WILLS & ESTATES Flashcards
Grounds for Will Contests: LACK OF Testamentary Capacity
Testamentary Capacity
To have capacity to make a will, the Testator MUST have sufficient capacity to?
(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
Execution Of Wills; Requirements
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.
Self Proving Affidavit
Grounds for Will Contests: LACK OF Testamentary Capacity
What is the standard of proving testamentary capacity?
Preponderance of the Evidence
Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY
When does the Presumption of capacity arises?
Upon proof of compliance with the statutory requirements for a valid will execution
Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY
Who has the burden of proving testamentary capacity?
The Will Proponent
Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY
What burden does the Will Contestant have once the presumption of capacity exists?
The burden of going forward with evidence to overcome the presumption
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?
The instrument will be set aside
What are the formalities of for valid will execution?
(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.
Burden of will proponent
To prove by a preponderance of the evidence that the testator had capacity and that the will was validly executed
Execution Requirements: Attestation
What effect does an attestation clause to a will?
Raises a presumption of due execution
Self-Proved Will
What effect does a self-proving affidavit give to a will?
Takes the place of Witness testimony
Self-Proved Wills
If there is no self-proving affidavit…
One or both attesting witnesses will have to testify that the will was properly executed
Execution Requirements: Witnesses
Under VA Interested Witnesses who are also beneficiaries
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
Grounds for Will Contests
What grounds are available to challenge a will?
Grounds for Will Contests: FRAUD
To challenge a will based on fraud, who has the burden of proof and what must be proved?
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
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?
The will can be set aside
Grounds for Will Contests: FRAUD
What arises to a presumption of fraud?
If a will is DRAFTED by one in a confidential relationship with the testator and there are suspicious circumstances
Grounds for Will Contests:
Grounds for Will Contests:
Specific Devise Of Stock
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.
Lapse
Virginia Anti-Lapse Statute
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
Partial Intestate
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
VA Intestate Succession
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
Revocation by Operation of Law
Effect of Will Upon Divorce or Annulment
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
Virginia Pretermitted Child Statute
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
Intestate Succession
Collateral Heirs
Under Intestate laws, collateral heirs never inherit if the decedent leaves surviving descendants ie., children
Holographic Will
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
Adeemption By Extinction
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
Statutory Exception to Adeemption by Extinction Rule
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
Revocation of a Will by a Subsequent Written Instrument
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
If no spouse, descendants, or parents how will estate pass?
Per Capita
PER CAPITA
Per Stirpes
ABATEMENT
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
ABATEMENT of REAL PROPERTY
INCORPORATION BY REFERENCE DOCTRINE
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
(120 hr) Simultaneous Rule
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
Virginia Slayer Statute
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
Disinheritance
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,.
Common Law Marriages in Virginia
Domestic Relations Crossover
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
Adopted Child
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
Stepchildren or Foster Children
In VA, a stepchild or foster child has no inheritance rights from his stepparent or foster parent
Effect of Divorce on Tenancy by Entirety Ownership
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
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?
The gift would fail. The spouse, as a survivor, would become the sole owner of that property upon the death of testator
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?
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.
Can a will make a gift of nonprobate Assets?
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.
Can nonprobate assets be used to satisfy a debt?
No, such assets are not subject to abatement rules to satisfy any remaining debts by the decedent.
What are examples are nonprobate assets?
Life insurance proceeds,
“Exoneration of Liens” Doctrine in Virginia
“Cy Pres” Doctrine
Out of State (Not a resident of the Commonwealth/Virginia) Personal Representative or Trustee Requirements
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.
May an Out-Of-State Resident serve as an executor in Virginia?
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.
Jurisdiction of Probate of Wills
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.
Wills must be probated in which Court?
The circuit courts shall have jurisdiction of the probate of wills
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
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.
Nursing Home Rebuttable Presumption in Determining the Jurisidiction for Probate
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.
Contractual Wills
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:
WILLS
Contractual Wills: Statute of Frauds
Statute of Frauds
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
A Valid Will in Conflict with a Valid Contract or Contractual Will
Valid contracts will supersede valid wills, on any terms/provisions where they conflict
Proper Remedy for Enforcement of Contractual Wills
Specific performance is the default remedy for enforcement of real property contracts
Revocation of a Will
A validly executed will may be revoked in whole or in part by various methods including
Construction of Wills
Patent Ambiguity
“On the face of will” or “Apparent from will”
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.
Latent Ambiguity
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.
A life tenant during their life estate may do what with their interest in property?
Crossover rule with Real Property
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
Vested remainders may do what with their interests?
Crossover with Real Property
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
Subject to Diminution
Doctrine of Merger
Crossover with Real Property
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
Divestment
Tangible Personal Property
crossover with incorporation by reference doctrine
Incorporation by Reference Doctrine
Unattested Document
What grounds might a spouse base a claim to the other spouse’s (decedent) estate?
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)
Augmented Estate
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
Augmented Estate Amount Breakdown
Elective Share
Steps to take
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
Marital Desertion/Abandonment Effect on claim to an Elective Share
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.
Bigamy
Domestic Relations Crossover
Common Law Marriages
Domestic Relations Crossover
Disinheritance
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
Pour Over Trust
Crossover with trusts
Virginia Dead Man Statute: Statutory Requirment for Corroboration
crossover with VCVP on cross-motions to strike evidence
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
To be entitled to Probate, a will must be duly executed under what requirements?
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.
If a will lacks a self-proving affidavit or self-proving provisions, the witnesses must …
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.
The language of a will is construed…
in light of the circumstances as they existed at execution
However, the will is considered to take effect upon the death of the testator
If a will beneficiary dies before the testator…
the gift lapses
However, such a gift can be saved under the anti-lapse statute so long as the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator. The anti-lapse statute provides for the descendants of the decedent to take in their place
Does not apply if the will uses words showing contrary intent (“to my surviving brothers” stops the anti-lapse statute from saving the gift to a predeceased brother with heirs).
When a testator makes a specific devise, and the identified property is not a part of the testator’s estate at his death, the gift is…
adeemed and the devisee receives nothing
However, the beneficiary, of a stock that no longer exists, due to merger or sale would receive any shares of another entity received as a result of the merger or sale of the original company
When a will does not include a ___ any part of the estate of a decedent not effectively disposed of through the will, passes to the decedent’s heirs under Virginia’s intestacy laws
Residuary Clause/Provision
When a person dies intestate (or partially intestate), if there is no surviving spouse or children, then the estate descends to his kindred in the following order:
to the mother and father, or the surviving parent; if none, then to his brothers and sisters and their descendants; if none, then the estate would be distributed to the aunts and uncles and their descendants.
If, after making a will, a testator is divorced…
all provisions in the will in favor of the testator’s divorced spouse are revoked
The property devised to the divorced spouse passes as if the divorced spouse predeceased the testator, unless a contrary intention is apparent from the will
If it is a specific bequest, then the bequest falls to the residuary taker. If there is no residuary taker, then the gift passes under intestacy
If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator’s will, or any descendant of his, who is neither provided for nor mentioned in the will is…
entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.
*[from Feb ’20:] If such afterborn or after-adopted child, or any descendant of his, dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will
Distributions from an estate ___ be made directly to a minor
Cannot
The executor of the estate would need to petition the court to have a guardian of the estate appointed in order to manage the property passing to a minor.
There is no presumption that the child’s parent or legal guardian would be the guardian for purposes of distributions from the estate
The age of majority in Virginia is 18
A child born after a will is executed is a…
pretermitted heir
Two persons can enter into a binding contract not to revoke or amend their wills, but the agreement must be…
explicit and will not be inferred simply from execution of reciprocal wills
Proof of the contractual nature of this agreement between testators must be clear and satisfactory
The proof could be in the form of an express statement in the Wills, testimony by witnesses as to “admissions” by the testators, or circumstances that imply an agreement
F ‘21 Essay Rule
Enforcement of an oral contact against someone now deceased requires…
corroboration from a source other than the party seeking enforcement and not in their control
Upon what grounds to base a claim to a Spouse estate?
Elective Share
What may a spouse be entitled to receive under an elective share claim?
One-half or 50% of
Steps to pursue a claim of an Elective Share?
Defenses against a spouse taking an elective share or in determining the likelihood of success of a claim for an elective share?
