Wills (Estates) Flashcards
Republication and Incorporation
- 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. - A document that is NOT a valid will cannot be republished by codicil.
- 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. - The UPC allows for incorporation by reference when the will describes the writing
sufficiently to permit its identification.
Specifically Devised Property (Ademption, Intent Test, UPC)
- Under the common law ademption doctrine, if specifically devised property is not in the
testator’s estate when the testator dies, the bequest adeems (fails). - Under the ademption 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 courts have rejected this doctrine 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. - Under the UPC, 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.” - If a conservator, acting on behalf of a legally incompetent person, sells an asset that is the
subject matter of a specific bequest in the ward’s will, the sale does not cause an
ademption by extinction of the bequest.
Devisee of Common 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. - 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.
Revocation of a Will (3 Ways)
(1) Revocation by physical act (e.g., by execution of a new will or by some other physical act, such as cancellation or other writings on the will): This must be done with the intent to revoke the will. The testator or someone acting at the testator’s direction and in his “conscious presence” may revoke the will.
(2) Dependent relative revocation: Under this doctrine, a first will isn’t revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator wouldn’t have revoked the bequest had the testator had accurate information.
(3) Divorce: Divorce revokes gifts in favor of a spouse. Note: there actually needs to be a divorce (or annulment)—not just a filing of divorce.
- A divorce automatically revokes provisions of a will in favor of the former spouse,
including all bequests to the former spouse. - The will is read as though the legatee/former spouse predeceased the testator.
- The residuary estate will pass by intestacy.
- Although divorce revokes provisions in a will in favor of the testator’s former spouse,
ordinarily it does not revoke provisions in favor of relatives of the former spouse. - Under the UPC, a divorce revokes a bequest to a relative of the divorced spouse.
Intestacy
Intestate succession explains how property is divided if a person dies without a will (or if the
will is invalidated in part or in whole or does not make a total disposition).
If the decedent’s spouse and parents do not survive the testator, there are two available schemes to divide property among the decedent’s children: per capita at each generation (where all cousins will be treated alike) or per capita with representation (modern per stirpes) (where a child will simply take his
parent’s share). (J2022, F2008, F2006, J1995)
- The UPC defines taking by representation according to a method under which the intestate estate is divided at the first generation that includes on or more living members.
- Some intestacy statutes call for equal division among all of the heirs if they are all of the same degree of kinship to the decedent.
- A few states use the pure per stirpes method, under which the intestate estate is first divided at the generation of the decedent’s siblings even if there are no surviving members of that generation.
a. It is divided into as many shares as there are living members of that generation and deceased members who left surviving issue.
- If there is no spouse and no children, there are two methods of determining heirship—the civil law consanguinity method and the parentelic method adopted by the UPC. Under the consanguinity method, heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares (so an uncle and a niece are in the third degree of consanguinity and would
be heirs entitled to equal shares). Under the parentelic method, descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents (so a niece would be an heir but an
uncle would not). - Child: a child for purposes of intestate succession includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!).
what happens if the beneficiary predeceases the testator?
When a gift fails because the beneficiary is not alive: The general rule is that if a beneficiary does not survive the testator, the gift will lapse or fail and fall into the residuary. However, all states have antilapse statutes (which keep gifts in the family). Under a typical antilapse statute, if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is saved and the beneficiary’s issue will take in lieu of the beneficiary.
Elements of a valid will
Be aware of the requirements to execute a valid will under majority law. When there does not
appear to be a valid will, note different state laws on holographic wills and the dispensing power.
General rule: Many state laws require that the will is in writing, signed by the testator, and witnessed by two witnesses. They also require that the testator is 18 or older and intend that the document is his will.
Note: generally, any mark that is made with intent to adopt the will counts as a signature.
Holographic wills: Holographic wills are unwitnessed wills. Holographic wills are valid if signed and (according to the UPC and some states) if the material portions are in the testator’s handwriting. Holographic wills are recognized by about half the states. Mention this doctrine if you see an unwitnessed will on the MEE.
Dispensing power: the UPC adopts the dispensing power under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.
Incorporation by reference: A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. This writing must exist at the time the will is executed. (The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether it is
prepared before or after the execution of the will, even if it does not comply with the formalities of a will.)
- Legal Capacity:
Age: The testator (the person making the will) must be of legal age, usually 18 years or older.
Mental Capacity: The testator must have testamentary capacity, meaning they understand the nature and extent of their property, the natural objects of their bounty (i.e., the beneficiaries), the disposition they are making, and how these elements relate to formulating a will. - Intent:
Testamentary Intent: The testator must intend for the document to be their last will and testament, indicating that they wish for it to be effective upon their death. - Formalities:
Writing: The will must be in writing. Oral wills (nuncupative wills) are generally not recognized.
Signature: The testator must sign the will. If the testator is unable to sign, they may direct someone to sign on their behalf in their presence.
Witnesses: The will must be witnessed. Generally, at least two competent witnesses are required, who must sign the will in the presence of the testator. The witnesses must also attest that the testator appeared to be of sound mind and not under undue influence. - Execution:
Publication: Some jurisdictions require the testator to declare to the witnesses that the document is their will.
Attestation Clause: This clause is often included at the end of the will and signed by the witnesses, affirming that they witnessed the testator sign the will and that the testator declared it to be their will. - Absence of Undue Influence, Fraud, or Duress:
Voluntariness: The will must be made voluntarily. It should not be a result of undue influence, fraud, or duress.
Additional Considerations:
Holographic Wills: Some jurisdictions recognize holographic wills, which are handwritten and signed by the testator but may not be witnessed.
Self-Proving Affidavit: A self-proving affidavit can be included, signed by the testator and witnesses, and notarized. This can simplify the probate process by allowing the will to be accepted without further witness testimony.
Summary of Basic Elements:
Legal Capacity: The testator is of legal age and has testamentary capacity.
Intent: The testator has the intent for the document to serve as their will.
Formalities: The will is in writing, signed by the testator, and properly witnessed.
Execution: The will is declared to be the testator’s will in the presence of witnesses, if required.
Voluntariness: The will is made without undue influence, fraud, or duress.
Advancements
This is an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of intestate succession?
- Common law: A lifetime transfer to an heir was presumptively treated as a down payment
on the heir’s intestate share and thus is taken into account when computing the heir’s
intestate share. At common law, this only applied to a gift to a child (not, say, a gift to a
sibling), but most states have broadened it to include any heir. - Majority law: most states today say that a lifetime transfer is presumed to be a gift and is
ignored in computing the heir’s intestate share unless there is evidence to show that the
decedent intended the gift to be an advancement. - Ademption by satisfaction: This doctrine applies when there is a will (unlike the
advancements doctrine). The Uniform Probate Code (UPC) states that a lifetime gift is not a
prepayment unless: (1) the will says so, (2) the testator declares in a contemporaneous
writing that the gift is to be deducted from the will, or (3) the devisee acknowledges in
writing that the gift is in satisfaction of the bequest. (J2000)
what happens if the property described in the will is no longer in the estate?
When a gift fails because the property no longer exists—ademption: 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., the gift fails. Under many statutes, if the testator replaced the property, or if there
were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the
property.
what happens if the beneficiary kills the testator?
Slayer statute: An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate (including an intestate share, an elective share, an omitted spouse’s or child’s share, etc.). Voluntary manslaughter is a form of a felonious and intentional killing. Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent.
Note: when this is tested on the MEE, generally this doctrine does not bar a gift to the slayer (usually because the killing is not felonious and intentional!).
- Slayer statutes bar from inheriting only a beneficiary who killed the decedent whose
estate is at issue. - The UPC bars a legatee or heir from taking a share of the estate when he or she killed the
decedent. - 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. - Remedy may be a constructive trust for the person who should inherit
what happens if the property in the will is disclaimed?
Disclaimers: Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. An antilapse statute may apply; otherwise, the gift will fall into the residuary.
what happens when the assets in the will are insufficient to pay people off?
Abatement: when the assets of an estate are insufficient to satisfy all the gifts made by someone’s will, then the gifts to the beneficiaries will be reduced (abated) in the following order: intestate property, residuary gifts, general gifts, and specific gifts.
Imagine you have a big toy box filled with different kinds of toys, and you want to give them all to your friends. But when the time comes to give out the toys, you realize you don’t have enough for everyone to get what you promised. Here’s how you decide who gets what:
(1) Intestate Property: First, you give away any extra toys that you didn’t specifically promise to anyone (like leftover toys you didn’t mention).
(2) Residuary Gifts: Next, you give out the toys you said would go to anyone who didn’t get something specific (like a pile of random toys for anyone who didn’t get named toys).
(3) General Gifts: After that, you give out toys that are supposed to go to everyone in general (like saying all your friends get one car toy each).
(4) Specific Gifts: Lastly, you give out the special toys you promised to specific friends (like saying “this teddy bear goes to Tim”).
So, if you don’t have enough toys, you start by cutting down on the extra, unpromised ones first, then the general ones, and save the special promised ones for last. This way, the most specific promises are kept as much as possible.
mental capacity
Note: Virtually every time that mental capacity or undue influence has been tested, the best answer is that the testator did have capacity and there was not undue influence present to invalidate the gift. However, remember that this is very fact-specific.
Mental capacity: A testator must have capacity to execute a will. The burden of proving that the testator lacks mental capacity rests on the contestant. A testator meets this requirement if the testator knows (1) the nature and extent of his property, (2) the persons who are the natural objects of the testator’s bounty (i.e., family members), (3) the nature of the instrument that the testator is signing, and (4) the disposition
that is being made in the will.
Undue Influence
Note: Virtually every time that mental capacity or undue influence has been tested, the best answer is that the testator did have capacity and there was not undue influence present to invalidate the gift. However, remember that this is very fact-specific.
Undue influence: This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator’s free will and causes the testator to make a gift he would otherwise not have made. The burden of establishing undue influence generally is on the will contestant who must show the following (mnemonic=SODA): (1) the testator was susceptible to undue influence, (2) the alleged
influencer had the opportunity to exert undue influence, (3) the alleged influencer had a disposition to exert undue influence, and (4) the will appears to be a product of undue influence. Most courts only invalidate portions that are infected by undue influence.
