Wills & Estates Flashcards
Validity of a Will (Common Law)
At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death.
Validity of a Will (UPC)
Under the UPC, validity is determined under the law of the place where:
(i) the will was executed, or
(ii) the testator is domiciled, has a place of abode, or is a national at the time of death.
Holographic Will
A holographic will is one that is completely handwritten and signed by the testator.
Check essay question for state law rules: they can change the definition of a holographic will.
Contingent Wills
The validity of a will can be conditioned on a particular event or circumstance.
However, whenever possible, the court will construe excess language as a mere explanation or instruction, rather than a barrier to admitting the will to probate as a valid instrument.
The court will consider whether the event is referred to expressly as a condition or only a statement of the motive for executing the will.
The court considers factors such as:
(i) where the will was stored after the purported “condition” lapsed,
(ii) whether setting the will aside would result in intestacy, and
(iii) whether effectuating the will would result in an inequitable distribution.
Intended Beneficiaries if Unclear
Under the general rule of construction, a will “speaks” as of the time of death.
Courts are reluctant to disturb the plain meaning of a will regardless of mistake. However, if there is an ambiguity, courts allow extrinsic evidence to resolve it.
Traditionally, courts distinguished between patent and latent ambiguities; however, many states no longer make this distinction.
Anti-Lapse Statutes
Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition.
Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests.
Under most statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.
Permitted Heir Statute
Pretermitted heir statutes allow children of a testator to claim a share of the estate even though they were omitted from the testator’s will.
While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.
Power of Attorney
A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter.
The person authorizing the other to act is the principal, and the one authorized to act is the agent.
Healthcare Power of Attorney
A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions.
Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal.
An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.
