WILLS & ESTATES

Question 1

Grounds for Will Contests: LACK OF Testamentary Capacity

Testamentary Capacity

To have capacity to make a will, the Testator MUST have sufficient capacity to?

Answer 1

(i) understand the nature of the act she/he is doing; (ii) know the nature, condition, and extent of her property; (iii) know the names of and her relationship to the natural objects of her bounty; and (iv) understand the scope and meaning of the will provisions

Question 2

Execution Of Wills; Requirements

Answer 2

A will not wholly in the testator’s handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.

Question 3

Self Proving Affidavit

Question 4

Grounds for Will Contests: LACK OF Testamentary Capacity

What is the standard of proving testamentary capacity?

Answer 4

Preponderance of the Evidence

Question 5

Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY

When does the Presumption of capacity arises?

Answer 5

Upon proof of compliance with the statutory requirements for a valid will execution

Question 6

Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY

Who has the burden of proving testamentary capacity?

Answer 6

The Will Proponent

Question 7

Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY

What burden does the Will Contestant have once the presumption of capacity exists?

Answer 7

The burden of going forward with evidence to overcome the presumption

Question 8

Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY

If the Contestant can persuade the court that the testator lacked capacity in making of the will, what will the court likely do?

Answer 8

The instrument will be set aside

Question 9

What are the formalities of for valid will execution?

Answer 9

(i) the will must be signed by the testator; (ii) the testator must sign in the presence of both witnesses (present at the same time); (iii) the will must be witnessed by two attesting witnesses; and (iv) each witness must sign in the testator’s presence.

Question 10

Burden of will proponent

Answer 10

To prove by a preponderance of the evidence that the testator had capacity and that the will was validly executed

Question 11

Execution Requirements: Attestation

What effect does an attestation clause to a will?

Answer 11

Raises a presumption of due execution

Question 12

Self-Proved Will

What effect does a self-proving affidavit give to a will?

Answer 12

Takes the place of Witness testimony

Question 13

Self-Proved Wills

If there is no self-proving affidavit…

Answer 13

One or both attesting witnesses will have to testify that the will was properly executed

Question 14

Execution Requirements: Witnesses

Under VA Interested Witnesses who are also beneficiaries

Answer 14

Does not apply in VA nor does it affect the validity of the will or bequest

Virginia does not have an interested witness rule that disqualifies or purges gifts to a witness who is also a beneficiary or family member beneficiary

Question 15

Grounds for Will Contests

What grounds are available to challenge a will?

Question 16

Grounds for Will Contests: FRAUD

To challenge a will based on fraud, who has the burden of proof and what must be proved?

Answer 16

The will contestant has the burden of proof. To prove fraud, the contestant must show that (i) made knowingly made false representations, (ii) with intent to deceive testator, (iii) testator was ignorant of the falsity, and (iv) testator relied on the false statements which induced to act to her injury

Question 17

Grounds for Will Contests: FRAUD

What is the effect of a will if procured by fraud, either by misrepresenting the nature of the document or by misrepresenting facts that led to the will?

Answer 17

The will can be set aside

Question 18

Grounds for Will Contests: FRAUD

What arises to a presumption of fraud?

Answer 18

If a will is DRAFTED by one in a confidential relationship with the testator and there are suspicious circumstances

Question 19

Grounds for Will Contests:

Question 21

Grounds for Will Contests:

Question 22

Specific Devise Of Stock

Answer 22

The VA code provides that a specific devise of stock is entitled to securities of another corporation owned by the testator as a result of merger, consolidation, or other such action taken by the entity

Merely a change in form does not cause the gift to fail.

Question 23

Lapse

Virginia Anti-Lapse Statute

Answer 23

Under Virginia, anti-lapse operates to save a lapsed gift if the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator and left descendants who survivied the testator

Question 24

Partial Intestate

Answer 24

Under VA law, when a will does not make a complete disposition of the testator’s estate, the remaining portion of the estate will pass to the testator’s heirs in accordance with the laws of intestate succession

Question 25

VA Intestate Succession

Answer 25

If the decedent left no spouse, descendants, or parents, the estate will pass to the descendants of his parents or their children by representation if they are deceased

Question 26

Revocation by Operation of Law

Effect of Will Upon Divorce or Annulment

Answer 26

In VA, divorce revokes any disposition or appointment of property in favor of the former spouse.

The will is read as though the former spouse predeceased the testator

Question 27

Virginia Pretermitted Child Statute

Answer 27

Provides that if the testator had no children at the time of will execution, the pretermitted child (if not otherwise provided for or mentioned in the will) takes such portionof the testator’s estate as he would have been entitled to if the testator had died intestate

If the testator had other children at the time of will execution, the pretermitted child takes the lesser of the largest amount bequeathed to any child or an intestate share

Question 28

Intestate Succession

Collateral Heirs

Answer 28

Under Intestate laws, collateral heirs never inherit if the decedent leaves surviving descendants ie., children

Question 29

Holographic Will

Answer 29

An instrument written by a testator is a holographic will if it (i) is entirely in the handwriting of the testator, (ii) signed by testator and (iii) evidences testamentary intent by a writer who has testamentary capacity

The fact that a writing is in the form of a letter does not preclude it from being a holographic will

Question 30

Adeemption By Extinction

Answer 30

When a bequest is made of specific property and that property is not in the estate at the time of the testator’s death, the bequest will adeem by extinction

EFFECT: VA follows the “specific asset” rule, which means that the bequest will be treated as if it were not in the will if the item bequeathed is not in the estate at the time of the testator’s death

Question 31

Statutory Exception to Adeemption by Extinction Rule

Answer 31

Where specifically devised property is sold by a guardian or conservator for an incapacitated person

The beneficiary is entitled to a general legacy in an amount that is equal to the net sale price of the specific item disposed of

This exception does not apply if, prior to the death of the testator, testator’s disability ceased and the testator survives the cessation of the disability by at least one year

Question 32

Revocation of a Will by a Subsequent Written Instrument

Answer 32

If the subsequent instrument expressly revokes the earlier will(s) and is executed with the same formalities as are required for the execution of a will

Question 33

If no spouse, descendants, or parents how will estate pass?

Answer 33

Per Capita

Question 34

PER CAPITA

Question 35

Per Stirpes

Question 36

ABATEMENT

Answer 36

When the assets owned at death are insufficient to satisfy all the debts and costs as well as the gifts made in a will, the source of payment abates as follows: (i) any personal property passing by intestate succession; (ii) personal property in the residuary estate; (iii) general legacies; (iv) specific and demonstrative bequests of personal property; and
(v) real property, abated in the same order as above (first intestate real property, then real property in the residuary estate, and so on), when all the personal property in the estate is exhausted

Question 37

ABATEMENT of REAL PROPERTY

Question 39

INCORPORATION BY REFERENCE DOCTRINE

Answer 39

For a document to be incorporated into the will, (i) the document must be in existence at the time the will is executed, (ii) the will must refer to the document as being in existence, and (iii) the will must identify and describe the document with reasonable certainty

Question 40

(120 hr) Simultaneous Rule

Answer 40

In VA, a person must survive the testator by at least 120 hours to take as an heir or beneficiary

If a person does not survive the testator by 120 hours, they will be treated as if they predeceased the testator

Which would bring up issues of lapse and anti-lapse

Question 41

Virginia Slayer Statute

Answer 41

Murderer forfeits all rights to testator’s estate, this includes rights under a written instrument such as a will and intestate succession rights, including family allowance provisions

EFFECT: Treated as predeceased testator

The would be beneficiary or heir murderer takes nothing and cannot receive any share of testator’s estate

Question 42

Disinheritance

Answer 42

VA law provides that if a testator seeks to disinherit someone, he must make a complete disposition of his estate

If any portion of the estate passes by intestate succession (complete or partial), the intestacy statute and not the will governs

ie, a gift lapses and passes intestate, revocation by divorce, etc,.

Question 43

Common Law Marriages in Virginia

Domestic Relations Crossover

Answer 43

VA DOES NOT common law marriages, as they cannot be entered into in VA

VA will, however, recognize a common law marriage established elsewhere and valid where entered into, on the same basis that a ceremonial marriage of a sister state is recognized

Question 44

Adopted Child

Answer 44

In VA, an adopted child has the same inheritance rights as a natural child

Does not matter if someone treats a child like their own or claim them as their child without formally adopting them

Question 45

Stepchildren or Foster Children

Answer 45

In VA, a stepchild or foster child has no inheritance rights from his stepparent or foster parent

Question 46

Effect of Divorce on Tenancy by Entirety Ownership

Answer 46

If a husband and wife own property as tenants by the entirety with right of survivorship, divorce severs the right of survivorship, and the parties thereafter hold the property as tenants in common

Question 47

What is the effect of property devised in a will by testator to a person other than spouse, and that property is held by testator and spouse as tenants by the entirety with rights of survivorship?

Answer 47

The gift would fail. The spouse, as a survivor, would become the sole owner of that property upon the death of testator

Question 48

What would be the effect of property devised to another person by testator other than spouse, and that property upon divorce, created a tenancy in common between testator and spouse?

Answer 48

If divorce decree did not contain any express provisions regarding property rights, that person or persons would take testator’s interest and become co-tenants (tenants in common) with prior spouse.

Taking into account person did not predecease testator and lapse/anti-lapse applications.

Question 49

Can a will make a gift of nonprobate Assets?

Answer 49

No, nonprobate assets are interests that pass at death other than by will or intestacy; such assets are not subject to the personal representative’s possession for the purpose of administrating the decedent’s estate.

Question 50

Can nonprobate assets be used to satisfy a debt?

Answer 50

No, such assets are not subject to abatement rules to satisfy any remaining debts by the decedent.

Question 51

What are examples are nonprobate assets?

Answer 51

Life insurance proceeds,

Question 52

“Exoneration of Liens” Doctrine in Virginia

Question 53

“Cy Pres” Doctrine

Question 54

Out of State (Not a resident of the Commonwealth/Virginia) Personal Representative or Trustee Requirements

Answer 54

A natural person who is not a resident of the Commonwealth may be appointed or allowed to qualify or act as the personal representative, or trustee under a will, of any decedent, or appointed as the guardian of an infant’s estate or the guardian or conservator of the property of an incapacitated person.

However, pursuant to this subsection, the out of state personal representative would have to post a surety bond even if that requirement were waived in the will, and designate an in-state agent for service of process or co-qualify with an in-state co-executor.

Question 55

May an Out-Of-State Resident serve as an executor in Virginia?

Answer 55

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.

Question 56

Jurisdiction of Probate of Wills

Answer 56

Where any person or the decedent has become, either voluntarily or involuntarily, a patient in a nursing home, convalescent home, or similar institution due to advanced age or impaired health, the place of legal residence of the person shall be rebuttably presumed to be the same as it was before he became a patient.

Question 57

Wills must be probated in which Court?

Answer 57

The circuit courts shall have jurisdiction of the probate of wills

Question 58

What is the Order in which a decedent’s will shall be probated in the County or City?

When deciding where to probate a will

Answer 58

A will shall be offered for probate in the circuit court, in the county or city where the decedent has a known place of residence; if he has no such known place of residence, then in a county or city where 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 he dies or a county or city where he has estate.

Question 59

Nursing Home Rebuttable Presumption in Determining the Jurisidiction for Probate

Answer 59

Absent clear and convincing 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.

Question 60

Contractual Wills

Answer 60

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 certain and definite, based on a valuable consideration, and the proof thereof must be clear and convincing

Application:

Question 61

WILLS

Contractual Wills: Statute of Frauds

Statute of Frauds

Answer 61

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.

Note:*A writing is not required if the agreement involves personal property

Question 62

A Valid Will in Conflict with a Valid Contract or Contractual Will

Answer 62

Valid contracts will supersede valid wills, on any terms/provisions where they conflict

Question 63

Proper Remedy for Enforcement of Contractual Wills

Answer 63

Specific performance is the default remedy for enforcement of real property contracts

Question 64

Revocation of a Will

Answer 64

A validly executed will may be revoked in whole or in part by various methods including

Question 65

Construction of Wills

Patent Ambiguity

“On the face of will” or “Apparent from will”

Answer 65

When the language from the will is not clear, etc., the court can reform (revise or change) the will

Only look to the four corners of will for interpretation

No extrinsic Evidence is allowed

ie., will states I devise 1/7 to each of my children however testator lists 8 children in will; court will reform will to mean 1/8 since testator wanted them to share equally in the estate.

Question 66

Latent Ambiguity

Answer 66

The language of the will is clear

Extrinsic evidence is allowed

ie., to make out identity of organization or individual; will states “I devise to my sister,” court would allow evidence to figure out which sister if testator had two or more sisters.

Question 67

A life tenant during their life estate may do what with their interest in property?

Crossover rule with Real Property

Answer 67

A life tenant may transfer, lease, encumber, or otherwise alienate her estate inter vivos, but the transferee gets no more interest than that of the life tenant

Thus, the transferee takes an estate for the life of the life tenant

Question 68

Vested remainders may do what with their interests?

Crossover with Real Property

Answer 68

Vested remainders are fully transferable during life, devisable by will, and descendible by inheritance

Thus, example, a transferee will take a vested remainder subject to open or partial divestment, since will stated “at her death (life tenant death), to her children” *see other flaschcards and essay #22 in Barbri 23-24 book

Question 69

Subject to Diminution

Question 70

Doctrine of Merger

Crossover with Real Property

Answer 70

Whenever the same person acquires all of the existing interests in land, present and future, a merger occurs

Example: A life tenant and a vested remainderman transferred their interests to a person, that person/transferee owned both the life estate (present interest) and vested remainder (future interest), the interests merged to form an estate subject to partial divestment by life tenant’s future children that would take upon her death

Question 71

Divestment

Question 72

Tangible Personal Property

crossover with incorporation by reference doctrine

Question 73

Incorporation by Reference Doctrine

Question 74

Unattested Document

Question 75

What grounds might a spouse base a claim to the other spouse’s (decedent) estate?

Answer 75

The surviving spouse of a testator who dies domiciled in the Commonwealth/Virginia may claim an elective share in the spouse’s augmented estate

*see flashcards on augmented estate and elective share and marital desertion for answering what steps to take for an elective share claim, what may be entitled to receive and likelihood of success (considering defenses or what may defeat such a claim for elective share)

Question 76

Augmented Estate

Answer 76

Entitled to: The surviving spouse of a testator who dies domiciled in Virginia has a right to take an elective share amount equal to 50% of the value of the marital property portion of the augmented estate

Steps to take: The claim must be made within six months from the time of the admission of the will to probate

If the surviving spouse exercises their right to election, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are in addition to the elective share, these claims must be made within one year of the death of the testator

Question 77

Augmented Estate Amount Breakdown

Question 78

Elective Share

Steps to take

Answer 78

Steps to take: To make a claim of an elective share, the surviving spouse must either make the claim in person before the court having jurisdiction over the estate, or in writing admitted to the record

Question 79

Marital Desertion/Abandonment Effect on claim to an Elective Share

Answer 79

Likelihood of success on a claim in estate: If a surviving spouse willfully deserts her spouse and such desertion continues until the death of the spouse, the party who deserted the deceased spouse shall be barred of all interest in the estate of the other by intestate succession, elective share, exempt property, family allowance and homestead allowance

Interest barred regardless of how property is distributed I.e., through intestate succession etc., as stated above.

Question 80

Bigamy

Domestic Relations Crossover

Question 81

Common Law Marriages

Domestic Relations Crossover

Question 82

Disinheritance

Answer 82

A testator has the right to disinherit or not account for someone in their estate

Exception: Testator cannot disinherit or not account for a spouse in their estate

Question 83

Pour Over Trust

Crossover with trusts

Question 84

Virginia Dead Man Statute: Statutory Requirment for Corroboration

crossover with VCVP on cross-motions to strike evidence

Answer 84

Under Virginia, A witness who has an interest in the decedent’s estate may offer testimony as to statements made by the decedent, but only if there is some other evidence to corroborate that statement

Question 85

To be entitled to Probate, a will must be duly executed under what requirements?

Answer 85

To be entitled to probate, a will must be duly executed.

A will that is 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, is duly executed and thus entitled to probate.

Question 86

If a will lacks a self-proving affidavit or self-proving provisions, the witnesses must …

Answer 86

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.