Wills & Trusts (Delaware) Flashcards
Wills: Testamentary Capacity + Burden of Proof
Any person of 18 YEARS of age with SOUND AND DISPOSING MIND AND MEMORY
Capacity is presumed and the burden of proof is on the challenger to prove there was no testamentary capacity by showing by CLEAR AND CONVINCING EVIDENCE that: (1) the will was executed by a testator who was of WEAKENED INTELLECT, (2) the will was drafted by a person in a CONFIDENTIAL RELATIONSHIP with the testator, and (3) the drafter received a SUBSTANTIAL BENEFIT.
Wills: Lawyers Obligation Concerning Capacity
It is the obligation of the lawyer to COMMUNICATE DIRECTLY with the testator to assess legal capacity PRIOR to drafting the instrument
Wills: Execution - Statutory Requirements
The will must be:
1) In WRITING,
2) SIGNED by the testator or some person signing for them in their presence with their direction (anywhere on the document),
3) Attested and subscribed by TWO OR MORE CREDIBLE WITNESSES in the testator’s presence.
Wills: Execution - Credible Witness With Interest
Any person competent can be a witness, even if they have an interest in the will.
Wills: Execution - Timing of Witnesses Signature
Witnesses must sign in the presence of the testator, but the witnesses do not need to see the testator sign
Wills: Execution - Self-Proving Affidavit
An attested will may be made self-proving if in the presence of a NOTARY, the testator acknowledges the will and the witnesses sign an affidavit that they were witnesses. Here, witnesses will not need to testify in court that they were witnesses
Wills: Execution - Holographic Will
A handwritten will by the testator is OKAY, so long as the statutory requirements are met.
Wills: Execution - Oral Will
Oral wills are NOT RECOGNIZED in Delaware.
Wills: Pre-Mortem Will Validation
A testator can seek validation of a will BEFORE DEATH by giving NOTICE to potential will contestant, who MUST CHALLENGE WITHIN 120 DAYS of receipt of notice.
Wills: Revocation - Statutory Requirements
To revoke a will, the testator must either: (i) CANCEL the will or (ii) the testator must EXECUTE A NEW WILL.
Wills: Revocation - Physical Act + Lost Will
The testator must have CAPACITY and INTENT to revoke, and must do so by PHYSICAL ACT (e.g., burning, tearing, crossing out)
A will that is LOST is presumed destroyed.
Wills: Revocation - Replacement Will (Complete v. Partial Difference)
If a new will COMPLETELY DISPOSES of the testator’s property, the old will is COMPLETELY REVOKED by inconsistency. However, if the new will only PARTIALLY DISPOSES the property, the old will is only revoked to the extent it is inconsistent.
Wills: Codicil + Partial Revocation by Codicil + Formalities
A written document that amends a will, to the extent possible the will and codicil are read together.
A codicil revokes any part of a will by SPECIFIC REFERENCE and SUBSTITUTION OF NEW LANGUAGE or by inconsistency with the will.
A codicil must be executed with the requisite formalities of a will.
Wills: Effect of Will When Codicil Is Revoked v. Effect of Codicil When Will Is Revoked
Revocation of a will will revoke ALL CODICILS, but when a codicil is revoked everything else remains.
Wills: Revocation - Dependent Relative Revocation
DDR allows a court to DISREGARD a revocation that is based on a mistake of law or fact if, but for the mistake, the testator never would have made the revocation
Wills: Revocation - Revival of Revoked Wills
If a second will is executed thereby revoking the first, and the second will is later cancelled before testator’s death, the first will is VALID and is probated
Wills: Revocation - DDR v. Revival
DDR is triggered when testator MISTAKENLY creates an invalid second will, whereas revival is triggered where the testator makes a valid second will, but cancels it before death.
Wills: Revocation - By Divorce + Separation + Trusts
Divorce or annulment REVOKES any disposition or appointment of property made to former spouse. Property passes as if the spouse PREDECEASES the testator.
Separation is INSUFFIIENT
This rule DOES NOT APPLY to trusts
Wills: Republication By Codicil
A codicil REPUBLISHES a will as of the date of the execution of the codicil and REDATES the will as of the date of its execution.
Wills: Incorporation By Reference + Requirements
Delaware permits writings that are NOT PART OF THE WILL to govern disposition of property under the will
The following requirements must be met:
1) The other document EXISTS at the time the will is executed,
2) The Testator’s INTENT TO INCORPORATE is clearly manifested, and
3) The will must EXPLICITLY REFER with sufficient specificity.
Wills: Incorporation By Reference - Tangible Personal Property + Requirements
A separate written list of personal property items (e.g., jewelry) may be prepared BEFORE OR AFTER the will is executed, and modified after its preparation.
The writing must:
1) be in the HANDWRITING OF, OR SIGNED BY, the testator and must IDENTIFY the items with REASONABLE CERTAINTY,
2) Must NOT BE INCONSISTENT with the terms of the will or any other writing
Wills: Incorporation By Reference - Pour Over Will + Existence of Inter Vivos Trust
A provision in a will that leaves property to a TRUST.
The trust can be created BEFORE OR AFTER THE EXECUTION OF THE WILL by the testator
Wills: Acts of Independence Significance
A change in a devise will be effective if it has significance OTHER THAN testamentary disposition (e.g., sale of car before disposed of in will)
Construction: Ambiguity on the Face of the Will
If a will is ambiguous, the court will ascertain the testator’s intent from the FACTS AND CIRCUMSTANCES, including extrinsic evidence
Construction: Undue Influence Elements
The contestant must show:
1) A SUSCEPTIBLE TESTATOR,
2) OPPORTUNITY to exert influence,
3) The ACTUAL EXERTION of such influence, and
4) A RESULT demonstrating its effect
Construction: Undue Influence - Burden of Proof + Confidential Relationship
The presumption is that a testator had the requisite capacity to make a will
Once the elements are shown of undue influence, the burden shifts to the defendant to REBUT by showing the testator possessed the requisite testamentary capacity absent undue influence.
If the will contestant can establish by CLEAR AND CONVINCING evidence that: (i) the will was executed by a testator with WEAKEND INTELLECT, (ii) the will was drafted by a person in a CONFIDENTIAL RELATIONSHIP with the testator (e.g., attorney-client, power of attorney, caregiver), and (iii) the drafter received a SUBSTANTIAL BENEFIT, the burden will shift to the proponent of the will.
Construction: Mistake
Delaware does NOT permit extrinsic evidence to correct a mistake
Construction: Fraud
If the Testator relied on an INTENTIONAL DECEPTION OR MISREPRESENTATION, the will or part of it may be invalidated.
Limits on Testation: Rights of Surviving Spouse
A surviving spouse may be able to claim 1 or more of the following:
1) Elective Share
2) Surviving Spouse Cash Allowance ($7,500)
3) Omitted/Pretermitted Spouse’s Share (deceased spouse’s premarital will only)
4) Spouse’s Intestate Share
Limits on Testation: Rights of Surviving Spouse - Elective Share + Timing
A spouse can OVERRIDE a will by electing to take a share EQUAL TO 1/3 of the elective estate (LESS the total of transfers to the surviving spouse by the decedent)
The surviving spouse must file an action within 6 MONTHS of the grant of letters testamentary or of administration
Limits on Testation: Rights of Surviving Spouse - Waiver
The right to an elective share may be waived by a written contract (e.g., prenuptial agreement)
Limits on Testation: Pretermitted Spouse
If a decedent made a will BEFORE MARRIAGE and leaves a surviving spouse, the spouse is entitled to an INTESTATE SHARE if he or she is NOT PROVIDED FOR by will or otherwise
Limits on Testation: Rights of Surviving Spouse - Divorce + Remarriage
A divorce REVOKES any gift made by the will to the former spouse
Remarriage will REVIVE any revoked provisions
Limits on Testation: Slayer Statute
A slayer (a person who pleads guilty or convicted of first or second degree murder or manslaughter) is NOT ALLOWED to benefit from the decedent’s estate. Property passes as if the killer died BEFORE the decedent.
Limits on Testation: Omitted/Pretermitted Children
A child born after execution of a will and for whom no provisions have been made is ENTITLED TO AN INTESTATE SHARE of the parent’s estate, unless specified otherwise in the will
Limits on Testation: Posthumous Children + Adopted Child
A posthumous child born after testator’s death is TREATED AS BEING ALIVE at the time of the testator
An after-adopted child is treated the same as an after-born child.
Intestate: Probate Estate v. Nonprobate Property
This property is governed by the intestate statutes, which includes the following:
1) Individually titled property,
2) Title held as TIC
The following IS NOT probate:
1) Property held in a trust,
2) Property held by JTWROS or TBE
3) Beneficiaries of retirement accounts
4) Securities or bank accounts registered POD or TOD
5) Property the testator did not own at death
Intestate: Lifetime Gifts and Convenience Accounts + Completed Gift Requirements
If a transfer made during the testator’s lifetime is a COMPLETED GIFT, the property that was given away is NOT AVAILABLE to testator’s heirs
To be a completed gift, the following must occur:
1) Intent to IMMEDIATELY TRANSFER an ownership interest,
2) DELIVERY of the gift (actual or constructive)
3) ACCEPTANCE (presumed unless there is any contrary evidence)
Intestate: Surviving Spouse - No Surviving Issue Or Parents
If there are no surviving issue or parents of the decedent, the spouse takes THE ENTIRE ESTATE
Intestate: Surviving Spouse - NO Surviving Issue, But Surviving Parents
If there are no surviving issue but the decedent is survived by a parent or parents, the spouse takes: (i) $50,000, (ii) HALF OF PERSONAL PROPERTY, and (iii) a LIFE ESTATE in the real estate
Intestate: Contradicting Will and Insurance Instrument
If the will contradicts an insurance instrument with a POD clause, the INSURANCE INSTRUMENT PREVAILS
Intestate: Surviving Spouse - Surviving Issues of Surviving Spouse
All of whom are issue of the surviving spouse, the spouse takes: (i) $50,000, (ii) HALF of the personal property, and (iii) a LIFE ESTATE in the real estate
Intestate: Surviving Spouse - Surviving Issue Not of Surviving Spouse
The spouse takes HALF of the personal property and a LIFE ESTATE in the real estate
Intestate: Estate Distribution If No Surviving Spouse
The estate passes PER STIRPES, meaning they take their deceased parents share by representation
Intestate: Estate Distribution If No Surviving Spouse - No Surviving Issues
If there are no surviving issues or spouse, the estate goes to the decedent’s PARENTS
Intestate: Estate Distribution If No Surviving Spouse - No Surviving Issues Or Parents
If there are no surviving issues, spouse, or parents ,the estate goes to the BROTHERS AND SISTERS AND ISSUES of each sibling per stirpes
Intestate: Estate Distribution If No Surviving Spouse - No Surviving Issues, Parents, or Issues of Parents
The estate goes to the NEXT OF KIND AND ISSUE of the next of kin per stirpes
Intestate: Adopted Children (Rights from Adoptive Parents v. Natural Parents)
An adopted child is treated as the NATURAL CHILD of the adoptive parents, therefore he or she inherits from the adoptive parent
After adoption, the rights of inheritance of the natural parents are TERMINATED (adoption of a child by the spouse of a natural parent has NO EFFECT on the relationship between the child and that natural parent)
Intestate: Nonmarital Children + Stepparents
A child born out of wedlock inherits from MOTHER, and may be considered a child of the father if: (1) the parents participated in a marriage ceremony before or after child’s birth (even if void), (2) there is an adjudication of PATERNITY
Stepchildren CANNOT inherit from their stepparent
Intestate: Advancements + Requirements
If a person dies intestate as to their entire estate, an advancement occurs when the decedent gives property to a beneficiary during the decedent’s lifetime intending that the transfer be an ADVANCEMENT ON THEIR INHERITANCE
An advancement must: (1) be DECLARED an advancement in a CONTEMPORANEOUS WRITING of the deceased, or (2) ACKNOWELDGED to be an advancement IN WRITING BY THE HEIR
Intestate: Effect of Advancement
If a lifetime transfer is found to be an advancement, it is treated as PART OF THE ESTATE, and is subtracted from the amount going to the heir who received the advancement
Intestate: Escheat + Procedure + Presumption of Death
Property escheats (passes to the state) if THERE ARE NO HEIRS or any known kindred who can inherit OR is unclaimed
The state must bring suit in the Court of Chancery in the county where the property is located
A person missing for SEVEN YEARS is considered deceased
Intestate: Escheat of Unclaimed Property - Notice to Owner + Presumption of Abandoned Property
Th state escheator must send written notice to an owner of property and publish in the newspaper
Most property is presumed abandoned if they are UNCLAIMED after 5 years
Administration: Probate + Witnesses + Timeliness
After decedent’s death, it must be admitted to probate and proved in the office of the Register of the Wills in the county of the decedent’s domicile
UNLESS THE WILL WAS SELF-PROVING (with affidavit), the signature of the witnesses or testator must be proven
A person with custody of the will must deliver the will WITHIN 10 DAYS of learning of the testator’s death
Administration: Lost Wills
A lost or destroyed will can be “established” if the proponent can prove the legal existence of the will, its loss, and its contents
Administration: Personal Representative - Procedure
The personal representative’s authority comes from the Register of Wills through letter testamentary and administers the estate
Administration: Inventory Requirement
WITHIN 3 MONTHS of the grant of letters, the personal representative must file an inventory of ALL ESTATE ASSETS in the office of the Register of Wills, this includes an appraisal of property (FMV at time of death)
