Wills & Intestacy

Question 1

How do you execute a will?

Answer 1

A valid will: (1) is in writing, (2) testator is 18 YO or older, (3) signed by T (or at T’s direction in T’s presence), (4) 2 attesting witnesses that sign within a reasonable time after witnessing T’s signing, T’s acknowledgement of her earlier signature, or T’s acknowledgement of the will. *Note: This is the standard will execution procedure. Holographic wills are executed slightly differently.

Question 2

What is a codicil?

Answer 2

Def: a later amendment or supplement to the will. // Valid execution: same formalities unless it’s a holographic.

Question 3

What is the Court’s dispensing power?

Answer 3

Probate judge can excuse full compliance with the formalities required for due execution if there is CCE that the T intended the document to be her will.

Question 4

How can one prove the due execution of a T’s will if we can’t locate either attesting witness?

Answer 4

Resolution: Informal Probate, Formal Testacy Proceeding, or by a Self-Proving Affidavit

Question 5

What is a self-proving affidavit?

Answer 5

T & Witnesses sign will, then T and Witnesses sign (1) a sworn affidavit before a notary public or (2) an unsworn statement: “I certify under penalty of perjury that…”

Question 6

How do you execute a holographic will?

Answer 6

Valid execution: (1) Handwritten writing, (2) signed by T, (3) dated, (3) material portions in T’s handwriting. *Note: can be unwitnessed

Question 7

Question: T send a handwritten, signed, and dated letter to T’s attorney stating, “I want to make some changes in my will. I want my niece to take $10,000 instead of $5,000. Please make these changes; I will sign the necessary documents when I get into town.” Subsequently, T dies. Can the letter be admitted to probate as a codicil?

Answer 7

No. This letter had no testamentary intent. Court interpreted it as mere preparation of another document that would have such intent. Compare: “I want to give $150,000 to my church.” Written in Korean, signed in hospital ICU, and dated. Extrinsic evidence was admissible, and showed testamentary intent.

Question 8

How does one write an essay in regards to a conditional will (e.g., “If anything happens to me on the climb, I leave all my property to Ben.”)

Answer 8

Address both sides. (1) This is a conditional will. Interpret literally. Probate should be denied b/c the condition did not occur. Nothing happened to T on his climb and thus Ben should take nothing. (2) The reference to the trip merely reflect the motive for making a will. Dangers caused T to think about the possibility of death and the need for a will in general. Also, he kept the will long after the climb! *Note: Cases have come out both ways.

Question 9

What is the simultaneous death rule?

Answer 9

Unless the will specifically addresses this point, a will beneficiary must outlive the T by 120 hours in order to take. Otherwise, Bene has predeceased. // Applies w/intestate succession too.

Question 10

When will the intestacy statute apply?

Answer 10

(1) Decedent left no will, (2) Disposition of estate by will is incomplete, (3) will is denied probate, (4) SS elective, omitted spouse, or omitted child applies.

Question 11

Intestacy Scenario: Decedent has a SS & at least one descendant who was also SS’s descendant.

Answer 11

SS takes first $150,000* plus 1/2 the remaining balance; remaining balance to decedent’s descendants.

Question 12

Intestacy Scenario: Decedent has a SS & descendants NONE of whom were also SS’s descendants.

Answer 12

SS takes first $100,000* plus 1/2 the remaining balance; remaining balance to decedent’s descendants.

Question 13

Intestacy Scenario: Decedent has a SS & NO descendants. Has parents.

Answer 13

SS takes first $150,000* plus 3/4 of remaining balance; remaining balance to surviving parents.

Question 14

Decedent is survived by a SS & NO descendants. NO parents.

Answer 14

SS takes entire estate.

Question 15

How can a SS be disqualified from inheritance?

Answer 15

If: (1) obtained/consented to an invalid divorce, (2) married following a defective divorce, (3) living in a bigamous relationship at decedent’s death, (4) for more than 1 year before decedent’s death, deserted or willfully abandoned the decedent, or willfully neglected or refused to support the decedent.

Includes: elective share, dower, family allowance, exempt property.

Question 16

What are the other statutory rights of a SS.

Answer 16

Whether a decedent died testate or intestate, the SS would be entitled to the following statutory rights, which take priority over all claims against the estate except for funeral and admin. expenses. These amount are over and above, and are not charged against amounts passing to the SS via any method. HEF - Homestead allowance ($15,000), Exempt Personal Property ($10,000) (e.g., household furniture, furnishings, appliances), Family Allowance for maintenance and support for 1 year (Personal rep. can auto pay up to $18k. Any thing more or for longer req. probate court approval.)

If no SS, then minor children and dependent adult children are entitled.

Question 17

What is Michigan’s “Laughing Heir” statute entail?

Answer 17

If there are no takers down the grandparent line, the estate will escheat to the state.

Question 18

When can an adopted child inherit from his biological parents and adopted parents.

Answer 18

Generally, an adopted child has full inheritance rights from the adoptive family, and vice versa; the child has no rights from her natural parents or their kin. Exception: where the child was adopted by the spouse of the child’s natural parent by virtue of the other natural parent is deceased, the child can inherit from his two natural parents & the adoptive parent. *Note: Exception does not apply if a judicial decree severed the relationship.

Question 19

Can a child inherit if he was born out of wedlock?

Answer 19

A child has full inheritance rights from his mother and her kin, and vice versa; a child can acquire the same rights in his father if: (1) FM married after C’s birth, (2) genetic test, (3) acknowledgement by FM that is notarized, (4) birth cert. is corrected, (5) continuing child-parent rel which began before child was 18 YO and continued until death.

Question 20

What is Michigan’s anti-lapse rule?

Answer 20

If the predeceasing beneficiary is a grandparent of T, descendant thereof, or a step child of the T, and leaves descendants who survive T by 120 hours, such descendants take instead.

Statute supplies these descendants. / Don’t use the predeceasing bene’s wil.

If anti-lapse doesn’t work, the gift falls into the residuary.

Only applies to wills!

Question 21

What if a lapse occurs in the residuary?

Answer 21

Generally, if the residuary estate is devised to two or more persons and the gift to one of them fails, the surviving devisees take the entire estate. Exception: anti-lapse rule overrides this! (E.g., if a devisee is a descendant of T’s grandparent & devisee leaves a descendant who lives for 120 hours past T, anti-lapse will kick in and devisee’s descendant takes devisee’s residuary interest.)

Question 22

What happens when a T & Spouse marry AFTER T executed his will?

Answer 22

This implicates the omitted spouse problem.

Rule: OS takes intestate share of the estate other than property left to decedent’s surviving children who are NOT the OS’s children too. Exceptions: (1) Will itself or other evid. shows that will was in contemplation of marriage, (2) Will itself was effective regardless of the marriage by its terms, (3) Provisions were made for the OS by transfers outside the will AND T had intent that provisions were in lieu of gifts by will.

If will said, “all my property to child,” OS would take $0.

OS has two choices: (1) OS share or (2) ES share.

Question 23

What happens if T has a child after he executes his will?

Answer 23

The omitted child statute turns on whether T had other children when he executed his will.

If no other children, then child takes his intestate share unless the will devised substantially all of the estate to the other parent of the child. (Apply this rule to the estate as if there was no will, subtract child’s share, and then reapply will to the remaining estate. *You will have to consider the SS intestacy rule.)

If there were children pre-execution, the omitted child’s share is limited to gifts to other children (even if contingent gifts). No other bene’s gifts are reduced. We do not look at intestacy. Apply the rule as if it were a class gift. If no gift to first child, then no gift to the OC.

Question 24

How can a will be revoked?

Answer 24

(1) Subsequent will w/proper execution, (2) Physical Act, (3) Dispensing Power
* Note: Another can destroy the will if (1) at T’s request and (2) in T’s conscious presence.

Question 25

What are the presumption and revival issues as to will revocation?

Answer 25

Presumption: if a will was last seen the T’s possession and it isn’t found or its mutilated when found, presume revoked. (Exception: someone adverse to T had possession last)

Revival: A revoked will is not revived unless there is evidence from the circumstances, or T’s contemporary or subsequent statement that he intended to revive the earlier will. Minority rule.

Question 26

What if there are two wills?

Answer 26

Read the instruments together. The second will is treated as a codicil, and revokes first will only to extent of inconsistent provisions.

The first will can be completely revoked by implication if the second will is wholly inconsistent with the first.

Question 27

How can you probate a lost will?

Answer 27

Under the “Lost Wills” statute, to probate a lost will, one must: (1) prove valid execution, (2) prove it wasn’t revoked (might have to address the presumption of revocation by nonproduction), & (3) prove contents (e.g., copy).

Question 28

Are the changes to the face of the will effective after the will was validly executed?

Answer 28

(1) Partial revocations by physical act are valid.

(2) Words added/edited are given effect if the dispensing power can be shown.

Question 29

What happens if there are claims against the will, which make the will unable to shoulder all the gifts granted in it?

Answer 29

Implicates: Abatement

Absent contrary provision, debts/expenses are first paid out of:

(1) intestate property
(2) residuary
(3) general & demonstrative legacies
(4) specific bequests
* Within each category, gifts abate pro rata; no distinction between real & personal prop.

Question 30

What happens if specifically gifted property isn’t in the estate at death?

Answer 30

Implicates: Ademption

Say: “Under the common law, ademption would apply, and recipient would take nothing b/c T did not own the at death. However, Michigan law raises a presumption of nonademption, and the burden of proof is on the partying favoring ademption. Therefore, takes unless the facts & circumstances or the T’s manifest plan of distribution indicate that ademption of the devise is intended.

*Note: This only applies to specific gifts.

Question 31

What are the types of testamentary gifts?

Answer 31

Specific Gift: I give this car.
Demonstrative: Hybrid-Gift of general amount from specific source.
General: $10,000 to nephew.
Residuary
Intestate Property: if a partial intestacy ensues…

Question 32

What are the statutory exceptions to the ademption doctrine?

Answer 32

– Specific beneficiary gets UNPAID balances of purchase price, condemnation award, insurance proceeds.

– Gets replacement property

– Issue of Incapacitation: Specific bene gets the right to a general legacy = to the $$, award, or insurance proceeds.

Question 33

What if a document is found and someone seeks to have it inserted into the otherwise validly executed will, can they do it?

Answer 33

Under the “incorporation by reference” doctrine, (1) doc. was in existence when will executed, (2) will shows intent to incorporate the doc., & (3) will describes the doc. sufficiently to permit its ID.

Exception: Tangible Personal Property. Can be altered at any time before probate & need not exist at will execution. Must (1) ID the prop., (2) exist in T’s handwriting or signed by the T AT THE END.

Question 34

What if the will gives to X all the contents of my sea chest?

Answer 34

This implicates the “acts of independent significance” doctrine (i.e., life time acts w/life time purposes allow for substitute gifts in will).

X will get whatever is in the sea chest regardless if the T changed what was in it before and after will execution. Exception: Title documents. Only tangible property comes under this doctrine.

Question 35

What happens if the will states: “I give to John Jones” & there is only John Adams and Phil Jones.

Answer 35

Generally, absent suspicious circumstances, it is conclusively presumed that T read his will and intended all its terms be given effect.

Exception: This is a latent ambiguity b/c there is a misdescription. All types of extrinsic evidence is admissible to cure.

Question 36

What happens if the will states: “I gift twenty-five dollars ($25,000) to…”

Answer 36

Generally, absent suspicious circumstances, it is conclusively presumed that T read his will and intended all its terms be given effect.

Exception: This is a patent ambiguity b/c the mistake appears on the face of the will. All types of extrinsic evidence is admissible to cure.

*Courts favor this problem b/c objective evidence is usually available to resolve the issue.

Question 37

What is admissible extrinsic evidence when there is a latent or patent ambiguity?

Answer 37

Yes: Facts & circumstances evidence.
Yes: Anything T said to his attorney.
No: T’s declarations of intent to a third party. Concern: perjury.

Question 38

What issues are raised by a joint will or reciprocal wills?

Answer 38

Implicated: CONTRACTS relating to wills.

Statutory Rule: A K to make a will or not to revoke a will can be established ONLY BY: (1) will itself states the material provisions of the K, (2) express reference in will + extrinsic evidence proving the K’s terms, OR (3) a writing signed by the decedent evidence the contract.

NO: (1) oral promise / (2) joint/reciprocal wills DO NOT raise a presumption that a contract exists.

Question 39

What if the T’s attorney negligently disinherits someone?

Answer 39

Talk about the following:
(A) Minority Approach: no liability b/c no privity of K exists. An attorney’s duty runs only to the client, not the beneficiary, so only the client can sue. (Problem: client is dead).
(B) Majority Approach: yes liability b/c no-privity of K ∆ is not accepted. An attorney’s duty extends to the intended beneficiary of the professional srvc.
(C) In Michigan, hybrid approach. While privity is rejected as a ∆, beneficiary has a limited right to sue, but only if T’s intent as expressed in the will is frustrated by attorney’s negligence. EE is not admissible to show T’s intent was other than what expressed in will.

Question 40

What are the rights of the SS?

Answer 40

(1) Omitted Spouse Share,
(2) Elective Share
(3) Take Under the Will
(4) Intestate Share, or
(5) Dower
PLUS Statutory Rights HEF

Question 41

What is the elective share statute?

Answer 41

Rule: (1/2 of estate had spouse died intestate) LESS (1/2 of value of certain transfers to SS) = actual spousal elective share

Certain Transfers: "G-2 SIR"
Gifts to spouse within 2 years of death
Survivorship estates.
Insurance.
Revocable Transfers that Benefit Spouse (e.g., remainders)

*Note: only applies to probate estate property.

Question 42

What is dower?

Answer 42

A surviving widow can elect to take dower: a 1/3 life estate in husbands lands (i) owned at death or (ii) conveyed during lifetime w/o the wife’s joinder.

Question 43

In a will contest, what are the primary arguments a contestant could make?

Answer 43

Lack of testamentary capacity and undue influence.

Question 44

In a will contest, a contestant argues that the T lacked the capacity to execute a will. What is the applicable test?

Answer 44

Test: Did the Testator have sufficient capacity to:

a. Understand that he was providing for the disposition of his property after death?
b. Know the nature and extent of his property?
c. Know the natural objects of his bounty?
d. Understand the general nature and effect of his signing the will?

Question 45

In a will contest, a contestant argues that the T was subj. to undue influence and couldn’t execute a will. What is the applicable test?

Answer 45

Test: Contestants must show:

a. Existence and exertion of influence
b. Effect is to overpower the mind and will of the T.
c. Product is the will (or a gift therein) that would not have been made but for the influence. (Undue influence may be shown as to the entire will, or as to a gift therein.)

Question 46

Is there undue influence issues implicated if a client-testator gifts his entire estate to the attorney who drafted the will?

Answer 46

YES!

A presumption of undue influence exists if:

a. there exists a confidential or fiduciary relationship between the T and a party,
b. that party will benefit from the will, and
c. that party had the opportunity to exert undue influence

+ Presumption is strengthened when there are suspicious circumstances.

attorney-client, priest-parishioner, doctor-patient

Question 47

What is an “In Terrorem” clause?

Answer 47

No-contest clauses are given full effect unless (key!) the court finds that the contest was brought in good faith and with probable cause (i.e., it wasn’t a “pay men and I’ll go away” suit designed to extract a settlement). *Note: a will construction suit ≠ forfeiture under this clause b/c not challenging validity of will.