Wills & Estates Flashcards
Will Requirements
- Writing
- Signed by T;
- 2+ Ws
- Testamentary Intent
Standard for testamentary intent
T must execute with present intent for will to have effect, generally know and approve of its contents, and know will is being executed
Holographic will requirements
- Will in T’s handwriting
- Signed by T (proxy not permitted)
- Testamentary intent (extrinsic evidence permitted in some states)
*Ws not required
Codicil:
- Formalities
- Effect
- Same formalities as will
- Republishes will as of date codicil executed
Methods of Revoking a Will Prior to T’s Death (3 listed)
- Subsequent instrument
- Destruction with intent to revoke
- Operation of law (e.g., divorce)
Methods of Revival (2 listed)
- Express republication with formalities
- Implied republication
- CL: Automatic revival of original upon revocation of subsequent
- UPC: Look at T’s intent
Dependent Relative Revocation
T’s revocation disregarded if it was based on mistake of law or fact and would not have been done otherwise
Gift classification (4)
- Specific: Distinguished with reasonable accuracy
- General: Satisfied from general estate assets
- Demonstrative: Comes from particular source
- Residuary: Property remaining after all other gifts made
Incorporation in will by reference
Another writing not executed with formalities may dictate distribution if:
- Existed at time of execution
- T intended to be incorporated
- Described in will with sufficient certainty to identify
Order of abatement (reduction of gifts when assets insufficient)
- Intestate
- Residuary
- General
- Specific
Two methods of ademption
- Ademption by extinction
- Ademption by satisfaction (UPC presumes not absent express writing)
Rule of construction
Will “speaks” at time of death
(e.g., “to my son, John’s, lovely wife” - wife at death, not at will signing, unless extrinsic evidence can resolve ambiguity)
Can ambiguities/mistake be resolved via extrinsic evidence
Yes
Default rule for language of will
Plain meaning of the words
Impact of conditional language on will validity
When will’s validity conditioned on event, courts try to construe excess language as explanation rather than barrier - can consider extrinsic evidence
(on the edges, can’t look past explicit condition precedent/subsequent)
Omitted spouse and kids (married/born after will)
Rebuttable presumption omission by mistake; look to extrinsic evidence
Major reasons for will contests (4 listed)
- Lack of testamentary capacity
- Insane delusion
- Undue influence
- Fraud
Conflict of laws (will validity)
UPC: Law of place where will executed or T domiciled, lived, or national at time of death
CL: Domiciled at time of death
Fiduciary duties of Executor/Administrator
Highest duty of
- Care
- Loyalty
Power of attorney
Agency relationship, continues until death of P; only liable for intentional misconduct
Lack of testamentary capacity
At time of execution, T didn’t have ability to know nature of act or property, natural objects of bounty, and/or attempted disposition plan
Insane delusion
- T believes something for which there is no factual or reasonable basis, but adheres to despite all reason and evidence to the contrary.
- (Majority) A rational person in the T’s situation could not have reached same conclusion
- But for the insane delusion, T would not have disposed in property this way
Undue influence Elements - Traditional
- Susceptibility
- Motive
- Opportunity
- Causation
Fraud (4 elements)
- Misrepresentation
- With intent to deceive;
- With purpose of influencing disposition; and
- Actual cause of disposition
Distribution schemes (3)
- Strict per stirpes
- Modern per stirpes
- Per capita at each generation (UPC)
Strict per stirpes
- Estate divided by # of members in 1st generation of kids either alive or survived by descendants
- Each member alive takes share and shares of deceased drop down
Modern per stirpes
- Same as Strict per stirpes BUT
- Divided equally among living and deceased at 1st generation with living taker
Per capita at each generation (UPC)
Property divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue
Interested Witness Doctrine
Witness who receives gift under will:
Common law: Invalid unless 2+ disinterested (purge theory)
UPC: Doctrine abolished
Posthumously born children
Rebuttable presumption child of deceased dad if born within 280 days
Equitable adoption
- Relationship started during minority and established by C&CE that legal barrier prevented adoption; or
- Foster parent agreed with genetic parents to adopt and foster treated kid as own
Out of wedlock births (Modern and UPC)
Modern: Can’t inherit from natural father unless: (1) dad subsequently married natural mom; (2) held kid out as own; (3) C&CE of paternity after dad dies; (4) paternity during life by Preponderance
UPC: Proof of paternity to inherit; presumption if dad holds out as own kid; action w/i 3 years of maturity
