Wills LAST PUSH Flashcards
Property May Pass by Intestate Succession
(a) a decedent dies without having made a will or their will is denied probate
(b) 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
Classic (Strict) Per Stirpes
one share is created for each child and one share for each deceased child who has at least one surviving descendant
Per Capita with Representation (Majority)
a decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are takers
Per Capita At Each Generation
(growing number of states and UPC) initial division of shares at the first generational level at which there are living takers but the shares of deceased persons at the level or combined and then divided equally among the takes at the next generational level
Shares of Other Heirs
(1) parents or surviving parent
(2) brothers and sisters and their descendants
(3) one-half to paternal grandparents and one-half to maternal grandparents and their descendants
(4) one-half to nearest kin on maternal side and one-half to nearest kin on paternal side
Advancement Only If
(1) declared as such in a contemporaneous writing by the donor OR
(2) acknowledged as such in a writing by the heir
Requirements of Disclaimer
a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death
Out of State and Foreign Wills
a will is permitted to probate in a jurisdiction if the will has been executed in accordance with the law of:
(1) that jurisdiction
(2) the state where the will was executed
(3) the testators domicile at the time of wills execution or
(4) the testators domicile at death
Testamentary Capacity
a testator simply must have the capacity to understand:
(1) nature of their act
(2) nature and extent of their property
(3) persons who are the natural objects other bounty
(4) above factors and be able to formulate an orderly scheme of disposition
Testamentary Intent
found only if:
(1) the testator intended to dispose of the property
(2) intended the disposition to occur only upon his death
(3) intended that the instrument in question accomplish the disposition
Formalities for an Attested Will
(1) the will or codicil must be in writing
(2) will or codicil must be signed by the testator, or by another at the testator’s direction and their presence
(3) there be two attesting witnesses
(4) testator sign the in each of the witnesses presence and
(5) the witness sign in the testaor’s presence
Additional Formalities for Attested Will
(a) testator must sign at the end
(b) must be published
(c) witnesses sign in the presence of each other
Oral Wills
most states and the UPC do not recognize wills - small number for the disposition of personal property and only if it made by:
(1) soldiers and sailors
(2) any person during their last sickness or in contemplation of imminent death
Residuary Estate
consists of the balance of the testators property after paying (1) debts, expenses, and taxes and (2) specific, general, and demonstrative gifts
Abatement
abates in the following order:
(1) property passing by intestacy
(2) residuary estate
(3) general legacies
(4) demonstrative legacies
(5) specific bequests and devises
Distribution of Lapsed Gifts
(1) the express terms in the will
(2) rule of law
(3) residuary clause
(4) intestacy
Who Raises Interpretation and Construction Issues
(1) the personal representative who wants to do the right thing and thus avoid liability for improper administration
(2) beneficiaries or heirs who would take under various will interpretations
Basic Rules of Construction
(a) the fact that the testator left a will, especially if it has a residuary clause, indicates an intent not to die intestate
(b) among two or more contradictory provisions in a will, the last one prevails
(c) the will is construed as a whole, not from isolated parts
(d) words are given their ordinary meaning unless it is clear from the will that the testator intended otherwise
(e) technical words are given their tech meaning unless it is clear from the will that the testator intended otherwise
(f) attempt to give effect to all words the testator included in the will
Requirements for Incorporation
a document may be incorporated by refence into a will, provided:
(1) will manifests an intent to incorporate the document
(2) document is in existence at the time the will is executed
(3) document is sufficiently described in the will
Marriage Following Execution of Will
new spouse takes an intestate share as an omitted spouse, unless:
(1) the will makes provision for the new spouse
(2) omission was intentional or
(3) the will was made in contemplation of the marriage
Revocation by Physical Act
a will or codicil can be revoked by burning, tearing, cancelling, or obliterating a material portion of the will with the intent to revoke
Lost or Destroyed Wills
if a will is lost or destroyed it may be admitted to probate if the following can be proven:
(1) valid execution
(2) the cause of nonproduction and
(3) the contents of the will
Circumstances Usually Providing No Protection for Pretermitted Child
(a) the testator had other children at the time the will was executed and devised substantially all of their estate to the other parent of the omitted child
(b) it appears from the will that the omission was intentional
(c) the testator pro
Grounds for Will Contest
(1) defective execution
(2) revocation
(3) lack of testamentary capacity
(4) lack of testamentary intent
(5) undue influence or duress
(6) fraud
(7) mistake
Undue Influence
(1) the influence existed was exerted
(2) the effect of the influence was to overpower the mind and free will of the testator and
(3) the resulting testamentary disposition would not have been executed but for the influence
Factors for Undue Influence
(a) unnatural dispositions
(b) opportunity or access to testator
(c) confidential or fiduciary relationship between parties
(d) ability of the testator to resist
(e) beneficiaries involvement with the drafting or execution
Presumption of Undue Influence
arises when:
(1) there was a confidential relationship between the testator and a beneficiary and
(2) that beneficiary was active in procurring, drafting, or executing the will
When Presumption Arises
a presumption of undue influence does not arise between spouses UNLESS the spouse exerted influence over the testator in such a manner that it (1) overpowered the free will of the testator, and (2) resulted in a disposition reflecting the desires of the spouse exerting the influence
Fraud
requires that the testator have been willfully deceived as to;
(1) the character or content of the instrument
(2) extrinsic facts that would induce the will or a paricular disposition, or
(3) facts material to a disposition
Elements of Fraud
(1) false representation made to the testator
(2) knowledge of falsity by person making the statement
(3) testator reasonably believed the statement
(4) statement caused the testator to execute a will or make a particular disposition that the testator would not have but for the misrepresentation
