Wills & Decedent Estates Flashcards
define “issue”
lineal descendants of decedent (children, grandchildren etc.)
UPC - what amount does spouse receive if decedent was survived by: spouse + shared descendants of spouse + no one else?
spouse takes 100%
UPC - what amount does spouse receive if decedent was survived by: spouse + parent?
spouse takes $300k + 75%
UPC - what amount does spouse receive if decedent was survived by: spouse + shared descendants + issue of spouse?
spouse takes $225k + 50%
UPC - what amount does spouse receive if decedent was survived by: spouse + issue of D?
spouse takes $150k + 50%
what rules govern the eligibility of children born after decedents death under intestacy?
a child conceived before, but born within 280 days of husbands death is presumed to be husband’s issue
under uniform parentage act, time limit is 300 days
in what circumstances is a child born out of wedlock entitled to inherit under intestacy?
inherit if
1. paternity is proven or adjudicated
2. father subsequently married the mother, or
3. father held out child as his own
intestacy: method of calculation under per capita with representation
- divide property equally at first generation with a living member who survived D
- for those at that level who did not survive D, their share goes to their issue who survived D (if they exist)
intestacy: method of calculation under per stirpes
- divide property into total number of children who survive or leave issue who survive
- issue take in equal portions the share their deceased ancestor would have taken if living
intestacy: method of calculation under per capita at each generation
- divide property into as many equal shares as there are members of the nearest generation of issue who survive the decedent and include deceased members of that generation with issue who survive D
2.
method of intestacy inheritance determination preferred by UPC
per capita at each generation
how does the UPC treat intestacy when there is no spouse or issue?
estate passes to parents who survive,
or if none, to descendants of D’s parents (e.g. siblings of D),
or if none, to grandparents
what happens if D dies without heirs?
property escheats to state
what is the result if an heir dies at or near the same time as the testator?
under the 120 hour rule, heir will inherit if there is clear and convincing evidence that heir survived D by 120 hours
without sufficient proof, heir will be treated as having predeceased D
what are the main requirements for an attested will?
- intent for instrument to function as D’s will
- signed writing (sometimes handwriting ok)
- at least two witnesses
- testator 18+ and competent
signature requirements for attested will
- must be signed with intent by the testator OR by someone in his presence and at his direction; need not be formal so long as intent is to be signature
- must be at end to be valid (some states) or under UPC can be anywhere on instrument (but info after might be invalid)
describe the witness requirement for attested will
- must be signed in joint presence of and attested to by at least 2 wits
- UPC does not require wits to be present when each signs, but each must sign w/in reasonable time after witnessing T sign or acknowledge will
describe what presence is required for witnesses under attested will
- majority view: presence of both witnesses can be line of sight or conscious presence (rq only that party observing the act - T or wit - be aware that it is being performed)
- under UPC, conscious presence only ok when will signed by another person on behalf of T
describe the effect of a witness to a will being a beneficiary / interested witness on validity
at common law: will was invalid
UPC / majority view: will is valid, but witness’s share may be affected
describe the effect of a witness to a will being a beneficiary / interested witness on the witness’s share
- if there are two other disinterested witnesses, or under the UPC, the gift is unaffected
- if non-UPC state and insufficient disinterested witnesses,
a. gift stands if witness is intestate heir
b. if not intestate heir, gift “purged” beyond amount that would be her intestate share (purge theory)
what effect does presence of an interested witness have if the will is being contested on grounds of fraud or undue influence?
existence of interested witness creates rebuttable presumption the testator was subject to undue influence
rebuttable by showing that would inherit under intestacy
no effect under UPC, which has abolished interested witness doctrine, but discuss anyway
main components of holographic will
intent + handwritten + signature
requirements for a holographic will
- must be entirely in testator’s handwriting
- though under UPC, only material provisions need be handwritten - must be signed
- some states require it to be dated
- must be clear that document was intended as T’s will
treatment of words of intent in holographic will under UPC vs. other
under the UPC, words of intent need not be in T’s handwriting and can be shown by extrinsic evidence
define codicils
codicil is a testamentary addition to a will, executed with the same formalities
republishes the will as of the date of the codicil
holographic codicil to attested will is valid as is attested codicil to holographic will
rule statement regarding non probate transfers inter vivo
an inter vivos transfer of property will avoid probate and is therefore a will substitute
situation giving rise to will contest
claimant attacks will’s validity as not reflecting the testator’s intent
time limit for will contest
must be filed w/in six months after a will is admitted to probate
standing for will contest
have standing: beneficiaries under current or prior will
do not have standing: creditors, spouses of beneficiaries under prior wills, and pretermitted heirs (excluded)
enforceability of no contest clause in a will
under majority / UPC view, they are enforceable unless the claimant has probable cause to contest
4 grounds for contesting will
- lack of capacity
- insane delusion
- undue influence
- fraud
showing required for will contest on grounds of lack of capacity
at time T made will, T lacked ability to know:
1. nature of the act (why)
2. nature and character of property (what);
3. natural objects of his bounty (who); and
4. plan of attempted disposition (how)
showing required for will contest on grounds of insane delusion
a rational person in T’s situation could not have reached the same conclusion
requires causation: but for insane delusion, T would not have disposed of the property in the same manner
showing required for will contest on grounds of undue influence - burden of proof
all or part of the will may be invalidated if subject to indue influence
burden of proof: with direct evidence, claimant must show the following elements:
1. exertion of influence by another
2. the effect of which was to overpower the mind and will of T; and
3. but for the influence, will would not have been executed
showing required for will contest on grounds of undue influence - traditional /majority test
all four:
1. susceptibility (testator susceptible to being influenced)
2. motive / predisposition (influencer had reason to benefit)
3. opportunity (influencer had opportunity to influence);
4. causation (influencer caused unnatural result)
showing required for will contest on grounds of undue influence - presumption
presumption arises when one in a confidential relationship with T participates in will’s execution and receives unnatural gift / man of estate
recipient must overcome presumption by proving will was not product of his influence
effect if undue influence proven
influencer treated as having predeceased T
showing required for will contest on grounds of fraud
must prove elements existed at time of execution
1. misrepresentation - by beneficiary with intent to deceive T and with purpose to influence T’s will
2. causation - but for misery, will would not have been made
3. types - in the inducement (makes a diff will than would have had she known facts) or in execution (as to char / contents of will)
three methods of revocation of will
- subsequent instrument (later will can expressly revoke prior will or impliedly revoke will by inconsistent terms)
- physical act
- operation of law
what happens if multiple wills are created?
later will controls
wills should be read together to extent possible, but later will controls to extent it is inconsistent with prior will
how to distinguish a codicil from a new will?
look for residuary clause; will usually has one whereas mere codicil will not
(e.g. “I leave all remaining assets to my brother”)
when does a physical act constitute effective revocation?
T commits a physical act with intent to revoke, or by proxy a third party acting on T’s behalf does so at T’s direction in T’s presence
how do courts treat whether a lost will means it was revoked by physical act?
jx split as to whether a will not found at T’s death creates presumption it was revoked by physical act
burden is on proponent to establish existence of will by clear and convincing evidence
duplicate originals may be used but duplicate copies will not
what effect does destruction of a copy of a will have?
revocation of duplicate original revokes all copies, but destruction of unexecuted copy does not serve as revocation of all copies
explain revocation of will by operation of law
subsequent divorce revokes any provision in favor of prior spouse
UPC also invalidates any gift to prior spouse’s relatives
how does modern / UPC approach treat situation in which a will is executed, another will is executed later, and then later will is destroyed?
modern UPC approach focuses on T’s intent and applies hybrid approach that depends on:
1. whether second will is revoked by act or by another, later will
2. if second will revolved by act, whether first will was wholly or partially revoked by second will
rule for dependent relative revocation
a will or portion that is revoked on a mistaken basis of law or fact can be revived
test for dependent relative revocation
but for mistake would T have revoked? if no, revive the revoked will or provision
when ought you apply the dependent relative revocation test?
when a revocation appears to have been based on a mistake of fact or law
when is partial dependent relative revocation applied?
- an alternative imposition stated in a subsequent doc fails, or
- the mistake causing doc’s revocation is reiterated in the revoking instrument
interlineation, define
insertion of new language in between lines of pre-existing legal document
what possible issues might there be to discuss if T creates valid attested will giving $1,000 to X but later amends by lining out amount and writing $5,000 signed T?
- revocation by physical act
- holographic codicil (lacks of material terms?)
- substantial compliance - harmless error if clear and convincing evidence T intended valid codicil
- DRR (mistake of law on how to mod will)
- conclusion: what would be in line with intent
requirements for document to be incorporated by reference
Doc must have
1. existed at time will exec
2. intended by T to be incorp
3. sufficiently described in will to permit ID
UPC exception: tangible personal property list may be made after will’s execution
abatement rule
when assets of an estate are insufficient to pay its debts and satisfy the devise, the gifts abate in a specified order, unless the testator otherwise indicates
order in which to abate assets
- intestate property
- residuary bequests
- general bequests
- specific bequests
what rule should you apply when the subject matter of a specific bequest no longer exists at T’s death?
ademption
A specific bequest of property that is no longer part of T’ estate at death adeems (i.e. is withdrawn)
when is extrinsic evidence admissible to show mistake under the common law?
in will execution
if wrong will is signed, courts split as to whether relief ought be granted
no extrinsic evidence allowed to show mistake in testator’s intent or that an omission was accidental
when is extrinsic evidence admissible to show mistake under the UPC?
more liberal
court may reform donative document even if unambiguous based on clear and convincing evidence of
1. mistake of fact or law that affected spec terms of doc
2. donor’s intention
what happens if residue is left to two or more persons and one dies? (no anti lapse)
if anti lapse does not apply, remaining beneficiaries take in their proportionate shares under the UPC
what analysis should you apply when a beneficiary dies before the testator?
look to lapse and anti lapse
what was the lapse rule under common law?
a gift in will to beneficiary who predeceases T will pass and fall to residue
if no residuary clause, gift will pass through intestate succession
does does an anti lapse statute do?
operates to save the gift when a beneficiary dies before T
rule created by anti lapse statute
if predeceasing beneficiary is relative of T,
who dies leaving issue,
issue will take predeceased beneficiary’s share.
UPC also applies it to non probate transfers
anti lapse application to class gifts
if gift to class and class member predeceases tester, surviving class members will take unless anti lapse applies to save share for issue of deceased class member
types of devise: specific
a gift to a specific item of property satisfied only w specific item (e.g. my coins to A)
types of devise: general
gift of property, usually cash, satis from general assets
types of devise: demonstrative
gift of property or money to be paid from designated fund
types of devise: residuary
gift of leftover assets in estate
two approaches to ademption
identity theory (CL): gift is extinct when subject matter of specific bequest no longer exists at T’s death; specific beneficiary takes nothing
intent (UPC): specific bequest will deem only if consistent with T’s intent
even if ademption applies, what is beneficiary entitled to?
- whatever is left of spec devised property
- balance of purchase price owing from purchasers
- any amount of condemnation award for the taking to extent unpaid upon death
- property acquired from foreclosure of security interest on a specifically devised note
what applies if a specific devisee receives encumbered property per the will?
the devisee takes subject to the mortgage unless T specifically directs otherwise.
under UPC/maj, general directive to pay debts will not suffice to exonerate a lien
what is ademption by satisfaction?
if T intended for gift to deem and be satisfied prior to his death, he may satisfy a devise by inter vivos transfer
under UPC, must be evidenced by a writing
four elements of approach ti issue of whether devisee is entitled to increase in securities (dividends or distributions)
- when were the shares of stock or cash distributed -before or after death?
- is the bequest general or specific?
- is the increase from a stock split or merger?
- is the increase cash or stock dividends
approach to whether devisee entitled to increase in securities value pre-death
depends on jx
common law: beneficiary of general bequest not entitled to any dividends or shares issued before death. if specific bequest (with share number specified), entitled to additional share from stock split or merger but not to cash or stock dividends
UPC: specific or general beneficiary is entitled to any additional shares paid as stock dividend or resulting from stock split but not cash dividend
approach to whether devisee entitled to increase in securities value post-death
any increase cash or stock or shares prod by stock split post death goes to specific beneficiary
general beneficiary receives only earned interest beginning one year after T’s death
what rights does a surviving spouse have to spousal support?
social security, pension plans, personal property, homestead exemption, and family allowance
how do the common law and UPC treat the situation in which a D advances the intestate share in whole or part by a lifetime gift to child?
common law: lifetime gift treated as satisfying all or part of child’s intestate share
UPC: requires a contemporaneous writing by D or acknowledgment by donee indicating gift was to be considered when determining the heir’s intestate share
what result when: there is a statute providing for pretermitted heirs, intestate succession, and child born or adopted after the will is executed not provided for?
child may take intestate share b/c omission presumed accidental
when does a pretermitted heir statute not apply?
- it appears from the will the omission was intentional
- the testator had other children when the will was executed and left most or all of the estate to the other parent; or
- testator otherwise provided for child outside the will with intent it be in lieu of testamentary gift
homicide bar to succession
one who commits an intentional and felonious killing is treated as having predeceased the testator; if there is no conviction, court may determine by preponderance of evidence
disclaimer bar to succession
one who disclaims a gift will be treated as having predeceased the testator; disclaimer must be in signed writing and filed w/in certain period after D’s death
required proof to establish the existence of a will contract
- will states material provisions of K
- terms are contained in signed written K or
- will refers to contract and extrinsic evidence proves the terms
who has jx over probate?
county in which D was domiciled at death
UPC limitation for probate proceeding timewise
be brought within 3. years of death
duties of personal representative
notify interested parties; appraise and inventory assets; satisfy debts; distribute assets / close estate
qualifications to serve as administrator or testator
capacity to contract and act as fiduciary
