Wills (testate succession)

Question 1

Age to be able to create a will

Answer 1

18

Question 2

Mental capacity to make a will

Answer 2

At time will is executed, a testator must be able to know and understand the consequence of his act. A testator is not rendered incapable of making a will by mere physical weakness or disease, old age, blunt perception, or failing mind and memory, if he is able to know and understand what he is doing.

The capacity to make a trust is the same as making a will.

Less mental capacity is required to make a will than to carry on business transactions generally or make contracts or deeds, and a person who is competent to transact ordinary business is generally regarded as competent to make a will.

Question 3

Mental capacity timing

Answer 3

Evidence of incapacity within a reasonable time before and after is relevant and admissible insofar as it tends to show mental condition at the time of execution of the will

Question 4

Four-part test for capacity

Answer 4

To be competent to make a will, the testator must be capable of knowing and understanding in a general way:

(1) the nature and extent of his or her property;
(2) the natural objects of his or her bounty;
(3) the disposition that he or she is making of that property; and
(4) must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of his or her property

Question 5

Burden of proof with incapacity

Answer 5

The burden of proving incapacity rests on the person challenging the validity of the will.

Question 6

Insane delusion

Answer 6

Definition: a false conception of reality.

A person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected all or part of the will.

Question 7

Insane delusion rule in Tennessee

Answer 7

If there is ANY evidence to support the testator’s delusion, it is not insane

Question 8

Lucid Interval

Answer 8

A person who lacks sufficient mental capacity generally but at the time of execution has a lucid interval thus rendering him or her competent.

A will made by an insane person may be valid if made during a lucid interval.

Question 9

Undue Influence - Definition

Answer 9

Undue influence exists where there has been a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.

Question 10

Undue Influence - Burden and Elements

Answer 10

To establish undue influence, the contestants, who have the burden of proof, must establish that:

(A) Influence was exerted on the testator;

(B) The effect of the influence was to overpower the mind and free will of the testator; and

(C) The product of the influence was a will that would not have been executed but for the influence.

Question 11

Most likely way to prove undue influence

Answer 11

In most cases, the contestants establish undue influence by proving the existence of suspicious circumstances warranting the conclusion that the will was not the testator’s free and independent act.

Question 12

Suspicious circumstances most likely to be relied upon in proving undue influence

Answer 12

(1) the existence of a confidential relationship between the testator and the beneficiary;
(2) the testator’s physical or mental deterioration; and
(3) the beneficiary’s active involvement in procuring the will.

Question 13

Other recognized suspicious circumstances in proving undue influence

Answer 13

(1) secrecy concerning the will’s existence;
(2) the testator’s advanced age;
(3) the lack of independent advice in preparing the will;
(4) the testator’s illiteracy or blindness;
(5) the unjust or unnatural nature of the will’s terms;
(6) the testator being in an emotionally distraught state;
(7) discrepancies between the will and the testator’s expressed intentions; and
(8) fraud or duress directed toward the testator

Question 14

Undue Influence - Presumption

Answer 14

The existence of a confidential relationship, together with evidence that the beneficiary had a role in procuring the will, triggers a presumption of undue influence.

Question 15

Undue Influence - examples of confidential relationships

Answer 15

Attorney-Client

Trustee-Beneficiary

Attorney-in-Fact (Power of Attorney) and Principal

Health Care Worker and Patient

Question 16

Undue Influence - rebutting the presumption

Answer 16

The presumption of undue influence can be overcome only by clear and convincing evidence of the fairness of the transaction.

Question 17

Bequests to Attorneys

Answer 17

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

Question 18

Fraud - Definition and types

Answer 18

Definition: The testator is deceived by a misrepresentation and does that which the testator would not have done had the misrepresentation not been made.

Types:

Fraud in the Execution (or Factum)

Fraud in the Inducement (or Treaty)

Question 19

Duress - Definition and Burden

Answer 19

Definition: when a person threatens to do or does some wrongful act that coerced the testator to make a bequest the testator would not otherwise make.

Burden: The person challenging the will has the burden of proving fraud and duress.

A will is void if its execution is procured by undue influence, fraud, or duress. If only part of a will was so procured and it can be separated from the rest of the will, only that part is void and the remainder of the will is valid.

Question 20

Types of wills Tennessee recognizes

Answer 20

Formal (Attested) Wills (All States)

Holographic Wills (Majority)

Noncupative (Oral) Wills (Minority)

Question 21

Required formalities for wills

Answer 21

(1) writing
(2) signed by the testator
(3) attested by witnesses

Question 22

Number of witnesses required

Answer 22

2

Exception: oral wills

Question 23

Evidence of integration

Answer 23

This doctrine addresses the question of which sheets of paper, present at the time of execution, were intended to be part of the will. Evidence of Integration would include:

Stapling or other Fastening

Page Numbering

Initialing

Consistency

Question 24

Manner of execution - witnesses to the will

Answer 24

The testator must signify to the attesting witnesses that the document is his will and either:

• The testator sign;
• acknowledge the testator’s signature already made; or
• At the testator’s direction and in the testator’s presence have someone else sign the testator’s name; and
• in any of the above cases the act must be done in the presence of two (2) or more attesting witnesses.

The attesting witnesses must sign:

(a) in the presence of the testator; and
(b) in the presence of each other.

Question 25

Competency of witnesses

Answer 25

Any person competent to be a witness generally in this state may act as attesting witnesses to a will.

The will must have two disinterested witnesses (meaning they don’t get anything from the will). Having an interested witness doesn’t kill the will, but you would need two additional ones who are disinterested.

An interested witness would forfeit their share under the will

A witness is interested only when he receives some personal and beneficial interest from the will

Question 26

Attestation clause

Answer 26

Purpose: the attestation clause makes out a prima facie case that the will was duly executed. As a result, the will may be probated even though the witnesses are unavailable or attempt to contradict proper execution. Not required, but suggested.

Example:

On the date written above, Michelle A. Smith, known to us to be the person whose signature appears immediately above, declared to use, the undersigned, that the instrument was her will. She then signed the will in our presence, and at her request, in her presence and in the presence of each other, we now sign our names as witnesses.

Question 27

Self-proving affidavit - purpose and types

Answer 27

Purpose: After the testator’s death the executor must establish that the will was duly executed. This is often accomplished by calling one or more of the subscribing witnesses to testify in court. A self-proving affidavit may substitute for the trial testimony of the subscribing witnesses.

Types:
• One Step (executed with the will)
• Two Step (executed after the will

Question 28

Tennessee law on self-proving affidavits

Answer 28

Witnesses may make an affidavit stating what they would be required to testify in court.

Affidavit should be written on the will or attached to the will.

When the will is probated (and not contested) it will be accepted as though it had been taken before the court.

Question 29

Safekeeping of will - deposit with circuit court

Answer 29

Testator may deposit the will with a circuit court for a $5 fee.

Will should be in writing, enclosed in a sealed wrapper, and be endorsed with the testator’s name, address, social security or driver’s license number (if any), and the day when it was delivered and person who delivered it.

Question 30

Tennessee law on oral wills

Answer 30

A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:

(1) Declared to be the testator’s will by the testator before two (2) disinterested witnesses;
(2) Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and
(3) Submitted for probate within six (6) months after the death of the testator.

Question 31

Amount of money that can be distributed in an oral will in Tennessee

Answer 31

The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000).

Question 32

Effect of oral will on previous written wills

Answer 32

A nuncupative will neither revokes nor changes an existing written will.

Question 33

Proof for oral wills

Answer 33

Cannot be proven until 14 days after the death and not until process to allow the spouse/next of kin to contest it.

If the spouse/kin cannot be found, notice must be published in a local newspaper/mailed to them if their address is known.

Question 34

General rule with failure to comply with will formalities

Answer 34

Invalid will (intestacy)

Exceptions: reformation, harmless error (substantial compliance and dispensing power), or saving the will as a holographic will

Question 35

Reformation

Answer 35

Definition: Equitable power of courts to rewrite legal documents (e.g. contracts, deeds) so as to reflect the parties’ true intent. In most jurisdictions (including Tennessee), clear and convincing evidence of fraud or mistake is necessary to reform a legal document.

Use: Courts are reluctant to reform wills. When reformation is used, it is usually limited to deleting provisions (as opposed to adding provisions).

Question 36

Holographic wills - Witnesses

Answer 36

No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two (2) witnesses.

Question 37

Holographic will execution formalities

Answer 37

(1) Testamentary intent
(2) Signed by the testator
(3) In the testator’s handwriting (the signature and “material provisions”)
(4) Dated (may not be required, but suggested)
(5) Proof at trial

Question 38

Actions revoking a will (subsequent will or codicil)

Answer 38

Actions resulting in revocation – A will or any part thereof is revoked by:

(1) a subsequent will, other than a nuncupative will, that revokes the prior will or part expressly or by inconsistency;
(2) Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will that revokes the prior will or part expressly

Question 39

Ways that express or partial revocation can happen with a subsequent will/codicil

Answer 39

Complete revocation

partial revocation

Question 40

Effect of losing a will & what proponent of the lost will must show

Answer 40

The fact that a will cannot be found after a due and proper search raises a presumption that the testator himself destroyed the will.

To establish that a will was not intentionally destroyed, the proponent of a lost will must show

(1) the fact that the will was executed in accordance with the forms of law,
(2) the substance or contents of the will, and
(3) that the will has not been revoked. Each element must be proven by the clearest and most stringent evidence, or by clear, cogent and convincing proof.

Question 41

Rules of construction - revocation

Answer 41

The law presumes that one who undertakes to make a will does not intend to die intestate

The function of the court in construing a will is to determine the intent of the testator and, if the testator’s intention can be determined, to implement it.

Under the law, revocation clauses are not ambulatory and, unlike the other provisions of a will, are effective upon execution. Therefore, when a testator duly executes a will containing an express revocation clause, all prior wills are instantly revoked.

Question 42

Tennessee revocation law

Answer 42

(1) A subsequent will, other than a nuncupative will, that revokes the prior will or part expressly or by inconsistency;
(2) Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, that revokes the prior will or part expressly;
(3) Being burned, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking it, by the testator or by another person in the testator’s presence and by the testator’s direction.

Question 43

Doctrine of Dependent Relative Revocation - Purpose

Answer 43

If a testator purports to revoke his or her will (or part thereof) upon a mistaken assumption of law or fact, the revocation is ineffective if the testator (presumably) would not have revoked his or her will (or part thereof) had the testator known the truth.

Question 44

Doctrine of Dependent Relative Revocation - Elements

Answer 44

(1) the testator revokes his or her will (or part thereof)
(2) the testator had an alternative plan of disposition that failed because of a mistake of law or fact
(3) the revoked will reflects the testator’s true intent (i.e., alternative plan) better than intestacy (or other disposition)

Question 45

Doctrine of Dependent Relative Revocation - Rule in Tennessee

Answer 45

The mere act of revocation of a subsequent inconsistent or revocatory will does not of itself revive a former will and creates no presumption for or against revival, but the question to be determined from all the facts and circumstances is the intention of the testator.

Question 46

Integration definition

Answer 46

All writings present at the time of execution, intended to be part of the will, are integrated therein.

Question 47

Republication by Codicil

Answer 47

A will is treated (for all purposes, including incorporation by reference, integration, interested witnesses, omitted spouses, and pretermitted children) as re-executed as of the date of the most recent duly executed codicil.

Question 48

Republication by Codicil - Minority Rule in Tennessee

Answer 48

A properly attested codicil is a republication of a will that had only one subscribing witness [which was valid for personal property but not real property], and thus cures the defect in the will.

Question 49

Incorporation by reference doctrine

Answer 49

Testators have the power to incorporate other pre-existing, written documents into their wills via the incorporation by reference doctrine.

The decedent must properly identify and not evade provisions of the statute of wills requiring an attested writing, since the separate writing is considered a part of the will.

If the court determines it is the intent of the decedent to incorporate the document, it becomes part of the will.

Question 50

Is a will a contract?

Answer 50

General Rule: No

Exceptions:

(1) Contract to make a will (or bequest)
(2) Contract not to revoke a will (or bequest)
(3) Contract to die intestate

Question 51

Contract to make a will - elements

Answer 51

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate can be established only by:

(1) Provisions of a will stating material provisions of the contract;
(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(3) A writing signed by the decedent evidencing the contract.

The execution of a joint will or mutual wills does not create a presumption of a contract to make a will, or to refrain from revoking a will.

Question 52

Latent ambiguity

Answer 52

A latent ambiguity exists when the language of the will, although clear on its face in describing a beneficiary or property, results in a misdescription when applied to the facts.

• Extrinsic evidence is admissible.
• If extrinsic evidence fails to resolve the ambiguity, the gift fails

Question 53

Patent ambiguity

Answer 53

A patent ambiguity exists when the uncertainty appears on the face of the will.

Common law and Tennessee: no extrinsic evidence, so gift fails.

Question 54

Lapse

Answer 54

Unless there is an antilapse statute, if the beneficiary does not survive the testator, the bequest fails.

Question 55

Elements of anti-lapse statutes

Answer 55

(1) Lapsed Bequest (i.e., beneficiary fails to “survive” testator)
(2) Specified Degree of Relationship Between the Testator and the Deceased Beneficiary
(3) The Deceased Beneficiary Left Issue Who “Survive” the Testator

If all three elements are satisfied, the deceased beneficiary’s issue are substituted (and take by representation) for the deceased beneficiary.

Question 56

Lapse of residuary bequests

Answer 56

If the residue of the decedent’s testamentary estate or the residue of a revocable trust created by the decedent that becomes irrevocable at the settlor’s death is devised to two (2) or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to the other residuary devisees, in proportion to the interest of each in the remaining part of the residue, unless the decedent’s will or trust agreement.

Question 57

Tennessee elective share formula

Answer 57

Surviving Spouse’s Elective Share %

Multiplied by the Decedent Spouse’s “Net Estate”

Minus Property Passing to Surviving Spouse

Question 58

How the spouse’s elective share percent is determined

Answer 58

If the decedent and the surviving spouse were married to each other less than three years, the elective share percentage is 10%

Three years but less than six years, 20%

Six years but less than nine year, 30%

Nine years or more 40%

The number of years persons are married to the same person shall be combined. The years do not have to be consecutive, but may be separated by divorce. All years married shall be counted toward the total number of years.

Question 59

Determining the net estate for elective share

Answer 59

The value of the net estate includes all of the decedent’s real property… and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession, reduced by the following:

• secured debts to the extent that secured creditors are entitled to realize on the applicable collateral,
• funeral and administration expenses, and
• award of exempt property, homestead allowance and year’s support allowance.

The net estate does not include any assets over which the decedent held a power of appointment, whether exercised or not, unless the decedent exercises the power of appointment to direct the assets to be paid to the decedent’s personal representative for administration as part of the decedent’s probate estate.

Question 60

Net Estate Fraud - elective share

Answer 60

Any conveyance made fraudulently to children or others, with an intent to defeat the surviving spouse of the surviving spouse’s distributive or elective share, is, at the election of the surviving spouse, includable in the decedent’s net estate under § 31-4-101(b), and voidable to the extent the other assets in the decedent’s net estate are insufficient to fund and pay the elective share amount payable to the surviving spouse.

Question 61

Net Estate Fraud - Elective Share - Factors

Answer 61

(1) whether the transaction was made with or without consideration,
(2) the size of the transfer in relation to the [decedent’s] total estate,
(3) the time between the transfer and the [decedent’s] death,
(4) relations which existed between the [decedent] and the [surviving spouse] at the time of the transfer,
(5) the source from which the property came,
(6) whether the transfer was illusory, and
(7) whether the [surviving spouse] was adequately provided for in the will.

These factors should not be applied mechanically, but rather, “the weight and significance to be given to each factor [will depend upon] the facts of each particular case.”

Question 62

Net Estate Reduction - Elective Share

Answer 62

The amount payable to the surviving spouse by the estate is reduced by the value of all assets includable in the decedent’s gross estate that were transferred, or deemed transferred, to the surviving spouse or that were for the benefit of the surviving spouse, but excluding the homestead allowance, exempt property and year’s support allowance.

Question 63

Prenuptial Agreement - Elective Share

Answer 63

Any prenuptial agreement concerning property owned by either spouse before the marriage is binding if the agreement was entered into freely, knowledgeably and in good faith and without exertion of duress or undue influence. The terms of such agreement shall be enforceable by all remedies available for enforcement of contract terms.