Wills Set

Question 1

A decedent dies without a will, survived by his spouse, his brother, his niece, and his mother. In most states, to whom will the decedent’s estate be distributed?

A His spouse.

B His spouse and his mother.

C
His spouse, his mother, and his brother.

D
His spouse, his mother, his brother, and his niece.

Answer 1

A

In most states, if a decedent is survived by a spouse but no descendants, the surviving spouse takes the entire estate. Under the Uniform Probate Code (“UPC”), however, the decedent’s parents would also share the estate.a

Question 2

How are the intestate shares of descendants usually distributed?

A Equally.

B Strict per stirpes.

C Per capita with representation.

D Per capita at each generation.

Answer 2

C

The intestate shares of descendants are distributed per capita with representation; i.e., the property is divided into equal shares at the first generational level at which there are living takers, and the shares of deceased persons at that level pass to their issue by representation. At common law and in a small minority of states, the division is always made at the child level, regardless of whether there are any living takers at that level, and deceased children’s shares pass to their descendants by representation; this is called strict per stirpes. A growing number of states and the Uniform Probate Code distribute intestate shares per capita at each generation; i.e., the initial division of shares is made at the first generational level at which there are living takers, and the shares of deceased persons at that level are combined and divided equally among the takers at the next generational level. Thus, under this method persons in the same degree of kinship to the decedent always take equal shares. However, under no method do all descendants share equally.

Question 3

If a decedent dies without a will and is not survived by a spouse or by descendants, the estate passes in which order?

A Parents, descendants of parents, grandparents, descendants of grandparents, nearest kin.

B Parents, grandparents, descendants of parents, descendants of grandparents, nearest kin.

C Parents, grandparents, nearest kin.

D Siblings, parents, grandparents, descendants of grandparents, nearest kin.

Answer 3

A

In most states, if a decedent dies without a will and is not survived by a spouse or by descendants, the estate passes in the following order: parents, descendants of parents (siblings and descendants of deceased siblings), grandparents, descendants of grandparents, nearest kin. That is, if an intestate decedent is not survived by a spouse or descendants, the estate passes to the decedent’s parents (one-half each) or surviving parent (all). If neither parent survives, the estate passes to the descendants of the decedent’s parents, i.e., the decedent’s brothers and sisters or their descendants. If no descendants of parents survive, the estate passes one-half to the decedent’s maternal grandparents or their descendants and one-half to the decedent’s paternal grandparents or their descendants. If no grandparents or descendants of grandparents survive, the estate is divided into maternal and paternal shares and one-half goes to the nearest kin on each side, no matter how remotely related to the decedent.

Question 4

Which of following CANNOT inherit from or through a decedent?

A The adoptive parents of the decedent.

B A child born to the decedent’s wife six months after the decedent’s death.

C
The decedent’s half-sister.

D The decedent’s stepchild who has been treated as the decedent’s child since birth.

Answer 4

D

Stepchildren and foster children have no inheritance rights, no matter how close the relationship. The only exception is when the stepparent or foster parent gains custody of the child under an agreement with the natural parent that he will adopt the child. For the purpose of intestate succession, an adopted person is treated the same as a natural child of his adopting parents. The adopted child can inherit from and through his adopting parents, and the adopting parents and their kin can inherit from and through the adopted child. A child in gestation at the decedent’s death inherits as if born during the decedent’s lifetime. Half relations inherit the same as those related by the whole blood.

Question 5

The entirety of a testator’s will provides, “I do not want my daughter to take any of my estate.” If the testator is survived by only the daughter and a son, how will the testator’s estate be distributed?

A All to the son.

B Half to the son and half to the daughter.

C All to the daughter.

D All to the state.

Answer 5

B

If the entirety of a testator’s will provides, “I do not want my daughter to take any of my estate,” and the testator is survived only by the daughter and a son, the testator’s estate will be distributed one-half to the son and one-half to the daughter. A will provision that expressly disinherits an heir is ineffective if the testator dies partially intestate. Here, the testator’s will provides that the daughter is not to share in the estate but does not make any disposition of his property. Thus, the testator’s estate will pass pursuant to the intestacy statutes; his intent as to any property that passes under the statutes is irrelevant. If a decedent dies intestate and is survived only by children, the children take equal shares of the estate. An estate escheats to the state only if the decedent is not survived by any relative capable of taking the estate.

Question 6

The decedent and her only child were involved in a plane crash. Neither was alive when the emergency team reached them. The child, who died without a will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy naming the child the sole beneficiary. Who will share in the decedent’s estate, and who will take the insurance proceeds?

A The decedent’s brother will take the estate, but the child’s spouse will take the insurance proceeds.

B The child’s spouse will take the estate and the insurance proceeds.

C The decedent’s brother will take the estate and the insurance proceeds.

D The child’s spouse will take the estate, but the decedent’s brother will take the insurance proceeds.

Answer 6

C

Under the Uniform Simultaneous Death Act (“USDA”), when the title to property or its devolution depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person is disposed of as if he had survived. Here, both parties were dead when help arrived; thus, there is no sufficient evidence that one survived the other. Therefore, the decedent’s estate will be distributed as though she survived the child. If the child predeceased the decedent, the decedent’s brother is her only intestate heir and will take the estate. The USDA also applies to life insurance, so the insurance proceeds will be paid to the decedent’s estate and also pass to the brother.

Question 7

A testator’s child born or adopted after the will was executed and not mentioned in the will is generally entitled to share in the estate under the pretermitted child statute. Which of the following does NOT represent an exception to the application of the pretermitted child statute?

A The testator had children when the will was executed and devised substantially all of the estate to the other parent of the omitted child.

B
Extrinsic evidence shows that the omission of the child was intentional.

C The testator provided for the child by naming the child beneficiary of a life insurance policy.

D
The testator provided for the child by making the child the beneficiary of a revocable trust.

Answer 7

B

A pretermitted child will not take a share if it appears from the will that the omission was intentional. Extrinsic evidence is not admissible to show that the omission was intentional. If the testator had children when the will was executed and devised substantially all of the estate to the other parent of the omitted child, the statute does not apply. Thus, (A) is incorrect. Providing for the child by a transfer outside of a will is also a recognized exception to the application of the pretermitted child statute. Thus (C) and (D) represent a recognized exception.

Question 8

If one of two joint tenants kills the other, how is title to the property held?

A The killer owns the entire property.

B The killer and the victim’s estate each own one-half of the property as tenants in common.

C The state and the victim’s estate each own one-half of the property as tenants in common.

D The victim’s estate owns the entire property.

Answer 8

B

If one joint tenant kills the other, the killer and the victim’s estate each own one-half of the property as tenants in common. One who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim. If the killer is a joint tenant with the victim, the killing severs the right of survivorship; in effect, the estate is treated as a tenancy in common. The victim’s one-half interest passes under her will (or by intestacy) as though the killer predeceased her. However, the killer does not forfeit his interest in the property to the victim or to the state; he continues to hold his undivided one-half interest in the property as a tenant in common with the victim’s estate.

Question 9

To execute a valid attested will, the testator must sign the will in the presence of two attesting witnesses who must:

A Sign in the presence of each other.

B Sign within 30 days of each other.

C Sign in the presence of the testator and a notary public.

D
Sign in the presence of the testator.

Answer 9

D

There must be two attesting witnesses who must sign in the testator’s presence. Some, but not most, states require the witnesses to sign in the presence of each other. Even fewer states require that they sign within 30 days of one another. There is no requirement that witnesses sign before a notary public.

Question 10

When a specifically bequeathed item is not in the testator’s estate at his death, the court will consider which of the following in determining whether the bequest is adeemed?

A The testator’s expressions of intent.

B
Whether the testator used proceeds from the item to purchase replacement property.

C
Whether proceeds from the sale of the item were kept in a separate account.

D
Whether the property was disposed of by a guardian.

Answer 10

D

Ademption is generally decided based on the objective test of whether the item is a part of the testator’s estate at death (the identity theory). If the item is not in the estate, the bequest is adeemed. The testator’s intent is irrelevant. There is an exception to the ademption rule if the specifically devised property is sold by a guardian or a conservator. In that case, the devisee is entitled to a general pecuniary legacy equal to the amount of the proceeds. In states that consider the testator’s intent, the court would consider whether property was acquired as a replacement and whether proceeds were placed in a separate account.

Question 11

A testator signs his will in front of two witnesses. Immediately after the witnesses sign, the testator remembers that he wanted to include a legacy of $5,000 to his friend Fred. After explaining this to the witnesses and while still in their presence, the testator handwrites the legacy directly under his signature. The witnesses both give the testator the thumbs up. In most states, the effect of the additional legacy is:

A Both the will and the legacy are void.

B The will is valid, but the legacy is void.

C Both the will and the legacy are valid.

D
The legacy is a valid holograph, but the will is void because it is not subscribed.

Answer 11

B

The will is valid, but the legacy is void. A will is valid as long as the testator signs somewhere on the instrument (e.g., on the margin, or in the first clause). Clauses added after the will is signed and witnessed are unattested words regardless of whether they appear before or after the testator’s signature. Only the words present on the will at the time it was signed are part of the duly executed will. The added legacy is not a valid holographic codicil because it was not signed by the testator.

Question 12

Which of the following statements regarding the determination of the testator’s intent in the case of an ambiguous will provision is true?

A The court must determine the testator’s intent from the four corners of the will and the application of rules of construction.

B Testimony regarding the testator’s circumstances at the time the will was executed is not admissible.

C The testator’s own declarations are admissible only if there is an equivocation.

D
Rules of construction are given preference over extrinsic evidence.

Answer 12

C

When the language of a will is ambiguous, the court will interpret the will and consider any admissible extrinsic evidence to determine the testator’s intent. However, the testator’s own declarations of what he intended to do are generally not admissible because of a high chance of perjury. If, however, there is an equivocation (a description of a beneficiary or property describes more than one person or item of property), testimony of the testator’s declarations is admissible to determine which beneficiary or item of property was intended. (A) is incorrect because the court will consider extrinsic evidence. (B) is incorrect because testimony of the testator’s circumstances at the time the will was executed is admissible. (D) is incorrect because the court will use rules of construction only when there is no evidence of the testator’s intent.

Question 13

If one of the attesting witnesses cannot be located, which of the following may be substituted for the courtroom testimony of that witness?

A An attestation clause only.

B A self-proving affidavit only.

C Either an attestation clause or a self-proving affidavit.

D Neither an attestation clause nor a self-proving affidavit.

Answer 13

B

If one of the necessary attesting witnesses cannot be located, a self-proving affidavit may be substituted for the courtroom testimony of that witness. For a will to be made self-proved, the testator and the attesting witnesses must sign the will and then sign a sworn affidavit before a notary public reciting that the testator declared to the witnesses that the instrument was his will and that the testator and the witnesses all signed in the presence of each other. The self-proving affidavit serves the same function as a deposition or interrogatory and may be substituted for the courtroom testimony of the attesting witnesses. On the other hand, an attestation clause, which appears immediately below the signature line for the testator and above the witnesses’ signatures and recites the elements of due execution, does not constitute sworn testimony and thus cannot serve as a substitute for the courtroom testimony of the attesting witnesses. Rather, it is prima facie evidence of the facts recited therein and may be used, for example, to prove that a witness signed in the testator’s presence when she cannot recall whether she did.

Question 14

A testator executes a valid holographic will, which leaves $10,000 to Ben and the residue to Rhonda. Two years later, the testator crosses out the bequest to Ben and writes above it “$20,000 to Beth.” If the will remains the same at the testator’s death, what is the effect of the testator’s action?

A Beth will take $20,000, and Rhonda will take the residue.

B The entire will is revoked.

C
The legacy to Ben is revoked, and Rhonda will take the entire estate.

D
Ben will take $10,000, and Rhonda will take the residue.

Answer 14

A

Most states that recognize holographic wills give effect to handwritten changes made by the testator after the holographic will is completed. Thus, the testator’s changes here will be given effect. These types of interlineations are not given effect if made to an attested will unless they constitute a holographic codicil. While the additional material would not be given effect, the crossing out of Ben’s legacy would likely revoke it if made to an attested will–leaving Rhonda with the entire estate.

Question 15

Under which of the following doctrines must the will proponent show that an extrinsic document offered for probate was present at the will’s execution?

A Integration.

B Republication by codicil.

C Incorporation by reference.

D Acts of independent significance.

Answer 15

A

Under the doctrine of integration, the will proponent must show that an extrinsic document offered for probate was present at the will’s execution and intended by the testator to be a part of the will. The requirements of presence and intent are presumed when there is a physical connection of the pages (e.g., staple), when there is an internal coherence by provisions running from one page to the next, or when the pages, read together, set out an orderly dispositional plan. These requirements also can be established by the testimony of witnesses or other extrinsic evidence. Under the doctrine of republication by codicil, a will is treated as having been executed (“republished”) on the date of the last validly executed codicil. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will; it must be executed with the same formalities as a will. Since a codicil is a later instrument, its presence at the will’s execution cannot be required. Under the doctrine of incorporation by reference, an extrinsic document not present at the time the will was executed may be probated as part of the will if it was in existence when the will was executed, the will sufficiently describes the document, and the will manifests an intent to incorporate the document. Under the doctrine of acts of independent significance, a will may dispose of property by reference to future unattested acts and events that have significance apart from their effect on the dispositions made by the will.

Question 16

Each of the following statements describes a requirement for incorporation by reference EXCEPT:

A The document must have been in existence at the time the will was executed.

B The document must dispose only of items of tangible personal property.

C The will must sufficiently describe the document to permit its identification.

D The will must manifest an intent to incorporate the document.

Answer 16

B

To incorporate an extrinsic document not present at the will’s execution into the will by reference, all of the following requirements must be met: (i) the document must have been in existence at the time the will was executed, (ii) the will must sufficiently describe the document to permit its identification, and (iii) the will must manifest an intent to incorporate the document. The doctrine of incorporation by reference is not limited to items of tangible personal property.

Question 17

Is a will providing that the testator’s property is to be distributed in accordance with the subsequently executed will of another person valid?

A Yes, under the doctrine of incorporation by reference.

B Yes, under the doctrine of acts of independent significance.

C No, because the making of a will is a testamentary act.

D No, because a pour-over gift may only be made by an existing will.

Answer 17

B

A will providing that the testator’s property is to be distributed in accordance with the subsequently executed will of another person is valid under the doctrine of acts of independent significance. The doctrine provides that a will may dispose of property by reference to future unattested acts and events that have significance apart from their effect on the dispositions made by the will. The doctrine has been used with regard to acts of the testator as well as to acts of third persons. If a testator directs that his property be distributed in accordance with the will of another person whose will has already been executed, and the other requirements of incorporation are met, (i.e., the testator’s will sufficiently describes the other person’s will to permit its identification and manifests an intent to incorporate), the other person’s will can be incorporated into the testator’s will by reference. However, if the testator’s will provides that his property should be disposed of as provided in the future will of another person, it is generally held that the doctrine of acts of independent significance applies, and the gift is valid. Although the other person’s making of a will is a testamentary act, it has significance independent from disposing of the original testator’s property, i.e., it directs the disposition of the other person’s estate. A pour-over gift is a gift from a will to an inter vivos trust. The Uniform Testamentary Additions to Trusts Act provides that such a gift is valid, notwithstanding the fact that the testator has reserved the power to amend or revoke the trust or has actually amended the trust after executing his will, and further notwithstanding the fact that the trust instrument or any amendment was not executed in accordance with the Statute of Wills.

Question 18

A power of appointment granted by will that is exercisable by the donee during her lifetime in favor of the donee, her estate, her creditors, or the creditors of her estate is a:

A Presently exercisable general power of appointment.

B Presently exercisable special power of appointment.

C General testamentary power of appointment.

D Special testamentary power of appointment.

Answer 18

A

A power of appointment that is exercisable by the donee during her lifetime in favor of the donee, her estate, her creditors, or the creditors of her estate is a presently exercisable general power of appointment. A power of appointment is an authority granted to a person (the donee) to designate, within the limits prescribed by the creator of the power (the donor), the persons who shall take the property and the manner in which they shall take it. A general power of appointment is a power exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate. A special power of appointment is a power exercisable in favor of a limited class of appointees that does not include the donee, her estate, her creditors, or the creditors of her estate. A presently exercisable power of appointment is one that is exercisable by the donee during her lifetime. A presently exercisable power is also exercisable by the donee’s will unless the donor expressly limited its exercise to the donee’s lifetime. A testamentary power of appointment is one that is exercisable only by the donee’s will.The fact that the power was created by a testator’s will does not make it a testamentary power. The key is when the power is exercisable.

Question 19

Which of the following assets may be disposed of by will?

A Life insurance proceeds.

B Property held in joint tenancy.

C Property held as tenants in common.

D Property held as tenants by the entireties.

Answer 19

C

Property held as tenants in common may be disposed of by will. A will cannot make a gift of nonprobate assets, i.e., interests that pass at death other than by will or intestacy. There are three principal categories of nonprobate assets: (i) property passing by contract, (ii) property passing by right of survivorship, and (iii) property held in trust. Life insurance proceeds (and death benefits under an employee retirement plan) are payable to the beneficiary designated by the insured (or employee) in his contract with the life insurance company (or retirement plan carrier). Property held by the decedent and another person as joint tenants with right of survivorship and property held by the decedent and his spouse as tenants by the entirety pass directly to the survivor outside the probate process. On the other hand, tenants in common have no right of survivorship and may freely alienate their interests by inter vivos or testamentary transfer.

Question 20

Which of the following acts occurring subsequent to a will’s execution does NOT revoke all or part of the will by operation of law?

A Birth of children.

B Divorce.

C Annulment.

D Marriage.

Answer 20

D

Marriage subsequent to a will’s execution does not revoke the will by operation of law; the new spouse is protected by the elective share statute. Under the pretermitted child statute, a child born or adopted after the will’s execution is entitled to his intestate share, revoking the will to that extent. Divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. The remainder of the will is valid and read as if the former spouse predeceased the testator.

Question 21

Divorce revokes all of the provisions in favor of a former spouse in each of the following EXCEPT:

A Life insurance policies.

B Will bequests.

C Revocable trusts.

D Fiduciary appointments.

Answer 21

A

Divorce revokes all will bequests, revocable trusts, and fiduciary appointments in favor of the former spouse. The remainder of the will or revocable trust is valid and read as if the former spouse predeceased the testator. (The UPC extends the rule to also disqualify the former spouse’s relatives who are not relatives of the testator.) In contrast, divorce does not revoke life insurance policies in favor of the former spouse. Disposition of the proceeds is governed by the contract with the life insurance company. Thus, if the decedent fails to change the named beneficiary from his former spouse subsequent to their divorce but prior to his death, the former spouse takes the proceeds.

Question 22

The testator’s son is married with one child. If the testator bequeaths property to his son’s wife, and the son and the wife subsequently divorce, who takes that property on the testator’s death?

A The son.

B The son’s former wife.

C The son’s child.

D The residuary beneficiaries.

Answer 22

B

If a testator bequeaths property to his son’s wife, and the son and the wife, who have a child, subsequently divorce, the wife takes the property on the testator’s death. By statute in most states, divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse by operation of law. The remainder of the will is valid and read as if the former spouse predeceased the testator. However, the only divorce or annulment relevant under the statute is the testator’s. Thus, the fact that a beneficiary subsequently divorces is irrelevant. Because the son’s former wife is not treated as having predeceased the testator, the gift does not fail and thus does not pass to the residuary beneficiaries.

Question 23

If the testator executes a will and subsequently executes a second will that does not expressly revoke the first will, which will controls?

A The first will controls and impliedly revokes the second will in its entirety.

B The first will controls and impliedly revokes the second will to the extent of any inconsistent provisions.

C The second will controls and impliedly revokes the first will in its entirety.

D The second will controls and impliedly revokes the first will to the extent of any inconsistent provisions.

Answer 23

D

If the testator executes a will and subsequently executes a second will that does not expressly revoke the first will, the second will controls and impliedly revokes the first will to the extent of any inconsistent provisions. A will or any part thereof may be revoked or altered by a subsequent will, codicil, or other writing declaring such revocation if there is a present intent to revoke and the writing is executed with the requisite will formalities. If the subsequent writing does not contain any express language revoking an earlier will, the two instruments are read together to the extent possible; i.e., the second instrument is treated as a codicil to the will. However, the second instrument revokes the first to the extent of any inconsistent provisions.

Question 24

Assuming the requisite intent, in which of the following cases has the will been revoked by physical act?

A The will is found in a sealed envelope marked “VOID” on the outside.

B The will is found with the testator’s signature crossed out.

C A codicil to the will is found burned in its entirety.

D An unexecuted copy of the will is found torn to pieces.

Answer 24

B

Assuming the requisite intent, a will found with the testator’s signature crossed out has been revoked by physical act. A will may be revoked by physical act by burning, tearing, cutting, obliterating, or canceling a material portion of the will with the intent to revoke. Words of cancellation must touch the words of the will; thus, writing the word “VOID” on the outside of the envelope containing the will is ineffective to revoke the will. Although burning an entire will is a sufficient act of revocation, a physical act of revocation performed on a codicil revokes only the codicil, not the prior will. Likewise, although tearing a will to pieces is a sufficient act of revocation, the destruction of an unexecuted copy of a will does not revoke the will, even if accompanied by the requisite intent. But where a will has been executed in duplicate (i.e., both copies are signed), an act of revocation performed on either copy revokes the will.

Question 25

A court is most likely to give effect to which of the following alterations to the bequest “I devise my farm to A for life, remainder to B, and my residuary estate to C”?

A Crossing out “for life, remainder to B.”

B Crossing out “A for life, remainder to.”

C Crossing out “my farm to A for life, remainder to B, and.”

D No alterations, because a will may not be partially revoked by physical act.

Answer 25

C

A court is most likely to give effect to the change resulting in the bequest “I devise my residuary estate to C.” Partial, as well as total, revocation by physical act is recognized. Extrinsic evidence is admissible to determine whether the testator intended a partial or full revocation. However, courts are reluctant to give effect to nontestamentary actions that operate to increase the size of a general or specific bequest; but the testator can always increase the size of a residuary gift by canceling or obliterating a general or specific bequest. Crossing out “for life, remainder to B” would increase A’s specific bequest from a life estate to a fee simple and thus will not likely be given effect. Likewise, crossing out “A for life, remainder to” would increase B’s specific bequest from a vested remainder to a fee simple and also will not be given effect. Crossing out “my farm to A for life, remainder to B, and” would increase C’s residuary bequest by adding the farm and will most likely be given effect.

Question 26

If the testator executes a will and subsequently executes a codicil expressly revoking the first will, the testator may later change her mind and revive the first will by all of the following methods EXCEPT:

A Destroying the codicil.

B Executing a second codicil expressly reviving the first will.

C Having two witnesses attest to the testator’s acknowledgment of her signature on the first will.

D Applying the doctrine of dependent relative revocation.

Answer 26

D

In most states, if the testator executes a will and subsequently executes a codicil expressly revoking the first will, the testator may later change her mind and revive the first will by: (i) destroying the codicil, (ii) executing a second codicil expressly reviving the first will, or (iii) having two witnesses attest to the testator’s acknowledging her signature on the first will. A revoked will (here, the first will) may be revived when the revoking instrument (here, the codicil) is itself revoked if circumstances or the testator’s statements indicate an intent to revive. A will can also be revived by the valid execution of a codicil that expressly refers to it (here, the second codicil), by reexecution with full testamentary formalities, or by the testator acknowledging her signature on the will or acknowledging the will and having this attested to by two witnesses. Under the doctrine of dependent relative revocation, a court may disregard a revocation premised on a mistake of law or fact that would not have occurred but for the testator’s mistaken belief that another disposition of her property was valid. The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried (but failed) to do than would an intestate distribution. Here, the doctrine might be applied if the codicil were defective (e.g., only one witness) and the testator, erroneously believing it had been validly executed, tore up the first will; the codicil could not be probated, but the court might disregard the revocation of the first will. However, there was no mistake here. Moreover, the doctrine is applied to invalidate the revocation itself rather than to revive an instrument.

Question 27

Which of the following statements is true regarding a contract to make a will?

A It must be executed with the requisite testamentary formalities.

B The promisee must have provided sufficient consideration.

C If breached during the testator’s lifetime, the court will impose a constructive trust.

D It can be used to contest the probate of a will that is inconsistent with the terms of the contract.

Answer 27

B

A contract to make, not to make, or not to revoke a will is enforceable if the promisee provided sufficient consideration for the testator’s promise to name him as a will beneficiary. Without consideration, the testator’s promise is merely a promise to make a gift in the future and is unenforceable. Note that a promise to provide care to the testator in exchange for the testator’s naming the caretaker in her will is sufficient consideration, even if the testator dies before the caretaker has been able to provide much care. Although the usual requirements of a valid contract must be met, the contract is not a will and thus does not have to be executed with testamentary formalities. Likewise, it cannot be used to contest the probate of a will that is inconsistent with the terms of the contract. The properly executed will must be probated, but the usual remedy is for a court of equity to impose a constructive trust upon the appropriate beneficiaries under the will. There generally is no remedy, however, during the testator’s lifetime because a will is not effective (and thus there can be no “breach”) until death.

Question 28

A testator’s will bequeaths property “to my son if he survives me.” The son predeceases the testator and is survived by a wife and a daughter. The son’s will bequeaths all of his property to a charity. Who takes the testator’s property?

A The wife.

B The daughter.

C The charity.

D The testator’s residuary beneficiaries.

Answer 28

D

If a testator’s will bequeaths property “to my son if he survives me” and the son predeceases the testator, survived by a wife and a daughter and bequeathing all of his property to a charity, the testator’s residuary beneficiaries take the property. Nearly all states have anti-lapse statutes that operate to save a gift to a predeceased beneficiary if the beneficiary (i) was in a specified degree of relationship to the testator, and (ii) left descendants who survived the testator. The beneficiary’s descendants take by substitution under the anti-lapse statute; the gift does not pass to the beneficiary’s estate (e.g., pursuant to his will). In some states, the anti-lapse statute applies only when the predeceased beneficiary was a descendant of the testator. Other states and the Uniform Probate Code (“UPC”) extend the statute to the testator’s stepchildren, grandparents, and descendants of grandparents. All states include the testator’s children within the anti-lapse statute. Here, the testator’s predeceasing son left a surviving descendant (the daughter). Thus, if the anti-lapse statute were to apply, the daughter would take the property by substitution; neither the wife nor the charity would have any interest. However, the anti-lapse statute does not apply when words of survivorship are associated with the gift. Because the bequest was contingent on the son’s surviving the testator and the son predeceased the testator, the gift fails and passes to the testator’s residuary beneficiaries. (Note that words of survivorship are insufficient to negate application of the anti-lapse statute under the minority UPC rule.)

Question 29

If a testator bequeaths a bracelet to her daughter and subsequently sells the bracelet and uses the proceeds to buy a necklace, what does the daughter take at the testator’s death?

A Nothing.

B An amount equal to the value of the bracelet at the will’s execution.

C An amount equal to the value of the bracelet at the testator’s death.

D The necklace.

Answer 29

A

If a testator bequeaths a bracelet to her daughter and subsequently sells the bracelet and uses the proceeds to buy a necklace, the daughter takes nothing at the testator’s death. Under the doctrine of ademption, when specifically bequeathed property is not in the testator’s estate at death (e.g., it was destroyed, sold, given away, or lost), the bequest is adeemed; i.e., it fails. A specific bequest is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described. In contrast, ademption does not apply to general or demonstrative legacies. Here, ademption operates because the testamentary disposition was of a bracelet (a particular item of property), and the testator did not own a bracelet at her death. The necklace cannot be substituted.

Question 30

Which of the following statements is true regarding a surviving spouse’s elective share?

A The elective share is in lieu of any bequests under the decedent’s will.

B The elective share is in lieu of the family allowance and exempt personal property.

C The elective share is calculated from the decedent’s probate estate.

D If the spouse dies before making the election, the spouse’s personal representative may make the election.

Answer 30

Which of the following statements is true regarding a surviving spouse’s elective share?

A The elective share is in lieu of any bequests under the decedent’s will.

B The elective share is in lieu of the family allowance and exempt personal property.

C The elective share is calculated from the decedent’s probate estate.

D If the spouse dies before making the election, the spouse’s personal representative may make the election.

Question 31

At the time a testator executes his will, the testator and his spouse have one child, a son. The will leaves all of the testator’s property to his spouse. Subsequently, the testator and his spouse adopt a daughter. If the testator dies without having revised his will and survived by his spouse, son, and daughter, how should the estate be distributed?

A One-third each to the spouse, the son, and the daughter.

B One-half each to the spouse and the daughter.

C All to the spouse.

D One-half each to the spouse and the son.

Answer 31

C

The spouse should take the entire estate under the will. A testator may disinherit his children, but the pretermitted child statute protects children from being accidentally omitted from the will. Under the statute, a child born or adopted after the will was executed takes an intestate share of the decedent’s estate. However, the omitted child will not take a share if: (i) it appears from the will that the omission was intentional; (ii) at the time the will was executed, the testator had other children and devised substantially all of his estate to the other parent of the omitted child; or (iii) the testator provided for the omitted child by a transfer outside of the will that was intended to be in lieu of a testamentary gift. Here, the testator had a son when he executed a will bequeathing all of his property to his spouse. Although there is no evidence that the daughter was intentionally omitted from the will or received a gift during the testator’s lifetime, because the daughter’s other parent was the sole beneficiary of the testator’s estate, the daughter will not take an intestate share. Thus, the spouse takes the entire estate.

Question 32

To have mental capacity to make a will, a testator must understand each of the following EXCEPT:

A The nature of her property.

B The nature of her surroundings.

C The persons who are the natural objects of her bounty.

D The nature of her act.

Answer 32

B

To have mental capacity to make a will, the testator must have sufficient capacity to be able to understand: (i) the nature of her act (that she is executing a will), (ii) the nature and extent of her property, (iii) the persons who are the natural objects of her bounty, and (iv) the nature of the disposition she is making. Although it may be evidence of lack of capacity if the testator is unaware of her surroundings, there is no requirement that she understand that fact.

Question 33

The capacity required for making a will is a ____________________ standard of capacity than that required to make a contract, and is measured at the ____________________.

A Higher; making of the will.

B Higher; time of death.

C Lower; making of the will.

D Lower; time of death.

Answer 33

C

The capacity required for making a will is a lower standard of capacity than that required to make a contract, and is measured at the making of the will. In most states, a person must be 18 years of age or older and have the requisite mental capacity to make a will. To have mental capacity to make a will, the testator must have sufficient capacity to be able to understand: (i) the nature of her act (i.e., that she is executing a will), (ii) the nature and extent of her property, (iii) the natural objects of her bounty, and (iv) the nature of the disposition she is making. Capacity is measured as of the date of execution of the will, not as of the date of death. Evidence of the testator’s state of mind at the time of execution as well as shortly before and after is admissible to establish capacity. The fact that the testator was very old, physically frail or ill, possessed a failing memory, or was a habitual drinker or addicted to drugs does not mean that she lacked the requisite capacity. Likewise, an adjudication of insanity is not conclusive proof that the testator lacked capacity; it is merely evidence that can be overcome by showing that the testator met the above standards.

Question 34

A beneficiary who contests a will with a no-contest clause:

A Does not forfeit her bequest, because no-contest clauses are invalid.

B Does not forfeit her bequest if the challenge is unsuccessful but was brought in good faith and based on probable cause.

C Forfeits her bequest if the challenge is unsuccessful even if it was brought in good faith and based on probable cause.

D Forfeits her bequest, regardless of whether the contest is successful, because the contest itself triggers forfeiture.

Answer 34

B

A beneficiary who contests a will with a no-contest clause does not forfeit her bequest if the challenge is unsuccessful but was brought in good faith and based on probable cause. Thus, the contest itself does not trigger forfeiture unless the court finds that no reasonable grounds existed for contesting the will (i.e., it was a suit designed to provoke a settlement). Whether the beneficiary had probable cause is a question of fact. If the contest is successful and the will is denied probate, there is never forfeiture because the no-contest clause is tossed out along with the will. Note that suits objecting to the court’s jurisdiction, challenging the appointment of an executor, and asking the court to construe the will are not will contests within the meaning of most no-contest clauses.

Question 35

Which of the following represents the type of mistake for which a court will receive extrinsic evidence and grant relief?

A
Reacting to a bitter disagreement with his sister Sally, the testator directs his attorney to draft a new will reducing his sister Sarah’s legacy, and the testator subsequently executed the new will.

B
Reacting to an anonymous and untrue post on the Internet, the testator executes a codicil revoking all bequests his will made to his brother.

C Believing his favorite niece is dead, the testator executes a will that does not mention the niece and leaves everything to his best friend.

D
Believing the will document was a durable power of attorney, the testator signed it and then signed the durable power of attorney believing it was his will.

Answer 35

D

Extrinsic evidence is admissible to show that the testator was unaware of the nature of the instrument he signed. This mistake relates to the issue of whether the testator had the requisite testamentary intent when the will was executed. (A) is incorrect because extrinsic evidence is not admissible to show that a provision contained in the will is not what the testator intended. Here, it looks like the testator probably intended to reduce Sally’s legacy, not Sarah’s. His directions to the attorney were clear, and this provision was not a result of a drafting error. Moreover, a competent testator is presumed to know the contents of a testamentary instrument he has signed, unless a set of circumstances exists that casts suspicion on the issue. Thus, extrinsic evidence will not be admitted to show that the testator really intended to reduce to Sally’s legacy. (B) is incorrect because there is no relief for mistakes involving the reasons the testator made the will or a particular gift. (C) is incorrect for the same reason. Some courts apply an exception if the mistake appears on the face of the will. There is also an exception under the UPC that allows evidence if the testator mistakenly believes his child dead. Here, the choice states that the testator’s niece (not his child) is not mentioned in the will, so the mistake cannot appear on the face of the will and no exceptions would apply.

Question 36

Which of the following transfers is most likely to be considered a testamentary transfer that must comply with the requisite will formalities in order to be enforceable?

A A contract that disposes of property upon the promisor’s death.

B A deed deposited in escrow with delivery conditioned upon the grantor’s death.

C A joint bank account.

D A Totten trust.

Answer 36

A

A contract that disposes of property upon the promisor’s death is a testamentary transfer that must comply with the requisite will formalities in order to be enforceable. A deed deposited in escrow with delivery conditioned upon the grantor’s death may be a valid nontestamentary transfer. Likewise, a joint bank account “with right of survivorship” is generally held effective to give the survivor the absolute right to all of the money outside the probate process. However, extrinsic evidence may be admissible to show that the dead depositor did not intend a gift to the survivor, and that the account was only a convenience for paying the depositor’s bills. A Totten trust is a deposit of money in the depositor’s own bank account in trust for another person. Such a transfer creates a valid revocable trust, a nontestamentary transfer, even though the depositor retains complete control over the account during her lifetime and the transfer is complete only upon her death. The trust is revoked to the extent of withdrawals made by the depositor before her death, may be revoked by the depositor’s will, and is reachable by the depositor’s creditors during her lifetime.

Question 37

If a lifetime gift is deemed an advancement, which of the following statements is true?

A
The advancee’s share of the estate is considered satisfied regardless of advancement amount.

B
The advanced amount is added back to the estate to calculate shares.

C
The advancee must reimburse the estate if the advancement exceeds his intestate share.

D
An advancement is deducted first from nonprobate assets.

Answer 37

B

If a lifetime gift is deemed an advancement, (i.e., it is determined to have been intended to be applied against an heir’s share of the decedent’s estate) the amount of the advancee’s gift is added back into the estate for the purpose of calculating the intestate shares of all of the heirs. The advanced amount is then deducted from the advancee’s share, but he need not return any excess. Advancements apply only to intestate distribution. Thus, an advancement would never affect distribution of nonprobate assets.

Question 38

An attesting witness who is also a beneficiary:

A
Is considered incompetent.

B
Voids a will if there is only one other disinterested witness.

C
Takes from the estate if she would have been an intestate heir.

D
Cannot take any property passing on the death of the decedent.

Answer 38

C

An attesting witness who is also a beneficiary takes if she (i) is one of three attesting witnesses, two of whom are disinterested, or (ii) would have taken if the will had not been admitted to probate, i.e. would have been an heir if the decedent died intestate or was granted a bequest under an earlier will. In the latter case, she would take the lesser of the legacy or her intestate share (or gift under the earlier will). If she fulfills neither requirement, her gift is void but the will is valid. The fact that an attesting witness is also a beneficiary never affects the validity of the will. The interested witness is still competent. Thus, (A) and (B) are incorrect. (D) is too broad. In addition to taking under the will if she is an heir or supernumerary, the witness can take property passing by intestacy, property passing by survivorship, insurance proceeds, and other property passing outside of the decedent’s will.

Question 39

A valid holographic will requires:

A
Material provisions in the testator’s handwriting.

B
The date of execution.

C
At least one attesting witness.

D
The testator’s signature at the end.

Answer 39

A

A valid holographic will requires that all of the material provisions are wholly in the testator’s handwriting. (Note that most states that recognize holographic wills as well as the UPC will accept a will containing some typewritten text as long as those portions are not material, i.e. they may be disregarded without violating the testator’s intent.) A holographic will has no attesting witnesses and does not require a date. The will must be signed by the testator, but the signature can appear anywhere on the instrument. It need not be signed at the end. Note that holographic wills, like attested wills must be intended to be a will. If the document merely contemplates making a will in the future, it cannot be probated as a holographic will.

Question 40

A presumption of undue influence arises:

A
Anytime a beneficiary and testator are in a confidential relationship.

B
When the beneficiary is the testator’s doctor, and the doctor recommended an attorney to prepare the will.

C
When the beneficiary is the testator’s spouse and took the beneficiary to the attorney’s office to have the will drafted.

D
When the beneficiary is the testator’s child, and the testator’s other children are excluded from the will.

Answer 40

B

A presumption of undue influence arises, shifting the burden of proof to the proponent, when: (i) a confidential relationship existed between the testator and beneficiary, and (ii) the beneficiary participated in a significant activity related to the execution of the will, such as procuring or drafting the will. A confidential relationship is one in which one person relied heavily upon and placed more than a normal amount of confidence in, another. Doctor-patient, attorney-client, and priest-penitent are recognized confidential relationships. Thus, if the testator’s doctor is will beneficiary and recommends the lawyer to draft the will (i.e., participates in procuring the will), a presumption of undue influence will arise. (A) is incorrect because there must be significant activity related to the execution of the will. (C) is incorrect because a presumption of undue influence does not automatically arise between spouses even though they are in a confidential relationship. For the influence to be undue, the spouse must have exerted influence over the testator in such a manner that it overpowered the free will of the testator and resulted in a disposition reflecting the desires of the spouse exerting the influence. (D) is incorrect because a parent-child relationship is not considered a confidential one unless there is evidence of an unusual amount of trust and reliance placed on the parent or child (e.g., when the child is a parent’s caretaker).