Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
37 Cards in this Set
- Front
- Back
|
Who May Make a Will? |
NC Gen Stat 31-1: -Any person of sound mind and 18 years of age or older may make a will |
|
|
Mental Capacity Requirements |
The testator must have the ability to comprehend: -The nature and extent of his bounty -The natural objects of his bounty -The disposition of his property provided for in the instrument -The inter-relationship between the first three factors so that the rational dispositive plan reflects his wishes |
|
|
Insane Delusion |
An irrational, persistent belief in a false state of facts for which there is no rational basis and to which the person clings in the face of evidence and argument to the contrary Generally, caveator must establish: -The testator suffered from insane delusion, and -The testator's insane delusion affected the provisions of the testator's will Split of Authority: -Majority (NC): delusion must have affected provisions -Minority: delusion could have affected the provisions of the will
|
|
|
Undue Influence |
General Definition: an influence that destroys the testator's free agency and substitutes for it the wishes of another |
|
|
Usual Elements that Give Rise to an Inference of Undue Influence |
-The testator was susceptible to undue influence -There was an opportunity to exercise undue influence -The person who allegedly influenced the testator had a disposition to exert undue influence; and -The provisions of the will appear to be the result of undue influence In many jurisdictions, the inference of undue influence arises when: -the person was in a confidential relationship with the testator; -the person received the bulk of the testator's estate; and the testator was of weakened intellect |
|
|
Doctrine of Partial Invalidity |
Applies if: -the undue influence affected only a part of the will; and -the affected part can be severed without reasonably distorting the testator's overall dispositive plan |
|
|
No Contest Clause |
-If action is clearly a will contest, the majority of courts will enforce a no contest clause unless there is probable cause to find undue influence on whatever grounds the caveator has advanced to set aside the will -NC will not enforce a no-contest clause if the will contest was brought in good faith; and there is probable cause to find the caveator's underlying charge of undue influence |
|
|
Bequests to Attorneys |
Bad idea! Don't do it unless client is a relative |
|
|
Duress |
-A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made -The law does not honor transfers compelled by duress |
|
|
Fraud |
Fraud in the Inducement: -Misrepresentation regarding extraneous facts that causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoers' favor Fraud in the Execution: -Misrepresentation about the character or contents of the instrument executed or revoked by the testator |
|
|
Attested Wills |
NC Gen Stat 31-3.3(a):
-An attested written will is a written will signed by the testator and attested by at least two competent witnesses |
|
|
Requirements of an Attested Will |
-Written -Signed by testator -Attested by witnesses -Presence -Publication |
|
|
Will Must Be in Writing |
Can be written in any language May be ascribed by any material or device as long it results in a fairly, permanent record |
|
|
Will Must Be Signed by the Testator |
Signature must be some physical act done to the instrument which the testator intended as his signature and to authenticate the instrument |
|
|
Signature by Proxy? |
As long as done at testator's direction, and in the testator's presence NC Gen Stat 31-3.3(b): -The testator must, with intent to sign the will, do so by signing the will himself or by having someone else in the testator's presence and at his direction sign the testator's name UPC 2-502: -A will shall be signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction |
|
|
Where Must T's Signature Appear? |
-Most statutes do not mention where on the will the testator must sign -A few jurisdictions require the will to be subscribed (signed at the bottom) |
|
|
Dispositive Provisions After T's Signature |
-If the dispositive provisions were added after the testator signed, then the provisions are no good and do not become part of the will -If they were already there when T signed: --Majority (NC): does not require subscription --Minority: requires subscription |
|
|
In Whose Presence Must T Sign? |
In every jurisdiction, the testator must either: -Sign the will in the presence of witnesses or -Acknowledge his previously affixed signature to the witnesses NC Gen Stat 31-3.3(c): -The testator must signify to the attesting witnesses that the instrument is the testator's instrument by signing it in their presence or by acknowledging to them the testator's signature previously affixed thereto |
|
|
When Must T Sign? |
Testator must sign before the witnesses sign because the witnesses are there to witness his signature -Exception: Simultaneous occurrence (NC recognizes this exception to the GR (T must sign before witnesses) when witness and T sign at the same time and same place and in one transaction. The will is valid even though one or more of the witnesses may have signed before the T. |
|
|
Presence |
-A T's signature by proxy must be in T's presence -The T must sign or acknowledge his signature in the presence of the witnesses -The witnesses must sign in the presence of the T |
|
|
Presence Tests |
"Line of Sight" Test (applied in NC): -"Line of sight" is synonymous with in his view -The will must be signed within the range of sight of the person whose presence is required--doesn't have to see it but could have seen (turning head, walking over)--in another room? NO! "Conscious Presence" Test: -The "conscious presence" test is satisfied if the person whose presence is required could comprehend that the act in question was occurring through the use of senses other than sight UPC 2-502: The will must be either: -Signed by at least two other individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will or testator's acknowledgment or -Acknowledged before a notary public |
|
|
Interested Witnesses (NC) |
NC Gen Stat 31-10(a): -A witness to an attested written or a nuncupative will, to whom or to whose spouse a beneficial interest in property is given by the will, is nevertheless a competent witness to the will, but if there are not at least two other witnesses to the will who are disinterested, the interested witness and the interested witness's spouse shall take nothing under the will Supernumerary Rule: -Where there are a sufficient number of disinterested competent witnesses to obviate the need for the "interested" one to serve as a witness in order to probate the will, such person's gift under the will is unaffected and allowed to stand |
|
|
Interested Witnesses (UPC) |
UPC 2-505: -A will or any provisions is not invalid because the will is signed by an interested witness -UPC applies Purging Statutes --Absolute Purging: the provisions made in favor of the interested witness are purged (declared void) --Whichever is Less: applies when the interested witness would be an heir had the testator died intestate (the interested witness will take the lesser of the gift under the will or the witness's intestate share) |
|
|
Self-Proved Wills |
One Step Process -the testator and the witnesses sign as a part of sworn statement and all signatures are notarized when the will is originally executed NC Gen Stat 31-11(a): -Any will may be simultaneously executed, attested and made self-proved, by T's acknowledgment and affidavits of the witnesses, all notarized Two Step Process -The testator and the witnesses signed the original will. Later, the testator and the same witnesses sign a separate, sworn statement and all signatures are notarized NC Gen Stat 31-11(b): -A will not originally executed as self-proving can be made self-proving by attaching the statement set out in the statute |
|
|
Attested Wills (Curative Doctrines) |
UPC 2-503--Harmless Error: -Although a document or writing added upon a document was not executed in compliance with UPC 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent's will Doctrine of Substantial Compliance (Not in NC): -Will should be probated if propounder establishes by clear and convincing evidence that execution substantially complied with statutory requirements (Not in NC!!!) |
|
|
Holographic Wills |
Definition: A will that is entirely in the testator's own handwriting and is signed by the testator; no witnesses are required
NC Gen Stat 31-3.4: -A holographic will is a will written entirely in the handwriting of testator; subscribed by the testator, or with his name written in or on the will in his own handwriting; and found after the testator's death among his valuable papers and effects -No attesting witness is required |
|
|
Handwritten Requirement |
The requirement is that the will be written entirely in the testator's own handwriting |
|
|
Intent to Incorporate Theory |
If the will contains non-holographic words, and the testator intended those words as a part of his will, the entire instrument is void |
|
|
Surplusage Theory (NC) |
When all the words which are in the testator's handwriting are sufficient to constitute a valid holographic will, the fact that other printed or typed words also appear in the instrument will not affect the validity of the will so long as the printed or typed words do not affect the meaning of the handwritten words UPC 2-502(b): -A holographic will is valid if "the signature and material portions of the document are in the testator's handwriting." (A valid holograph can also be executed on a printed will form if the material portions of the document are handwritten). |
|
|
T's Signature |
NC Gen Stat 31-3.4(a): -The will must be subscribed (signed at the bottom) by the testator, or with his name written in or on the will in his own handwriting |
|
|
Place of Deposit (NC Requirement Only) |
NC Gen Stat 31-3.4(a)(3): -The will must be found after the testator's death among his valuable papers or effects; or in a safe deposit box or other safe place where it was deposited by him or under his authority; or in the possession of some person or some firm with which it was deposited by him or under his authority for safekeeping |
|
|
Testamentary Intent and Capacity |
Even if handwritten and signed by the testator, an instrument cannot be probated as a holographic will if it merely indicates the writer intended or desired to prepare a will in the future; or constitutes a casual expression of the writer's desire as to how property should be distributed |
|
|
Conditional Wills? |
|
|
|
Probating a Holographic Will |
NC Gen Stat 28A-2A-9: -A holographic will may be probated only in the following manner: --Upon the testimony of at least three competent witnesses that they believe that the will is written entirely in the handwriting of the person whose will it purports to be, and that the name of the testator as written in or on, or subscribed to, the will is in the handwriting of the person whose will it purports to be; and --Upon the testimony of one witness who may, but need not be, one of the witnesses referred to in subdivision (1) of this section to a statement of facts showing that the will was found after the testator's death NC Gen Stat 31-10(b): -A beneficiary under a holographic will may testify to such competent, relevant, and material facts as tend to establish such holographic will as a valid will without rendering void the benefits to be received by him thereunder |
|
|
Nuncupative Wills |
NC Gen Stat 31-3.5 -A nuncupative will is a will made orally by a person who is in his last sickness or in imminent peril of death and who does not survive such sickness or imminent peril; and declared to be his will before two competent witnesses simultaneously present at the making thereof and specially requested by him to bear witness CAN ONLY DISPOSE OF PERSONAL PROPERTY--NO REAL PROPERTY! |
|
|
Probating a Nuncupative Will |
NC Gen Stat 28A-2A-10: -No nuncupative will may be probated later than six months from the time it was made unless it was reduced to writing within ten days after it was made. |
|
|
Codicil |
-A testamentary instrument that makes changes to a prior will (either changes who is named as beneficiary or changes the nature of interest in property given to a beneficiary) -Codicil republishes the will and brings the whole will to the date of the codicil--will and codicil are read together |
