Wills Essay Rules Flashcards
1
Q
A specific devise is
A
A gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described
2
Q
What is the doctrine of ademption by extinction?
A
When specifically bequeathed property is not owned by the testator at death, the bequest is adeemed and fails
3
Q
What is an exception to the doctrine of ademption by extinction?
A
In corporate actions, a specific devise of stock is entitled to securities of another corporation owned by the testator as a result of merger, consolidation, reorganization, or other similar action taken by the entity
4
Q
T/F With respect to stocks, the beneficiary would receive any shares of another entity received as a result of merger or sale of the original company
A
True
5
Q
With respect to stocks, the beneficiary would receive any shares of another entity received as a result of ________ or _______ of the original company
A
Merger; sale
6
Q
If a will beneficiary dies before the testator, the gift
A
Lapses
7
Q
If a will beneficiary dies during the testator’s life time, the gift ________ and falls into _______
A
Fails; residue
8
Q
What is the anti-lapse statute?
A
The anti-lapse statute saves the gift of a will if the predeceasing beneficiary was a grandparent, lineal descendant of a grandparent of the testator and left descendants who survived the testator. In such a case, the beneficiary’s descendants take the gift in the deceased beneficiary’s place
The beneficiary’s descendants are substituted as takers under the anti-lapse statute
[Here, Annie was Donald’s aunt. She was survived by her husband, Kevin, and their son, Thomas. An aunt is a descendant of a grandparent, and so Annie falls within the requisite degree of kinship. Her descendant, Thomas, will take the gift in her place. Because the substituted beneficiary must be the descendant of the beneficiary, Kevin does not take any portion of the gift in Annie’s place]
9
Q
T/F The anti-lapse statute does not apply if the deceased beneficiary is not a blood relative of the testator
A
True
10
Q
T/F Partial intestacy is when a testator makes a will that does not make a complete disposition of their estate, the testator dies partially intestate, and the rules of intestate succession apply to the assets not disposed of by will
If the will does not contain a residuary clause, the other assets, will be distributed under the laws of intestacy
A
True
11
Q
Partial intestacy is when
A
A testator makes a will that does not make a complete disposition of their estate, the testator dies partially intestate, and the rules of intestate succession apply to the assets not disposed of by will
If the will does not contain a residuary clause, the other assets, will be distributed under the laws of intestacy
12
Q
When a will does not include a residuary provision, any part of the estate of a decedent not effectively disposed of through will, passes to the decedent’s
A
Heirs under VA intestacy laws
13
Q
Partial intestacy - When a testator makes a will that does not make ________, the testator dies partially intestate, and the rules of ________ apply to the assets not disposed of by will
A
A complete disposition of their estate; intestate succession
14
Q
When a testator makes a will that does not make a complete disposition of their estate, the rules of ________ apply to assets that are not disposed by will
A
Intestate succession
15
Q
When a decedent dies without leaving a surviving spouse, issue, or parents, their probate estate passes to the decedent’s ________ and ________, who take by representation
A
Siblings; descendants of deceased siblings
16
Q
What is revocation by divorce?
A
When a testator divorces, all gifts to the former spouse are revoked by operation of law
17
Q
When provisions in favor of a former spouse are revoked, the will is read as if the former spouse ________
A
Predeceased the testator
18
Q
The pretermitted child statute applies to children born ________ the execution of the will
A
After
19
Q
Pretermitted child - no other children
A
Under this statute, if the testator had no other children at the time the will was executed, the pretermitted child takes the portion of the testator’s estate that the child would have been entitled to if the testator had died intestate
20
Q
Pretermitted child - other children
A
If the testator had other children at the time the will was executed, the pretermitted child (if not provided for or mentioned in the will) takes the lesser of:
1) An amount equal to the largest bequest made to any of the testator’s other children,or
2) An intestate share
[In many cases, the pretermitted child’s share is zero]
21
Q
T/F If an omitted child dies before reaching age 18, rather than passing to his mother by intestacy, the property reverts back to the beneficiary under the will
A
True
22
Q
T/F If, under the pretermitted child statute, the child takes 100% through intestacy, the will is entirely revoked by operation of law if provisions were to the contrary
A
True
23
Q
Under intestacy laws, when a decedent dies w/o a surviving spouse, the entire estate passes to their ________
A
Descendants
24
Q
T/F Effect of divorce on tenancy by the entirety
A tenancy by the entirety is a marital estate similar to a joint tenancy between spouses
The major difference between a joint tenancy and a tenancy by the entirety is that a tenancy by the entirety cannot be terminated by involuntary partition
It can be terminated only by the death of either spouse, divorce, mutual agreement, or execution by a joint creditor of both spouses
In VA, a divorce decree a vinculo (an absolute divorce) extinguishes all contingent rights of either spouse in the other’s property, including the right of survivorship
The decree converts any estate by the entirety into a tenancy in common
In a tenancy in common, each owner has a distinct, undivided interest in the property, which is freely alienable and inheritable
A
True
25
A tenancy by the entirety is a ________ estate akin to ________ between spouses
Marital estate; joint tenancy
26
The major difference between a joint tenancy and a tenancy by the entirety is that a tenancy by the entirety cannot be terminated by
Involuntary partition
27
A tenancy by the entirety cannot be terminated by
Involuntary partition
28
A tenancy by the entirety cannot be terminated by involuntary partition. It can be terminated only by
1) The death of either spouse
2) Divorce
3) Mutual agreement; or
4) Execution by a joint creditor of both spouses
29
In VA, a divorce a vinculo (an absolute divorce) extinguishes ________ including ________
All contingent rights of either spouse in the other's real property; the right of survivorship
30
In VA, a decree of divorce a vinculo (an absolute divorce) extinguishes all ________ rights of either spouse in the other's property, including ________
Contingent; right of survivorship
31
A divorce decree converts any estate by the entirety into a
Tenancy in common
32
In a tenancy in common, each owner has a ________, ________ interest in the property which is ________ and ________
Distinct, undivided; freely alienable; inheritable
33
A will may be revoked in **whole or in part** by a subsequently written ________ as long as the instrument is ________
Will, codicil, **or any other writing** declaring such revocation; executed with the same formalities as are required for the execution of a will
34
T/F A typewritten attested will can be revoked by a **valid holographic codicil**
[I am now cancelling the will you wrote for me in 2000 indicates she had a present intent to revoke her will]
True
35
If a testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will
The two instruments are read together to the extent possible **(i.e., the second instrument is treated as a codicil to the will)**
36
T/F Because **a will takes effect upon the death of a testator**, it operates upon circumstances and properties as they exist at the time of the testator's death
True
37
A will takes effect upon ________ and operates upon circumstances and properties as they exist ________
The death of a testator; at the time of the testator's death
38
If a will beneficiary dies during the testator's lifetime, the gift ________
Lapses
39
When a testator left a will but does not make a complete disposition of the estate the assets not disposed of by will pass by
The rules of intestate succession
40
Under the rules of intestate succession, if the decedent did not leave a surviving spouse, the decedent's property passes to
The decedent's descendants
41
If a testator is divorced after making a will
All gifts to the former spouse are revoked and the rest of the will remains valid and is read as though the ex-spouse predeceased the testator
42
T/F All of a person's separate property will be included in their estate at death
True
43
In joint tenancy, each owner holds an
Equal undivided interest in the property with a right of survivorship
44
When one joint tenant dies, the property is ________ from their interest; the survivor retains an ________ right in the property, which is no longer subject to the interest of the deceased co-tenant
Freed, undivided
45
120-hour rule
A person must survive a decedent by 120 hours in order to take as an **heir**
46
The 120-hour applies not only to **heirs** but also to all types of ________, including ________ and ________ (absent a contrary provision in the governing instrument)
**Donative transfers**; survivorship estates; wills (absent a contrary provision in the governing instrument)
47
With joint bank accounts, unless there is ________ evidence that one co-owner survived the other by 120 hours, ________ passes through one co-owner's estate as though he survived, and the other ________ passes through the other co-owner's estate as though she survived. In effect, the property is treated as if it were held in a ________
Clear & convincing, 1/2, 1/2, tenancy in common
48
Per capita with representation method
The property is **divided into equal shares at the first generational level** at which there are living takers
49
When a decedent dies without a will, their estate will be distributed according to the rules of
Intestate succession
50
If an intestate decedent dies with no spouse but with descendants, the entire estate passes to
The decedent's descendants, who take per capita with representation
51
How is property divided per the per capita method?
The property is divided into equal shares at the first generational level at which there are living takers
Each living person at that level takes a share, and the **share of each deceased person at that level passes to their descendants by right of survivorship**
52
A gift is a
**Voluntary transfer of property** by one to another without any consideration or compensation
53
To have a valid gift, there must be
Donative intent, delivery of the subject matter of the gift, and acceptance of the gift by the donee
54
The burden of proving that a gift has been made is on the ________ who must establish donative intent and delivery of the subject of the gift by ________
Donee, clear and convincing evidence
55
Delivery of a gift may be
Actual, constructive or symbolic
56
In the case of constructive delivery, the delivery requirement is satisfied when
The donor **surrenders as much control over the subject matter of the gift** as the donor presently possesses
57
A trust is
**An arrangement** in which a **trustee holds legal title to trust assets** for the **benefit of beneficiaries who hold equitable title**
58
Five elements for an express trust
1) **Settlor with capacity to convey title** to the trustee
2) An **intention** to create a trust
3) One or more definite **beneficiaries**
4) A **trustee with active duties** to perform
5) The **same person is not the sole trustee and the sole beneficiary**
In addition, there must be a present disposition in trust of identifiable property then owned by the settlor, and the trust must have a lawful purpose
59
A trust will terminate ________ at the expiration of ________ specified in the instrument or when ________ of the purposes of the trust have been accomplished
Automatically; the trust term; all; of the purposes of the trust have been accomplished
60
In a joint tenancy each owner holds an
Equal undivided interest in the property with a **right of survivorship**
61
When one joint tenant dies, the property is
Freed from their interest; the survivor or surivors retain an undivided right in the property, which is no longer subject to the interest of the deceased co-tenant
62
A tenancy in common is a
Concurrent estate with no right of survivorship
Each owner has a distinct, undivided interest in the property that is freely alienable by inter vivos and testamentary transfer and is inheritable
63
A will cannot make a gift of
Nonprobate assets
64
Nonprobate assets are ________ other than by ________ or ________
Interests that pass at death; will; intestacy
65
Life insurance is one type of ________ that passes by _______
Nonprobate asset, contract
66
T/F A bank account is nonprobate
True
67
T/F For a writing to qualify as a will, the testator must have drafted it while possessed with testamentary intent
The intent must be present, that, is the testator must intend that the particular instrument take effect as their will, and is generally established by the document itself
[The issue is whether Mary wrote the letter with present testamentary intent. Wilbur will argue that the letter merely indicates Mary's intent to have her attorney draft a new will in the future, and thus does not contain the requisite present intent. However, Mary's use of the phrase, "I am writing a new one" indicates she had present intent to change her will]
[Moreover, Mary's request that her attorney "come to my home and write up a formal document" could be seen as a mere formality. She did not, for example, request that her attorney com to the home and "write up a NEW will" or "formalize these wishes in a new will"]
True
68
T/F The intent must be present, that, is the testator must intend that the particular instrument take effect as their will, and is generally established by the document itself
True
69
Testamentary intent - The testator must intend that the particular instrument ________, and is generally established by ________
Take effect as their will; the document itself
70
VA recognizes holographic wills if they are
1) In the testator's own handwriting, and
2) Signed by the testator
71
To make a valid will, a testator must have ________ and ________
Testamentary capacity and intent
72
A testator has legal capacity if they are
At least 18 years old and of sound mind
73
T/F The mere fact of appointment of a guardian for an individual is not p/f evidence of lack of testamentary capacity, and evidence of such appointment, of itself, is insufficient to rebut the presumption of capacity or shift to the proponent the burden of going forward
True
74
The proponent has the burden of proving **testamentary capacity** by
A preponderance of evidence
75
A presumption of testamentary capacity arises upon
Proof of compliance with the statutory requirements for valid execution of the will
Once the presumption exists, the contestant has the burden of going forward with evidence to overcome this presumption (although the burden of persuasion remains with the proponent)
76
If the **presumption of capacity** is rebutted and the **burden going forward** were shifted to the proponent, the proponent would be required to prove
The **elements of capacity**
77
Factors indicating testamentary capacity
To have capacity to make a will, the testator must have sufficient capacity to
Understand the nature of her act
The nature, condition, and extent of her property
Who are the natural objects of her bounty; and
The provisions of her will
78
Testamentary capacity
Understand the nature of her act; the nature, condition, and extent of her property; who are the natural objects of her bounty; and the provisions of her will
79
A testator has testamentary intent if they
Intend that the particular instrument operate as their will
80
Grounds for contesting a will
1) Lack of testamentary capacity
2) Undue influence
3) Fraud
4) Mistake
81
A valid attested will must be
1) Signed by the testator
2) In the joint presence of at least two attesting witnesses
3) Who sign the will in the testator's presence (although not necessarily in each other's presence)
82
Under VA's statute providing that even though an instrument is not executed in full compliance with the will execution statute, the instrument can be treated as having been validly executed if
The **proponent** of the instrument establishes by **clear and convincing evidence** that the decedent intended the document to constitute their will
83
Holographic wills are wills that are
**Unattested** and handwritten by the testator
84
To be a valid, a holographic will must be
Wholly in the testator's writing and signed by them
The testator's name must be **written in such a manner as to make it manifest that the name is intended to be a signature**
85
In a holographic will, the testator's name must be written in such a manner as to make it
**Manifest** that the name is intended to be a signature
86
T/F In a holographic will, there is no requirement that the will be dated
True
87
Virginia recognizes holographic wills if they are
In the testator's own handwriting, signed by the testator, and is **proved by at least two disinterested witnesses familiar with her handwriting**
88
A holographic document must show, on its face, the existence of
Testamentary intent
89
A will can be revoked in whole or in part by (physical act)
Cutting, burning, tearing, canceling, obliterating, or destroying the will with the **intent, and for the purpose, of revocation.** The testator must have the **intention to revoke** at the time they do the physical act
90
Revocation by physical act requires
Physical act and intent to revoke
91
Revocation by physical act requires that the testator have
The intention to revoke at the time they do the physical act
92
Republication with testamentary formalities
A testator may **restore the testamentary effectiveness** of a revoked will by **re-executing the will in compliance with statutory formalities**
93
A codicil is a
**Later testamentary instrument** that **amends, alters, or modifies** a previously executed will
94
A codicil must be executed with
The same testamentary formalities as a will
95
Under the **doctrine of republication by codicil**, a will is treated as having been executed on
The date of the last validly executed codicil thereto
96
Intestate succession rules apply when the decedent left a will but the will does not make
A complete disposition of the estate
97
If there is no residuary clause in the will, the residue will
Pass by the laws of intestate succession
98
In VA, if a decedent does not have a surviving spouse, the entire estate passes to
The decedent's descendants who take per capita with representation
99
A testator who wants to disinherit someone must make
A complete disposition of their estate by will. **If any portion of the estate passes by intestate succession, the intestacy statute and not the will governs the distribution**
100
The valid execution of a codicil that makes **express reference to the revoked will** causes the will to be revived under
The doctrine of republication by codicil
101
T/F A previous revoked will may be revived by a validly executed codicil
True
102
A will may be revoked in whole or in part by a ________ or ________, as long as the instrument is executed with the ________ as are required for the ________
Subsequently written will or codicil, same formalities, execution of a will
103
If a testator executes a second testamentary instrument that does not contain any express language of the revocation of an earlier will, the two instruments are ________. However, the second instrument revokes the first to the extent of any ________
Read together to the extent possible, inconsistent provisions
104
If a husband and wife own property as tenants by the entirety with right of survivorship, divorce ________ the right of survivorship, and the parties thereafter hold the property as ________
Terminates, tenants in common
105
Under the intestate succession rules, if the decedent is not survived by any kindred, the residual estate will pass to the kindred of the
Decedent's deceased spouse
[Here, the facts do not show any evidence that Mary was survived by any kindred; therefore, the court could rule that Wilbur is entitled to Mary's residual estate (if any) by intestacy
106
Cy pres doctrine
If through the **passage of time or changed circumstances** the **named beneficiary of a charitable trust goes out of existence,** under the doctrine of "cy pres" the court may **redirect the trust to a purpose "as near as possible"** to the charitable endeavor initially contemplated by the settlor
107
Cy pres doctrine - If through the passage of time or changed circumstances the named beneficiary of a charitable trust goes out of existence, under the doctrine of cy pres, the court may
Redirect the trust to a purpose "as near as possible" to the charitable endeavor initially contemplated by the settlor
[SCS has become defunct. However the bequest should not fail. TKD and CC will each argue that the court should reform the bequest in favor of one or both organizations. The court will likely find that while CC assumed responsibility for some of the SCS cats, its charitable purpose does not come as close to Mary's intent]
[She only discusses her love of cats and her desire for SCS to continue to care for homeless cats. CC is an org that cares for a variety of derelict animals. TKD, an organization in which Mary once held a board position, comes closer to her desire and intent to care for cats. Therefore, it is likely that the court will apply the cy pres doctrine tor eform the bequest of Mary's estate to TKD]
108
VA, which recognizes the cy pres doctrine by statute, has applied the doctrine to
Wills
109
Incorporation by reference
An extrinsic document (not present at the time the will was executed and thus not part of the will under the doctrine of integration) may be incorporated into the will by reference so that it is considered part of the will
110
Requirements for incorporation by reference
1) The document must be **in existence** at the time the will is executed;
2) The will must **refer to the document as being in existence** [exception for list disposing of items of tangible personal property]; and
3) The will must **identify and describe the document with reasonable certainty**
111
A will may refer to a written statement or **list that disposes of items of tangible personal property not specifically bequeathed in the will** (although it does not satisfy the requirements of a will)
The writing must be ________. The writing may be ________. It may be ________ and ________
Signed by the testator and must describe the items and beneficiaries with reasonable certainty, but it does not have to be witnessed
Referred to as one in existence at the time of the testator's death
It may be prepared before or after the will's execution
Altered by the testator at any time
112
Property that is not specifically devised to go ________, if any
Residuary takers
113
A will is probated in the
Circuit Court that sits within the city or county where the decedent had a known place of residence
114
T/F Circuit courts have jurisdiction over all probate matters
True
115
T/F Venue (for probate) lies in the county or city in which the **decedent resides** (if none)
The county or city in which the **decedent owned real property** (if none)
County or city in which the **decedent owned personal property**
True
116
T/F There is a rebuttable presumption that **moving into a nursing home does not change the place of residence**
True
117
T/F If the decedent became a patient in a nursing home or similar institution, the **place of legal residence is presumptively the same as it was before moving into the home**
True
118
A **contract to make a will** is controlled by the same rules and principles and is enforceable as other contracts. The available remedy is
Specific performance
119
T/F To the extent that the Will does not conflict with the terms of the contract, the terms of the Will control
True
120
A self-proving affidavit is not required for a valid will, but the will must meet the following requirements:
1) In **writing & signed** by the testator (or another person at the testator's direction and in their presence);
2) Testator must sign (or acknowledge their signature) in the presence of two competent witnesses, who are present together at the same time
3) The will must be witnessed by at least two attesting witnesses; and
4) Each of the attesting witnesses must sign in the testator's presence, but not necessarily in each other's presence
121
T/F If a testator does not sign in the presence of witnesses but acknowledges the document in their presence, the will is valid
True
122
In Virginia, there are four formal requirements that must be satisfied to validly execute an attested will
1) The will must be **signed by the testator** (or another person at the testator's direction and in their presence);
2) The testator must sign the will (or acknowledge their signature) **in the witnesses' joint presence**;
3) The will must be **witnessed by at least two attesting witnesses**; and
4) Each of the **attesting witnesses must sign in the testator's presence, but not necessarily in each other's presence**
123
If the **will is self-proved** by the use of a self-proving affidavit, the will is probated on the ________, and there is no need to ________
Strength of the affidavit; call the attesting witnesses
124
Virginia allows a will to be self-proved by using a
Self-proving affidavit
125
If there is no self-proving affidavit, the proponents will need to present
**Testimony verifying the authenticity of the signatures** and **establishing the requisites for due execution**
[Bank officers may also need to testify as to the testator's capacity and intent]
126
Out-of-state residents may serve as executors, so long as they consent to ________ and ________ unless ________
Service of process in VA; post a surety bond (even if waived by will); a VA resident also qualifies as coexecutor
127
**When a will is offered for probate**, who has the **burden of proof** to show by a preponderance of evidence that the will was **duly executed?**
The proponents
128
Wills are probated in the
Circuit court for the county or city where the decedent has a known place of residence; if she has no such known place of residence, then in a county or city wherein any real estate lies that is devised or owned by the decedent; and if there is no such real estate, then in the county or city where she dies or a county or city where she has an estate.
129
When a will is offered for probate, the burden of proof is on the proponents to show by a preponderance of the evidence that the will was duly executed
In VA, there are four formal requirements that must be satisfied to validly execute an attested will:
1) The will must be signed by the testator (or another person at the testator's direction and in their presence)
2) The testator must sign the will (or acknowledge their signature) in the witnesses' joint presence
3) The will must be witnessed by at least two attesting witnesses; and
4) Each of the attesting witnesses must sign in the testator's presence, but not necessarily in each other's presence
130
Absent ________ evidence that a decedent desired to change their legal domicile permanently, a presumption applies that moving into a nursing home does not change the decedent’s place of legal residence.
Clear and convincing
131
VA allows wills to be self-proved by use of a
Self-proving affidavit
132
A **contract to make a will** is controlled by the **same rules and principles** and is enforceable as other contracts
Thus, in order to be enforceable, the contract must be:
1) **Certain and definite**
2) Based on **valuable consideration**, and
3) Proof must be **clear & convincing**
Where a contract deals with the transfer of real property, it must satisfy the Statute of Frauds
To satisfy the Statute of Frauds, the contract must be in writing, and signed by the party to be charged
133
T/F If there is no self-proving affidavit, only one witness needs to testify if the other witness is accounted for
[Because there is no self-proving affidavit, one of the witnesses would need to testify that all the requirements of due execution were met]
True
134
________ is the default remedy for enforcement of real property contracts
Valid contracts will supersede valid wills, on any terms where they conflict
Specific performance
135
To be entitled to probate, a will must be
Duly executed
136
T/F After the will is admitted to probate, the court would issue letters testamentary to the executor, which serves as evidence of the executor's authority to take possession of the decedent's property and act on behalf of the estate
True
137
A will that is ________ is duly executed and thus entitled to probate
Signed or acknowledged in the presence of two competent witnesses who are present together at the same time, and who also sign the will in the presence of the testator
138
A nonresident individual may serve as a PR of a decedent's estate but must
Appoint a resident agent for service of process or agree to allow the clerk of the court to be served on their behalf
A nonresident PR must post a bond with surety unless they are serving with a resident PR, or the requirement is waived by the court
139
When a will is offered for probate, the burden of proof is on the proponents to show by a ________ that the will was ________
Preponderance of the evidence; duly executed
140
A nonresident PR must
Post a bond with surety unless they are serving with a resident PR, or the requirement is waived by the court
141
If a will lacks a self-proving affidavit or self-proving provisions, the witnesses must
Testify in court for it to be admitted to probate
If they are unavailable to testify and can show good cause for their unavailability, the witnesses may be able to **substitute a sworn deposition** in place of in-court testimony
142
Out-of-state residents may serve as executors in Virginia, so long as they
Designate an in-state agent for service of process and post a surety bond, even if that requirement is waived in the will
143
Where a will that was last seen in the testator's **possession or control** cannot be found after the testator's death, a presumption arises that the will was
Revoked (i.e. the reason the will cannot be located is that the testator destroyed it with the intent to revoke)
144
**Rebuttal of the presumption of revocation** requires what kind of evidence?
Clear and convincing evidence
145
The presumption of revocation may be rebutted with clear and convincing evidence of
General statements that the decedent made about his testamentary intent, if those statements confirm the dispositive scheme in the decedent's will
146
What action/actions might be taken to establish right to inherit from paternal estate?
No claim of succession based upon the relationship between a child born out of wedlock and a deceased parent of such child shall be recognized unless, within one year of the date of the death of such parent
1) An affidavit by such child or by someone acting for such child alleging such parenthood has been filed in the clerk's office of the CC of the jurisdiction wherein the property affected by such claim is located, and
2) An action seeking adjudication of parenthood is filed in an appropriate CC
147
Paternity must be established by
Clear and convincing evidence
148
A child can inherit from and through the father if paternity is established by clear and convincing evidence that:
1) Man openly cohabitated with mother during pregnancy
2) Man gave consent to an authorized person to be named as father on child's birth certificate
3) Man allowed child to use surname
4) Man claimed child as his child on tax return or other document filed with governmental agency
5) Man adjudged to be father in paternity suit and was ordered to pay child support
6) Man admitted paternity in court, or in writing under oath; or
7) Genetic tests or other medical or anthropological evidence
[1 year limitation does not apply where allegation of paternity is based on one of the other grounds listed above
149
Omitted spouse
If a person marries after executing a will and the spouse survives the testator, the spouse takes an intestate share of the testator's estate unless it appears from the will or premarital or marital agreement that the omission was intention
150
Omitted spouse's share is
The entire estate unless the decedent left descendants from an earlier marriage, in which case the spouse's share is one-third of the estate
151
If the decedent is survived by descendants, at least one of whom is not the surviving spouse's descendant, the spouse inherits
One-third of the estate, and the other two-thirds passes to the decedent's descendants
152
A transfer of property by gift requires
Donative intent, acceptance, and delivery of properly executed deed
[It is clear from the facts that Charlie and Betty had the requisite donative intent and that Sonny accepted the gift. Finally, Charlie and Betty delivered the deed to Sonny by physically giving it to him. Although Sonny failed to record the deed to Colonial Acres, recording is not required to transfer real property]
153
T/F A subsequent purchaser or mortgagee for value without notice of a prior transfer and who first records has priority over the earlier transferee
True
154
Transfer on death deed allows an individual to transfer certain real property to a named beneficiary on the individual's death without the property going through
Probate
[A TODD will supersede the provision of a will related to the specific property]
[If, after making a TODD, the transferor is divorced, the divorce revokes any transfer to a former spouse as designated beneficiary unless the TODD expressly provides otherwise]
155
T/F A TODD will supersede the provision of a will related to the specific property
True
156
T/F If, after making a TODD, the transferor is divorced, the divorce revokes any transfer to a former spouse as designated beneficiary unless the TODD expressly provides otherwise
True
157
A surviving spouse may claim an elective share regardless of whether
[Is Wilma likely to succeed in renouncing Harry's 2010 will and obtaining an elective share of Harry's estate?]
1) Any provision for the surviving spouse is made in the decedent's will or
2) The decedent dies intestate
158
Transfer on death deed formalities
A transfer on death deed must comply with the same formalities as a properly recordable inter vivos deed, must state that the transfer to the beneficiary is to occur upon the transferor's death, and must be properly recorded before the transferor's death in the CC where the property is located. The transferor is not required to give notice or deliver the deed to the beneficiary, and the beneficiary is not required to accept the deed during the transferor's lifetime. Consideration is not required
159
Adopted child - no inheritance rights from natural parents
Once a child has been adopted by a new family, there is no longer any legal relationship between the child and her natural parents
The child and her kin cannot inherit from and through the natural parents, and vice versa
160
If there is a share of the estate to which a minor may be entitled, the executor must
Petition the court to have a guardian of the estate appointed to manage the property passing to the minor
He cannot simply distribute the property to the minor or the minor's mother, who is the natural guardian of the person but not the estate
The guardian of the estate must post a bond, unless the will waives doing so, provide a list of heirs at the time of qualification, file an inventory within four months of appointment; and file an accounting within 16 months of qualification and annually thereafter
161
If there is a share of the estate to which a minor may be entitled, the executor must
Petition the court to have a guardian of the estate appointed to manage the property passing to the minor
162
A guardian of the estate must
1) Post a bond (unless will waives doing so)
2) Provide a list of heirs at the time of qualification
3) File an inventory within four months of appointment; and
4) File an accounting within 16 months of qualification and annually thereafter
163
Testamentary capacity
Understand nature of act, nature/extent of property, natural objects of bounty
164
If a decedent dies intestate, then VA law directs the distribution of property among
Descendants as per capita with representation
165
T/F When the intestate is survived by a spouse, the spouse's share of the intestate estate is 1/3 if the intestate was survived by any children or descendants who are not children or descendants of the surviving spouse
True
166
If a decedent dies with a surviving spouse and children not born of the surviving spouse, then the spouse takes 1/3 and all of the children take 2/3 of the estate
[The two children would share the 2/3 interest, or 1/3 each as TENANTS IN COMMON]
True
167
Who bears the burden of proving testamentary capacity?
The proponent
168
The proponent of a will can create **presumption of capacity** by showing that the testator
Complied with the formal requirements of execution
169
An **expectancy interest** in an estate is not sufficient to establish
Standing
170
A clause in a will that penalizes a beneficiary who contests the will (i.e., a no contest clause) is
Generally enforceable in VA
171
If a D dies intestate, then VA law directs the distribution of property among descendants as
Per capita with representation
Under this rule, the division of the decedent’s estate is made at the first generational level for which there are living takers
172
T/F Virginia does not follow a strict per capita scheme
True
[Sandy's estate is not divided equally between her living descendants]
173
T/F A “pour-over" devise, in which the distribution of a decedent’s assets upon her death is effectively determined by the terms of a trust rather than a will, is permissible if the trust is sufficiently identified in the will, and if the terms of the trust are set forth in a written instrument other than the will
[Here, the will is the only written instrument setting forth the terms of the trust. Therefore, this pour-over devise is invalid]
True
174
T/F If a decedent’s marriage is judicially dissolved prior to his death, then any designation made by the decedent prior to the dissolution providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void. The decedent’s interest in the asset then passes as if the decedent’s former spouse predeceased the decedent
[Here, the divorce dissolved the marriage, meaning that the proceeds of the life insurance contract will pass as if Winona had predeceased Hank. Because Hank died intestate, his estate, including the proceeds of the life insurance, will pass entirely to Stanley, Hank’s only child]
True
175
T/F VA does not define what constitutes a signature, and a first name, initials or even a mark can be sufficient, if that was an ordinary way for a testator to sign her name
True
176
Does VA define what constitutes a signature?
No
177
VA does not define what constitutes a signature, and ________, ________, or even ________ is sufficient in VA, if that was an ordinary way for a testator to sign her name
A first name, initials, a mark
178
T/F Holographic wills - a signature placed at the end of the document, only signed "Irma" is still acceptable
True
179
T/F VA law does not require that the signature be at the end of the document to qualify as a signature, as long as the testator intended the name to qualify as a signature
True
180
Does VA law require that the signature be at the end of the document to qualify as a signature?
No, as long as the testator intended the name to qualify as a signature
181
VA law does not require that the signature be at the end of the document to qualify as a signature, as long as the testator
Intended the name to qualify as a signature
182
T/F Irma had the requisite testamentary intent bc she wrote this was her "last will and testament"
True
183
Note:
I, Irma, hereby declare that I am reviving my April 9, 2013 will (attached (in two pieces))
/S/ Irma
The note is a validly executed holographic codicil
184
A holographic will or codicil must be proved by
Two disinterested witnesses
185
A gift intended to take effect at death can only be accomplished by
Will, which must be in writing
186
T/F To the extent that a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means
True
187
Spendthrift provision
A term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest
[A creditor probably can reach Ronnie's income interest if it does not contain a spendthrift provision]
188
T/F A creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion
True
189
T/F Ken had a duty to prevent and redress Frank's breach of trust
Even though Ken did not participate directly in Frank's breach, Ken is nevertheless liable
True
190
T/F Ken and Frank signed the contract in their fiduciary capacity, so they are not individually liable for the unpaid fees
True
191
T/F Ken and Frank can contractually bind the trust in contract
The firm can recover unpaid fees from trust assets even though Ken and Frank are not personally liable
True
192
T/F A testator need not retain all the force of intellect that he or she had at a former period and may even be legally incompetent to transact other types of business
True
193
T/F Evidence of illness or impaired intellect at other times is insufficient, standing alone, to render a will invalid
True
194
The relevant time for purposes of assessing testamentary competence
At the time of will execution
195
T/F Once the proponent establishes compliance with the statutory requirements, the contestant bears the burden of going forward with evidence
The burden of persuasion always remains with the proponent
True
196
Undue influence is a species of
Fraud
197
Direct proof of undue influence is
Difficult to produce
198
Contestants can establish a presumption of undue influence that shifts the burden of production to the proponent by satisfying the following test:
1) The testator suffered from weakness of mind (e.g., from advanced age or injury) when the will was made
2) The testator named a beneficiary who stood in a relationship of confidence or dependence; and
3) The testator previously had expressed an intention to make a contrary disposition of his property
[Norma stands in a confidential relationship with Wesley bc he relied so heavily on her. Sh suggested an attorney, Andrew, with whom she has a personal relationship. Andrew does read the will to Wesley, but before the witnesses are admitted. All of this might be enough to shift the burden of production to the proponents. It probably should not result in the will being invalidated. A principled argument would likely receive credit, regardless of which conclusion the applicant reaches]
199
Removal of executor - Friction between beneficiaries is insufficient
Removal or disqualification must benefit
The estate
[The mere fact that Pastor is draftsman and that his wife received a benefit are probably not sufficient to disqualify him
200
Examples of sufficient grounds of removal are
Fraud, gross negligence, or some other breach of duty
201
T/F The testator's will left most of her estate to the wife of the attorney who drafted the will even though the testator had never met the wife. The court found this to be presumptive fraud
True
[Presumption of fraud that operated to shift to Williams the burden of producing evidence to rebut the presumption]
[The ultimate burden of persuasion, however, remains upon the contestants]
202
T/F By naming his wife as beneficiary, Williams became an indirect beneficiary, and that, couple with the other suspicious circumstances, was sufficient to raise the presumption
True
203
Undue influence =
Feeble in mind or confidential relationship between testator and alleged influence
204
T/F If a gift of specific personal property lapses, it will pass to the person who is entitled to all remaining personal property under the will
True
