Wills (Intestate) Flashcards
Property may pass by intestate succession when:
- A decedent dies without having made a will or their will is denied probate (“total intestacy”)
- A decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause (“partial intestacy”)
Intestate Succession
Intestacy is the default statutory distribution scheme. It applies when, as here, an individual dies without disposing of his property through a valid will. Intestacy statutes generally favor the decedent’s surviving spouse and issue, followed by the decedent’s other relations.
A valid will requires:
(1) a testator with capacity, (2) present testamentary intent and (3) valid compliance with the applicable formalities.
The formalities of a valid will generally require that the will must be (1) in writing, (2) signed by the testator and attesting witnesses, and (3) either attested to by at least two witnesses or acknowledged before a notary.
Testamentary Capacity – Testator must:
Be 18 years or older.
Be of sound mind, without any mental disorders or lack of mental capacity.
Able to understand the nature of the testamentary act, the nature and extent of their property, and their relations to beneficiaries
how these elements relate to one another in forming an orderly disposition of the estate.”
Testamentary Intent
Testator must have the intent to create a will.
Testamentary intent can be negated if any of the following is included in our facts:
Undue influence
Fraud in the execution or in the inducement
Conditional or Contingent will
Mistake in the execution or in the inducement
Undue influence
“The burden of establishing undue influence is on the will contestant, who must show that (1) the testator was susceptible to undue influence, (2) the alleged influencer had the opportunity to exert undue influence upon the testator, (3) the alleged influencer had the disposition to exert undue influence, and (4) the will appears to be the product of undue influence.”
Fraud in the execution or in the inducement
“A will or provision in a will procured by fraud is invalid. Fraud occurs when a misrepresentation deceives a testator and is led to execute a will that the testator would not otherwise have made. Fraud in the inducement occurs when a person misrepresents facts—for example, whether a proposed beneficiary is alive. Fraud in the execution occurs when a person misrepresents the character or contents of the instrument signed by the testator.”
Conditional or Contingent will
In determining whether a will is conditional or contingent, a court must first determine whether the happening of the possibility referred to in the will is a condition to the operation of the will or whether the possibility of the happening was only a statement of the motive or inducement which led to the preparation and execution of the instrument. A conditional provision may render the will invalid if the specified condition precedent does not occur, while a contingent provision allows for alternative beneficiaries or distributions if the specified event does not occur.
Mistake in the execution or in the inducement
A mistake in the execution occurs when the testator signs the wrong document.
Such mistakes arise in two situations. First, the testator signs under the mistaken belief that the instrument is non-testamentary in nature. Second, where parties to a mutual will mistakenly sign each other’s wills, a mistake in the inducement occurs when the testator makes a particular devise based on a mistaken belief.
Attested will: (Formalities)
A will with witnesses
The will must be in writing.
It must be signed by the testator or someone at the testator’s direction and presence.
Needs a specified number of witnesses. (2+)
(There is NO requirement that the witness sign in the testator’s presence. And if one of the witnesses is interested (the beneficiary is a witness), unless 2+ other disinterested are witnesses, it is safe to presume fraud/duress/undue influence on the testator. If the presumption is not rebutted, a gift to an interested witness will most likely fail.)
Holographic will
A will with no witnesses
The holographic will is valid if the material terms are in Testator’s own handwriting and signed by the testator.
Holographic wills are creatures of state law. Look for the statute in the question and go to work.
Codicil
An instrument that can alter an existing will
A codicil is a testamentary instrument that modifies, amends, or revokes a pre-existing will. A codicil must be executed with the same formalities as an attested or holographic will.
Incorporation by Reference
“Under the doctrine of incorporation by reference, a will may refer to an unattested written document and incorporate its terms into the will so long as that written document was in existence at the time the will was signed, and the evidence is clear that the testator intended to incorporate its terms into the will. If such a document is incorporated, the dispositive provisions in it are given the same effect as if they had been set forth in the original duly attested will.”
If the issue is whether a will was validly revoked:
The general rule is that any testator with capacity may revoke her will in whole or in part by subsequent will or by a physical, revocatory act at any time prior to the testator’s death
