Wills I (Testamentary Capacity, Validity, Integration, Revocation) Flashcards
Knowledge of which of the following is NOT a requirement for testamentary capacity?
A.) Extent of property B.) Nature of property C.) Natural objects of bounty D.) Nature of testamentary act E.) How to create an orderly plan
E.)
nowledge of each of the following is a requirement for testamentary capacity: the nature and extent of property, answers A and B; the natural objects of bounty, answer C; and the nature of the testamentary act being performed, answer D.
Furthermore, the testator must understand how all of these elements relate together to constitute an orderly plan of property disposition. However, the testator does not have to know how to create the plan and may, for instance, rely on the advice of an attorney.
Patricia executes a will with Charlie’s assistance, intending to bequeath her entire estate to charity. However, when Patricia dies, her will bequeaths her entire estate to Charlie.
Charlie committed fraud if he intentionally told Patricia that she was:
A.) Signing a contract B.) Approving a draft of the will C.) Leaving her estate to charity D.) A and B E.) All of the above
E.) All of the above.
A testator lacks testamentary capacity due to fraud when an intentional misrepresentation, made knowingly and purposely to influence the will, causes the testator to dispose of the property in a way that she would not have otherwise. Fraud in the execution misrepresents the character or contents of the will.
Here, Patricia may lack testamentary capacity due to fraud in the execution if Charlie intentionally misrepresented the character or contents of the will. Answers A and B misrepresent the character of the will, while answer C misrepresents the contents of the will. Thus, answer E, all of the above, is correct.
Jill, a recent widow, is shocked to learn that she has been written out of her husband Jack’s will. Apparently, Jack believed that Jill was having an affair with their neighbor, Ned.
If Jill argues that Jack lacked capacity due to an insane delusion, is she likely to succeed?
A.) Yes, if Jack removed Jill from his will based on his belief of her affair.
B.) Yes, if Jack persistently believed that Jill was having an affair.
C.) No, if there is evidence that Jill and Ned were having an affair.
D.) No, if there is evidence that Jack was suffering from dementia.
E.) None of the above
C.) No, if there is evidence that Jill and Ned were having an affair.
A testator may lack capacity due to an insane delusion when he persistently believes in a nonexistent fact against all evidence and, furthermore, materially alters his will based on his belief.
Here, Jack only lacks capacity due to an insane delusion if there is no evidence that Jill and Ned were having an affair. Even if Jack removed Jill based on his belief, he does not lack capacity if his belief is supported by evidence that Jill and Ned were having an affair. Thus, answer C is correct.
Roger hires Amy, an attorney, to assist with planning the disposition of his estate. However, Roger is an elderly man who occasionally forgets that he has a sister named Debbie until he is reminded of her existence. When Roger dies, Amy receives his entire estate as a result of the will that she helped him to draft and execute. Debbie contests the will, arguing that: (1) Roger suffered from the insane delusion that he did not have a sister; and (2) Amy exerted undue influence over Roger.
Which of Debbie’s arguments is likely to succeed?
A.) (2) only
B.) (1) and (2)
C.) (1), but only if Roger’s belief lacks a reasonable basis.
D.) (2), but only if Roger’s will lacks a reasonable basis.
ENone of her arguments are likely to succeed.
D.) (2), but only if Roger’s will lacks a reasonable basis.
Remember that a will may be contested based on an insane delusion or undue influence. A testator has an insane delusion when he persistently believes in a nonexistent state of facts against all evidence, such that his will is materially affected.
A testator’s will is presumed to be the result of undue influence when the testator and alleged influencer were in a confidential relationship, suspicious circumstances were involved, and the will unnaturally disposes of the estate without a reasonable basis.
Here, argument (1) is unlikely to succeed. Roger only occasionally forgets that he has a sister and is readily reminded of her existence. He does not persistently believe in Debbie’s nonexistence against all evidence, so he does not suffer from an insane delusion. Argument (2), on the other hand, is more likely to succeed. Roger and Amy were in a confidential attorney-client relationship. Furthermore, suspicious circumstances were involved, as Amy assisted in the preparation of Roger’s will. However, the will does not necessarily dispose of the estate without a reasonable basis; for instance, Roger may have despised his sister and lacked any other potential beneficiaries. Thus, answer D is correct.
Which of the following is NOT a requirement for the execution of a notarized will?
A.) Set down in writing B.) Signed by the testator C.) Handwritten by the testator D.) Notarized by a notary public E.) None of the above
C.) Handwritten by the testator
Remember that a notarized will must be in writing, signed by the testator, and acknowledged by the testator before a notary public. A notarized will does not have to be handwritten by the testator. See id. Thus, answer C is correct, as it is not a requirement for the execution of a notarized will.
A self-proving will does not require witness testimony in order to be proven valid in court.
T/F
True.
Remember that a self-proving will is accepted as validly executed by the court without requiring witness testimony.
John types a document on his computer, stating that his entire estate is to be transferred to his daughter Lisa when he dies. After printing out the document, John instructs Lisa to sign the last page in his name.
If John’s will is found invalid, what is the most likely reason?
A.) John did not handwrite the will.
B.) John did not intend to execute a will.
C.) John did not sign the will in his name.
D.) Lisa signed the will in her own name.
E.) Lisa did not sign the will in John’s presence.
B.) John did not intend to execute a will.
Remember that the only types of valid wills are attested and non-attested wills. An attested will must be witnessed or notarized, while a non-attested will must be handwritten and signed by the testator. However, the harmless error rule allows a will to be validated even if the necessary requirements have not been met, as long as there is clear and convincing evidence of the testator’s intent to execute a will.
Here, John attempted to execute a will but has not met the necessary requirements for a valid attested or non-attested will. However, the harmless error rule allows John’s will to be validated despite his failure to meet the necessary requirements, as long as there is evidence of his intent to execute a will. Therefore, if John’s will is found invalid, then the most likely reason is that John did not intend to execute a will. Thus, answer B is correct.
Charlie drafts a will on his computer, leaving his entire estate to Molly, his daughter. Five years later, Charlie prints out the will and signs the document in Molly’s presence, who also signs the will as a witness. The next day, Charlie acknowledges his signature in his friend Mark’s presence, who signs the will as a witness as well. When Charlie dies, his wife Wanda contests the will, arguing that: (1) Charlie waited an unreasonably long time to sign the will after drafting it; (2) Mark should have been present when Charlie signed the will; and (3) Molly, a beneficiary of the will, should not have been a witness.
If the harmless error rule does not apply, which of Wanda’s arguments are likely to succeed?
A.) (1) only B. (3) only C.) (2) and (3) D.) (1), (2) and (3) E.) None of the above
NOT CAL?
E.) None of the above.
Remember that a witnessed will requires the will to be written, signed by the testator, and witnessed by at least two people. The two witnesses may witness the testator signing the will or acknowledging his signature on the will, as long as they do so within a reasonable time. Furthermore, they may be interested witnesses who are beneficiaries of the will. Here, Charlie wrote and signed his own will. Two people, Molly and Mark, witnessed his signature or his acknowledgement of his signature within a reasonable time. Furthermore, Molly’s interest as a beneficiary of the will does not affect whether she should have been a witness. None of Wanda’s arguments are likely to succeed. Thus, answer E is correct.
A will consists of any pages that are present and intended to be part of the same will at the time of execution.
T/F
True.
Remember that, under the doctrine of integration, a will consists of all of the pages that are present and intended to be part of the same will at the time of execution.
See Cornell University Law School, Legal Information Institute, Doctrine of Integration of Wills, http://www.law.cornell.edu/wex/doctrine_of_integration_of_wills.
Republication by codicil allows a testator to make which of the following changes to a will?
A.) Add a beneficiary B.) Remove a beneficiary C.) Alter the disposition of property D.) A and B E.) All of the above
E.) All of the above.
Remember that republication by codicil allows a testator to add to, subtract from, and otherwise alter a will. Answers A, B, and C are correct, as a testator may republish a will by codicil in order to add a beneficiary, remove a beneficiary, or alter the disposition of property. Thus, answer E, all of the above, is the correct answer.
On May 1, Tyler executes a will that states the following: “The letter given to my attorney on January 1 of this year constitutes part of this will. The letter sets forth a list of relatives who may not receive any portion of my estate.”
Does the letter constitute part of Tyler’s will?
A.) No
B.) Yes
C.) Yes, but only if the letter is signed by Tyler
D.) Yes, but only if the letter describes Tyler’s property
E.) None of the above
B.) Yes
Remember that a writing may be incorporated by reference into a will. The will must express the testator’s intent to incorporate the writing and describe the writing with reasonable certainty. Furthermore, the writing must have been in existence at the time the will was executed.
Here, Tyler’s will incorporates a letter by reference. The will describes his intent to incorporate the letter and describes the letter with reasonable certainty. Furthermore, the letter was written on January 1, so it was in existence at the time of execution on May 1. The letter constitutes part of Tyler’s will, even if it is not signed or does not describe any property. Thus, answer B is correct.
Peter has not yet decided how to divide his property among his relatives when he dies. While drafting his will, Peter includes a reference to a separate list of property. However, Peter has not yet created the list of property at the time of execution.
Peter’s reference is valid if he:
A.) Personally signs the list
B.) Only includes tangible personal property
C.) Describes the property with reasonable certainty
D.) A and B
E.) All of the above
E.) All of the above.
Remember that a testator may refer to a list of tangible personal property in his will. The list is valid if the testator personally signs the list, answer A; only includes tangible personal property, answer B; and describes the property and beneficiaries with reasonable certainty, answer C. Thus, answer E, all of the above, is correct.
Christina executes a will containing the following terms: (1) “I bequeath $10,000 to each of my children who are alive at the time of my death”; (2) “I bequeath all of my antique coins in my collection to my cousin Sarah”; and (3) “I bequeath 10 acres of my land to each of the people that I shall name on my deathbed as beneficiaries.”
Which of the above terms are valid?
A.) (2) only B.) (1) and (2) C.) (2) and (3) D.) (1), (2), and (3) E.) None of the above
B.) (1) and (2)
Remember that the acts of independent significance doctrine provides that a will may dispose of property by reference to non-testamentary acts and events unrelated to the will.
Here, terms (1) and (2) of Christina’s will are valid, because they refer to non-testamentary acts and events unrelated to the will, i.e., which of her children are alive and what coins are in her collection. However, term (3) invalidly refers to a testamentary act related to the will, i.e., Christina’s naming of beneficiaries for a testamentary purpose. Thus, only terms (1) and (2) are valid, and answer B is correct.
Which of the following is a requirement for a will to be revoked by presumption?
A.) The will was last held in the testator’s possession
B.) The will was unable to be found after the testator’s death
C.) The testator intended to revoke the will
D.) A and B
E.) All of the above
D.) A and B
Remember that a will is revoked by presumption if the document was last held in the testator’s possession, answer A, and unable to be found after the testator’s death, answer B. The testator’s intent, answer C, is not a requirement for revocation by presumption. Thus, answer D is correct.
To revoke a will, an individual may destroy the document in the testator’s conscious presence and at the testator’s direction.
T/F
True.
Remember that a testator may revoke a will by destroying the document. The testator may also direct another individual to destroy the document in the testator’s conscious presence and at the testator’s direction.
Galileo executes a will, leaving his entire estate to his daughter Virginia. After an argument, however, Galileo decides to leave his entire estate to his son Vincent instead and writes a new will.
How may Galileo ensure in his new will that the original will is revoked?
A.) “I revoke any other wills.”
B.) “I give my entire estate to Vincent.”
C.) “I intend to destroy my other wills.”
D.) A and B
E.) All of the above
D.) A and B
Remember that a testator may expressly or implicitly revoke a previous will by writing a new will. A complete disposition of the testator’s estate in the new will implicitly revokes the previous will by inconsistency. Remember also that a testator may revoke a previous will by performing a destructive act.
Here, Galileo’s new will may expressly revoke his previous will, answer A, as well as implicitly revoke his previous will by completely disposing of his entire estate, answer B. However, Galileo’s mere expression of his intent to destroy the previous will, answer C, is not sufficient for revocation by act or writing. Thus, answer D is correct.
Galileo executes a will, leaving his entire estate to his daughter Virginia. After an argument, however, Galileo decides to leave his entire estate to his son Vincent instead and writes a new will.
If Galileo’s new will is invalid, then his estate goes to:
A.) Vincent B.) Virginia C.) Intestate heirs D.) The state E.) None of the above
B.) Virginia
Remember that, under the doctrine of dependent relative revocation, a new will does not revoke the previous will if the new will is invalid.
Here, if Galileo’s new will is invalid, then his previous will is not revoked and remains in effect. His estate goes to the beneficiary specified in his previous will, his daughter Virginia. Thus, answer B is correct.
Kenneth executes a will, leaving his estate to his wife, before learning that she is having an affair. He executes a second will, leaving his estate to his son. Several years later, however, he has a change of heart and decides to leave his estate to his wife as he initially intended. He takes his will to his attorney’s office and explains the situation. The attorney advises Kenneth to revive his first will by one of the following methods: (1) tearing the second will into pieces; (2) writing “I revive my previous will” on a piece of paper; and (3) executing a third will stating that the first will is revived.
Which of the above methods are valid revivals of the first will?
A.) (1) only B.) (1) and (3) C.) (2) and (3) D.) (1), (2) and (3) E.) None of the above
B.) 1 and 3
Remember that a testator may revive a will by act or by writing. Revival by act requires the testator to destroy the present will and indicate his intent for the first will’s revival by his declarations or the circumstances.
Revival by writing requires the testator to execute a third will and indicate his intent for the first will’s revival in the terms of the third will.
Here, Kenneth has declared his intent to revive the first will to his attorney and may revoke his will by tearing his present will into pieces, method (1). He may also execute a third will stating that the first will is revived, method (3). However, he may not merely write “I revive my first will” on a piece of paper. Thus, only methods (1) and (3) are valid revivals, and answer B is correct.
When a will is contested for lack of testamentary capacity, the contestant has the burden of proof.
T/F
True
The contestant of a will has the burden of proving that the testator lacked testamentary capacity.
Which of the following documents must be executed to become effective?
A.) Codicil B.) Incorporated writing C.) Revocation by writing D.) A and B E.) A and C
E.) A and C
- A codicil must be executed to effectively republish a will.
- A revocation by writing, or a subsequent will, must also be executed to effectively revoke a previous will.
- However, a writing incorporated by reference does not have to be executed.
Thus, answer E is correct.
Which of the following people may NOT sign a will as a witness?
A.) Alice, an adult B.) Belle, a beneficiary C.) Clara, a cousin D.) Dolly, the testator E.) Eliza, an intestate heir
D. Dolly, the testator
Remember that any person who is generally competent may sign a will as a witness, even if they have an interest in the will.
Alice, Belle, Clara, and Eliza may sign the will as witnesses.
However, a testator may not witness her own will. Thus, Dolly may not sign the will as a witness, and answer D is correct.
The harmless error rule validates a will based on a preponderance of evidence of the testator’s intent.
T/F
False, CLEAR AND CONVINCING EVIDENCE STD (in CA = Testators dying on/after Jan 1, 2009)
Remember that the harmless error rule validates a will that has not been executed in compliance with the necessary requirements.
However, there must be clear and convincing evidence of the testator’s intent to execute the will. The above statement is, therefore, false
Which of the following is NOT required to prove that undue influence was actually exerted over the testator?
A.) The influencer overcame the testator’s free agency
B.) The influencer exerted control over the testator’s mind
C.) The influencer was in a confidential relationship with the testator
D.) All of the above
E.) None of the above
C.) The influence was in a confidential relationship with the testator.
Remember that the test for actual undue influence requires a showing that the influencer
(1) exercised control over the testator’s mind and
(2) overcame the testator’s free agency.
A confidential relationship is only required to prove a presumption of undue influence. Thus, answer C is correct.
Attila executes the following as his will: “I leave my land to my son, Ernie, and I leave my horses to my daughter, Ellen.” After the birth of another son, Attila executes the following as his new will: “I leave my land to my son, Dennis.”
How should Attila’s property be distributed after his death?
A.)Dennis receives the land.
B.) Ellen receives the horses.
C.) Dennis receives the land; Ellen receives the horses.
D.) Ernie receives the land; Ellen receives the horses.
E.) None of the above
C.) Dennis receives the land; Ellen receives the horses.
Remember that a new will may implicitly revoke any inconsistent parts of the previous will and supplement the remaining terms.
Here, Attila has executed a new will that inconsistently gives his land to Dennis. The part of the previous will that gives his land to Ernie is revoked, and the new will supplements the part of the previous will that gives his horses to Ellen.
As a result, Dennis receives the land, and Ellen receives the horses. Thus, answer C is correct.
