Wills (Bar)

Question 1

Execution of a Will

Answer 1

Testator must be 18.

The will must be made with testamentary intent.

T must sign, acknowledge, or cause the will to be signed.

2+ people must witness the signing or T must acknowledge previous signature with them.

The witnesses must sign the will in T’s presence (they do not need to now that what they are signing is a will though).

No requirement for publication in Nevada.

Question 2

What happens if there is writing after the signature line?

Answer 2

If the writing was there when the will was signed, it doesn’t matter where the testator signs.

If the clause was added after the will was signed, the will is still valid but the addition is not.

Question 3

Nevada Holographic Wills

Answer 3

The will must be signed, dated, and the material provisions must be in the testators own handwriting.

Question 4

What if the date is wrong on a holographic will?

Answer 4

No effect, so long as there is a date.

Question 5

What does the witness have to see?

Answer 5

Nevada has not decided yet. The scope of vision test is a minority rule, which states that the witnesses have to be able to see if they were to look. The majority rule, which Nevada would likely follow, states that if the witness is conscious of where the testator was and what he was doing, that will suffice.

Question 6

Validity of wills that are valid in some states but not others?

Answer 6

A will will be valid if it was valid:

Where it was executed
In the testator’s domiciliary state
In the state where the testator’s real property was located.

Question 7

Can a witness be a recipient in the will?

Answer 7

No. In Nevada, if the witness to a will would receive in from that will, the clause where he receives will be void unless he was supernumerated (meaning he was unnecessary because there were at least 2 other disinterested witnesses).

The exception is for a holographic will. Since no witnesses are required for a holographic will, even an interested witness would be supernumerated.

Question 8

Admitting a Will to Probate

Answer 8

A will that is not self-proving may be admitted to probate will the testimony of both subscribing witnesses. If they’re unavailable, the will may be admitted upon the testimony of two disinterested persons that the signature is that of the testator.

Question 9

Self-Proving Wills

Answer 9

A will that contains an affidavit that T and the witnesses sign under oath before a notary that recites all the elements required for execution of the will.

Question 10

Revocation of the Will

Answer 10

Revocation requires an intent to revoke plus a physical act. The Nevada statute refers to burning, tearing, canceling, or obliterating. An act of revocation on one copy of a will revokes all copies. If the T writes on the will, it must cover some of the language, not merely be written in the margin or on the back.

Question 11

Revocation by Another

Answer 11

Revocation by another can only be done at T’s direction and in T’s presence.

Question 12

Lost Wills Statute

Answer 12

Proponents have the burden of proving the contents of the lost will through the testimony of two credible witnesses. Additionally, they must show either that the will was still in “legal existence” when T died or that it had been fraudulently destroyed.

Question 13

What if a lawyer screw up a will?

Answer 13

A lawyer who messes up on a will may be subject to tort liability. Mention that then move on.

Question 14

Inconsistent Provision

Answer 14

If there is a will that has codicils and some of the items contradict, the will and the codicils are to be read together whenever possible but if they conflict, the later document will control and revoke the inconsistency in the prior will.

Question 15

What if there are two wills?

Answer 15

The second will will be treated as a codicil and to the extent possible, they will be read together. The exception is when the second will clearly revokes the first.

Question 16

Effect of Will Revocation on Codicils

Answer 16

A revocation of a will revokes all codicils thereto. But revocation of a codicil will not revoke the will.

Question 17

Effects of Divorce on a Will

Answer 17

Divorce following a will revokes all provisions related to the ex-spouse. Construe the will as if the ex-spouse is dead. However, mere separation will not affect a will.

Question 18

Dependent Relative Revocation

Answer 18

Allows the reader of a will to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact if the reader is satisfied that, but for the mistake, T never would have made the revocation.

Generally, when the new gift is larger than the original, apply DRR but if the new gift is smaller than the original, don’t apply DRR, leave then with nothing.

Question 19

Revival of a Will

Answer 19

If a testator destroyed Will #2 with the intent of reviving Will #1, it may be revived so long as the manner of the revocation of Will #2 shows the testators intent to revive Will #1. Ways of showing such intent include statements made by T, the fact T didn’t destroy the first will, family dynamics that make the revival sensical, etc.

Question 20

Incorporation of Extrinsic Documents by Reference

Answer 20

The writing must be in existence when the will was written.

The will must manifest an intent to incorporate the document.

The will must describe the writing sufficiently to permits its identification.

The one exception is a list that disposes of tangible personal property. The list must be titled, dated, signed by T, and it must refer to the will which it is related to and must describe the items with certainty. Such a writing can be made before or after the will is written.

Question 21

Doctrine of Independent Significance

Answer 21

Permits a testator to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will.

For example, a testator may specify he wants his chevy given to his grandson but may then buy a Cadillac instead. The grandson will get the Cadillac because the purpose of the car was not to change the will.

Question 22

What to write regarding lapsed gifts

Answer 22

When a beneficiary named in a will dies before the testator, the gift lapses unless it can be saved by the state’s antilapse statute.

In Nevada, the anti-lapse statute applies when the deceased beneficiary is a descendant of the Testator who left issue (i.e. had children) that survived T.

When there is no valid antilapse statute, the gift lapses and passes as part of the residual estate.

Question 23

Class Gifts and Antilapse

Answer 23

When there is a gift to a class, and some members of the class pre-decease the testator, and their shares aren’t saved by the anti-lapse statute, the result is that the surviving members take everything equally.

Question 24

Nevada Residuary Estates

Answer 24

If the residuary estate is devised to a more than one person, and the gift to one of them fails for any reason, the surviving people share the residuary estate in proportion to their interests.

Question 25

Abatement

Answer 25

When the estate is partially insolvent, take first from the intestacy, then residual estate, and then pro-rata from all other beneficiaries. However, if taking from a class, the spouse and children will abate last in each class.

Question 26

Demonstrative Gifts

Answer 26

A pecuniary gift in a specific amount that tells you where to get the money. For example, $500 to be paid from ACME stock.

If the testator no longer owns the stock when he dies, his gift will be funded by other assets.

Question 27

Sales Made by Guardians of the Testator

Answer 27

If a testator becomes incompetent and a guardian is appointed, and that guardian sells an item that is devised to someone in the will, the person who is mentioned in the will is entitled to a cash gift for the value of the sale proceeds.

Question 28

Post Death Increases in Value

Answer 28

If there is an increase in the value of property (usually stock) after the death of the testator, the additional value passes with the original gift to the beneficiary.

Question 29

The importance of the word “my”

Answer 29

If a testator is gifting money or stock and refers to it as “my” the beneficiary is usually only entitled to that item. For example, my Costco stock, but T no longer has Costco stock, then no gift.

If the testator is gifting money or stock and just says the amount, and the item is no longer part of the estate, the beneficiary or the executive can use estate money to purchase that item. For example, 200 shares of Costco stock, but T sold his Costco stock before death, then executor can buy 200 shares of Costco stock for the beneficiary.

Question 30

Taking Property Subject to Encumbrance

Answer 30

If a beneficiary is gifted a piece of property that has an encumbrance, they are not entitled to have the encumbrance paid off unless the will specifically states otherwise.

Question 31

Plain Meaning Rule

Answer 31

You cannot disturb the plain meaning of a will with extrinsic evidence. For example, a T with two nephews, John Paul Jones and John Fred Jones gives a gift to one but not the other. As long as the first gift is clear, the other cannot bring evidence to prove the gift was meant for him.

However, if the will says to my nephew Paul and there are two of them, extrinsic evidence will be allowed to clear up the latent ambiguity.

Question 32

Nevada Intestacy Order

Answer 32

First to spouse subject to spousal share rules.
If no spouse, then to kids and grandkids (issue).
If no spouse and no issue, then to parents.
If no spouse, no issue, and no parents, then to siblings and their issue if deceased.
If no spouse, issue, parents, or siblings, to next of kin or if none, to spouses next of kin.

Question 33

Escheat

Answer 33

The reversion of property to the state when a testator has absolutely no one to take his property via intestacy.

Question 34

Disinheritance

Answer 34

You cannot disinherit someone by order. The only way to effectively disinherit someone is to give literally all your property to someone else, if you fail, the heir will get whatever you failed to dispose of.

Question 35

Simultaneous Death

Answer 35

In Nevada, when it appears a testator and a beneficiary have died sumultaneously, the property of the testator passes as though had survived the death of the beneficiary and then later died.

Question 36

Prodigal Sons (called Lifetime Gifts or Advancements if applied to inestate estates and referred to as satisfaction in testate estates)

Answer 36

In Nevada, no gift is presumed to be an advancement unless it is specifically declared as such in a contemporaneous writing by the decedent and acknowledged in writing by the heir.

Question 37

Homestead Exemption

Answer 37

In Nevada, when a testator dies, his spouse is entitled to half the community estate regardless of what the will says. The wife also gets to remain in the homestead, take the decedent’s apparel and household furnishings, and have a reasonable allowance to maintain them in living in their accustomed manner during the administration of the estate.

Question 38

Pretermitted Spouse

Answer 38

The pretermitted spouse may claim an intestate share unless there is a prenuptual agreeement or marriage contract, the spouse is provided for in the will, or the will discloses an intent not to provde for the souse.

Question 39

Pretermitted Child

Answer 39

A pretermitted child that is born or adopted after a will is drafted is entitled to take an intestate share unless it appears from the will (no extrinsic evidence allowed) that the omission was intentional.

Question 40

Republication By Codicil

Answer 40

A codicil that is written after a will needs to be re-witnessed and re-signed. The will to which it refers is treated as if it was exectued on the day the codicil was written.

Question 41

Renunciation

Answer 41

Before acceptance, an heir, devisee, or appointee may renounce his interest. To do so he or she must do it in writing within nine months after the death of the decedent, and before acceptance. Their decision to do so may cause a lapse so watch for that.

Question 42

Living Will

Answer 42

A statement of an individual’s desires with respect to life-sustaining procedures, pain treatment, and more should the individual become terminally ill or in a persistent vegetative state.

It can be revoked by any manifestation of intent to revoke, including but not limitted to a physical act, at any time before death, regardless of mental or physical condition. You can be incompetent and still revoke.

Question 43

Durable Healthcare Power

Answer 43

The principal appoints an agent to make healcare decisions for the principal. This instrument does not become operative until the principal loses capacity.

Any adult person can serve as the agent unless he’s the principal’s doctor, nurse, etc.

Execution requires a writing, signed by the principal when competent, witnessed by at least two witnesses who are not healthcare providers and at least one of whom is not a relative or beneficiary, or witnessed by a notary.

It can be revoked by written or oral notice to either the agent or the principal’s healthcare provider. Also, it is automatically revoked by later Durable Healthcare Powers or by the dissolution of the marriage of the principal and the agent.

The agent is protected from liability for decisions made in good faith.

Question 44

Will Contests

Answer 44

Must be filed within 3 months of the will being admitted to probate.

Any person whose share of the estate would be increased if the contest were succesful has standing so long as they were not a party to a previous contest of the same will or had notice of it and declined to join.

Question 45

Burden of Proof for Showing Lack of Testementary Capacity

Answer 45

Did T understand the nature of the act taht he was doing?

Did T know the nature and character or his property?

Did T know the natural objects of his bounty??

Mere old age, frailty, sickness, failing memory, or vacillating judgment are not inconsistent with testementary capacity if the above were possessed. Even if T is under guardianship, lack of capacity is not conclusively presumed.

Question 46

Insane Delusion

Answer 46

A type of testementary incapacity. It occurs when T is otherwise sane, but the will or a gift in the will is the product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence.

Question 47

Burden of Proof for Undue Influence

Answer 47

The person contesting the will must show:

The existence and exertion of the influence.
That the eeffect was to overpower the mind and will of T.

That the result is a will that would not have been executed but for the influence.

Undue influence can void the entire will or a portion of the will.

Question 48

Forfeiture Clause

Answer 48

A will that includes a clause that states “any person who contests this will shall forfeit his legacy.

If someone contests and wins, there is no issue.
If they contest and lose, there is no enforcement of the clause if the challenge was supported by probable cause. But if the challenge was frivolous, the clause will be enforced.