Wills & Decedents' Estates

Question 1

Which law governs the validity of a will when more than one state could potentially govern (e.g., when T moves)?

Answer 1

At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of death.

Under the UPC, validity is determined under the law of the place where (i) the will was executed, (ii) the testator is domiciled, has a place of abode, or is a national at the time of death

(Ex: Testator makes holographic will in State A, moves to and dies in State B; State A doesn’t recognize holographic wills but State B does; will valid under CL or UPC b/c T died in State B)

Question 2

What is a holographic will?

Answer 2

A holographic will is one that is completely handwritten and signed by the testator. It need not be witnessed.

Question 3

Can a will be conditioned on a particular event?

Answer 3

Yes. The validity of a will can be conditioned on a particular event or circumstance. However, whenever possible, the court will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument.

The court will consider whether the event is referred to expressly as a condition or only a statement of motive for executing the will and whether effectuating the will would result in an inequitable distribution.

Question 4

How will courts resolve ambiguities in a will?

Answer 4

Under the general rule of construction, a will “speaks” as of the time of death. Courts are reluctant to disturb the plain meaning regardless of mistake. However, if there is an ambiguity, courts allow extrinsic evidence to resolve it. Many states no longer make a distinction between patent and latent ambiguities.

(Ex: Testator left things to Son and “Wife of many years”; Wife died and T remarried; Court would likely hold that T was referring to deceased Wife instead of new wife)

Question 5

What is an anti-lapse statute?

Answer 5

Under common law, if a beneficiary predeceased the testator, the gift failed and went to the residue unless the will provided for an alternate disposition.

Now, almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests.

Under most statues, if the gift was made to a specific relation of the testator, and the relation predeceased but left issue, then the issue succeeds to the gift (unless the will expressly states the contrary).

(Hint: On the exam, follow whatever the State statute says if one is provided – it may be even broader)

Question 6

What is an omitted heir statute?

Answer 6

Omitted heir statutes allow children of a testator to claim a share of the estate even though they were omitted from the testator’s will (e.g., birth or adoption after execution). If the testator dies without revising the will, a presumption is created that the omission was accidental.

Question 7

What is a power of attorney (POA)?

Answer 7

A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter.

The person authorizing the order is the principal, and the one authorized to act is the agent.

Question 8

What is a healthcare POA?

Answer 8

A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions.

Unlike other powers of attorney, a healthcare POA becomes effective upon incapacitation of the principal.

Question 9

How must an agent act under a healthcare POA?

Answer 9

An agent must make a healthcare decision in accord with the principal’s instructions or wishes. If such instructions do not exist, then the agent must make the decisions in accordance with the agent’s determination of the principal’s best interest.

Question 10

Can an agent under a healthcare POA be subject to liability for wrongful death?

Answer 10

The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith. Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare POA.

In general, an agent is only responsble for intentional misconduct, not for unknowingly doing something wrong.

Question 11

Can an agent under a healthcare POA be barred from taking under the patient’s will for causing their death?

Answer 11

In general, a party cannot take property from a decedent when the party was responsible for their death (Slayer Statute). However, the killing must have been intentional and felonious to bar the killer from taking.

Agents making a good faith effort to act in the principal’s best interests according to their authority as an agent for healthcare decisions are not barred from taking by the Slayer Statute. This is not the type of conduct/killing contemplated by these statutes.

Applying the statute to healthcare POAs would completely undermine the purpose of the POA.

Question 12

What is an attested will?

Answer 12

To be valid, a will must be acknowledged by the testator and signed by the testator in the presence of at least two attesting witnesses, who must also sign the will in the presence of the testator (or without presence within 30 days under the UPC).

Question 13

Can a testator change a life insurance beneficiary by will?

Answer 13

No. A beneficiary of a life insurance policy takes by virtue of the insurance contract. Because beneficiaries are typically changed by filing the appropriate form with the insurance company, other possible methods are viewed as being excluded by the insurance contract. The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary.

Question 14

What are the requirements for incorporation by reference?

Answer 14

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.

Question 15

What is abatement and what is the order in which assets of the estate are abated?

Answer 15

Gifts by will are abated (reduced) when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.

Question 16

What is the difference between general and specific bequests (for purposes of abatement)?

Answer 16

A specific bequest is a gift of a particular piece of property (e.g., a diamond necklace). A general bequest is a gift of property satisfied from general assets of the estate (e.g., $10,000).

Question 17

What is ademption by extinction?

Traditional rule vs. modern rule?

Answer 17

Ademption by extinction occurs when a will makes a specific devise of property, but the specific piece of property is not in the testator’s estate at death.

Traditionally, the devise would be extinct and the devisee would take nothing.

Under the UPC, the court will try to avoid ademption by looking at the testator’s intent at the time she disposed of the property. If there is no intent for ademption, the devisee can take a replacement gift.

Question 18

What is ademption by satisfaction?

Answer 18

Ademption by satisfaction occurs when a testator satisfies a specific or demonstrative gift, either in whole or in part, by an inter vivos transfer.

The testator must intend for the gift to adeem and the intent must be supported by a writing.

Question 19

Intestacy – What is the surviving spouse’s share when:

All of D’s descendants are also descendants of SS, and SS has no other descendants; OR

D has SS but no descendants or parents?

Answer 19

The surviving spouse takes the entire estate.

Question 20

Intestacy – What is the surviving spouse’s share when:

No descendant of D survives D, but D has a surviving parent?

Answer 20

The surviving spouse takes $300k + 75% of remainder.

Question 21

Intestacy – What is the surviving spouse’s share when:

All of D’s issue are also issue of SS, but SS has other issue?

Answer 21

The surviving spouse takes $225k + 50% of remainder.

Question 22

Intestacy – What is the surviving spouse’s share when:

D has issue that are not related to SS?

Answer 22

The surviving spouse takes $150k + 50% of remainder.

Question 23

Intestacy – What is the surviving spouse’s share when:

Community property is involved?

Answer 23

All property acquired during marriage is jointly owned by both spouses unless it is a gift/inheritance/devise given only to one spouse.

CP is divided equally – SS owns 50% outright.

If D dies intestate, then D’s 50% of CP is given to SS and D’s separate property is distributed pursuant to the general intestacy scheme.

Question 24

Intestacy – Who qualifies as a surviving spouse?

Answer 24

Surviving: SS (or other heir) must survive D by 120 hours to inherit or take under a will.

Spouse: SS must have been legally married to D. However, putative spouses (good faith belief in valid marriage despite invalid) can qualify. Separated spouses qualify until divorce decree.

Question 25

Intestacy – What is per capita with representation?

Answer 25

Under per capital with representation, property is divided equally among the first generation with at least one living member.

The share of a non-living member of that generation passes to their living issue. If there is no living issue, then no property is allocated to that member.

Question 26

Intestacy – What is per stirpes?

Answer 26

Under per stirpes, issue equally share the portion that the deceased ancestor would have taken if living. The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive.

Question 27

Intestacy – What is per capita at each generation?

Answer 27

Under per capita at each generation, property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue.

Question 28

What are acts of independent significance?

Answer 28

A testator can dispose of property based on some act or event that is unrelated to the execution of the will. As long as the act referenced in the will has its own significance independent of its effect upon the testator’s probate property, the referenced act can control without the testator having to execute a codicil.

(Ex: “I leave my necklace to my daughter-in-law.” If T doesn’t have a daughter-in-law at execution but has one when she dies, daughter-in-law can still take the necklace under this doctrine)

Question 29

What rights of the surviving spouse limit the testator’s power to transfer property?

Answer 29

A surviving spouse is entitled to a number of means of support, including: social security and pension plans; the homestead exemption; personal property set asides; a family allowance for reasonable living expenses during probate; and the elective share.

Question 30

What is the elective share?

Answer 30

A surviving spouse can elect to take a forced share. This elective share will change the gifts to other beneficiaries. It is considered a limit on the power to transfer because the law disfavors disinheriting the surviving spouse. Under the UPC, the forced share is 50% of the augmented estate. The augmented estate includes both property acquired before and during marriage.

However, the SS can waive the right to an elective share if the waiver is in writing after a fair disclosure and the spouse is represented by independent counsel.

Question 31

What is an advancement?

Answer 31

An advancement is a lifetime gift to a child that is treated as satisfying all or part of the child’s intestate share.

At common law, any lifetime gift was presumed to be an advancement of the intestate share, and the child had the burden to show that an item was an outright gift.

Under the UPC, a gift is an advancement only if the decedent declared in a contemporaneous writing that the gift was an advancement OR a writing indicates that the gift should be taken into account in computing the division of property of the decedent’s estate.

Question 32

How do you calculate the effect of an advancement?

Answer 32

To calculate the effect of an advancement, courts will use the hotchpot analysis. Under this approach, you (i) add the value of the advancement back into the intestate estate; (ii) divide the resulting estate by the number of children taking; and (iii) deduct the child’s advancement from their intestate share.

Question 33

What is the slayer rule?

Answer 33

A beneficiary who murders the decedent is barred from taking under the will; they will be treated as if they predeceased the testator. The UPC allows the killer’s issue to take the killer’s share when relevant (i.e., an anti-lapse statute).

For the slayer rule to apply, the murder must be intentional and felonious (i.e., the court will not apply it to an involuntary manslaughter or self-defense case).

Question 34

What is disclaimer and what are the requirements?

Answer 34

A person may disclaim a testamentary gift. The disclaimer must be in writing and filed with the court OR declared to the person in charge of distributing the estate; AND it must identify the decedent, describe the interest being disclaimed, and define the extent of the disclaimer. Additionally, the disclaimer must be made within 9 months of decedent’s death.

Question 35

What are the three formal execution requirements for a will?

Answer 35

To be a valid execution, the will must be in writing signed by the testator, witnessed (signed in the presence of at least two witnesses), and the testator must have testamentary intent.

A formal signature is not required. In some states the signature must be at the end of the document, but under the UPC the signature can be located on any part of the will (but anything after the signature is not given effect).

Additionally, the testator must have capacity (at least 18 years old and of sound mind).

Question 36

What are the two views of “presence” in terms of witnessing?

Answer 36

The traditional view of presence was the “line of sight” approach, meaning the witness and testator must observe or have the opportunity to observe the signing of the will (e.g., same room).

The modern approach is “conscious presence” meaning the witness or testator must be aware the act is being performed, even if she cannot see it. The UPC applies this ONLY in the situation where the will is signed by another on behalf of the testator.

Question 37

What is an interested witness and what is the effect of an interested witness?

Answer 37

An interested witness is a witness who has a direct financial interest in the will. At common law, an interest witness was not competent to witness the will.

Now, many states have adopted the purge theory which will not affect validity of the will but will purge any excess over what that person would take under intestate succession.

The UPC abolished the interested witness doctrine. Instead, any alleged impropriety should be pursued under undue influence or fraud claims.

Question 38

What is the effect of failure to satisfy the formalities of execution?

Answer 38

Under the majority common law rule, strict compliance with will formation formalities was required. Under the modern view (UPC and minority), substantial compliance is all that is needed (clear and convincing evidence that decedent intended the document to be her will).

Question 39

What is a codicil?

Answer 39

A codicil supplements a will but does not replace the underlying will. It must be executed with the same formalities as a will. A formal will can be amended by holographic codicil and vice versa.

Question 40

When can a will be revoked?

Answer 40

Wills are ambulatory meaning they can be altered or revoked at any time up until testator’s death.

A will can be revoked in full or in part.

Question 41

What are the three ways to revoke a will?

Answer 41

A will may be revoked by subsequent instrument, physical act, or by operation of law.

Revocation by subsequent instrument can be express (later writing expressly revokes) or implied (later writing is inconsistent with the prior). So long as it is validly executed, a later writing controls.

Question 42

How do you distinguish between a codicil and a new will?

Answer 42

A helpful way to distinguish between a codicl and a new will is to look for a residuary gift. If the original will has a residuary gift and the later writing does not, the later writing is probably a codicil. If the original will does not have a residuary gift and the later writing does, the later is probably a new will.

Question 43

What is revocation by physical act?

Answer 43

A testator may revoke a will in whole or in part by engaging in a physical act of destruction, such as tearing, burning, or crossing things out. To revoke, the testator must intend for the physical act to revoke the will.

Question 44

What happens in a lost will scenario?

Answer 44

A lost will situation occurs when we know a will exists but cannot find it at the testator’s death. This creates a rebuttable presumption that the testator revoked by physical act. The burden is on the proponent to show the will’s existence by clear and convincing evidence.

Duplicate originals can be admitted, but copies cannot.

Question 44

What happens in a lost will scenario?

Answer 44

A lost will situation occurs when we know a will exists but cannot find it at the testator’s death. This creates a rebuttable presumption that the testator revoked by physical act. The burden is on the proponent to show the will’s existence by clear and convincing evidence.

Duplicate originals can be admitted, but copies cannot.

Question 45

What is revocation by operation of law?

Answer 45

In most jurisdictions, divorce revokes all will provisions in favor of the former spouse unless there is evidence that the testator wanted the will to survive. However, a subsequent marriage does not revoke a will because a surviving spouse is entitled to take an elective share.

Question 46

What is the effect of revoking a codicil on the underlying will and vice versa?

Answer 46

By revoking a will, the testator also revokes any codicil. However, if a testator revokes a codicil, the underlying will is revived in its original form.

Question 47

What is republication?

Answer 47

Under the UPC (majority) rule, a revoked will is not automatically revived. In order for the original, revived will to take effect, the testator must re-execute (republish) the will. Otherwise, testator will die without a will and their estate will be subject to intestate succession.

Question 48

What is dependent relative revocation (DRR)?

Answer 48

DRR provides a safety valve for testators who revoke a will on the basis of a mistake (in law or in fact). It invalidates the mistaken revocation and revives the earlier revoked will.

(Hint: Focus on the fact that, but for the mistake, the testator would not have revoked the first will.)