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61 Cards in this Set

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  • Back
  • 3rd side (hint)
What are the required elements of a will?
testamentary capacity
testamentary intent
formalities of execution
What is the testamentary intent required for a valid will?
that the document control events at the maker's death, with no rights or powers until that time
When is extrinsic evidence admissible to show testamentary intent?
only where ambiguous language exists in the document
What is testamentary capacity?
the testator's mental state; whether the testator understands enough to know the will-making process
What are the important issues when determining testamentary capacity?
the testator must know:
the nature and extent of property
the "natural objects of the testator's bounty"
understand disposition of property
What is an insane delusion?
a belief, adhered to against reason, impossible under the circumstances, which leads to an unnatural disposition
When is extrinsic evidence admissible in determining testamentary capacity?
extrinsic evidence is always admissible
What is the Pennsylvania approach to undue influence?
there are 3 elements:
1) confidential relationship between proponent and testator
2) proponent receives a substantial benefit
3) weakened intellect in the testator

the claim fails if any element fails to be proved
What is fraud in factum?
fooling the testator into signing a document purporting to be a will, but including undisclosed provisions
What is fraud in the inducement?
getting the testator to execute the document by misrepresenting the facts
What are the requirements for the formalities of a will?
signed by the testator at the end of the document
What is required if the testator signs by mark?
the name must be subscribed before or after the mark, and 2 witnesses must sign in the presence of the testator
What is required if the testator signs by proxy?
the proxy must sign in the presence of the testator at the express direction of the testator and declare the document as his will in presence of 2 witnesses
What is a holographic will?
an informal will, handwritten by the testator
What occurs if there is a mistake in execution?
generally there is strict adherence to statutory requirements
What is a no contest clause?
this provision denies gifts to beneficiaries who challenge the will, but are only valid if accompanied by a gift to the potential contestant
What is incorporation by reference?
to give testamentary effect to document not present at the execution of the will

must exist when will is executed
must be readily identifiable
What is independant significance?
information outside the will that has independent significance to ownership
What is a patent ambiguity?
an ambiguity apparent from the face of the document
What is a latent ambiguity?
an ambiguity discoverable by considering evidence extrinsic to the document
What is the equivocation rule?
Where family members (and beneficiaries) have the same name, extrinsic evidence may be used to determine the identities of beneficiaries of the will
How may a will be revoked?
a later writing meeting statutory requirements expressly revokes

specific act that physically damages the document
What is Dependent Relative Revocation?
Where Will I executed, Will II executed and Will I revoked by physical destruction, testator dies and Will II is invalid, the presumption arises that the Will I revocation was dependent on validity of Will II.

- must be physical revocation
- dispositions must be essentially same
What is an advancement?
gifts donor intends to be charged against the recipient's share of donor's intestate estate
What is hotchpotch?
Used in determining shares where advancements have occurred

1) value of each advancement is added to total amount available for distribution from the estate and the total divided among the heirs
2) subtract the gift from donee's share of the pot
What is satisfaction?
gifts donor intends to be charged against recipient share of a testate estate that is presumed to only exist from parent to child
What is a disclaimer?
a change in the distribution of an estate by a beneficiary refusing to accept share of estate that treats the disclaiming individual as if died before the decedent
What is a specific gift?
gift is specifically identified and is adeemed if lost or missing when property distributed
What is ademption?
occurs if document gives away property not available when the document becomes effective
What is the identity theory?
a specific gift fails because the subject matter of the gift is not an estate asset at the time of death
What is exoneration?
a specific devise transfers free of any outstanding mortgage, which is paid by the residuary estate
What is abatement?
where not enough money is available in estate for all bequests, gifts fail in a particular order:

demonstrative and specific
What is lapse?
Where the beneficiary dies before the testator, the gift is eliminated
What does the traditional anti-lapse statute do?
prevents lapse by identifying alternative takers
What is election?
the right of the spouse to take against the will of a decedent spouse
What property can a spouse elect against in Pennsylvania?
passing by will or intestacy
power to revoke or dispose for benefit
right of survivorship
annunity payments
within year of death and exceeding $3,000
What result occurs where children or spouses are forgotten in a will?
usually take intestate share from residuary estate unless evidence demonstrates testator intended to exclude the individual
What is a trust?
a fiduciary relationship between a trustee and the trust beneficiary as a result of the separation of legal and equitable title to property held in trust
Who are the main actors in a trust?
the SETTLOR creates or contributes property to the trust
the TRUSTEE receives legal title from the settlor and holds the property in trust
the BENEFICIARY is the person having a present or future interest in trust and holds a power of appointment over the trust property
How is a trust created?
transfer by written instrument to another during lifetime or by will
a written declaration signed by or on behalf of property owner
written exercise of power of appointment
What are the requirements for a valid trust?
1) intent to create a trust
2) capacity
3) definite beneficiary
4) duties for the trustee
5) same person is not trustee and beneficiary
6) signed writing or signed mark by another at settlor direction
7) valid trust purpose
How is a discretionary or support trust created?
"the trustee in its absolute discretion shall deem advisable"

"necessary for the comfortable support of the beneficiary"
How are "comfort" and "support" defined under discretionary and support trusts?
terms are determined by context of what the beneficiary "has become accustomed to"
What is a spendthrift provision?
provision that restrains the involuntary and voluntary transfer of beneficiary's interests
How does a spendthrift provision affect creditors of a beneficiary?
creditors are unable to obtain the interest in the trust and cannot force trustee to pay debts from the trust
What is an exception for payment with a spendthrift provision?
where the creditor is a child for child support benefits
When does a trust terminate?
the last income beneficiary dies, the prescribed number of years is over, or the purposes of the trust are accomplished
What is the Claflin doctrine?
beneficiaries may not force the termination of a trust if the trust has not accomplished the "material purpose" of the trust
When may the court modify or terminate a trust?
due to changed circumstances the settlor did not anticipate, the trust purposes will be furthered, defeated, or impaired unless action taken
How do charitable trusts differ from express private trusts?
not required to have definite beneficiary
not subject to Rule Against Perpetuities
intent must be to create a charitable trust
What is a charitable purpose?
something that benefits the community in general, for instance:
relief of poverty
advancement of religion or education
governmental or municipal purposes
What is the physiological closing of a class?
all persons who can feed a class die
What is the rule of convenience on closing classes?
when any class member has the right to demand possession of property
What is the divide and pay over rule for gifts to heirs?
the trustee dividing money and distributing to a trust for a class at time after death creates a contingent remainder and the right to possession or enjoyment comes at distribution
What is a power of appointment?
the power of an individual to designate who takes property subject to a power or what shares are to be received
What actors are involved in powers of appointment?
the DONOR is the individual who creates the power
a DONEE is the person who gets the power of appointment
the OBJECT or PERMISSIBLE APPOINTEE is the person identified by the donor to receive the property
the APPOINTEE is the recipient of the gift when the power is exercised and must come from permissible appointees
TAKER IN DEFAULT OF APPOINTMENT is specifically identified to take property if the donee does not exercise power
What is the difference between a general and a specific power?
the general power allows the donee to give the property to anyone, including himself or the estate

a specific power limits the donor to giving the property to a particular class of objects
What is the duty of loyalty for fiduciaries of trusts?
the fiduciary must act solely in furtherance of beneficiaries' interest or the purposes of a charitable trust
What is the exception for a fiduciary breaching the duty of loyalty?
where the trustee has fully disclosed the proposed transaction to the beneficiary; the transaction is fair and reasonable; the beneficiary has given informed consent
What is the Prudent Person rule for managing assets of a trust?
the fiduciary must prudently maintain the assets of the trust

an absolute duty to diversify exists, unless it would be imprudent under the circumstances
What remedies are available for beneficiaries against trustees who breach fiduciary duties?
compel trustee to perform
enjoin trustee from committing a breach of the trust
compel trustee to pay money, restore property, or other action
appoint special fiduciary to administer trust
remove trustee