WILLS RULES! Flashcards
Will Definition
A will is a conveyance instrument that takes effect upon testator’s death.
Will Requirements for Execution
NC requires (1) testator be 18, (2) in writing, (3) signed by testator in presence of two witnesses, (4) who sign in testator’s presence, and (5) executed by testator with testamentary intent.
Writing After Signature
Signature may appear anywhere on will; thus, writing below is good so long as it was present at execution.
Clause Added After Execution
Just the clause itself will be invalid.
Presence Requirement - Line of Sight Test
Presence is satisfied if testator could see the witnesses sign if he looked; need not look though.
Interested Witness
An interested witness does not invalidate execution, but takes nothing if there are not two disinterested witnesses.
Holographic Will
Holographic will valid if (1) written entirely in testator’s handwriting, (2) his name or signature on writing, and (3) the will is found in a safe place. To probate, three witnesses must attest to the handwriting and one testifies that the will was found in a safe place.
Nuncupative Will
Nuncupative will is valid to dispose of personal property if (1) spoken in last illness, (2) before two disinterested witnesses, (3) he actually dies from it, and (4) probated in 6 months unless written in 10 days.
Self Proved Will
If testator and witnesses sign affidavit before a notary; can be done after original execution of will as well.
Probating Will - Not Self Proved
Probate requires testimony of two attesting witnesses as to testator’s sound mind, signature, and presence.
Revocation by Physical Act
To revoke by physical act, will must be (1) burnt/torn/cancelled/obliterated/destroyed, (2) with simultaneous intent to revoke, and (3) by testator himself or by another at his direction and in his presence. However, revocation by physical act presumed if will was last seen in testator’s presence and control, and not found upon his death.
Lost Will - Destroyed but NOT Revoked
If destroyed but not revoked, lost wills statute requires that (1) due execution be proved in normal way, (2) will’s contents must be clearly proved by copy or testimony, and (3) absence must be explained.
Codicil
A testamentary instrument that amends a will and must be executed with same formalities. Thus, a second will, not revoking the first, is treated as a codicil: terms must be read together. If conflict, later one in time controls.
Revival of Revoked Wills
No automatic revival if revoked; it must be re-executed.
Divorce
A divorce following a will revokes all provisions in favor of the ex-spouse.
Line Striking
Crossing out a provision is partial revocation by physical act. However, addition not valid unless re-executed.
Dependent Relative Revocation
Revocation based on mistake of fact/law can be disregarded if testator would not have revoked but for the mistake.
Incorporation by Reference
To incorporate by reference, (1) writing must be in existence at date of will’s execution, (2) will must manifest an intent to incorporate the writing, and (3) will must describe writing to permit its identification.
Acts of Independent Significance
Acts or events of non-testamentary motives will not change the will’s terms even though they impact them.
Lapse
If beneficiary dies before testator, his gift lapses unless beneficiary is testator’s grandparent or descendant of grandparent who leaves surviving issue; then gift passes to her issue regardless of her will.
Class Gift
Anti-lapse statute still applies to class members who fall within it. If not a proper relative, surviving class members take the gift instead of it going to the residue of the testator’s estate.
Residue to Two or More Persons
If residuary estate is devised to two or more persons, and gift fails to one of them, the surviving residuary devises take the entire residue in proportion of their interests UNLESS he is a proper family member under the anti-lapse statute.
Ademption
If will makes a specific bequest which is not there at T’s death, gift is adeemed. However, it does NOT apply to demonstrative legacies ($500 to S to be paid out of my stock sale).
Abatement
Abatement is the process of reducing gifts when estate cannot pay all expense obligations in order of (1) intestate property, (2) residuary, (3) general (I give $20), (4) demonstrative legacy, (5) specific bequests.
Stock Increase in Number of Shares
Beneficiary is NOT entitled to increase of stock shares if will provides a specific number, and those shares increase before testator dies. However, if increased by dividend/split after he dies, beneficiary is entitled to the increase.
Stock - Specific v. General
If gift of stock is specific (my 100 shares), and it’s sold, then beneficiary is adeemed. However, if gift is general (I give 100 shares of V) then not adeemed because it’s a gift of the value of shares to be paid in kind.
Property with Mortgage - Specific Devise
A specific devisee of encumbered property not entitled to have mortgage paid from residue unless the will shows such intent, but it must be specific: a general direction “to pay debts” does not show such intent to pay mortgage.
Latent Ambiguity in Will
Latent if provision is coherent, but becomes uncertain when property is distributed. Evidence is admissible to resolve the ambiguity. If no good evidence, then the gift fails and falls to the residue.
No Ambiguity - Mistake - Wrong Person - Blanks
Extrinsic evidence never permitted to alter plain meaning of the words in will or fill in blanks.
Mistake
No relief for mistake in reasons why testator made a provision unless stated in the will (I gif all to x because y died).
Intestacy - Surviving Spouse Share
- No Issue or Parent = 100%
- Parent but No Issue = 50% of Real Property, First $50,000, and 50% of any excess personal property.
- One Child = 50% of Real Property, First $30,000, and 50% of any excess personal property.
- Two or more Children = 1/3 of Real Property, First $30,000, and 1/3 of any excess personal property.
Intestacy - No Spouse
All to issue if any; if no issue, to parent or survivor; if no issue or parent, to sibling or their issue.
Intestacy - Cannot Disinherit
Cannot disinherit one’s heirs by fiat; thus, if partial intestacy, heirs take regardless of his desire in will.
Intestacy of Issue
Division of intestate share is per-capita at each generational level, but cannot take if parent entitled (blocking).
Intestacy and Probate
Intestacy statute only applies to the probate estate (estate that could have been controlled by will). Thus, it does NOT include life insurance, trust property (even revocable), Right of Survivorship property which includes entirety and joint tenancies.
Intestate from Father - Illegitimate Child
For illegitimate child to inherit from father and vice-versa, father must have married mother, filed formal acknowledgement of paternity, or has been found to be child’s father in a civil action before his death.
Intestate from Stepparent
Step child may not inherit from stepfather unless adopted or can show adoption by estoppel: promised to adopt.
Posthumous Child
Must be alive to inherit from parent; includes posthumous children (born within 280 days of intestate’s death).
Illegitimate Child in Class Gift
Illegitimate child can be included in a class gift if to mother’s children; but not father’s unless legitimized.
120 Hour Rule
A person is deemed to have predeceased the decedent unless he survives him by 120 hours (5 days).
Advancements
Gift to any heir is presumed NOT an advance. Gift to spouse is NEVER an advance unless intent in writing.
Surviving Spouse’s Right to a Year’s Allowance
Spouse entitled to an allowance of up to $20K for one year after decedent’s death on top of her intestate share, but charged against any share under the will. Allowance superior over creditors, but it cannot exceed 1/2 of decedent’s average annual income for final three years of his life (2K more per child or up to 22 in college)
Surviving Spouse’s Right to Elective Share
If unhappy with her share in the will, the surviving spouse has the right to claim an elective share. If survived by one or no children, the elective share is 1/2 of total net assets. If two or more children, elective share is 1/3 of the total net assets. Net assets are reduced by year allowance, funeral and administrative expenses, property willed to spouse, debts and claims, AND reduced by 1/2 of any property held by decedent and surviving spouse as entirety or joint tenancy. Surviving spouse must elect within six months of the filing of the letters of testamentary, and right can be waived if signed. HOWEVER, if the surviving spouse is a successive spouse and he had kids with former, then reduced by 50%.
Surviving Spouse’s Right to Statutory Dower
Take (1) Life Estate in dwelling and ownership in furnishings, or (2) Life Estate in 1/3 real property obtained during marriage.
Pretermitted Children
A child born or adopted after will executed is entitled to take intestate share UNLESS (1) omission intended, (2) will provides for child, (3) other kids alive, but no devise, (4) all goes to spouse, or (5) other gift to kid (life insurance).
Adultery or Abandonment
Spouse loses injeritance, elective share, and dower if engages in adultery or willfully abandons spouse (or child).
Slayer Statute
No rights in victim’s estate if convicted/guilty/nolo-contendere to willful killing of decedent. If so, estate distributed as if slayer predeceased victim. If will, slayer’s gift passes intestacy unless saved by anti-lapse statute.
Renunciation
Devisee/heir may renounce interest in writing, whole or in part, within 9 months after death, and gift passes as if he predeceased the testator/intestate. It may be set aside if intended to defraud creditor.
Will Contracts
If contract deals with real property, contracts to make a will, refrain from, or to die intestate, must be in writing and supported by adequate consideration after fair disclosure.
Living Will
Must be (1) in writing and signed by competent testator, (2) in presence of two unrelated disinterested witnesses, and (3) proved to the clerk or notarized. It can be revoked by any manifestation of intent to, even if no capacity.
Durable Healthcare Power of Attorney
Same as execution of living will, but it MUST be notarized.
Will Contests
Will contested by (1) improper execution, (2) under age, (3) lack of capacity, or (4) undue influence/fraud/mistake.
Contesting Testamentary Capacity
Capacity presumed; thus, burden on contestants to show that T did not know or understand (1) nature/extent of his property, (2) nature/effect of disposition, or (3) natural objects of bounty. Previous insane is some evidence.
Insane Delusion
An unreasonable idea or belief that testator adheres to against all reason OR a belief of nonexistent facts which no rational person would believe to exist. May invalidate just a portion of the will if it doesn’t distort the overall testamentary plan.
Undue Influence
Invalidate because capacity is controlled by power of another. Must prove (1) existence and exertion of an influence, (2) which had overpowering effect on his mind, and (3) resulting in a will that would not have been executed but for the influence. Burden shifts to proponent if confidential (suspicious stranger) or fiduciary relationship.
No Contest Clause
Clause will not be enforced unless challenge was not in good faith OR no probable cause for contesting.
