have unusual opinions or behavior does not necessarily render him mentally incapable of making a will.
Generally, sound mind means that the testator, at the time the will is executed, must have the ability to understand:
1) nature and extent of property
2) the nature of the distribution or disposition being made
3) the names and relations to the natural objects of his bounty
An insane delusion is defined as:
Irrational belief that has no basis in fact or reality.
(1) A person who suffers from an insane delusion is not necessarily deprived of capacity to make a donative transfer.
(2) A particular donative transfer is invalid, however, to the extent: that it was the product of the insane delusion
(3) Mere eccentricity does not constitute an insane delusion.
(4) Similarly, a suspicion with some basis in fact is not an insane delusion.
Testamentary Intent
At the time of the execution: a testator must intend that this particular document must be the will.
EXAMPLE: A testator sends a letter to his sister saying he intends to make up a will next week and details how he wishes to have his property distributed. If testator dies before making that will, can the letter be admitted into probate? No, because at the time the testator wrote the letter, he did not intend that letter to be a will. The letter cannot be deemed to be the testator’s will because the testator lacked testamentary intent.
EXAMPLE: Tom sends his niece Caroline a handwritten, signed letter that professes his love for her and promises to leave her his entire estate. However, Tom dies before making a will. Does this letter constitute a will? This letter was not intended to be a will, so it is not a will.
Three concepts that prevent testamentary intent:
a) undue influence
b) fraud
c) mistake
Undue influence is sufficient to void a will if
1) the wrongdoer exerted such influence over the donor, that it overcame the donors free will and cause the donor to make the will that they otherwise would not have made
A presumption of undue influence arises if:
1) the alleged wrongdoer is in a confidential relationship with he donor;
2) if there was suspicious circumstances that attended, preparation, procurement, execution of the will
(a) Factors to consider include:
1) the extent to which the alleged wrongdoer participated in the execution of the will
2) the extent to which the donor was in a weakened condition
3) if you have a substantial devise to one of the witnesses to the will
This rule also covers a relationship whereby:
there is a caretaker of the donor. think of night nurse.
NOTE: The existence of a confidential relationship is not sufficient to raise a presumption of undue influence. There must also be suspicious circumstances surrounding the preparation, execution, or formulation of the will raising an inference of an abuse of the confidential relationship between the alleged wrongdoer and the donor. In evaluating whether suspicious circumstances are present, all relevant factors may be considered, including:
(1) the extent to which the donor was in a weakened condition physically, mentally, or both, and therefore susceptible to undue influence;
(2) the extent to which the alleged wrongdoer participated in the preparation or procurement of the will;
(3) whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will;
(4) whether the will was prepared in secrecy or in haste;
(5) whether the donor’s attitude toward others had changed by reason of his relationship with the alleged wrongdoer;
(6) whether there is a decided discrepancy between new and previous wills of the donor;
(7) whether there was a continuity of purpose running through former wills indicating a settled intent in the disposition of his property; and
(8) whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.
If undue influence is proven:
void the provisions of the will that benefit the person exerting the undue influence
From 2004 on, Roger repeatedly threatened his sick brother George that he would “pull the plug” on him if he did not leave him money in his will. George died in 2009, leaving Roger a large bequest. George’s son, Barry, moved to have the will set aside for undue influence, but notes found in George’s effects showed that George had always intended to leave most of his estate to Roger, but simply had never wanted to tell Roger that.
Can Barry succeed?
probably not
Roger seems awful, but it must be so bad that causes the testator to make a will distribution that he would otherwise not have done.
Fraud
Fraud in the execution
(1) Fraud as to the nature of contents or writing itself.
(2) If shown to be fraud in he execution, the will is invalid.
EXAMPLE: Radar O’Reilly presents a stack of papers for Colonel Henry Black to sign, stating they are all important documents. Radar inserted a piece of paper that states, “I, Henry Blake, leave all my property to Radar O’Reilly.” Radar used fraud to have Colonel Blake sign the document. Will is invalid.
Fraud in the inducement
Intrinsic facts that induce someone to take action that affects the distribution.
(2) The test is:
Would the testator have made this same gift having known the truth.
EXAMPLE: A child fraudulently claims to be the testator’s illegitimate son. As a result, the testator leaves half of the estate to the child. Would the testator have left half of the estate to the child, if the testator had known the true facts? If no, then invalidate the gift. If yes, then effectively the fraudulent claim is ignored and the gift stands.
c. If fraud is alleged with respect to only a part of the will, the court may reject that part and admit the rest to probate. The legacy that is void due to fraud then falls into the residue, or, if there is no residuary clause, passes by intestacy.
d. If the entire will is tainted, all the property will pass by intestacy.
Fraud in the inducement
Intrinsic facts that induce someone to take action that affects the distribution.
(2) The test is:
Would the testator have made this same gift having known the truth.
EXAMPLE: A child fraudulently claims to be the testator’s illegitimate son. As a result, the testator leaves half of the estate to the child. Would the testator have left half of the estate to the child, if the testator had known the true facts? If no, then invalidate the gift. If yes, then effectively the fraudulent claim is ignored and the gift stands.
c. If fraud is alleged with respect to only a part of the will, the court may reject that part and admit the rest to probate. The legacy that is void due to fraud then falls into the residue, or, if there is no residuary clause, passes by intestacy.
d. If the entire will is tainted, all the property will pass by intestacy.
T, a Giants fan, made a will that left his estate to Al and Sara. Sara fraudulently persuaded T that Al was an avid Giants fan. This was a lie; Al was a diehard Dodgers devotee. T died leaving property to Al based on a mistaken presumption.
How will the court divide T’s estate?
The gift to Al possibly fails, if it can be shown that the testator would not have made that gift if he had known the true facts.
Mistake
a. In the execution
(1) Mistake as to the nature of the document.
(2) Will is invalid.
Mistake In the inducement
(1) The testator executes a will or a clause in the will because the testator is mistaken to the true facts.
(2) This does not affect testamentary intent, thus no relief is granted.
NOTE: When a mistake is made, there is very little that a court may do. There are some circumstances where a court may reform the terms of a will, but they require clear and convincing evidence.
A valid attested will must be:
a) in writing
(1) Any reasonably permanent record is sufficient.
b) signed by the testator by the proxy in the testators name and conscious presence and at testators direction
A valid attested will must be:
a. in writing
(1) Any reasonably permanent record is sufficient.
b. signed by the testator or by a proxy in their conscious presence and at the testators will.
(1) Conscious presence includes within earshot.
(2) Assisted signatures are permitted, whether or not the testator requested assistance, provided the testator was the motivating force of the signature (signifying intent).
(a) Distinguish this from a directed or guided signature, whereby somebody grabs the testator’s wrist and moves the pen for him.
There is no requirement that:
(a) the signature is in the testator’s name; it can be anything which indicates the person’s intent that the document be that person’s will.
Witnessed or Attested: One of two requirements (witnessed or attested) must be met, EITHER
(1) signed by at least two individuals
each of whom signed within a reasonable time after the individual witnessed either the signing of the will or the testator’s acknowledgement of that signature or acknowledgment of the will.
(a) There is, however, no requirement that the witnesses sign before the testator’s death. In a particular case, the reasonable-time requirement could be satisfied even if the witnesses sign after the testator’s death.
(b) The rule regarding contemporaneous acts says: if the witnesses sign the will before the testator, but all in the same event it is permissible.
(c) There is no requirement that the witnesses who sign the will do so in each other’s presence; each can sign it separately if within a reasonable time.
1) But recall that the will is not formally executed:
(2) OR acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.
(a) A will, whether or not it is properly witnessed, can also be acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.
(b) If a notary is involved in the process of making a will self-proving, this is a different role than having the notary attest to the will in lieu of or in addition to witness attestation.
d. There is no requirement that the testator “publish” the document as his will, that he request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other.
EXAMPLE: Alice signed her will across the front of the document after reading and folding it up. Is her signature valid? Yes, because there is no requirement that she sign any place specifically on the will.
Harmless Error Rule
Any attempt to make a will, notwithstanding its failure to meet these requirements, will be validated if: the proponent proves by clear and convincing evidence that the testator wanted the document to be a will
Integration Rule
Any pieces of paper actually present at execution that are intended to be part of the will will in fact be part of the will. In other words, when the will consists of several sheets of paper, the testator need not sign each page if the sheets compose one instrument connected in composition. No state requires each sheet of paper of a multiple-page will to be separately executed
Qualifications of Witnesses
Generally, a witness is competent if he has the ability to observe the testator affix his signature: coupled with the ability to comprehend the nature of this act
- Interested Witnesses (frequently tested topic)
a. An interested witness is a witness who is also a beneficiary of the will to which they are witnessing.
b. Under the Uniform Probate Code, an interested witness is perfectly fine; the will will be valid, and the gift to the witness will be valid.
(1) Additionally under the Code, an interested proxy is permissible.
c. If an interested witness is involved in the will, it may give rise to questions as to whether or not the witness had undue influence over the testator in writing the will.
EXAMPLE: Arnold executes a will signed by two witnesses: his wife Maria and his attorney Wellington. The will’s primary beneficiaries are Maria, Arnold’s children, and several nonprofit organizations. Is this will valid? Assuming all other formalities met, the will is valid because an interested party can serve as a witness.
F. Probate of Will
- The “proving” of a will involves the process by which the testator’s signature is established.
Self-Proving Will
a. If the will is self-proved, the will satisfies the requirements for execution without the testimony of any attesting witness, upon filing of the will, the acknowledgment, and affidavits, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit. Thus, execution of a self-proving will avoids problems with hostile or unavailable witnesses.
b. A will may be made self-proved if it is simultaneously executed and attested by acknowledgment of the testator and affidavits of the attesting witnesses, each made before an officer authorized to administer oaths and evidenced by the officer’s certificate, under official seal.
c. A will may also be made self-proved at any time after its execution by acknowledgment of the testator and affidavits of the attesting witnesses, each made before an officer authorized to administer oaths and evidenced by the officer’s certificate, under official seal.
Holographic Wills
A holographic will is one written by the testator, entirely in his own handwriting.
b. In order to qualify as a valid will under the Uniform Probate Code:
(1) the material portions
(2) signed by testator
c. Material portions are: those portions that distribute money or property
d. The testator is still required to have:
(1) testamentary capacity
(2) testamentary intent
Wanda died in 2015 after a long, debilitating illness. When Wanda was in the hospital the week before she died, she told Dora that she wanted to leave all of her estate to her. The next day, Dora wrote out a document titled “Will.” The document was in Dora’s handwriting.
Dora presented the 2015 will to Wanda at the hospital. Wanda was too weak to read or sign the instrument and could only make an “X” on the signature line after the instrument was read to her by Dora. Two nurses came in the room to witness Wanda make her “X” on the line, and each signed on a line marked “Witness.” Dora filled in the date. After Wanda died, Dora petitioned for the admission of the 2015 will.
What objections could be raised concerning the validity of the 2015 will?
ANSWER: Wanda had capacity and seemed to have capacity. Nothing of undue influence here. Validly attested, witnessed, signed, this will seems valid. Not holographic will.
Conditional Wills
a. Conditional wills are permitted; a will can be conditioned upon some event.
While he was in the Navy, Taylor wrote a letter to a friend stating that “if I die by shark attack out in the south pacific,” Taylor’s bonds, cash, and any pay that was due should go to Betty Black, an old friend. After Taylor left the Navy, unscathed by sharks, he lived with the Black family, and he mentioned the letter many times. When Taylor died, his friend tried to probate the letter; Taylor’s aunt contested it.
What should be the result?
ANSWER: Letter to friend not likely will and not testamentary intent. If true condition, then no will. Lack of condition upon which the will is premised, then will is invalid.
B. Contracts to Make a Will, and Joint or Mutual Wills
- The UPC will uphold as valid a contract to dispose of by will all or part of a person’s property, whether real or personal.
- A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, may be established only by:
a. provisions of the decedent’s will stating material provisions of the contract;
b. an express reference in the decedent’s will to a contract and extrinsic evidence proving the terms of the contract; or
c. a writing signed by the decedent evidencing the contract. - In many states, when two persons execute a single document as their joint will, this gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both. Under the UPC, however: this does not create a presumption of the contract.
- Both joint and mutual wills: are revocable.
EXAMPLE: A has three children from a previous marriage. A, who is penniless, marries B, who is very wealthy. A and B have one more child. A and B enter into a contract that the child of their marriage should get half of their property, and the other half should be split among A’s children from the previous marriage. A and B execute wills in line with the contract. After B dies, A wants to change her will so that all her children get equal shares of her estate. If the existence of the contractual agreement can be proven because it is stated in the will along with the contractual provisions, then the contract will be honored. However, it will be honored as follows: the changed will will be admitted to probate, but the beneficiary who was negatively affected can sue the estate for damages or for specific performance.
Husband and Wife executed a joint will, providing that the survivor would receive all of the other’s property at death, and making specific gifts upon the death of the survivor, with the remainder going to Husband and Wife’s child. Husband died first, and his estate passed to Wife. Wife executed a new will making the specific gifts mentioned in the joint will, but leaving the balance of her estate to her new boyfriend.
To whom should Wife’s estate be distributed?
ANSWER: to the new boyfriend. Under UPC joint will does not make a contract
Codicils
A codicil is an instrument that is executed subsequent to a will and may be holographic.
- A codicil by its nature refers to another document, by adding to, explaining, or deleting from an earlier testamentary instrument.
a. As to the original will, a codicil republishes the will to which it refers, which means that the will is treated as if it was written for the first time as of the date of the codicil. - A validly executed codicil cures: most defects in the original execution of the will.
EXAMPLE: In 2012, A signs a typed will witnessed only by J. The will provides, among other things, that Blackacre should go to X. The will is not valid. It is typed, and thus not holographic. It has only one witness, and so fails to meet the attestation requirements, nor was it attested by a notary public. Four years later, A executes a codicil specifying it a codicil of A’s 2012 will, making additional dispositions, and specifically republishing the 2012 will in all other respects. If the 2016 codicil is valid—if it is signed by A and properly attested—the invalid 2012 will’s provisions will become valid through the formalities of the codicil.
EXAMPLE: A executes a will in September 2013, at which point he has two children. He executes a codicil in December 2015, by which point he has a third child, unnamed in either the will or the codicil. Because the codicil republished the original will as of the date of the codicil, the left-out third child could not claim to be after-born and would be deemed intentionally disinherited.
A will is validly executed if executed in compliance with:
a. the UPC sections relating to form and execution of a will (Sections 2-502 or 2-503);
b. in compliance with the law at the time of execution of the place where the will is executed
c. the law of the place where at the time of execution or at the time of his death the testator is domiciled, has a place of abode, or is a national.
Under the UPC, wills may be revoked by:
a. physical act
(1) A “revocatory act on the will” includes: burning, taring, obliteration, destroyed, etc.
(2) The key is that: the physical act must be done with revocatory intent.
(3) If the testator does not perform the revocatory act, but directs another to perform the act, the act is a sufficient revocatory act if the other individual performs it in: the testators conscious presence.
EXAMPLE: A called her attorney, B, and told him to immediately destroy her will. He did so while she was on the line. The attempted revocation is invalid.
EXAMPLE: T’s will leaves Cynthia $10,000. T becomes disenchanted with Cynthia and crosses out the final zero (0), seeking to reduce her bequest to $1,000. T’s reduction of Cynthia’s gift is valid because it is a partial revocation by physical act. Cynthia will get $1,000.
b. the execution of a later will that either expressly or implicitly revokes the will.
(1) A revocation by a subsequent will may be partial to the original will or revoke the will in its entirety.
(2) A will, duly executed and proved, that contains an express clause of revocation revokes all former wills.
(3) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will: by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will
(4) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked.
EXAMPLE: Testator has a first will that says, “Blackacre to A, my car to B, residue of the estate to C.” Testator then writes and properly executes a second will that makes no reference to revoking the earlier will. The second will provides, “I give Blackacre to R, and my residue to X.” There is no mention of the car in the second will. A and C have clearly lost their bequests by inconsistencies between the wills. B will not receive the car, because the later will makes a total disposition of the estate.
(5) If a subsequent will does not fully dispose of the testator’s estate, it will revoke the previous will:
EXAMPLE: Testator executes a first will providing, “I give $500 to Sue, my art collection to John, and the residue of my estate to Carrie.” Testator later executes a second will providing, “I give $300 to Warren and my art collection to Hank.” The second will does not have a residuary clause. If the second will does not specifically revoke the first, all provisions that can be given effect will be followed. Read together, Sue will still get her $500, the art collection will go to Hank instead of John, Warren will get his $300, and the residuary will still go to Carrie.
c. operation of law
(1) If the testator is divorced after making a will, all provisions of the will in favor of or relating to the spouse so divorced: become ineffective for all purposes unless it is apparent in the will that the provisions were intended to survive the divorce.
Testator’s will left $100,000 to Cousin. After having an argument with Cousin, Testator validly executed a new will that disinherited Cousin, and left two copies of the new will in his safe deposit box, along with the earlier will. Cousin and Testator later reconciled, and Testator went to the safe deposit box, removed a copy of the later will, and tore it up, saying to his neighbor who was present, “I feel better now. Cousin is taken care of.”
What, if anything, is Cousin entitled to receive from Testator’s estate?
ANSWER: the second will was not revoked because this was just a copy. So nothing to cousin.
Before his death, Jeff executed a valid, seven-page will leaving his entire estate to his children in equal shares. After Jeff’s death, the children discovered that Jeff had defaced the first page of his seven-page will, placing a large “X” across it and printing the words “NO WAY” on the first page. The children also discovered a second will in Jeff’s handwriting, which purported to leave the entire estate to Jeff’s healthcare worker Helen. The second will does not mention the first will or Jeff’s children.
Did Jeff revoke his first will? Explain.
Answer: Probably. Revocation by both physical act and subsequent will, possibly.
X and no way may be revocation.
Later instrument – talk about will being valid. will no. 2 must be valid. total distribution here. healthcare workers may raise some red flags. undue influence. disinheriting children is not a problem.
Dependent Relative Revocation
- The doctrine of dependent relative revocation is the law of second best, i.e., its application does not produce the result the testator actually intended, but is designed to come as close as possible to that intent.
- Rule: DDR (conditional revocation) says if a revocation was based on a mistaken belief, lift the revocation if that’s what testator would have wanted.
Revival of Revoked Wills
- The general rule is that: once a will is revoked it cannot be brought back to life
- However, it can be revived: if the will is restated, re-executed, there is actual republication, or other clear evidence of intent to revive.
a. Republication can be made by: resigning the original will that was later revoked, along with having witnesses re-attest the will - A codicil to a will: revives a will, so if a codicil is made to a revoked will, it will revive the revoked will as of the date of the codicil.
EXAMPLE: Bill writes Will 1, providing “Blackacre to A, $200 to B, the residue to C.” Bill then executes Will 2 sometime later, which expressly revokes Will 1 and provides “$200 to X, residue to Y.” Later still, Bill executes a codicil to Will 1, which provides “I give my car to Z, and hereby republish Will 1 in all other respects.” This codicil now revives Will 1 and makes it a valid will again, as if it were written for the first time as of the date of the codicil. Therefore, all of Will 1’s provisions become later provisions in relation to Will 2. When Bill dies, it will be as if his will stated, “I give Blackacre to A, $200 to B, my car to Z, and my residue to C.” The impact of the republication of Will 1 by the codicil on Will 2 is that Will 2 will be considered revoked in its entirety, as Will 1 makes a total disposition of Bill’s estate, unless some evidence can be brought showing that Bill did not intend for this complete revocation.
