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103 Cards in this Set

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When a testator makes an attempted revocation of a will or codicil under a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked the will had he known the truth. This situation usually occurs when the testator destroys his will believing that a subsequent will is valid and the subsequent will turns out to be invalid. What doctrine applies to this situation?
Dependent Relative Revocation (DRR)
What is the effect of DRR?
Effect of DRR: If DRR is applied, the testator’s revocation is ignored and the disposition that was revoked is enforced.
What is the rational for DRR?
Rationale for DRR: Courts want to give effect to the testator’s intent to the extent possible. When the testator makes a revocation based upon a mistaken belief of law or fact, there is no actual intent and, therefore, courts should not enforce the revocation.
What are the requirements for DRR?
Revocation, ineffective disposition (mistake of law or fact), DRR better effectuates Testator's intent.
How does Guzman analyze DRR?
1) Was there a revocation based on a mistake of law or fact?
2) If yes, which would that testator have preferred? Either (a) lift mistaken revocation or (b) allow property to pass through intestacy.
Does Oklahoma recognize DRR?
Oklahoma’s Version of DRR: Oklahoma courts have recognized the existence of DRR in three cases but have never adopted it. An Oklahoma Statute provides for a version of DRR but the statutory version does not apply the third element of the common law DRR test – the testator’s intent is not considered. In Oklahoma, where the testator attempts to revoke a provision of a will by altering or obliterating it in order to effect a new disposition, the revocation is not valid unless the new disposition is legally effective. [84 O.S. § 103] Therefore, if the subsequent disposition is ineffective, Oklahoma courts will invalidate the revocation and administer the estate as if the revocation had never occurred – regardless of the testator’s intent.
Once a will is effectively revoked, it can only be revived through the following methods:
(1) Republication: the will is republished by codicil, incorporated by reference in new will, etc.; or

(2) Express Revival in Revocation of Subsequent Will: if a subsequent will is expressly revoked and the revocation clause expressly states the testator’s intent to revive the previous will, then the previous will is revived.
Revocation of Subsequent Will does not Automatically Revive Previous Will: If, after making a will, the testator makes and executes a subsequent will that revokes the first, expressly or by inconsistency, revocation of the subsequent will does not revive the former will unless:
(1) it appears by the terms of such revocation that it was the testator’s intention to renew the former will or, (2) after revoking the subsequent will, the testator republishes the prior will. [84 O.S. § 106]
If there is no surviving issue (kids or grandkids), parent, or sibling, the surviving spouse receives what portion of the decedents estate?
the decedent’s entire estate. [84 O.S. § 213(B)(1)(a)] and [1990 UPC §2-102].
If there is no surviving issue (kids or grandkids) but the decedent is survived by a parent, brother, or sister, the surviving spouse receives:
(i) all joint industry property; and
(ii) an undivided one-third (1/3) interest in the remaining estate. [84 O.S. § 213(B)(1)(b)]

1990 UPC §2-102 = spouse gets 300k + 3/4 balance
If there are surviving kids or grandkids and all of them are also the surviving spouse’s kids or grandkids by blood, then the surviving spouse receives:
an undivided one-half (1/2) interest in all property of the estate whether joint industry property or separate property. [84 O.S. § 213(B)(1)(c)]

1990 UPC §2-102 = Spouse takes 100%.
if there are surviving issue but one or more are not issue of the surviving spouse, then the surviving spouse receives:
(i) an undivided one half (1/2) of all joint industry property; and
(ii) an undivided equal share of the decedent’s remaining separate property (i.e. the decedent’s separate property is divided equally between the surviving spouse and the issue (kids or grandkids). [84 O.S. § 213(B)(1)(d)]

Spouse takes first $150k + 50% of balance. 1990 UPC §2-102.
if there are no surviving spouse or issue of the decedent, nor surviving parents of the decedent, the remainder of the estate is distributed to the issue of the parents by right of representation in what portion?
an undivided equal share. [84 O.S. §213(B)(2)(c)] per "parentella"
(1) closest parentella takes and (2) "heads" trump
Parentella is a group of people and their descendants
- 1st parentella is the decedent and his descendants (X has 2 kids A & B)
- 2nd parentella is parents of decedent and their descendants (X's siblings, nieces, nephews)
- 3rd parentella is the grandparents of decedent and their descendants (paternal and maternal grandparents, uncles, aunts, cousins)
If everyone in 1st is dead, then 1/2 goes to Mom and 1/2 goes to Dad.
If Mom is dead, then all goes to Dad. If all dead in 1st and 2nd, then go to 3rd. Each grandparent will get 1/4.

UPC? = uses consanguinity
Common term for the heir that take but does not even know or care about the decedent.
"Laughing Heirs"
if there is no surviving issue (kids or grandkids), then the remainder of the estate is distributed to the decedent’s surviving parent or parents in
undivided equal shares. [84 O.S. § 213(B)(2)(b)]
if there is no surviving issue, parent, nor issue of parents, but the decedent is survived by one or more grandparents or issue of any grandparent:
i. one-half (1/2) of the remaining estate passes equally to the paternal grandparents (or grandparent if only one is living); and
ii. the other one-half (1/2) of the remaining estate passes equally to the maternal grandparents (or grandparent if only one is living);

As to the grandparents, paternal or maternal, if both grandparents are deceased, the remaining issue of said grandparents shall take the one-half (1/2) interest in equal shares so long as the issue are all of the same degree of kinship. If the issue are of unequal degree of kinship, those of more remote degree take by representation.

iii. if the only surviving grandparent(s) or issue of grandparent(s) are only on one side of the family, paternal or maternal, the entire estate shall pass to such survivors in the manner set forth above. [84 O.S. § 213(B)(2)(d)]
If there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to:
Next of Kin’s Share: If there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to the next of kin in equal degree. [84 O.S. § 213(B)(2)(e)]
if the decedent leaves no spouse, issue, parent, issue of parents, grandparent, issue of grandparents, nor any other kindred, the entire estate shall:
The entire estate shall escheat to the state for the support of the common schools. [84 O.S. § 213(B)(3)]
What is a "negative will"?
Negative Inheritance: A testator is free to disinherit children through the will if he expressly states such intention. However, the testator must also be sure that the will affirmatively disposes of all of the estate because, if not, the undisposed portion will pass through intestacy. Under the intestacy law, some of the property will go to the so called “disinherited” child.
An inter vivos gift given to a child during the decedent’s lifetime may be treated as an ______________ on that person's inheritance. If so, the receiving child's share under the intestacy statue is reduced after "grossing up" the estate.
Advancement. [84 O.S. §223]
Under the common law, there is a rebuttable presumption that an inter vivos gift to a lineal descendent is an ____________ against his or her intestate share.
advancement
Oklahoma statute eliminates the presumption by providing that a gift or grant is an advancement only if:
(a) expressed as an advancement at the time the gift or grant was made;
(b) expressed in writing by the decedent at any time as an advancement (e.g. in a will);
(c) acknowledged in writing as an advancement by the recipient. [84 O.S. § 225]
Advancements only apply to:
Advancements only apply to children or other lineal descendents. [84 O.S. § 223] In addition, advancements only apply to intestate succession.
If an advancement is made to a lineal descendent and that descendent pre-deceases the decedent, then the advancement is:
counted against the portion of the estate that the pre-deceased’s lineal descendents would receive by right of representation. [84 O.S. § 227]
A _____ _____ has no heirs.
living person
when a person dies simultaneously with his heir or devisee and there is no sufficient evidence of the order of deaths, the beneficiary is deemed:
to have predeceased the benefactor. [58 O.S. § 1001] Thus, the contingent beneficiaries or heirs will receive the benefit or estate. OK adopts the Uniform Simultaneous Death Act. (USDA)
Generally, when one intentionally kills another, he will not be permitted to ________ property from the victim.
inherit
Adopted children (may/may not) inherit from and through their adopting parents.
may
Adopting parents (may / may not) inherit from and through the adopted child.
may
Adopted children (may / may not) inherit from and through their natural (biological) parents.
may
Natural (biological) parents (may / may not) inherit from or through adopted children.
may NOT
In some instances people want to adopt adults to prevent remote heirs from contesting the will. Most courts will recognize the adoption as valid so long as it:
only affects the adopting parties’ estates. If the adoption affects another person’s estate (e.g. the parents of the adopting party’s estate, including trust funds), then courts will not recognize the adoption unless the additional person whose estate is affected knew of the adoption prior to writing the will, setting up the trust fund, etc.
Non-biological parent (would / would not) be permitted to inherit from, or through, the child.
would not ???
In states recognizing equitable adoption, when a decedent dies intestate, a child that was never officially adopted may nevertheless be treated as if he or she were adopted by showing:
(1) an agreement between the natural and adoptive parents;
(2) performance by the natural parents of the child in giving up custody;
(3) performance by the child by living in the home of the adoptive parents;
(4) partial performance by the foster parents in taking the child into the home and treating it as their child; and
(5) the intestacy of the foster parent. [O’Neal v. Wilkes]
Half-blooded kindred (i.e. sibling that share the same mother or father, but not both) are treated the ________ whole-blooded kindred for intestacy purposes under the common law and under Oklahoma statute. [84 O.S. § 222]
the same as
All states, including Oklahoma, permit an illegitimate child to inherit from his or her mother. However, under Oklahoma statute, an illegitimate child may only inherit from a father that dies intestate if:
(1) The Father had acknowledged his parentage in writing;
(2) The Father and Mother had subsequently married and the father had acknowledged parentage (informal adoption);
(3) The Father had publicly acknowledged parentage of the child and with the consent of his wife, if married, received the child into his home and treated the child as his own; and/or
(4) The Father was judicially determined to be the parent of the child during the father’s lifetime (paternity proceeding, including final judicial determination, must have been completed during the decedent’s life). [84 O.S. § 215]
Attested will in Oklahoma require:
they be written, subscribed by the testator who communicates (publication) that the document is intended to be will, and is witnessed by two disinterested people who sign at the end, at T's direction and in T's presence.
UPC 2=502(a) requires for attested wills:
(1) Written
(2) Signed by T or in T's name in T's conscious presence and at T's direction (proxy)
(3) No requirement that T be in other's presence when signed
(4) No requirement of publication
(5) Either:
a. 2 witnesses, who each must sign within a reasonable time after
witnessing either:
- T's or proxy's signature;
- T's acknowledgment of signature; OR
- T's acknowledgment of will.
OR
b. Acknowledgement by T before a notary or other so-authorized person
Oklahoma requires that unattested (holographic) will be:
entirely handwritten, dated & signed by testator.
UPC requires holographic wills require:
Signature and material portions in testator's handwritting.
A will can be revoked by a subsequent written will or other writing of the testator if testator:
declares intent to revoke or alter the written will and executes with the same formalities as required for a will (attested or holographic). [84 O.S. § 101(1)]
Elements of "testamentary intent" are:
(1) intent of testator to distribute property at death, and (2) intent that the document is to be their last will and testament.
a prior will is not revoked by a subsequent will unless the subsequent will:
contains (1) an express revocation clause or (2) provisions that are wholly inconsistent with the terms of the former will. [84 O.S. § 105]

A subsequent will that does not revoke the prior will but makes a complete distribution of the testator’s estate is deemed to have revoked the prior will. [UPC]
An amendment to a will is a:
Codicil: a codicil is an amendment to the will. If the subsequent will does not contain an express revocation clause, then it is viewed as a codicil and only revokes the provisions of the previous will that are inconsistent with the subsequent will. The testator can write as many codicils as he desires; however, multiple codicils cause confusion.
If the provisions of the previous will are not revoked by an express revocation clause or by inconsistent terms in the wills, then those provisions:
remain in effect to the extent that they are consistent with the terms of the subsequent will. [84 O.S. § 105]
Once a will is revoked, its provisions can only be revived by:
codicil or subsequent will.
revoked provisions are not revived if the testator later revokes the subsequent will, unless:
(1) it appears by the terms of such revocation that it was his intent to renew the former will or (2) after the revocation of the subsequent will, he republishes the prior will. [84 O.S. § 106]
In 03, Testator executes will giving all prop to Adam. In 04, Testator executes will giving ring to Betty and car to Carl. No words of revocation. Referred to as a codicil (later/doesn’t replace). In 05, Testator destroys 04 codicil w/ intent to revoke. 03 will offered for probate, can it be?
It can be probated. There was no action to revoke since the codicil is gone.
In 03, T executes will giving all prop to A. In 04, T executes will giving ring to B and car to C. No words of revocation. Referred to as a codicil (later/doesn’t replace). T destroys 03 will w/ intent to revoke. Codicil is offered for probate, can it be?
If was an actual codicil, the presumption is revocation of codicil. It was an appendage and can’t stand alone. Merely presumption; can be overcome.
If subsequent will does not make complete disposition of T’s estate, it is not presumed to revoke prior but is viewed as a:
codicil
a subsequent will that does not expressly revoked prior will but makes complete disposition of T’s estate is presumed:
to replace prior and revoke by inconsistency.
a subsequent will wholly revokes previous will by inconsistency if:
Testator intends the subsequent will to replace rather than supplement previous will.
codicils have the same formality requirements as:
wills
Can you impliedly revoke a prior will?
Yes, 1) if will #2 distributes entire estate (residuary clause) or
2) if inconsistent w/ prior will.
Surest way to revoke a will is:
to physically destroy it and validly execute a new will that says there are no other wills
What is Guzman's two part analysis for revoked wills?
(1) Look at latest will, did it expressly revoke earlier will?
- Was there a "residuary clause"? A clause leaving the "rest" of the estate to x.
(2) Did later will impliedly revoke earlier will?
What are the requirements for an effective physical revocation of a will?
Requirements for Effective Revocation: a physical act of destruction made with the intent to revoke is required for effective revocation. When revoking a will by physical act, the testator must actually mutilate, erase, deface, or otherwise mark-out the written portions of the testamentary instrument in such a way to clearly show intent to revoke. For example, if the testator writes “cancelled” on the will, the word “cancelled” must touch the terms of the will itself in order to effectively revoke the will. If written in the margin, the revocation would most likely be ineffective.

For an "act" to be sufficient, the act inflicted on the document must be one permitted by the jurisdiction's statute.
The most important question with revocation by physical act is whether the physical act was done with:
the intent to revoke the will.
Proof of intent to physically revoke a will is generally shown with _________ evidence.
extrinsic
If a will is executed in duplicate (i.e. there are multiple originals), then revocation of one duplicate does what to the other duplicates?
revokes all of the duplicates and thus, the entire will, absent a showing of no intent to revoke. [84 O.S. § 104]
Destroying a Xerox copy (is / is not) a sufficient revocation of the will.
in NOT
a clause in a will that provides for disinheritance of any beneficiary that contests the validity of the will. Thus, if the will contains this clause, the beneficiary loses his inheritance if he contests the will.
"No Contest" Clause
As a practical matter, a no contest clause is ineffective unless:
unless the beneficiary is given some property under the will. Otherwise, the beneficiary has no incentive to comply with the no contest clause because he would not receive any property anyway.
There are three (3) important limitations on “no contest” clauses:
(1) Void due to Public Policy: Some states, not Oklahoma, hold that no contest clauses are invalid based on public policy.
(2) Probable Cause Exception: Some states provide that the no contest clause is ineffective if the challenger had probable cause to contest the will. Thus, even if the contest is unsuccessful, the no contest clause in invalid if there was probable cause.
(3) Clauses are Interpreted Narrowly: Some states limit the effect of a no contest clause by narrowly defining what constitutes a “contest.” Thus, the beneficiaries are permitted to challenge the will through other methods. For example, it is not considered a challenge when a will is admitted to probate and a subsequent document is admitted to show that the will was revoked or amended.

Oklahoma’s Limitation: Oklahoma is one of the states that interprets the no contest clause narrowly. However, Gillett believes that Oklahoma is also moving toward a probable cause exception.
Because the attorney-client relationship is a confidential relationship and the preparing of a will is active participation, a presumption of _________ ____________ arises when an attorney drafts a will and also receives a bequest.
undue influence. The presumption is extremely difficult to overcome because juries do not like or believe attorneys. Therefore, although it isn’t unethical for an attorney to draft a will that bequests a gift to him if he is related to the client, it is unwise.
influence that overwhelms the testator’s conscious decision. It is influence that borders on coercion. In fact, in Oklahoma, some element of coercion is required.
Undue Influence
When determining whether undue influence was exerted on the testator, courts consider the following factors:
(1) Susceptibility of T to undue influence;
(2) Motive of alleged influencer;
(3) Whether alleged influencer had disposition to unduly influence;
(4) Whether coveted result occurred as a result of undue influence.
Which party initially has the burden of proving "undue influence" in a will challenge?
The contestant alleging undue influence ordinarily bears the burden of proof.
Although the burden of proof is normally on the contestant, a rebuttable presumption of undue influence arises and shifts the burden to the alleged influencer if the trial court finds:
(1) That a confidential relationship existed between the testator and the alleged influencer and (2) Suspicious circumstances, drastic changes in testamentary disposition.
when drafting a will, the lawyer has no affirmative duty to make an inquiry into the client’s competency unless:
unless the lawyer has notice that the client might be incompetent.
It is unethical for an attorney to draft a will for someone he knows to be:
lacking testamentary capacity.
"An irrational belief that T adheres to against all reason and evidence to the contrary and that springs from a diseased mind."
Insane Delusion
In a will challenged based on lack of testamentary capacity, the Defender of the will may be able to defeat a challenger if they can establish:
that testator was in a lucid interlude at the time of execution.
Lucid interlude means:
of "sound mind' at the time of will execution.
Because courts presume that the testator was mentally competent at the time of execution, the burden is on the ___________ to show that the testator was incapacitated leading up to the execution of the will.
contestant
In order to show that the testator had testamentary capacity at the time of executing the will, the proponent of the will must be able to show that the testator:
had a sound enough mind to understand:
(1) Nature and extent of his or her property;
(2) Natural objects of his/her bounty (who would take under intestacy)
(3) Disposition being made (will)
(4) relating elements to one another
(5) forming an orderly desire as to dispose of property
Reasons for Requiring Testamentary Capacity:
(1) The testator’s intent should control and, in order to have intent, there must be some element of conscious decision.
(2) Protect the decedent’s family.
(3) Prevent the testator from being exploited by third persons.
Who has standing to challenge a will on "lack of capacity" grounds?
Anyone who stands to inherit if the entire will is thrown out.
Court will set aside the entire will, not just a portion of it, if it is proven that the testator lacked ______ ______ at the time of execution.
testamentary capacity
A will can only be revived if it was originally ______ and effectively ________.
originally valid and effectively revoked.
Once a will is effectively revoked, it can only be revived through the following methods:
(1) Republication: the will is republished by codicil, incorporated by reference in new will, etc.; or

(2) Express Revival in Revocation of Subsequent Will: if a subsequent will is expressly revoked and the revocation clause expressly states the testator’s intent to revive the previous will, then the previous will is revived.
If, after making a will, the testator makes and executes a subsequent will that revokes the first, expressly or by inconsistency, revocation of the subsequent will does not revive the former will unless:
(1) it appears by the terms of such revocation that it was the testator’s intention to renew the former will or, (2) after revoking the subsequent will, the testator republishes the prior will. [84 O.S. § 106]
there are three situations where a change in family circumstances can cause a change in a will by operation of law:
(1) Divorce; (2) Marriage; and (3) Children.
If the testator gets divorced (or the marriage is annulled) after making his will, all provisions of the will in favor of the testator’s ex-spouse are:
thereby revoked and the former spouse is treated as having predeceased the testator. [84 O.S. § 114]
There are two situations in which children could cause a change in the testator’s will under Oklahoma statute:
(1) after-born children not provided for in the will; and (2) children unintentionally omitted from the will.
If the testator has a child that is born after the making of his will, either during the testator’s lifetime or after his death, and the child is neither provided for by any settlement nor mentioned in the will, the child is entitled to:
the share that he/she would have received had the testator died intestate. [84 O.S. § 131]
When the testator unintentionally omits to provide for any of his children, or the issue of any deceased child, the child, or his issue if child is deceased, is entitled to:
the share that the child would have received had the testator died intestate. The omission must have been unintentional! [84 O.S. § 132]
Absent a showing of intent to the contrary, the destruction of a ___ revokes all codicils made subsequent
will
The will can be safeguarded in basically three ways:
(1) client's possession, (2) Attorney's possession, (3) Court's possession
A will is __________ at any time during the life of the testator because it does not take effect until death.
revocable
What are the two requirements of the Doctrine of Integration:
(1) Presence: The paper must be present at the time of execution; and
(2) Intent: The testator must have intended for the paper to be part of the will.
Any writing in existence when a will is executed may be __________________________ if the language of the will manifests such intent and describes the writing sufficiently to permit its identification.
incorporated by reference
In order for a document to be validly incorporated into the testator’s will by reference, the following requirements must be satisfied:
(1) The writing must be in existence at the time of execution of the will;
(2) The writing must be clearly identified in the will;
(3) The writing must be, with reasonable certainty, the one referred to in the will; and
(4) The intent to incorporate must appear on the face of the will (no extrinsic evidence).
A codicil to a prior will ____________ the original will as of the date of the new codicil because the original will is essentially incorporated into the codicil.
republishes
the doctrine of __________ __ __________can be used to incorporate previous invalid wills whereas the doctrine of __________, except in Oklahoma, can only be used to republish previous valid wills.
Incorporation by reference; republication
Under the doctrine of republication, so long as it would further the testator’s _______, a codicil to a will republishes the will as of the date that the testator executed the codicil. Thus, the republished will (original will and codicil taken together) is deemed to have been executed on the date of execution of the codicil.
intent
If a beneficiary or property designation is identified by acts or events that have a lifetime motive (not a testamentary motive) and significance apart from their effect on the will, courts will uphold the gift under the doctrine of ______ ___ _____________ ____________.
acts of independent significance
The court determines whether the act or event was motivated by something other than an intent to alter or change a testamentary disposition. If so, then the gift will be upheld. However, if the act was undertaken solely for the purpose of altering a testamentary disposition (i.e. a testamentary motive), then the gift will not be upheld.
Independent significance
T bequeaths the contents of her right-hand desk drawer to A. At T’s death, there is a savings bank passbook in T’s name, a certificate for 100 shares of GE common stock, and a diamond ring. Courts would
uphold the gift and allow A to take the passbook, stock and ring under the doctrine of "Acts of independent Significance", because putting the things in the drawer have significance beyond a testamentary disposition,
T bequeaths the contents of her safe deposit box to A. Courts usually uphold these gifts because:
putting something in the safe deposit box has significance independent of a testamentary disposition or motive.
Testator has a typed will that is unsigned. At the bottom of the will and on the same sheet of paper, there is a typed codicil that is signed and attested. Can the codicil republish the will?
codicil cannot republish a will because the will was not validly executed:
Courts could apply the Integration or Incorporation by Reference Doctrines to make the will valid because the codicil is valid.
The Testator has a holographic will that is not signed and invalid. However, at the bottom of the page, there is a holographic codicil that is valid. Will the codicil republish the will?
codicil cannot republish a will because the will was not validly executed:
courts could apply the Integration or Incorporation by Reference Doctrines to make the will valid since the codicil is valid.
The testator has a typed will that is not validly executed. On a separate sheet of paper, the testator makes a holographic codicil that is valid. Would the codicil republish the will?
a codicil cannot republish a will because the will was not validly executed:
The Integration Doctrine would not apply because there are separate documents that aren’t stapled, etc. and no internal coherence in the language – they aren’t in the same font, etc. Therefore, the court would have to rely on the Doctrine of Incorporation by Reference to make the will valid.