Wills & Trusts Flashcards
Testator’s Signature
Will must be in writing and signed by T or by someone at T’s discretion
Witnesses’ Signatures
Witnesses, both being present at the same time, must witness either T’s signature or T’s acknowledgement of the instrument as his will
Witness Signatures for Deaths after January 1, 2009
Can overcome invalid witnessing requirements with clear and convincing evidence that T intended the instrument to be their will
Interested Witnesses
There’s a presumption of undue influence for those taking gifts exceeding what they’d get under intestacy
Appointment as executor or trustee doesn’t make someone an interested W
Holographic Wills
Don’t need witnesses
Requires T’s signature and all material provisions to be in T’s handwriting
Undue Influence - Three Types
Common law presumption
Standard
Statutory
Undue Influence - Common Law Presumption
1) Bene is in a confidential relationship to T;
2) Bene participates in any way in procuring the gift; &
3) The gift is an unnatural bequest that favors the bene
Undue Influence - Statutory
Instrument prepared by fiduciary who takes the gift
Undue Influence - Standard
1) There was influence exerted on T;
2) The effect of which was to overpower the free will and mind of T; &
3) The product of the influence was a will which wouldn’t have been exercised but for the influence
Capacity - Insane Delusion
But for the insane delusion, the bequest wouldn’t have been made
Fraud in the Execution
T is defrauded as to the nature or content of what T is executing
Fraud in the Inducement
False representations made to get T to give a gift one way and not another
Mistake in the Execution
T mistakenly thinks she’s signing something else
Mistake in the Inducement
T’s will names the wrong bene or makes the wrong gift due to an accidental omission or addition
Mistake and alternative disposition must appear on the face of the instrument
But can use clear and convincing extrinsic evidence to establish mistake and actual intent to reform the will
Revocation Methods
1) By subsequent physical instrument
2) By physical act
3) By operation of law
Revival of a Revoked Will
1) Will #2 revokes will #1;
2) Will #2 is revoked by physical act; and
3) Contemporaneous or subsequent declaration by T showing intent to revive will #1
Dependent Relative Revocation
T revokes part or all of a will based on a mistake of fact or law
If revocation is by physical act, extrinsic evidence of mistake or intent allowed
If revocation is by subsequent will, mistake must appear on the face of the will
Codicil
To the extent the will isn’t changed by the codicil, it’s deemed to speak as of the date of the codicil so the unaltered parts of the will are republished by the codicil
Integration
The will consists of all papers or writings actually present at the time of execution and that T intended to constitute the will
Incorporation by Reference
1) The writing is in existence as of the date of the will;
2) The will shows T’s intent to incorporate the writing; and
3) The writing is sufficiently described in the will
Acts of Independent Significance
Non-testamentary acts of T used to resolve ambiguities on the face of the will
Interpreting Wills - Extrinsic Evidence
Admissible to explain any ambiguities in the will
Inadmissible to show a provision has a meaning to which it isn’t reasonably susceptible
Specific Legacy
Gift of a particular item
General Legacy
Gift of general economic benefit
