Wills (Smart sheets)

Question 1

Intestate Succession

Answer 1

Any property not passing by a valid will or by operation of law is governed by a State’s
applicable intestacy statute.

Typical Intestate Succession Rules

If Decedent:
− Leaves only a surviving spouse → spouse will
receive the entire estate.

− Leaves a surviving spouse and issue:
▪ Most States → spouse and issue will
each receive certain %.
▪ UPC → spouse receives the entire
estate if ALL issue are from that spouse.

− Does NOT leave a spouse → decedent’s issue.

− Does NOT leave spouse or issue → surviving
parents.

▪ If no surviving parents → issue of
parents (siblings & their issue).

Distribution of Assets (Most States & UPC) → Assets pass by the Per Capita at Each Generation approach.

Question 2

Validity of a will

Answer 2

A will is valid if it complies with the
applicable State law.
UPC → a written will is valid if complies with the law of the place:
a) where executed; OR
b) of testator’s domicile, abode, or nationality at
the time of (i) death or (ii) signing the will.

Question 3

Will execution formalities

Answer 3

A will is valid if the specific State law formalities are followed.

Most States → Requires that a will be:
(1) in a writing,
(2) signed by the testator, AND
(3) witnessed by at least 2 individuals.

UPC → Requires that a will be:
1) In writing;
2) Signed by the testator (or by someone in
testator’s presence and by testator’s direction);
AND
3) Either: (a) signed by at least 2 witnesses
(within a reasonable time after witnessing
testator sign the will); or (b) notarized.

When Witnesses Sign “Within Testator’s Presence”:
Majority View & UPC → if within the range of the
testator’s senses.
Minority View → if within the testator’s line of sight.

Question 4

Strict and substantial compliance

Answer 4

Common Law → Will is INVALID if it does not meet State law requirements.

Some States → Will is VALID if decedent substantially complied with requirements.

Question 5

UPC harmless error

Answer 5

UPC Harmless Error Rule → An improperly executed
will is valid if:
1) proven by clear and convincing evidence; AND
2) that decedent intended the writing to be his will

Question 6

Doctrine of integration

Answer 6

A document will be integrated
into a will if the Testator:
1) intended it to be part of the will; AND
2) the document was physically present at the
will’s execution.
*May be proven by extrinsic evidence or witness
testimony.

Question 7

Interested witnesses

Answer 7

Common Law → A will must be witnessed by 2 disinterested witnesses (not receiving a benefit under the will).
Modern View (All States) → A will is VALID even if witnessed by an interested witness.
− *BUT, the gift to that witness is purged unless:
a) the interested witness is an heir – gift is
reduced to lesser of (i) intestate share or
gift under prior will, or (ii) gift under
current will); OR
b) if another disinterested witness was
present so that there were still 2
disinterested witnesses.

Question 8

Codicil

Answer 8

an instrument made after a will is executed
that modifies, amends, or revokes a will.
− To be valid it MUST satisfy the same will
execution formalities.
− If a codicil republishes a will → the will is
deemed executed on the same date as the
codicil.
− It CANNOT republish an invalid will (but it can
cure an interested witness issue).

Question 9

Holographic will

Answer 9

is a handwritten will (or alteration
to a will) that is NOT WITNESSED.
− Only some states recognize holographic wills.
Those states require the writing to be subscribed by the testator (signed at the end).
− In states that recognize holographic wills, a valid holographic codicil revokes an earlier will (to the extent it conflicts).

Question 10

Incorporation by reference

Answer 10

A bequest through an unattested memorandum is valid if it meets requirements of incorporation by reference.

Most States → A document or writing will be incorporated by reference if:
1) It was in existence at the time the will was executed;
2) It was sufficiently described in the will; AND
3) Testator intended to incorporate it into the will.

UPC → A bequest of tangible personal property (other than money) will be incorporated if:
1) signed by testator; AND
2) the item & devisees are described with
reasonable certainty.

*The document DOES NOT have to be in existence at the time of will execution.

Question 11

Acts of independent significance

Answer 11

are acts or events
with significance outside of the will-making process.
− Can be used to fill in any gaps of a will.

Question 12

Revocation by physical act

Answer 12

will is revoked by physical act if:
1) the testator intended to revoke the will; AND
2) it is burned, torn, destroyed, or cancelled by the testator (or someone at his direction).

Question 13

Words of cancellation

Answer 13

Common Law → words of cancellation are valid ONLY IF they come in physical contact with the cancelled words of the will (i.e. written over).

UPC → words of cancellation are valid written anywhere on the will (no physical contact is required).

Question 14

Revocation by subsequent will or codicil

Answer 14

Testator may revoke a will by executing a subsequent will or codicil.
− BUT, the revocation is valid only to the extent that the previous will conflicts with the new will UNLESS the new will expressly revokes the previous will in its entirely.

Question 15

Dependent relative revocation doctrine

Answer 15

Cancels a previous revocation that was made under a mistaken belief of law or fact.
− Applies when → Testator would NOT have
revoked the original will or bequest but for the mistaken belief that another will he prepared would be valid.
− Courts typically apply doctrine only when there’s a sufficiently close identity to the revoked bequest & the bequest in the invalid subsequent will.

Question 16

Revival of an earlier will

Answer 16

Common Law → Automatically revived if a subsequent will was revoked.
Modern View → Revival permitted only when:
a) Will is revoked by physical act and testator intended its revival; OR
b) Will is revoked by a subsequent instrument and that will is later republished by a subsequent will or codicil.
UPC → Automatically revived BUT ONLY IF the will was partially revoked by a subsequent instrument (unless no testator intent to revive).

Question 17

Contractual wills

Answer 17

contracts to execute mutual wills
are enforceable.
− To be enforceable → it MUST expressly state that the parties intend their wills to be a binding contract. There must be a specific reference to the contract on which the joint wills are based.
− If breached → court will impose a Constructive Trust in favor of original intended beneficiaries.
*The execution of joint will or mutual wills DOES NOT create a presumption of a contract not to revoke a will.

Question 18

Will speaks at death

Answer 18

A will takes effect and is construed at the time of testator’s death.
− For distribution purposes, the will is treated as if it was executed immediately before the death.
− A beneficiary listed in a will DOES NOT have any interest in the estate property prior to the testator’s death.

Question 19

Per capita at each generation

Answer 19

Steps to divide assets:
1) Divide the estate into as many equal shares as
(i) surviving descendants in the nearest
generation, and (ii) deceased descendants in
that same generation who left surviving issue (if any).
2) Each surviving descendant in the nearest
generation is allocated one equal share.
3) Remaining shares (if any) are combined and then divided in the same manner among the surviving issue of the next generation of
descendants.
4) Repeat for each generation until all assets are distributed.

Question 20

Modern per stripes (per capita by representation)

Answer 20

Steps to divide assets:
1) Divide the estate into as many equal shares as
(i) surviving issue in the nearest generation, and
(ii) deceased descendants in that same
generation who left surviving issue (if any).
2) Each surviving descendant in the nearest
generation is allocated one share.
3) Remaining shares of each deceased member of that generation (who leaves surviving issue) drop down and are divided in the same manner among their then living issue.

Question 21

Per stirpes

Answer 21

Each family branch gets an equal share.
Steps to divide assets:
1) Start with the first generation of takers.
2) Each living and non-living person in that
generation is entitled to one share.
3) Each share going to a non-living taker (with issue) drops down and is split equally among their living & non-living children (with surviving issue).
4) Repeat for each generation until all assets are distributed.

Question 22

Residuary clause

Answer 22

Is a clause that instructs how to
transfer assets not specifically mentioned in a will or trust.
− If no valid residuary clause exists → Any
undisposed-of-property passes by Intestacy.

Question 23

Generically described property

Answer 23

Applies to property owned at the time of the decedent’s death matching the description in the will (i.e. a gift of “my boat”).
− The gift applies to whatever item is owned at the time of testator’s death regardless of the specific item owned when the will was executed (i.e. a different model boat).

Question 24

Ambiguity

Answer 24

When a will is ambiguous, courts allow extrinsic evidence to resolve the ambiguity.
− The court may receive any competent evidence that bears on the testator’s intent.

Question 25

Advancements / Satisfaction

Answer 25

Common Law → Gift to heirs during testator’s lifetime were considered advancements on that heir’s intestate
share of the estate.
− The amount of the gift would be deducted from the heir’s share of the estate.

Most States → NOT deemed an advancement unless:
a) the will provides for a deduction; OR
b) a writing indicated that the property was in satisfaction of a devise or that its value will be deducted from the value of devise.
UPC → Deemed an advancement if:
a) There was a contemporaneous writing to that effect; OR
b) The heir acknowledged it in writing.

Question 26

Simultaneous Death (RUSDA)

Answer 26

RUSDA → If no proof by clear and convincing evidence that one person survived the other by 120 hours (5 days), then the property is distributed as if that person predeceased the other person.
− It’s presumed that each person outlived the other when distributing assets.
− When property is held as joint tenants → rights of survivorship are severed, and the property passes as if held by tenancy in common.

*RUSDA = Revised Uniform Simultaneous Death Act

Question 27

Residue of residue approach

Answer 27

Common Law → No residue of a residue rule.
− Any residuary shares of a decedent’s estate
found invalid would pass via intestacy.
Modern View → Invalid residuary shares of a
decedent’s estate go to the other residuary
beneficiaries.
− BUT, this rule only applies if an anti–lapse
statute does not create a substitute taker for a beneficiary who fails to survive the testator.

Question 28

Conditions that prohibit marriage / require divorce

Answer 28

The following trust/will provisions are VOID against public policy:
a) prohibiting a first marriage; and/or
b) requiring a divorce.
*Will be treated as if the restriction was not imposed.
BUT, a restraint on marriage will be upheld if:
a) it’s a restraint on re-marriage; OR
b) the purpose is to take care of a person’s daily needs until they are able to obtain such support through marriage.

Question 29

Lapsed gifts & Anti lapse statutes

Answer 29

Common Law → All gifts in a will were conditioned on the beneficiary surviving the testator.

Anti–Lapse Statute → A lapsed gift will vest in the issue of a predeceased beneficiary if:
1) that beneficiary is a specified descendant of the testator (specified by statute); AND
2) the beneficiary leaves issue who survive the testator.

UPC → Anti-lapse rule applies to gifts to issue (i.e. children, grandchildren), stepchildren, grandparents, and grandparent’s issue (i.e. siblings).

Question 30

Ademption

Answer 30

when a gift fails by extinction.

Common Law → A specific gift adeems if it cannot be identified or is not owned at the time of testator’s death (intent is irrelevant).

Most States & UPC → A specific gift is adeemed ONLY IF the testator intended the gift to fail. If no intent, the beneficiary is entitled to:
a) any property acquired as a replacement for the specific gift; OR
b) a monetary devise equal to the value of the gift.

Question 31

Stock splits and dividends

Answer 31

A beneficiary of securities (stock) is entitled to any additional shares acquired by testator as a result of a stock split or dividend.

Question 32

Exoneration

Answer 32

Common Law → A specific devise of real property DID NOT pass subject to the mortgage, and the mortgage was paid from the estate.

Modern & UPC View → A devise of real property assumes the mortgage (unless specifically stated otherwise).

Question 33

Abatement

Answer 33

If the debts of the estate are greater than
the assets to cover all gifts made, the gifts will abate (be reduced).
− Creditors of the estate ALWAYS have priority to estate assets over the beneficiaries.

Order of Abatement:
1) Property passing by intestacy
2) Residuary gifts
3) General gifts
4) Specific gifts

*Each category must be fully abated before moving onto the next one. Abatement within each category is in proportion to the amount of property each beneficiary would receive.

Question 34

Slayer statutes

Answer 34

If a beneficiary feloniously and intentionally kills the decedent → he/she forfeits all gifts, benefits, and entitlements under a will or intestacy.
− A conviction after appeal is conclusive.
− May be based on a preponderance of evidence
proven during a probate or related court proceeding.
− Durable Health Care Directive → Withholding
medical treatment is NOT considered to be felonious and intentional.

Question 35

Disclaimer

Answer 35

Renouncing a legal right to inheritance.
An Effective Disclaimer MUST:
1) be declared in writing;
2) describe the interest or power disclaimed;
3) be signed by the person making the disclaimer; AND
4) be delivered or filed.

Timing:
Common Law → must be made within a reasonable time.

Some States → must be made within 9 months.

UPC → may be made at any time (so long as disclaimer is not barred – barred if a person accepts or transfers interest).

Question 36

If disclaimed, the property:

Answer 36

a) Passes according to the applicable terms of a will/trust (if any); OR
b) As if the person predeceased the testator (the gift lapses unless an anti–lapse statute applies).

Question 37

Testamentary provisions revoked upon divorce

Answer 37

In all States, a final divorce decree revokes bequests or appointments of property to a former spouse.

− Some States → revoked if divorce proceedings are pending.
*All revoked provisions are treated as if the former spouse predeceased the testator.

Generally, bequests and fiduciary appointments in favor of a former spouse’s relatives remain intact.
− Under the UPC → they are revoked upon
divorce.

Question 38

Types of gifts

Answer 38

Specific Gift = specifically identified.

General Gift = nonspecific, can be satisfied from any of the funds remaining in the estate.
− If it’s unclear whether general or specific → court considers testator’s intent.

Demonstrative Gift = a hybrid – it’s a general gift from a specific source that the gift should come from (i.e.
money from a specified bank account).

Gift of Stock Shares → may be general or specific (depending on language and intent).
− Specific Gift → if the testator owns the stock shares at the time of execution or if it’s stock in a closely held corporation.

Question 39

Class gifts

Answer 39

Is a gift to a group of persons described
collectively.
− Class generally closes when testator/settlor
dies.

− Rule of Convenience → class is closed when any member of the class is entitled to
possession of the gift.

The terms “children” or “issue” are interpreted in accordance with intestate succession rules.
− An adopted child inherits the same as a natural child.

Question 40

Gifts to predeceased class members

Answer 40

depends on the language used:
− If individual members are named (i.e. Tom,
Mary, & Joe”) → gift will lapse, unless an anti–
lapse statute applies.

− If named as a group → gift is divided among the other members (unless the will states otherwise or an anti-lapse statute applies).

Question 41

Inheritance rights of children

Answer 41

Generally, a child has NO inheritance rights if a parent leaves the child out of the will (except pretermitted children).

A child intentionally omitted from a will is NOT entitled to a share of decedent’s estate.
− BUT, if a portion of the will fails, then the child may still be entitled to their intestate share (unless the will intentionally disinherits the child).

Question 42

Legal definition of children

Answer 42

Common Law → only biological, full-blooded children were entitled to inherit.

Modern View → includes any child, including adopted children.
− Exception #1 → non-marital children inheriting from a father must establish paternity.
− Exception #2 → adopted-out children (a child given up for adoption) are generally NOT entitled to inherit.

Question 43

Inheritance by equitable adoption

Answer 43

child may be informally adopted through words or conduct.
− If a person takes a child in and assumes
parental responsibilities, equity holds the person as having formally adopting the child.
− Some States → also require that decedent had promised/agreed to adopt the child.

Question 44

Spouse’s elective share

Answer 44

Many states have enacted statutes giving a surviving spouse the right to take a statutory share of the deceased spouse’s estate (instead of taking under the will).

Amount of Elective Share → varies by state, and is typically one-third (1/3) of the net probate estate.

Net Probate Estate = Gross Probate Estate less Creditor Claims & Expenses (but not taxes).

− Some states include certain non-probate assets and lifetime transfers in the gross probate estate.
− Most states allow the spouse to claim their
elective share against assets of a revocable
trust. The elective share is in addition to any statutory family exemptions → family residence, exempt personal property, and family allowance.

Question 45

Pretermitted children

Answer 45

A child born or adopted AFTER the execution of a will is entitled to an intestate share of the estate UNLESS intentionally omitted from the will.

− Some States → a child is NOT entitled to a
share if decedent: (a) provided for the child
outside of the will; OR (b) left all (or substantially all) of the estate to the child’s other parent.

A child living at the time of execution is NOT entitled to a share UNLESS the child was omitted because decedent:
a) did not know of the child’s existence; OR
b) believed the child to be dead.

Question 46

Testamentary capacity

Answer 46

Testator must be capable of knowing and understanding the:
1) Nature and extent of his property;
2) Natural objects of his bounty (relatives/friends);
3) Disposition he is making; AND
4) Have the ability to connect above elements into a coherent plan.
*Mental capacity is presumed, unless proven otherwise.
*Appointment of a conservator or guardian does not automatically establish a lack of testamentary capacity.

Question 47

Undue influence

Answer 47

When a person exerts influence
that overcomes a testator’s free will and judgment.
− A will is invalid to the extent executed under undue influence

Question 48

Undue Influence is established when:

Answer 48

1) Testator had a weakness that made him
susceptible to influence (physical, mental,
financial);
2) Wrongdoer had access and opportunity to
exert the influence;
3) Wrongdoer actively participated in drafting the
will; AND
4) An unnatural (unexpected) result occurred.

Common Law Presumption → Undue Influence established if:
1) A confidential relationship (between testator and wrongdoer);
2) Wrongdoer actively participated in the drafting of the will; AND
3) An unnatural result occurred.

Question 49

Fraud (MIR)

Answer 49

Fraud is established when:
1) a person knowingly makes a material
misrepresentation of fact;
2) with intent to induce reliance; AND
3) induces reliance to the testator’s detriment.
*A will is invalidated to the extent affected by the fraud.

Two Types of Fraud:
Fraud in the Inducement → deceit regarding facts related to the instrument (i.e. property or beneficiaries).

Fraud in the Execution → deceit regarding nature of the document being signed (i.e. that the document was something other than a will).

Question 50

Standing to challenge a will

Answer 50

Standing exists if that person is an interested party with a financial interest.

− Person MUST be adversely affected → they
would take a greater portion if will is deemed invalid.

Question 51

No contest clause

Answer 51

Penalizes an interested person
for contesting the will or instituting other proceedings relating to the estate.

− Valid in Most States, BUT courts will not enforce the clause if probable cause exists for instituting proceedings to challenge a will.

A No-Contest Clause DOES NOT apply when:
a) A good basis for the challenge exists plus
either (a) fraud, or (b) a subsequent will
revoked the will being probated;
b) The contest is on behalf of a minor or
incompetent;
c) The contesting party alleges that the court does not have jurisdiction; OR
d) Merely asking the court to interpret/construe the will’s terms.

Question 52

Modification due to mistake

Answer 52

Most Courts → permit a modification to conform with the testator’s intent if there is clear and convincing evidence of a mistake.

UPC → court may modify a will if there is clear and convincing evidence of a mistake
EVEN IF it’s an unambiguous provision (but extrinsic evidence is not allowed).

Question 53

Joint bank account

Answer 53

Co-tenants of a joint bank account have a right of survivorship → automatic entitlement to the funds upon the death of the other person.
− Convenience Account Exception → the right of survivorship may be overcome by showing the account was set-up only for the convenience of the parties (i.e. to pay
someone’s bills).

Question 54

Life insurance beneficiary

Answer 54

Policyholder has the power to change
beneficiaries during their lifetime.
▪ Exception → Need beneficiary’s consent
if it’s an irrevocable beneficiary.
− A beneficiary change is generally NOT permitted through a will or testamentary instrument; it must be changed on the policy directly.

Question 55

Durable HCPOA

Answer 55

Gives a designated agent the power to make health care decisions in the event of the principal’s incapacity.

− Must be → (1) in a signed writing; AND (2)
witnessed or notarized.
− An agent’s power is NOT limited unless stated otherwise.

Question 56

Advanced Directive (living will)

Answer 56

Specifies the patient’s preferences for treatment or non-treatment in the event of the patient’s incapacity.

− Must be → (1) in a signed writing; AND (2)
witnessed or notarized.

Question 57

Insulation of agent’s liability

Answer 57

A person is insulated from civil & criminal liability for health-care decisions made in good faith under a Durable Health-Care Power of Attorney.

Question 58

Family consent laws

Answer 58

An adult may designate any individual to act as a surrogate to make decisions by
personally informing the supervising health care provider.

When NO designation is made, these family member(s) may act as surrogate when a patient lacks capacity (in order of priority):
1) spouse (unless legally separated)
2) adult child
3) parent
4) adult sibling
5) if none of the above → an adult who has
exhibited special care and concern, is familiar with patient’s personal values, and is readily available.

*If there are multiple members in the same class, then a majority must agree on a health-care decision.