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89 Cards in this Set
- Front
- Back
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What are the statutory formalities for making a will?
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1. Majority: 18 or over
2. Testamentary intent 3. Signature 4. Two attesting witnesses |
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What happens if a portion of the will follows the testator's signature?
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Clause present at time of execution: UPC, Majority say entire will valid
Clause added after execution: Will is valid, addition is not |
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Under what circumstances is a holographic will allowed?
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Half of states: Holographic will not allowed; not entitled to probate unless two attesting witnesses.
UPC, other states: Valid if material provisions are in T's own handwriting and it is signed by T |
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What are the material provisions that must be in T's handwriting for a holographic will to be valid?
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1. Words that identify property
2. Words that identify beneficiaries |
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Conscious presence test for attesting witness
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Majority, UPC rule--witness must be in the presence of T, conscious of where each other is and what each other is doing
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Scope of vision test for attesting witness
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Minority rule--W must see the act of signing, were they to look
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With what state requirements must a will comply?
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Minority--will must comply with law of state where property is located
Majority, UPC--Will may comply with place of execution, place of domicile at death, or place of domicile at execution |
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What are the interested witness rules?
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UPC/modern trend--Interested witness rule abolished
Minority--only takes if there were two other interested Ws (supernumerary rule) or W would be an heir |
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What is a self-proved will?
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At time of execution, T and Ws signe self-proving affidavit under oath before notary public reciting all elements of due execution--formalities of execution conclusively presumed
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Two requirements for revocation by physical act
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1. Intent to revoke
2. Physical act--almost anything |
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Can a will be partially revoked by physical act?
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YES--depending on intent
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What is the effect of an act of revocation on one executed copy of a will?
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All executed copies are revoked
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What is the effect of writing "VOID" on the back of a will?
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UPC--will is cancelled; act of cancellation can appear anywhere on will
Most states--no revocation; cancellations must CROSS SOME LANGUAGE of the will |
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What is the presumption about a will in T's possession from execution until T's death, found in mutilated condition?
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Presumed that T did the mutilating with intent to revoke.
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What is the presumption when a will last seen in T's possession and control is not found after T's death?
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Presumed that T destroyed it with intent to revoke.
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Under what conditions may a revocation be by a person other than T?
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If the revocation is done
1. In T's presence, and 2. At T's direction |
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What is a lost wills statute?
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Most states--Lost will requires formal proceeding where proponents have burden of proving contents of lost will.
--Usually copy and one witness or other "clear and convincing proof" |
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What is revocation by inconsistency in a codicil?
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Codicil makes no reference to will but contains inconsistent provisions-->later document controls
--But to the extent possible will and codicil are read together |
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How to read a second will that does not in terms revoke the first will?
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1. If second will has no residuary clause, it is presumptively a codicil--implied revocation only to the extent of inconsistency.
2. Second will has residuary clause: revokes the first will in its entirety by inconsistency. |
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What is the effect on codicils to a will of revoking that will?
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Revocation of a will revokes all codicils thereto--BUT revocation of a codicil does not revoke the will
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Effect of divorce on a will
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Divorce following a will revokes ALL provisions in favor of former spouse-->construe the will as if former spouse were DEAD
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Effect of divorce and subsequent remarriage to same spouse
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Spouse is "back in"--all provisions in spouse's favor are revived
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Effect of separation from spouse on a will
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Mere separation does not affect spousal rights under will
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Effect of separation with complete property settlement on a will
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Agreement is treated as a WAIVER of spouse's rights under the will--same as if she'd died
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Effect of interlineation changing a gift
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Gift cannot be given effect, UNLESS
1. T re-executes the will, or 2. T re-publishes the will by codicil |
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When should Dependent Relative Revocation be applied?
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When a revocation is based on, induced by, premised on a mistake of law or fact if court is satisfied that, but for the mistake, T never would have made the revocation.
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WILL 1 is executed-->WILL 2 is executed, expressly revoking WILL 1-->WILL 2 is destroyed with intent of reviving WILL 1. Is WILL 1 revived?
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Majority--NO, must re-execute or re-publish by codicil
UPC--WILL 1 is revived if (1) it still exists; (2) T intended to revive; and (3) WILL 2 was revoked by physical act |
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Incorporation by reference--requirements to incorporate an extrinsic writing by reference
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1. Writing must be in existence at time will was executed
2. Will must manifest an intent to incorporate the document 3. Will must describe the writing sufficiently to permit its identification |
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Can a holograph incorporate a non-handwritten document by reference?
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YES--where holographs are recognized
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What type of memorandum can be incorporated by reference despite not having existed at time of will's execution?
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UPC/Many states--Will may refer to list disposing of tangible personal property. List must be signed by T and must describe the property with reasonable certainty. List may be altered at any time.
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Doctrine of Independent Significance
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Acts having an independent lifetime motive (i.e. other than to complete the will) may impact on the will as well.
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When does a gift lapse due to beneficiary death?
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When the beneficiary dies before (or within 120 hrs of) the testator, the gift lapses.
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What happens to a gift that lapses?
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It falls to the residue and passes with the residuary estate--UNLESS it is saved by an anti-lapse statute.
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To whom does the UPC anti-lapse statute apply?
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Grandparents or lineal descendants of grandparents who leave issue to survive T.
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What is the class gift rule?
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When there is a gift by will to a group of persons generically described as a class and some class member predeceases T and the anti-lapse statute does not apply, the surviving class members take.
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UPC/majority rule regarding residuary estate devised to two or more persons; gift to one of them fails for any reason
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Surviving residuary devisees take the entire residuary estate in proportion to their interests in the estate.
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Example of specific devise
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"I devise my 2003 Cadillac to my son John."
OR--"I devise my bank accounts"--specific because will speaks at time of death |
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What is a demonstrative legacy?
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Gift of a pecuniary amount that specifies the source of the money to pay the gift
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What is a general legacy?
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A gift of a pecuniary amount; source not specified
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What is a residuary bequest?
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A gift of the residue of an estate
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In what order is abatement applied, w/r/t the class of gift or bequest?
IRGDS |
1. Intestate property
2. Residuary bequest 3. General legacy 4. Demonstrative legacy 5. Specific devise |
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What is abatement?
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If T's estate is partially insolvent, gifts are sacrificed to satisfy expenses and claims.
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When is a specific devise adeemed?
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A specific devise is adeemed when it no longer exists at T's death--beneficiary takes nothing.
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What is the effect of ademption on demonstrative legacies?
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No effect--the gift is paid from another source.
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Ademption only applies to _________________ gifts.
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SPECIFIC
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Common law/majority of states: To what extent is T's intent considered in treating an adeemed legacy?
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T's intent is immaterial.
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UPC: Will executed before T declared incompetent; specfically devised property is sold by conservator/destroyed but compensated by insurance. Ademption?
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NO--under UPC, specific devisee has a right to a general legacy equal to net sale price/insurance compensation UNLESS T's disability is adjudicated to have ceased AND T survives adjudication by at least a year.
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UPC: If T is not incompetent, to what does a specific devisee have a right when specifically devised property is sold?
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-Any balance of purchase price still owing when K is executory at T's death
-Any amount of condemnation award unpaid at T's death -Any amount of insurance proceeds unpaid at death -Any personal property acquired as replacement for other similar property -Property acquired as result of foreclosure of security interest on specifically devised note |
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Inheritance: T survived by spouse, no issue or parent. What does spouse take?
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Usually entire estate
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Inheritance: T is survived by spouse and issue all of whom are issue of spouse. What does spouse take?
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Usually entire estate
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Inheritance: T is survived by spouse and issue at least one of whom is not issue of spouse. What does spouse take?
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Usually a fixed amount of the top and a fraction of any excess.
UPC--first $100K and half of any excess |
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Who takes the share of an intestate estate not going to spouse?
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1. All to issue, if any
2. If no issue, to parents or survivor 3. If no issue or parents, to parents' issue |
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Under what circumstances does an illegitimate child inherit from father?
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1. Legitimated by marriage
2. Adjudication of paternity before or after father's death |
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Can an adopted child inherit from a biological parent?
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NO
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How does stepparent adoption affect inheritance rights under the UPC?
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If a parent remarries and her child is adopted by new spouse, child may still inherit from first family.
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How does orphan adoption affect inheritance rights?
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If both natural parents die and C is adopted by close family member, C continues to inherit from other family members.
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What is adoption by estoppel?
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An unperformed agreement to adopt; child to have been adopted may inherit from would-be adoptive parent.
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Under a simultaneous death act, what happens to property in a will when T and beneficiary die simultaneously?
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Devised property passes as though T survived and beneficiary predeceased.
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Under a simultaneous death act, what happens to property when intestate and heir die simultaneously?
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Property is treated as though heir predeceased intestate.
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Under a simultaneous death act, what happens to insurance benefits when insured and beneficiary die simultaneously?
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Treat as though insured survived and beneficiary predeceased.
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Under a simultaneous death act, what happens to property held in JTWROS when both joint tenants die simultaneously?
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One-half as though A survived; one-half as though B survived. The point: simultaneous death prevents operation of right of survivorship; so 1/2 passes through each tenant's estate.
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What is the 120-hour rule?
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Under the UPC, when passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless he survives decedent by 120 hrs (5 days). NOT COMMON LAW
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To what property does a 120-hour rule apply?
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All probate and nonprobate assets (including life insurance and right of survivorship property)
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What is the common law rule regarding an advancement?
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Any lifetime gift to a child or descendants is presumed to be an advancement of his intestate share
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What is the UPC/Majority rule regarding an advancement?
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No advancement unless:
1. Declared as such in a contemporaneous writing by decedent; OR 2. Acknowledged as such in writing by the heir |
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To what kind of estate does the doctrine of advancement apply?
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only INTESTATE estates
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Describe the doctrine of satisfaction. To what kind of estate does satisfaction apply?
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Applies to testate estates. Lifetime gift is NOT a prepayment of any interest under a will unless (i) the will so provides; (ii) T so declares in contemporaneous writing; or (iii) devisee acknowledges in writing that the gift is in satisfaction.
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What is homestead?
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The surviving spouse's statutory right to live in the home for as long as the spouse chooses.
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What is exempt property to which a surviving spouse may be entitled by statute?
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Household furniture, automobile, furnishings, appliances, personal effects in a fixed amount (e.g. $10K)
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What is a family allowance to which a surviving spouse may be statutorily entitled?
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A reasonable allowance in money out of estate for maintenance of family during administration.
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To what type of estate do homestead, exempt property, and family allowance statutes apply?
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Both testate and intestate estates. They are in addition to intestate share but are chargeable against share passing under will unless will provides otherwise.
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What are the majority and minority rules regarding pretermitted spouses?
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Majority: Marriage after a will has no effect on the will.
UPC, Minority: Pretermitted spouse gets intestate share--UNLESS exception applies |
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Under what circumstances would a pretermitted spouse NOT take despite a statutory provision?
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1. It appears from the will that the omission was intentional.
2. T made other provision for spouse by transfer outside of will with intent that transfer would be in lieu of will provision. |
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What estate is included in the elective estate?
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The net testamentary estate-->the probate estate MINUS exempt property, family allowance, funeral expenses, expenses of administration, and allowable creditors' claims.
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What property does the UPC add to the elective estate?
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a. Transfers with retained power to revoke, consume, invade, etc. (revocable trust)
b. Transfers with retained right to possess or enjoy the income from the property (e.g. retained life estate) c. Transfers held by decedent and another in right of survivorship form d. Transfers within two years of death to certain extent ($13K) |
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What fraction of the elective estate is the elective share?
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A set fraction, commonly one-third.
Under UPC, maximum increased to one-half but share depends on duration of marriage. In effect, elective share vests at a rate of about 3% a year until max of 50% |
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How does a surviving spouse claim an elective share?
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The surviving spouse must file election within a set period after decedent's death-->NOT automatic.
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What is a pretermitted child?
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A child born or adopted after a will is executed.
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What is the pretermitted child entitled to take under the UPC and?
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A pretermitted child is entitled to an intestate share--UNLESS exceptions apply
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What are the exceptions to a pretermitted child's taking under the UPC?
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1. It appears from the will that the omission was intentional
2. T left substantially all his estate to the parent of the pretermitted child 3. T provided for child by transfer outside of will and intentded transfer to be in lieu of will provision |
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What is the effect of a re-publication by codicil on a will that pretermits a child?
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Re-publication by codicil re-dates the will to the date of the codicil's execution. If no provision is made for the child, then intent to omit is inferred.
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How does the common law treat omission of a child mistakenly believed dead? (or T mistakenly believed child won lottery, converted to Judaism, or whatever)?
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No relief for mistake in inducement to make/not make provision unless both mistake and what would have been done but for mistake appear in terms of will.
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How do the UPC and many states treat omission of a child mistakenly believed dead?
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If at time of execution of will, T fails to provide in will for living child SOLELY because she believes child dead, child is treated as pretermitted.
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Who has standing to contest a will?
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Any person who would take more as heir if there were no will or as beneficiary under a prior will.
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What is the four-part test of testamentary capacity in a will contest?
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1. Did T understand the nature of the act he was doing?
2. Did T know the nature and character of his property? 3. Did T know the natural objects of his bounty? 4. Did T understand the disposition he wished to make? |
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To what point in time do the inquiries regarding testamentary capacity apply?
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The circumstances at the time the will was executed, or shortly before or shortly thereafter.
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What is an insane delusion?
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A distinctive form of incapacity: Where T is otherwise sane but the will (or part of it) is product of an insane delusion having no basis in fact or reason, to which T adheres against all reason and evidence.
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Who has the burden of proving undue influence, and what must they show?
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Party contesting will must show:
1. Existence and exertion of the influence 2. Effect is to overpower mind and will of the testator 3. Result is a will that would not have been executed but for the influence. |
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What circumstances give rise to a presumption of undue influence?
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Showing that a principal beneficiary under the will who stands in a confidential relationship to T draws or procures the execution of the will.
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