Wills/Trusts Flashcards
What are the commonly recognized statutory exceptions allowing a beneficiary of a specific gift of property that is no longer a part of the estate to take?
(UPC): The beneficiary may take replacement property that is similar to the property specifically devised or bequested.
The beneficiary is entitled to any balance on the purchase price for the property still owed.
The beneficiary is entitled to condemnation award for real property or proceeds of insurance policy for destruction of property.
If the property was sold by a guardian/conservator of the testator, the beneficiary is entitled to the proceeds.
What is the CL rule regarding accession of specific gifts of stock?
The beneficiary receives the stock and additional shares as a result of stock splits, but NOT dividends.
What is the majority rule regarding accession of specific gifts of stock?
The beneficiary receives the stock, additional shares as a result of stock splits (NOT purchased), and dividends.
What are the elements of a valid trust?
(1) Settlor
(2) Intent
(3) Trust property
(4) Ascertainable beneficiaries (must be capable of being identified at the time their interests come into enjoyment)
(5) Trustee
(6) Valid Trust Purpose
What do states call a spendthrift trust created by the settlor for his own benefit?
A domestic asset protection trust (not allowed in most states)
What are the general requirements for a testator to execute a valid will?
Legal capacity, testamentary capacity, and testamentary intent
What must be established to show testamentary capacity of the testator?
That the testator had the capacity, at the time the will was executed, to understand…
1) The nature of the act
2) The general nature/extent of their property
3) The “natural objects of their bounty” (who their family members are)
4) An orderly scheme of disposition
What are the common formalities for the execution of a valid will required by state law?
The will must be in writing, signed by a testator or their proxy, signature must have been made in the presence of two competent attesting witnesses, the witnesses must sign the will in the testator’s presence
What is the “conscious presence” test?
The formality that the testator sign a will in the presence of witnesses and vice versa is satisfied if the parties sign the will with a general awareness and cognizance of other parties (contrast “scope of vision” test)
What is the UPC harmless error rule?
A will/codicil that does not comply with the required formalities will be considered valid if testamentary intent is established by clear and convincing evidence
What is a holographic will, and what is required for it to be considered valid?
A holographic will is a will in the testator’s handwriting, which must be signed by the testator to take effect
What are the grounds for showing undue influence to contest the validity of a will?
(1) Influence existed and was exerted
(2) Influence overpowered the mind and free will of the testator, such that the will reflects the desires of the person exerting influence and not the testator
(3) Resulting disposition would not have been executed but for the influence
What facts raise a presumption of undue influence?
There was a confidential relationship between a beneficiary and the testator, and the beneficiary was active in preparing the will.
How does the execution of a codicil affect the interpretation of the original will?
A will which was invalid at the time of execution may become valid via the execution of a valid codicil.
The will and the codicil are treated as one document, speaking from the date of execution of the codicil.
What is the effect of Pretermitted Child Statutes on the disposition of property?
If a will fails to provide for a child born after execution (or if testator excluded child based on erroneous belief they were dead), the child may take their intestate share.
What is the effect of a subsequent written instrument which is inconsistent with the terms of a previously executed will?
If the instrument completely disposes of the testator’s property, the will is fully revoked.
If the instrument contains inconsistent provisions, the will is revoked to the extent of inconsistencies)
How can a revoked will be revived?
If the will was revoked by a subsequently executed written instrument, and that instrument was later revoked.
When does dependent relative revocation occur?
When the testator would not have revoked their will but for a mistaken belief that another disposition would be effective, the will is revived if the other disposition fails.
When does an inter vivos transfer by a testator satisfy a gift to a beneficiary within a will?
When the testator intended for the gift to be a satisfaction at the time it was made (must be evidenced by a writing in most jdx. unless it is satisfaction of a specific devise or bequest)
In what order do testamentary gifts abate if there are not enough assets in the estate to pay claims against the estate?
Property passing by intestacy, then property passing by the residuary clause, then general bequests, then demonstrative legacies, then specific bequests/devises.
What are the majority/UPC rules regarding the operation of anti-lapse statutes when a will contains survivorship language?
The majority rule is that words of survivorship contradict anti-lapse statutes, the UPC rule is that they do not.
When may a will incorporate a document by reference?
If the document was in existence at the time the will was executed, the will manifests an intent to incorporate the document, and the document is sufficiently described in the will.
