Wills Essay Issues

Question 1

Personal Representative

Answer 1

A PR is responsible for executing a will; often named in the will, but if not, the court will fill the gap; By default a descendant’s surviving spouse is first in line to be appointed.

Question 2

Intestacy

Answer 2

If a person dies without a valid will, the estate will be distributed following intestacy rules.

Requires parent child-relationship such as by blood or adoption.

Question 3

UPC Intestacy approach

Answer 3

Surviving spouse gets 100% of the estate IF all the descendant’s are also those of the surviving spouse.

Surviving spouse gets 300K and 75% of the remainder if the decedent has no issue but does have surviving parents. Rest goes to parents.

The surviving spouse gets 225K and 50% of the remainder if all of the decedent’s issue are also the SS’s issue but the SS has other issue. Rest goes to kids.

The surviving spouse gets 150K and 50% of the remainder if the decedent has issue that are not related to the SS. Rest goes to kids.

If decedent has no issue and no parents then SS gets 100%.

Question 4

Community Property Rule

Answer 4

Do not apply unless the prompt states the jurisdiction uses CP. The SS is entitled to their half of the CP and the decedent’s half so they end up with 100% of the CP.

Question 5

Surviving spouse

Answer 5

Generally have to be legally married unless there is a putative spouse.

A putative spouse is one who is in a marriage that isn’t valid but one party believes in good faith that the marriage is valid. Putative spouses qualify as spouses for inheritance.

Question 6

Survivor rule for spouse’s

Answer 6

The surviving spouse must be legally married to the decedent of the time of death and there must be clear and convincing evidence that they outlived the decedent spouse by 120 hours to take by intestacy.

Question 7

Issue

Answer 7

Issue refers to a lineal descendants of a testator. Including grandkids, great grandkids, etc.

Adoption generally curtails all inheritance rights between the adopted child and their natural parents. Adopted children take the same of a natural child from their.

Non-marital children: Under common law children born out of wedlock did not inherit through intestacy. Majority rule is that they don’t inherit unless any of the following occurs:
1) father subsequetly marries the mother
2) Father holds the child out as his own and either brings the child into his home or supports them.
3) Paternity was proven by clear and convincing evidence after the father’s death
4) Paternity was adjudicated during the lifetime of the father and shown by a preponderance of the evidence.

Question 8

Calculating intestacy Share

Answer 8

Per Capita at each generation (UPC)
Divide at first level with a survivor (by number of surviving members and deceased members with issue). Distribute the survivors shar to them. Take the remainder and divide by the number of living members at the next generation. The last generation will always receive an equal amount.

Per Capita with representation
-Divide at first level with a survivor (by number of survivor and deceased with issue). Distribute to each and drop down to issues of those who are deceased.

Per Stirpes: Divide by total children of decedent and drop down to survivors if the predeceased D.

Question 9

Intestacy and no children or spouse

Answer 9

Goes to parents and collaterals.

UPC has specific order but hasn’t been tested.

Question 10

Execution of a will essay tips

Answer 10

If the prompt says there is a valid will there is no need to discuss the execution.

IF there are multiple wills and codicils each should be discussed.

Capacity and testamentary intent should be discussed when analyzing the execution.

Question 11

Capacity

Answer 11

Testator must be over 18 and possess a sound mind. Lacks capacity if they do not have the ability to know the:

Nature of the act;
Nature of their property;
Natural objects of his bounty; and
Plan of the attempted disposition.

Question 12

Testamentary Intent

Answer 12

The testator must understand he is executing a will and intend for it to have a testamentary effect.

Question 13

Attested Wills

Answer 13

Must be signed by T and by two other people in his presence and at his directions.

Question 14

Presence of will witness

Answer 14

Majority: The will must be signed in the joint presence of and attested by two witnesses, both at the same time.

UPC: The witnesses don’t have to be present at the same time and can sign within a reasonable time after T as long as he acknowledges his signature to them before the sign.

Question 15

Interested Witness Problem

Answer 15

Common law: An interested witness was not competent and would invalidate the will if there were not two other capable witnesses.

Modern view: Only the portion that provides a gift in excess of what the interested witness would receive in intestacy is invalidated.

UPC does not use interested witness doctrine at all and they can inherit.

Question 16

Substantial Compliance

Answer 16

Common law: Strict compliance with the formalities was required.

Under the UPC, a will that is not executed in compliance with the law will be treated as if it were valid if there is clear and convincing evidence that T intended for the document to serve as his will and substantially complied with the required formalities.

Question 17

Holographic Will

Answer 17

Tip: If a will doesn’t meet formalities see if it could be a holographic will.

T must handwrite the “material provisions” of a holographic will which are the beneficiaries and the items they will receive. A preprinted form can be used as long as the material provisions are handwritten.

Must be signed by T.

Must be clear that T intended it to be his will.

Question 18

Codicils

Answer 18

Supplements the will and must meet will formalities.

Republication date: A will created in 2000 and codicil in 2002 means the date of the will is 2002.

Curing of invalid will: If a codicil is valid but the will was not then the valid codicil will cure the problems of the will if it is written on the same paper or incorporates the will by reference. Ex: Will has interested witness but codicil does not. Will becomes valid.

Ex: First will has only one witness but codicil has two and incorporates the will be reference. The will is now valid.

A codicil can be holographic.

Question 19

Conditional Wills

Answer 19

A testator can write a will that will only take effect only if a certain condition occurs.

Question 20

Will substitutes

Answer 20

Trust can be used to achieve the results of a will

Pour-over wills: Property is given to the trustee of an inter vivos trust

Deeds: A deed of property can serve as a will substitute for transferring property at death. A tells C to give B a deed when they die. This is a valid transfer of the deed as long as there is a present intent to transfer the property.

Question 21

Conflict of Laws

Answer 21

Common Law: The will is determined under the state where the testator was domiciled when he died.

UPC: validity of the will is determined by the law of where it was executed or where T was domiciled, has a place of living, or is a national at the time of his death.

Personal property: Law of T’s domicile governs.
Real Property: Law of where it was located governs.

Question 22

Revocation

Answer 22

A will or codicil can be revoked while T is alive by a subsequent writing, physical destruction, or by operation law.

Question 23

Revocation by subsequent instrument

Answer 23

A revocation can be partial or complete.

Express: occurs when the new will or codicil expressly states that it is revoking

Implied: The new will or codicil is in conflict with the terms of the prior document.
When there are inconsistencies the later document controls.

Question 24

Revocation by physical destruction.

Answer 24

Majority Rule: Some of the language must be crossed out or destroyed and the signature must be crossed out/destroyed

UPC: If any part of the will is crossed out then it is enough to revoke it.

If a will can’t be found or it found mutilated there is a rebuttable presumption that it has been revoked.

If a duplicate or original is destroyed then all are considered destroyed.

A will/codicil can be revoked by a third party through destruction if done in the presence of T and in T’s presence.

Question 25

Alteration of will

Answer 25

T can not increase a gift by writing on the will but can decrease the gift if additional language isn’t added.

Example: Crossing off one zero in 10,000 will change the gift to 1,000.

Question 26

Revoking/altering a holographic will

Answer 26

Holographic wills can be altered or revoke by writing on them.

Question 27

Revival of will by republication

Answer 27

If a original will is revoked by a new will and then the new will is revoked or destroyed . . .

At common law, followed in just a few states, the revocation of a will or codicil that had revoked another will automatically revived the original will.

many states currently follow the no-revival approach. Under this approach, the second will is treated as two legal instruments, each with its own effective date. The second will functions as (1) a revoking instrument that is effective upon its execution and also (2) a dispositive instrument effective upon the testator’s death. Therefore, even if the second will is revoked before the testator’s death, the revocation of the first will remains in effect. If the no-revival approach applies in the example above, although the testator’s assets would not be distributed until death, Will 1 was revoked immediately when Will 2 was published as if the testator physically destroyed Will 1.

UPC
If the second will is revoked by another new will, the previously revoked will (or its revoked parts if it was only partially revoked by the second will) is only revived if the terms of the new will show that the testator intended the previous will to take effect. In other words, the court will not consider any extrinsic evidence (e.g., oral statements by the testator) in determining whether the testator intended to revive the first will. Unif. Probate Code § 2-509(c).

If the second will is revoked by a physical act (i.e., burning, tearing, etc.), the burden of establishing the testator’s intent depends on whether the first will was wholly or partially revoked by the second will. If the second will wholly revoked the first will, the court will presume that the testator did not intend to revive the first will, and the burden will be on the proponent of the first will to prove that the testator intended to revive that will. Unif. Probate Code § 2-509(a). If the second will partially revoked the first will, the court will presume that the testator intended to revive the revoked parts of the first will, and those portions of the first will are revived unless the challenger of the first will establishes that the testator did not intend them to be revived. Unif. Probate Code § 2-509(b). In either case, the court is permitted to consider extrinsic evidence (e.g., the circumstances of the revocation, testator’s contemporary or subsequent statements) to determine the testator’s intent. Unif. Probate Code § 2-509(a), (b).

Question 28

Dependent Relative Revocation

Answer 28

Allows a court to revive a revoked will when the testator revoked the will by subsequent instrument or physical act under mistaken belief of law or fact. Mistake could be that the second will was valid when it was actually invalid.

This is used to reflect T’s intent.

Question 29

Integration of a will

Answer 29

Under the doctrine of integration the will consists of all pages that are intended to be part of the will AND present at the time of execution.

Intent can by shown by connection of the pages or the ongoing nature of the language of the will if they are unattached.

Question 30

Incorporation by reference

Answer 30

A writing not executed with formalities can be incorporated by reference if it:

Existed at the time the will was executed;
Is intended to be incorporated;
Is described in the will or codicil with sufficient certainty.

UPC: The writing does not need to exist at the time of the will execution if it only disposes of T’s personal property.

A validly executed codicil can incorporate an invalid will and make the terms of the will valid.

Question 31

Acts of independent significance

Answer 31

A will can provide for designation of a beneficiary or amount of a disposition by reference to some unattested act or event occurring before or after execution o the will or the T’s death if the act or event has some significance independent from the will.

T leaves his house to the person who is married to his brother at time of his death. His brother getting married is the independent act.

Question 32

Gift Classification

Answer 32

Specific gift: Property that can be distinguished from other property

General gift: A gift of personal property from general assets (often cash)

Demonstrative gift: Gift that T intends to come from a specific source unless that source is insufficient

residuary: Remaining estate when all claims against the estate and all specific, general, and demonstrative gifts have been satisfied.

Question 33

Abatement

Answer 33

If assets of the estate are insufficient to pay all debts of the testator a court can abate or reduce gifts to pay the debts.

The court will abate in this order: Intestate property, residuary, general, specific.

Demonstrative gifts are treated as specific if they can be satisfied otherwise they are treated as general.

Question 34

Ademption by extinction

Answer 34

Traditionally, if the subject matter of a specific gift is missing, destroyed, or there is a substantial change in the form of the gift, the beneficiary takes nothing.

Doesn’t apply to general or demonstrative gifts. The beneficiary is entitled to any specific property that is left or any balance still owed on its purchase price.

UPC: Replacement theory, looks at the intent of T and may give beneficiary the money or replacement property if the specific gift has been sold.

Question 35

Stocks and life insurance left in a will.

Answer 35

Stocks will include any additional shares or dividends gained since the execution of the will.

A life insurance policy must change beneficiaries by the terms of what the contract and they almost never allow the policy to be changed by a will.

Question 36

Lapse an Anti-Lapse

Answer 36

Under common law if a beneficiary dies before T, he doesn’t take any gifts.

Under modern law, if the beneficiary is related to T, then the beneficiaries surviving issue will take the gift in their place.

Question 37

Survivorship Clause

Answer 37

A will may condition a provision on the beneficiary surviving.

Majority: If there is a clause then anti-lapse will not apply.

UPC: Even if the will has an express survivor requirement, courts may apply anti-lapse unless additional evidence shows the testator did not want anti-lapse to apply.

Question 38

Class Gifts

Answer 38

Traditional Rule: Only surviving members of class get the gift.

Modern rule: If anti-lapse statute applies the issue of pre-deceased class members will take.

Question 39

Ambiguities of the will

Answer 39

The court can look at extrinsic evidence for both patent and latent ambiguities under modern rules.

Question 40

Mistakes in the will

Answer 40

Mistake in the execution: Extrinsic evidence is admissible to show they didn’t know they were executing a will

Mistake related to intent of a particular gift does not allow extrinsic evidence.

UPC Reformation: If there is clear and convincing evidence of mistake of law or fact and the testator would want the will revised the court can rewrite it even if it wasn’t ambiguous.

Question 41

Omitted Spouse in a will

Answer 41

An omitted spouse is one that is left out and was married after the formation of T’s will.

If omitted, the spouse is entitled to their intestate share unless:
The omission was intentional; the spouse was given property outside of the will in lieu of disposition in the will; the spouse signed a valid prenup waiving their rights to the estate.

caveat If prenup is signed and then a later will is formed that gives to the spouse the spouse can take despite the prenup.

Question 42

Omitted children

Answer 42

If the child was born/adopted after the will was created or was mistakenly believed to be dead and unintentionally omitted they can force a share (intestate share if only child or force other children to split their share)

No forced share if the child was provided to outside the will; or T had other kids when the will was created and he left a substantial portion of his estate to the omitted child’s spouse.

Question 43

Slayer rule

Answer 43

A party cannot take property from a decedent when the party intentionally and feloniously causes their death. The killer will be treated as pre-deceasing T. Only includes murder, not manslaughter.

UPC allows killer’s issue to take.

Question 44

Disclaimer

Answer 44

Because acceptance of a gift is presumed, a party must actively disclaim it and if they do they are treated as predeceasing T. The property goes to the next eligible taker.

Question 45

Will contest

Answer 45

Only someone who will benefit from the will has standing to challenge it (either beneficiary under current will, a prior will, or by intestacy)

Question 46

Capacity challenge

Answer 46

Testator must be at least 18 does not have mental capacity if:

Doesn’t know the nature of the act;
Nature/character of the property;
Natural objects of his bounty;
Plan of the attempted disposition.

Question 47

Insane delusion challenge

Answer 47

If shown that T has an insane delusion if a rational person could not have reached the conclusion AND must show T would not have disposed of property but for the insane delusion.

Question 48

Undue influence

Answer 48

General rule: Mental or physical coercion by a 3rd party with intent to influence T then the will may be invalidated in whole or in part.

Can be shown by a presumption if:
1) the beneficiary is in a confidential relationship with T (attorney, caretaker, doctor, clergy)
2) The beneficiary participated in the execution of the will
3) The gift to that person is unnatural of consists of the majority of the estate.
The beneficiary then has the burden of proving no undue influence. The court will invalidate the entire will or just the part based on undue influence.

Majority view: Another theory that doesn’t required a confidential relationship if four elements are shown:
1) susceptibility to being influenced
2) motive to benefit
3) opportunity to influence
4) causation b showing the gift was unnatural

Question 49

Fraud

Answer 49

A will can be invalided due to fraud

Fraud in inducement—misrepresentation that causes the testator to make a different
will that he otherwise would have made
 Must show that the testator would not have made the gift if he had known the truth

Example 18: Spouse tells T, “You have to include my child from a previous
marriage in your will, or else the will won’t be valid” and T the includes the child
from the other marriage, T has been fraudulently induced to include that child
because the spouse’s statement was untrue.

Fraud in the execution—misrepresentation as to the will itself or its contents (i.e., testator does not know he is creating a will or is not told the true content of the will)

Example 19: Spouse tells T, “Sign this document, this is the will you asked our
attorney to draft. It includes all of the provisions you requested, you don’t need
to read it.” The document is actually a will containing provisions written by
Spouse. If T signs the document, it may be invalid due to fraud in the execution.