Wills/Decedents' Estates Flashcards
VALIDITY
Will or Codicil Validity
A valid partial will, or codicil, that refers to an earlier will is said to republish that will. When republication takes place, the republished will is deemed to be executed on the same day as the codicil. Republication can cure defects that might otherwise affect the validity of bequests made under a will.
For example, in a jurisdiction that voids bequests to interested witnesses, a bequest to such a witness can be saved if the will is republished by a later-executed codicil witnessed by two disinterested witnesses. However, by most accounts, a document that is not a valid will cannot be republished by codicil. There is some contrary authority, but those cases involve codicils written on the unexecuted dispositive document itself. Here, the codicil was a separate document.
VALIDITY
Incorporation by Reference
“A writing that is not valid as a will but is in existence when a will is executed may be incorporated by reference into the will if the will manifests an intent to incorporate the writing and the writing to be incorporated is identified with reasonable certainty.”
CONSTRUCTION PROBLEMS
Slayer Statute
Although murderers are often barred from inheriting under a “slayer statute,” such a statute would not bar Daughter from inheriting from Testator because these statutes apply only when the heir killed the decedent whose estate is at issue. No slayer statute bars an heir from inheriting from a decedent’s estate because the heir killed another person, even if the heir’s victim left property to the decedent that is included in the decedent’s estate.
“Slayer statutes” typically bar those who have feloniously and intentionally killed a decedent from taking a portion of the decedent estate.
* If the heir killed another person (not the decedent), they are still entitled to inherit under intestate succession statutes.
CONSTRUCTION PROBLEMS
Ademption
Under the common law ademption doctrine, if specifically devised property (i.e., property that is specifically described in the will) is not in the testator’s estate when the testator dies, the bequest adeems (i.e., fails).
Under this common law doctrine, the testator’s intentions are irrelevant; all that matters is whether the testator owned the specifically devised asset at his or her death. Some modern courts have rejected the common law “identity test” for ademption in favor of an intent test. Under the intent test, a beneficiary of specifically devised property is entitled to substitute property that was owned by the testator at his or her death if the beneficiary proves that the testator intended the beneficiary to take the substitute property.
BENEFICIARIES
Rights of a Specific Devisee
Under the Uniform Probate Code, a specific devisee has the right to any “real . . . property owned by the testator at death which the testator acquired as a replacement for specifically
devised real property.”
DEVISES
Bequeathed Stock
Under the common law, a devisee of common stock was entitled to additional shares of that stock obtained by the testator through a stock split, but not to additional shares acquired as a stock dividend. Under this approach, Aunt would be entitled to only 400 shares of XYZ common stock.
Today, virtually all jurisdictions treat stock splits and dividends the same way; in each case, additional shares obtained by the testator go to the specific devisee. Under this approach, Aunt would be entitled to all 600 shares of XYZ common stock.
WILL CONTESTS
Prenuptial Agreements Waiving Rights in Spouse’s Estate
A prenuptial agreement in which spouses waive rights to a share of each other’s assets upon death or divorce does not bar either party from making subsequent gifts or bequests to the other spouse. Such an agreement bars only claims that do not arise from a voluntary gift or bequest.
VALIDITY
Revocation by Operation of Law
A bequest may be revoked by operation of law when a change in circumstance occurs that makes it unlikely that the testator would have wanted a beneficiary named in the will to take under the will. All states provide that if, after the execution of a decedent’s will, the decedent is divorced, a bequest in favor of the decedent’s former spouse is revoked by operation of law.
BENEFICIARIES
Adoption
An adoption typically severs the parent-child relationship between the child and his biological parents. A few states do not sever the parent-child relationship when the child is adopted by a relative of a biological parent.
PERSONAL REPRESENTATIVES
Appointment of a Personal Representative
An individual named as personal representative in a decedent’s will has priority to receive letters testamentary from the court overseeing the administration of the estate. Where, however, the will is silent regarding the appointment of the personal representative, the court will appoint a person granted priority under the governing statute if that person is otherwise qualified. Typically, the decedent’s surviving spouse is the individual with the first priority.
Under the Uniform Probate Code, a surviving spouse has first priority only if the spouse is a
devisee of the decedent.
VALIDITY
Revocation of a Will
A will may be revoked by the execution of a new will or by some physical act, such as cancellation or other writings on the will, if the testator (or someone acting at the testator’s direction) performs the physical act with the intent to revoke the will. The burden of proof to establish that a validly executed will has been revoked is upon the party seeking to revoke the
will.
BENEFICIARIES
Pretermitted Children
Most states have “pretermitted child” statutes aimed at ensuring that children born after the execution of a will are not inadvertently disinherited. Many of these statutes provide that, under certain circumstances, a child born to a testator after the testator’s will is executed is entitled to whatever share of the testator’s estate the child would have received if the testator had died intestate. In states with such statutes, bequests in favor of an afterborn child’s other parent are irrelevant. However, a testator can avoid the consequences of such a statute if the will evidences intent to do so.
BENEFICIARIES
Spouse Entitlement to Deceased’s Estate
Under the law of the state, the wife is entitled to a one-half share of the revocable trust created by the husband because the trust was in existence during the marriage. This leaves open the question of who is entitled to the balance of the trust’s assets. Under the statute, this type of trust is characterized as “illusory.” If a court deems a trust illusory for all purposes then the trust is void and the as assets are distributed in accordance with the will.
POWER OF ATTORNEY
Durable Health-Care Power
All states have adopted statutes authorizing advance directives and durable health-care powers.
An advance directive (sometimes called a living will) specifies the patient’s (non)treatment preferences should he or she become incapacitated. A durable health-care POA empowers a designated agent to make health-care decisions for the principal in the event of the principal’s incapacity. Unless a durable POA specifies otherwise, a designated agent is empowered to make health-care decisions for the principal whenever the principal lacks capacity; the power is not limited to a particular illness or for a particular time period.
POWER OF ATTORNEY
Decision Making in Absence of Specific Instructions
In the absence of specific instructions, a designated agent shall make decisions for the principal “in accordance with the agent’s determination of the principal’s best interest . . . considering
the principal’s personal values to the extent known to the agent.”
POWER OF ATTORNEY
Liability for Decision Making (wrongful death action)
State laws governing durable health-care powers of attorney typically insulate an agent who has acted in good faith from civil and criminal liability. A health-care decision includes directions “to provide, withhold, or withdraw . . . all other forms of health care.” Health care means “any care, treatment, service or procedure to maintain, diagnose, or otherwise affect an individual’s physical . . . condition.”
VALIDITY
Revocation: Holographic Codicils
A holographic codicil can revoke an earlier will. If the subsequently executed holographic codicil disposes of only a part of the estate disposed of by a prior will, then the will is revoked only to the extent that it is inconsistent with the provisions of the holographic codicil.
VALIDITY
Doctrine of Dependent Relevant Revocation
The doctrine of dependent relative revocation (DRR) enables a court to invalidate the revocation of a will or bequest when the evidence shows that the revocation was based on a mistaken assumption of law or fact and the testator would not have revoked it had she known the truth. Under this doctrine, if the subsequently executed will is invalid, then the revocation that was dependent upon it is ignored.
Typically, however, courts apply that doctrine only when there is a sufficiently close identity between the bequest that was revoked and the bequest that was expressed in the invalid subsequent will.
VALIDITY
Doctrine of Incorporation by Reference
Under the doctrine of incorporation by reference, a writing that exists at the time a will is executed may be incorporated by reference into the will if:
1. the language of the will manifests an intent to incorporate; and,
2. the will describes the writing with sufficient particularity that it can be identified.
The evidence must be clear that the testator intended to incorporate its terms into the will. If such a document is incorporated, the dispositive provisions in it are given the same effect as if they had been set forth in the duly attested will.
INTESTATE SUCCESSION
Testator’s Will Fails to Dispose all of their Property
Where a testator’s will fails to dispose of all of the testator’s property, the undisposed-of property passes to the testator’s heirs as partial intestate property. Typically, the intestacy laws of the states provide that, absent descendants or a spouse, an intestate’s property is distributed to:
- parents,
- the descendants of the parents (that is, the intestate’s siblings and their descendants),
- more remote ancestors, and
- the descendants of the more remote ancestors, in that order.
WILL CONTESTS
Mental Capacity: Requirements for Testamentary Validity
For a testamentary instrument to be valid, the testator must have mental capacity. In order to have mental capacity, a testator must be capable of knowing and understanding:
- the nature and extent of her property,
- the natural objects of her bounty,
- the disposition that she is making of that property, and
- how these elements relate to one another in forming an orderly disposition of the estate.
Because mental capacity is presumed, a will contestant has the burden of proving that the testator lacked mental capacity. That burden is met if the testator fails to satisfy any of the four criteria.
WILL CONTESTS
Mistake: Extinsic Evidence
Under the traditional common law approach, courts generally do not admit extrinsic evidence of factual errors in order to correct them.
Under the Restatement, a will, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence: 1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and, 2) what the donor’s intention was.
VALIDITY
Requirements of a Will
For a will to be valid, the will must
1. be in writing;
2. signed by the testator or on testator’s behalf by someone in her presence and at her direction;
3. two witnesses, being present at the same time, must witness either the testator’s signature, or the testator’s acknowledgment; and,
4. witnesses must sign the will during the testator’s lifetime and understand the instrument being signed in the testator’s will.
VALIDITY
Holographic Instruments
A holographic instrument is an unwitnessed will or codicil in a testator’s handwriting. To be valid, the signature and all material provisions must be in the testator’s own handwriting.
VALIDITY
Power of Appointment
Whether a power of appointment is effectively exercised depends on the donee’s intent and any formalities mandated by the donor.
Residuary Article—Under the majority approach, also followed by the Restatement of Property, a residuary article in a donee’s will that makes no reference to a power of appointment is not an effective exercise of a general power. Under the minority view, a general residuary clause does effectively exercise a power of appointment.
VALIDITY
Revocation of Bequest
A bequest may be revoked by operation of law when a change in circumstances occurs that makes it unlikely that the testator would have wanted a beneficiary named in the will to take under the will.
BENEFICIARIES
Revocation of Bequest: Divorce
All states provide that if, after the execution of a decedent’s will, the decedent is divorced, a bequest in favor of the decedent’s former spouse is revoked by operation of law. However, this does not apply if a divorce proceeding is pending when one of the spouses dies.
CONSTRUCTION PROBLEMS
Lapse and Anti-Lapse
If a beneficiary does not survive the testator, the bequest lapses and falls into the residue of the estate. Under common law, lapse occurred whenever a beneficiary predeceased the testator and the testator specified no alternate disposition of the assets in question. A lapsed bequest passes into the residue of the testator’s estate.
Today, all states have antilapse statutes. Under a typical antilapse statute, if a beneficiary dies before the testator and the beneficiary was both related by blood to the testator within a certain degree of relationship and had issue who survived the testator, the bequest to the deceased beneficiary is saved from lapse and the deceased beneficiary’s issue takes in lieu of the deceased beneficiary.
CONSTRUCTION PROBLEMS
Abatement
When the assets of a testator’s estate are insufficient to pay all of the bequests payable under the testator’s will, these bequests are reduced or abated.
Under the common law and in most states, unless the testator specifies a different abatement scheme, testamentary bequests abate in the following order: 1) residuary bequests; 2) general bequests (i.e., bequests of a fixed dollar amount); and, 3) specific bequests (i.e., identifiable property such as “my jewelry”). Abatement within each category is pro rata.
WILL CONTESTS
Fraud
A will or provision in a will procured by fraud is invalid. Fraud occurs when a testator is deceived by a misrepresentation and is thereby led to execute a will that the testator would not otherwise have made. Most courts additionally require a finding that the misrepresentation was made with the intent to deceive the testator and for the purpose of influencing the testamentary disposition. Fraud in the inducement occurs when a person misrepresents the facts. Fraud in the execution occurs when a person misrepresents the character or contents of the instrument signed by the testator.
WILL CONTESTS
Undue Influence
A will is invalid if it was executed as a result of undue influence. Undue influence occurs when the wrongdoer exerted such influence over the testator that it overcame the testator’s free will and caused the testator to make a donative transfer that the testator would not otherwise have made. The burden of establishing undue influence is on the will contestant, who must show that 1) the testator was susceptible to undue influence; 2) the alleged influencer had the opportunity to exert undue influence upon the testator; 3) the alleged influencer had a disposition to exert undue influence; and, 4) the will appears to be the product of undue influence.
MISCELLANEOUS
Life Insurance
If an insured dies while a life insurance policy is in effect, the policy proceeds are payable to the named beneficiary. Although the owner of a life insurance policy typically retains the right to change the named beneficiary without obtaining that beneficiary’s consent, the owner must do so in accordance with procedures specified in the life insurance contract. Life insurance contracts almost never permit a change of beneficiary by will, and courts have almost invariably upheld such restrictions. Courts have sometimes found that a beneficiary change that does not comply with the terms of the insurance contract is valid if the policyholder has “substantially complied” with the contract by taking all reasonable steps within her power to make the change in accordance with the contract terms.
