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Rule Statements > Wills Rules > Flashcards

Wills Rules Flashcards

1
Q

Intestate Rules Apply When

A
  1. No will
  2. Will fails / denied probate
  3. Will doesn’t dispose of all probate property
  4. Will specifies intestate distribution
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2
Q

Classic Per Stripes (Common Law/Minority)

A

Divides into shares at the child generation even if no child survives intestate

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3
Q

Per Capita with Representation (Majority/Modern Per Stirpes)

A

Divided into equal shares at the first generational level which there are living takers

If all children deceased and property is all going to grandchildren, then each grandchild takes an equal share rather than the share they would have taken from the parent

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4
Q

Per Capita at Each Generational Level (Modern Trend)

A

Makes the initial division of shares at first generational level which there are living takers; shares of any deceased persons are combined and then equally divided among takers at next generational level

everyone who is equally related gets an equal share

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5
Q

Intestate Succession

A
  1. Spouse and/or descendants
  2. If none, then to Parents
  3. If none, then to descendants of parents
  4. If none, then to grandparents or their descendants
  5. If none, then nearest maternal kin and/or nearest paternal kin
  6. If none, then to the state
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6
Q

Surviving Spouse’s Share

A

Majority: surviving spouse takes all if no descendants; takes 1/2 or 1/3 if descendants

UPC: surviving spouse takes entire estate if all surviving descendants are surviving spouse’s descendants

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7
Q

Adopted Children

A

Treated same as natural child in adopting family; all inheritance rights cut off in family of natural parents (sometimes child can still inherit but that’s it)

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8
Q

Stepchildren/Foster Children

A

No inheritance rights unless adopted, but may be exception for adoption by estoppel

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9
Q

Posthumous Children

A

Child in gestation at decedent’s death inherits as if was born in decedent’s lifetime

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10
Q

Nonmarital children can inherit from father if:

A
  1. Father/mother married after Childs birth
  2. Man is adjudicated the father in paternity suit;
  3. After man’s death, he is proved to be the father of the child
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11
Q

Disinheritance Clause

A

Will sometimes include clause in the will that states “these people are not to receive anything”

Majority: ineffective if under partial intestacy

Minority and UPC: give full effect; heir is treated as though they disclaimed their share

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12
Q

Common Problems to Intestacy/Wills

A
  1. Simultaneous Death
  2. Disclaimers
  3. Decedent’s death caused by heir/beneficiary
  4. Advancements/Satisfaction of Legacies
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13
Q

Simultaneous Death

A

Split in Jurisdictions (applies to trusts, insurance, etc.)

  1. USDA: property of each person passes as though he survived the other
  2. UPC: heir must survive by 120 hours to take as beneficiary/heir

However, the governing instrument can make different provisions

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14
Q

Disclaimers

A

Must:
1. Describe property and be in writing;
2. Signed by the disclaimant;
3. Filed within 9 months

Disclaimed property passes as though disclaiming predeceased decedent

If benefits were accepted, disclaimer will be estopped

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15
Q

Decedent’s Death Caused by Heir/Beneficiary (Slayer Statute)

A

If one feloniously and intentionally causes death of a decedent, property passes as though the killer predeceased the decedent
- severs joint tenancy
- applies to probate AND non probate

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16
Q

Advancement of Gift

A

Common Law: lifetime gift presumed to be advancement

Modern Law: not presumed to be an advancement or satisfaction of gift unless:
1. intent shown by a contemporaneous writing by donor (or will provision);
2. There is a written acknowledgement by donee

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17
Q

Formalities Requirements for Will

A
  1. Testator age 18 and of sound mind (testamentary capacity)
    - if married or in military can sometimes disregard the legal capacity requirement
  2. Testamentary intent - to make a will
  3. In writing
  4. Signed by testator (anything works) - some states impose that signature must be at end of the will and published
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18
Q

Requirements for Formally Attested Wills

A
  1. All general requirements +
  2. Two attesting witnesses (or notary under UPC)
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19
Q

Requirements of Witnessess for Formally Attested Wills

A
  1. Testator must acknowledge will or signature in witnesses’ presence
  2. Witnesses must sign in testator’s presence
  3. If witness also a beneficiary, will is valid but gift to interested witness purged unless:
    - witness is supernumerary
    - witness would take without the will (takes lesser share)
    - UPC allows interested witness to keep gift
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20
Q

UPC Harmless Error Rule

A

Defectively executed will can be given effect if there’s clear and convincing evidence testator intended it to be his will

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21
Q

Holographic Wills

A

One entirely in testators handwriting, but witnesses NOT needed

UPC/Most states: will accept a will that contains some typewritten text as long as the portion NOT in the Testator’s handwriting is NOT material

*must contain signature somewhere on the will

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22
Q

Integration

A

Pages present at execution of will are part of the will if they were intended to be

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23
Q

Codicil

A
  1. Must be executed with same formalities as will
  2. Republishes the will
  3. Revocation of a will revokes codicil BUT revocation of a codicil only revokes the codicil
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24
Q

Incorporation by Reference

A

Document must be:
1. In existence at the time will was executed;
2. Sufficiently described in the will;
3. Will must show intent to incorporate

  • Signed list of tangible personal property is valid even if made/altered after will’s execution
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25
Q

Acts of Independent Significance

A

Will may identify beneficiaries or property by reference to acts or events that have significance apart from the will

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26
Q

Pour Over to Inter Vivos Trust

A
  1. Valid even if trust amended after execution
  2. Uniform Testamentary Additions to Trusts Act: need not be in existence at will execution
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27
Q

Power of Appointment

A

Authority granted to a person, enabling that person to designate, within limits described by the creator, the persons who shall take the property and manner in which they take it

General POA: power exercisable in favor of anyone including donee themselves

Special POA: power exercisable in limited class of appointees

Appointed property not subject to elective share or creditors

28
Q

Nonprobate Assets

A

Property that cannot be disposed of by will

  1. Life Insurance
  2. Property passing by right of survivorship
  3. Property in Trust
29
Q

Marriage following execution of will

A

Most states: marriage will have no effect

UPC: new spouse takes intestate share as “omitted spouse” unless
- will makes provision for new spouse;
- omission was intentional;
- will was made in contemplation of marriage

30
Q

Divorce/Annulment Effect on Will

A

Revokes all provisions in favor of former spouse

UPC: also revokes all provisions in favor of the former spouse’s relatives who aren’t relatives of the testator

31
Q

Revocation by Physical Act

A
  1. Burning, tearing, obliterating, cancelling WITH INTENT TO REVOKE
    - intent must be concurrent w/ act
    - can direct someone else to destroy
  2. May partially revoke will
  3. Will not found at testator’s death is presumed revoked
  4. Contents of accidentally lost/destroyed will can be proven
32
Q

Revival of Revoked Wills

A

Majority: destruction of revoking instrument presumptively revives revoked will unless testator didn’t intend

Will always revived if:
- re-executed with formalities;
- republished by codicil

33
Q

Dependent Relative Revocation

A
  1. Testator validly executes Will 1
  2. Testator validly revokes Will 1
  3. Testator executes Will 2 but Will 2 invalid
  • Court may disregard revocation the closer it is that both wills reflect testator’s true intent; will apply Will 1
  • More different the wills –> more likely the court will infer that Testator would prefer intestacy rather than executing Will 1

*Harmless error provision also applies to defective revocation

34
Q

Contracts to Make a Gift by Will

A

A contract to make a gift by will, not to revoke a will, or to die intestate may be established by:

  1. Provisions in the will stating terms of the contract;
  2. Express reference in the will to contract, plus evidence of contract terms OR
  3. Writing signed by decedent evidencing the contract

After decedent’s death: remedies are breach/damages

During promisor’s lifetime: no remedy

35
Q

Mutual Wills

A

Separate wills by two or more testators that contain substantially similar provisions are presumed NOT contractual

36
Q

Joint Wills

A

Single will executed by two or more testators and intended as will of each are NOT presumed contractual; but many courts treat them as contractual

37
Q

Ademption

A

Applies to SPECIFIC gifts/devises –> when specifically bequeathed property is not in the testator’s estate at death, the gift fails

Identity theory: testator’s intent is irrelevant; objective test

  • General devises “my car” = not subject to ademption
  • Gift of securities = general bequest UNLESS “my” used
38
Q

Exceptions to Ademption

A
  1. Replacement property - B receives replacement property if Testator replaced gifted item w/ similar item
  2. Balance of purchase price: if T sold gifted item and purchaser still owes $, beneficiary can receive remaining money
  3. Proceeds of Condemnation / Award / Insurance
  4. Proceeds of Sale by Guardian/Conservator - when T becomes incompetent or specifically devised property was sold by guardian, the beneficiary is entitled to general pecuniary legacy equal to amount of proceeds
  5. Securities owned as result of merger, consolidation, etc.
39
Q

Ademption by Satisfaction

A

Testamentary gift may be satisfied in whole/in part by an inter vivos transfer from testator to beneficiary after execution of the will if testator intends the transfer to have that effect

40
Q

Increases to Property

A
  1. Income goes to general estate
  2. Improvements to real property –> devisee
  3. Specific bequests will include stock splits/dividends (common law originally didn’t recognize dividends, but UPC/most states do)
41
Q

Elective Share Statute

A

Gives spouse option to take statutory share instead of amount as described by will;

  1. If T survived by issue –> 1/3 of net probate estate
  2. If not survived by issue –> 1/2
  3. Some states/UPC –> base amount on duration of marriage
42
Q

Pretermitted Child Statue

A

Majority of states allow after born or after-adopted children to take intestate share

UNLESS:
- omission appears intentional
- at execution, testator had other children and left nearly all estate to other parent of omitted child
- testator provided for omitted child outside of will

UPC: limits the amount that omitted child can get to same bequest as other children (bequest to other children will be reduced for equal share; but no one else’s bequest will be reduced)

43
Q

Homestead

A

Statutes that protect the family residence/farm from creditors claims by exempting a certain amount of land; family gets to live there even if the family has no title

44
Q

Family Allowance

A

Provides support during probate administration and usually takes precedence over all claims other than funeral and admin expenses

*this is IN ADDITION to amount passing by will/intestacy/elective share

45
Q

Exempt Personal Property

A

Surviving spouse is entitled to petition to set aside certain items of tangible personal property; in addition to amounts passing by will, intestacy OR elective share

46
Q

Standing for Will Contest

A

May be brought by any person whose interest would be directly affected by the will’s admission to probate

47
Q

Grounds for Will Contest

A
  1. Defective execution
  2. Will has been revoked
  3. Testator lacked testamentary capacity
  4. Will/gift is product of undue influence
  5. Will/gift procured by fraud
  6. Document was executed or gift made because of mistake

*Capacity determined at time of execution

*Insane delusion invalidates will ONLY to extent delusion caused disposition

48
Q

Undue Influence Contest

A
  1. Influence exerted over testator;
  2. Overpowered the mind and free will of testator; and
  3. Product was will that would not have been made but for the undue influence
49
Q

Fraud Will Contest

A

Willful deceit as to character/contents/material fact of the will

Fraud:
1. False representation made to T;
2. Knowledge of falsity by person making statement
3. T reasonably believed the statement;
4. Statement caused T to execute a will/make a particular disposition that T would not have made but for the representation

49
Q

Presumption of undue influence arises when:

A
  1. There is a confidential relationship between testator and beneficiary; AND
  2. The beneficiary participated in a significant activity related to execution of the will
50
Q

Fraud in the Execution

A
  1. Misrepresentation as to the identy/contents of insturment
  2. T did not know the document was a will or what it contained
  3. Lack of testamentary intent
51
Q

Fraud in the Inducement

A
  1. T knows that they are executing a will and what it contains BUT testator is deceived as to some extrinsic fact and makes the will/gift based on that fact
  2. Will/gift affected by fraud should be set aside
52
Q

Mistake in the Execution

A
  1. Testator in error regarding identity/contents of the instrument and lacks testamentary intent
  2. Extrinsic evidence admissible to show that a testator did not know that the instrument they were signing was a will, because the existence of testamentary intent is at issue
53
Q

Mistake in the Inducement

A

Testator is mistaken on some extrinsic fact and makes the will based on erroneous fact; no relief unless mistake appears on face of will

54
Q

Mistake in contents

A

Evidence not admitted to contradict plain meaning

Patent ambiguity (on face of will) – gift will fail, but modern trend allows evidence of intent

Latent ambiguity (ambiguous in application) – evidence is admissible

55
Q

UPC/Restatement Approach to Mistake or Fraud

A

UPC/Restatement permit court to reform will terms to conform to T’s intent if there is clear and convincing evidence that T’s intent were affected by fraud/mistake

56
Q

No Contest Clause

A

Will be enforced unless contestant had probable cause to contest will

Minority: some states give full effect regardless of whether there was probable cause to challenge

57
Q

Personal Representative Order of Preference

A
  1. Person named in will
  2. Surviving spouse (will beneficiary)
  3. Any beneficiary in will
  4. Surviving spouse
  5. Any heir
  6. A creditor
58
Q

Creditors Claims/Priority

A

Must be filed within time specified or barred

Priority:
1. Administration expenses;
2. Funeral and last illness;
3. Family allowance;
4. Tax claims;
5. Secured claims
6. Judgments;
7. All other claims

58
Q

Personal Representative Duties

A
  1. Give notice
  2. Collect assets
  3. Manage assets
  4. Pay expenses
  5. Distribute property
59
Q

Abatement = When Assets are Insufficient, gifts reduced in this order:

A
  1. Property passing by intestacy
  2. Residue
  3. General legacies
  4. Specific devises and bequests
60
Q

Interpreting ambiguous will provisions

A
  1. Evidence of surrounding circumstances permitted
  2. Testator’s declarations inadmissible
  3. Rules of Construction
    - favor intestate heirs
    - favor construction avoiding intestacy
    - favor construction consistent w/ plan
    - every portion of will given effect
    - if two completely inconsistent provisions: the most recently added one is preferred
61
Q

Bequests of Stock

A

Common law: a specific bequest of stock includes any additional shares produced by a stock split but not those produced by a stock dividend

UPC and other states: specific bequest of stock includes the stock dividends

62
Q

Slayer Statute

A

One who feloniously and intentionally brings about the death of the decedent forfeits any interest in the decedent’s estate; property passes as though killer predeceased the decedent

63
Q
A

Rule Statements (13 decks)

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