Wills (Main Deck)* Flashcards
WHAT ARE THE 5 STEPS TO APPROACHING A WILLS & SUCCESSION QUESTION?
STEP 1: DETERMINE IF THE WILL IS VALID
STEP 2: DETERMINE IF ISSUES OF INTERPRETATION ARE PRESENT
STEP 3: DETERMINE IF THE WILL HAS BEEN REVOKED AND, IF SO, CAN BE REVIVED
STEP 4: DETERMINE HOW THE ESTATE SHOULD BE DISTRIBUTED
STEP 5: DETERMINE IF AN ADVANCED HEALTHCARE DIRECTIVE IS AT ISSUE (IF THE TESTATOR IS STILL ALIVE)
STEP 1 -
VALIDITY OF WILLS:
WHAT LAW GOVERNS THE CREATION OF WILLS?
Rule: The creation of wills is governed by state statute.
Note:
1) Most states require strict compliance with statutory requirements to create a valid will.
2) A minority of states have adopted the UPC’s substantial compliance standard. In these states, minor errors will not invalidate a will if there is clear and convincing evidence of the Testator’s intent.
WHAT IS REQUIRED TO CREATE A VALID WILL?
Rule: Four requirements must be met to create a valid will:
1) Procedural formalities,
2) Legal capacity,
3) Testamentary intent, AND
4) Testamentary capacity.
LIST 3 TYPES OF WILLS
1) Attested Wills
2) Holographic Wills
3) Nuncupative Wills
ATTESTED WILLS
(Define & State the Rule)
Definition: An attested will is a written and witnessed will.
Rule: To be valid, an attested will must be:
1) In writing,
2) Signed by the Testator, AND
3) Signed by at least two competent witnesses who have witnessed the Testator:
a) Sign the will, OR
b) Acknowledge his signature or the will.
Note:
1) The signature can be by proxy if the proxy signs:
a) In the Testator’s presence, AND
b) At the Testator’s direction.
2) The signature can be a mark or symbol.
3) The signature:
a) Majority: Can be placed anywhere on the instrument.
b) Minority: Must be at the end of the instrument.
SELF-PROVING AFFIDAVIT
(Define & State the Rule)
Definition: A self-proving affidavit is a notarized statement in which the Testator and the witnesses certify that the parties have properly signed the will.
Rule: A self-proving affidavit attached to a will can be substituted for the testimony of the signatory witnesses in probate court.
Note: The vast majority of states permit self-proving wills.
INTERESTED WITNESS
(Define & State the Rule)
Definition: An interested witness is one who will benefit from the will.
Rule: The signing of a will by an interested witness may:
1) Invalidate the entire will,
2) Invalidate the interested witness’ gift, OR
3) Have no effect.
Note:
1) A minority of states and the UPC hold that the signing of a will by an interested witness has no effect.
2) Depending on the state, an otherwise voided gift may be preserved if:
a) The interested witness is an heir to the estate,
b) Two or more uninterested parties also serve as witnesses,
c) An uninterested witness can corroborate the interested witness’ testimony, OR
d) The interested witness can provide clear and convincing evidence the gift was not the result of fraud or undue influence.
HOLOGRAPHIC WILLS
(Define & State the Rule)
Definition: A holographic will is a handwritten will that is signed by the Testator.
Rule: To be valid, a holographic will must be:
1) In the Testator’s handwriting, AND
a) Note: Most states require only that the material provisions are in the Testator’s handwriting.
2) Signed by the Testator.
a) Note: Signing by proxy generally is not accepted due to fraud concerns.
Note: Some states also require that the will be found among the Testator’s possessions and/or that multiple witnesses testify that the will is in the Testator’s handwriting.
NUNCUPATIVE WILLS
(Define & State the Rule)
Definition: A nuncupative will is an oral will.
Common Law: Nuncupative wills were allowed to bequeath personal property.
Modern Approach: A minority of states allow nuncupative wills under limited circumstances and with certain restrictions, such as:
1) Limiting the value of property that can
be passed through the will,
2) Allowing only personal property to pass through the will,
3) Requiring at least three witnesses to the Testator’s statement,
4) Restricting the places a nuncupative will may be made (e.g., home or in the hospital), AND/OR
5) Requiring the Testator’s statement be written within a specified period of time.
Note:
1) Nuncupative wills are usually used only in emergency situations (e.g., deathbeds).
2) A minority of states provide the option to active duty military personnel
WHAT IS ALWAYS REQUIRED OF THE TESTATOR, REGARDLESS OF THE TYPE OF WILL?
Rule: In addition to meeting procedural formalities, the Testator must have:
1) Legal capacity,
2) Testamentary intent, AND
3) Testamentary capacity.
LEGAL CAPACITY
(State the Rule)
Rule: A Testator must be at least the statutorily defined minimum age to have legal capacity.
Note: Most states and the UPC specify 18 as the minimum age at which a person has legal capacity.
TESTAMENTARY INTENT
(State the Rule)
Rule: A Testator must intend that the instrument she signed function as her last will and testament to dispose of her property at death.
Note: Sham wills (i.e., wills made as a joke) lack the requisite testamentary intent.
TESTAMENTARY CAPACITY
(State the Rule)
Rule: A Testator has testamentary capacity if he is of sound mind. To be of sound mind, the Testator, at the moment of execution, must:
1) Understand the nature of his act (i.e., that he is executing a will),
2) Understand the nature and extent of his property,
3) Understand the natural objects of his bounty (i.e., his presumptive heirs), AND
4) Based on this understanding, make a reasoned decision about the distribution of his property.
Note: Adults are presumed to have testamentary capacity.
LIST 4 WAYS A WILL MAY BE INVALIDATED
1) Insane Delusion
2) Undue Influence
3) Fraud
4) Mistake
INSANE DELUSION
(Define & State the Rule)
Definition: An insane delusion is a belief in facts that do not exist and in which no rational person would believe.
Rule: A will may be invalidated if the Testator suffered from an insane delusion at the moment of execution. To invalidate a will due to insane delusion, a court must find that the:
1) Testator suffered from a false belief,
2) Belief had no basis in reason,
3) Belief was the product of a defect in the brain or functional disorder of the mind, AND
4) Belief materially affected the terms of the will.
UNDUE INFLUENCE
(Define & State the Rule)
Definition: Undue influence is the subjugation of the Testator’s free agency and will and the substitution of another’s purpose for that of the Testator, resulting in a bequest that would not otherwise have been made.
Rule: A will, or part of a will, may be invalidated due to undue influence if:
1) An unnatural disposition of property is made (e.g., a gift to a stranger),
2) The Beneficiary had the opportunity to exert undue influence,
3) The Testator’s mental or physical condition left him susceptible to being overpowered, AND
4) The Beneficiary actively participated in:
a) Creating the will,
b) Isolating the Testator from her family, AND/OR
c) Preventing the Testator from seeking independent legal advice.
WHEN WILL A PRESUMPTION OF UNDUE INFLUENCE ARISE?
Rule: A presumption of undue influence will arise if:
1) A close relationship existed between the Testator and Beneficiary, AND
a) Note: Some states require a confidential or fiduciary relationship.
2) The Beneficiary actively participated inthe creation of the will.
Note:
1) Some states also require that the gift
be of an unexpected nature.
2) If the presumption is triggered, the Beneficiary carries the burden to establish the absence of undue influence by clear and convincing evidence.
FRAUD
(Define & State the Rule)
Definition: Fraud is the intentional misrepresentation of a material fact for the purpose of inducing action or inaction.
Rule: A will, or part of a will, maybe invalidated due to fraud if:
1) A false representation was made to the Testator,
2) The person making the false representation knew of its falsity,
3) The Testator reasonably believed the false statement, AND
4) The false representation affected the contents or execution of the will.
FRAUD IN THE EXECUTION
(Define & State the Rule)
Definition: Fraud in the execution involves deceiving the Testator as to the nature of the document that the Testator is signing (i.e., telling the Testator that the document is not a will).
Rule: Fraud in the execution renders the entire will invalid.
FRAUD IN THE INDUCEMENT
(Define & State the Rule)
Definition: Fraud in the inducement involves misrepresentation as to the contents of the Testator’s will.
Rule: Fraud in the inducement renders only the part of the will affected by the fraud invalid.
MISTAKE IN CONTENT
(Define & State the Rule)
Definition: A mistake in content occurs when the Testator makes a mistake regarding Beneficiaries or gifts devised by the will.
Mistake in Omission: Courts will not supply words mistakenly omitted because to do so would be to rewrite the will.
Mistake in Addition: Courts may strike out mistakenly included words because doing so is not rewriting the will, only excising part of it to further the Testator’s intent.
MISTAKE IN EXECUTION
(Define & State the Rule)
Definition: A mistake in execution occurs when a Testator signs the wrong document.
Belief in Non-Testamentary Nature: If a Testator signs a will with the belief that it is a non-testamentary document, the will cannot be probated because the Testator did not intend to create a will.
Wrong Will: If a Testator signs the wrong will, the court may reform the will to further the Testator’s intent (i.e., the intent to create a will).
MISTAKE IN INDUCEMENT
(Define & State the Rule)
Definition: A mistake in inducement occurs when a gift is, or is not, made on the basis of the Testator’s erroneous beliefs.
Rule: A court will provide relief if both the mistaken belief and what the Testator would have done but for the mistaken belief appear on the face of the will.
WHAT IS THE CONSEQUENCE OF FINDING A WILL OR PART OF A WILL INVALID?
Entire Will Invalid: If an entire will is found invalid, the estate passes by intestate succession, unless Dependent Relative Revocation can be invoked to revive a prior will.
Part of the Will Invalid: If only part of a will is found invalid:
1) The affected portion of the estate will pass to residuary devisees if any, then to intestate heirs, OR
2) The court can decree the wrongdoer as a constructive trustee of that portion of the estate.