WILLS WRONG

Question 1

To establish undue influence, contestants must show:

Answer 1

1. influence was exerted on testator
2. the effect of the influence was to overpower the mind and free will of the testator, and
3. the product of the influence was a will that would not have been executed but for the influence

Question 2

a presumption of undue influence arises when:

Answer 2

1. there is a confidential relationship between the testator and the beneficiary-influencer
2. the beneficiary participated in procuring or drafting the will, and
3. the provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence

Question 3

Is a will void if its execution is procured by undue influence?

Answer 3

A will if void if its execution is created by undue influence; if only part of the will was so procured, only that part is void, and the remainder of the will is still ok.

Question 4

What happens if a decedent’s will is denied probate?

Answer 4

Then, his entire estate passes by intestacy.

Question 5

What happens if there is no surviving spouse in intestacy?

Answer 5

The entire estate passes to the decedent’s children and descendants of deceased children.

Question 6

What is per capita with representation the majority approach?

Answer 6

In per capita with representation, the property is divided into equal shares at the first generational level where there are living takers, with the shares of each deceased person at that level passing to their issue by right of representation.

Question 7

What is per capita at each generational?

Answer 7

Initial division of shares is made at the level where there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Question 8

What is the common law per stirpes approach?

Answer 8

divisiion of shares is at the next generation so each child of the decedent, disregarding whether they are living or dead; if the child is dead, that child’s share passes to his descendants by representation.

Question 9

What happens at common law if a testator’s residuary estate is bequeathed to two or more beneficiaries and one of the shares lapses?

Answer 9

At common law and in some states, if the testator’s residuary estate is bequeathed to two or more beneficiaries and one of the shares lapses, that share “falls out of the will” and passes by intestacy.

Question 10

What happens in the modern rule if a testator’s residuary estate is bequeathed to two or more beneficiaries and one of the shares lapses?

Answer 10

Most states have a statute now, under which the lapsed share goes to the other residuary beneficiaries in proportion to their interests in the residue. (the other people accounted for in the will kind of get extra is a way to think about it)