Illinois--Will

Front 1

what is the requirement for validly executed will.

what is the exception.

Back 1

1. must be 18 yrs old

2. Signed by testator (or july 1998) by someone at T's direction and in her presence = Proxy signature.

3. Two attesting witness ( 1990) not valid if one witness.

4. Each must sign in testator presence.

---codicil = later amendment or supplement to will= must be executed with same formalities.

Front 2

what does illinois will law does not require.

Back 2

illinois does not require.

1. testator sign "at foot or end" of the will

2. Witness know they are witnessing a will (No will publication-requirement.

3. witness sign in each other's presence.

Front 3

Hypo:

T ypes a will. T takes the will across the street ti the house of her neighbors N and asked Ned to "witness my will". N signs on the first witness line; then T signs. T's signature is barely legible due to an arthritic condition. T then takes the will across the street to her neighbor's O and asked, " Would you mind witness this legal doc. for me?" It need two signatures besides mine." T proffers the doc. with her signature showing. O signs, thinking she is witnessing a power of Attorney. After T's death, the will is offered for probate. Should it be admitted.

Does it matter that one of the witness signed before T signed.

Back 3

YEs.

1. signed by T

2. 2 witness.

3. IN T's presence.
------------------------------------------------

no bc exact order of signing is not critical when the execution ceremony is Contemporaneous transaction.

Front 4

what happens here.

T forgot to sign when witness signed,signed three days later in same witness presence.

Does it matter that T's signature is barely legal.

Back 4

Not ok b/c not contemporaneous trans. will be denied probate. They are attesting witness and must attest to T's signature when they sign.

--No any mark intended as T's mark is sufficient.

Front 5

what happens here:

T is confined to a hospital with a contagious disease, his bed hidden by vinyl screen. The will is handed to T at a point when the 2 witness are standing in the doorway to the room, not in T's line of sight b/c of the screen. From behind the screen T says "this looks all right. Where do I sign?" After T signs the will, a nurse carries the will to the doorway where the two witness sign under the attestation clause; T cannot see either of them sign.

Was the will validly executed?

Did the witness sign in T presence?

Majority rule vs. Illinois rule.

what is exception.

Back 5

Majority Rule = Yes-under-conscious presence test
--it is not necessary that testator should actually see the witness when they sign. They are in his presence if he so near to them that he is conscious if where they are and what they are doing--

Illinois = No = witness must be in testator's line of sight. Testator does not have to see witness sign, but witness must be within the uninterrupted scope of the testator's vision where they sign, So that testator could have seen them sign if he had looked.

---if testator will not be valid when T lapsed into coma before witness signs--.

Front 6

Can attorney be held liable for the negligence of a will.

Back 6

Liable for negligence of will.

Majority rule = No b/c there is privity of k.

Illinois = yes because privity rejected as a def.
--attorney duties also run to intended beneficiaries of his services--

Front 7

Can the will be admitted to probate if witness is attesting witness.

Back 7

yes ( in every state)

interested witness = never affects validity of the will, but beneficiaries witness losses legacy (purging statue) unless

1. there were two disinterested attesting witnesses
or
2. witness beneficiary would take a share of the estate if this will were not admitted to probate, in which case she takes the lessor of
a. bequest given by the will
or
b. intestate share (whichever is least) rule (must be related to T for intestate share) .

Front 8

what the majority rule for executor getting paid

1. illinois

2. majority.

Back 8

illinois = no, compensation for serving as executor of a estate.
(only applies to executor who signs the will as attesting witness. Does not apply to bank if named executor and bank employees or attrn)

majority= yes.

Front 9

what happens if spouse of witness and signs does this violate the interested witness void legacy rule.

Back 9

Majority = no, rule specific to the person.

Illinois = yes

Uniform Probate code = A will or codicil, or any part of it, is not invalid because the will is signed by an interested witness.

Front 10

1. what are holographic wills

2. are they valid.

what is the exception.

does illinois recognized oral will?

Back 10

1. yes.

2. will (handwritten, signed but no witness)

--------------in illinois--------
does not recognize holographic will in illinois, all wills must be signed by 2 attesting witness.

---exception---
Execution of foreign will act.
= a holographic will written in a state recognize holographic will is admissible to probate illinois = if testator moves to illinois and dies.

oral will = no = not under any circumstances.

Front 11

what is the rule for conditional will

Back 11

if condition didn't occur the will will be disregarded.

argue both.

Against: probate should be denied = b/c condition didn't occur

For: condition merely reflects motive or inducement for making of the will.

Front 12

what is the revocation of a will

Back 12

1. later testamentary instrument = executed by proper formalities

2. physical act (burring, tearing, canceling, obliterating, other act of destruction.)

Front 13

what is the rule for revocation of will by direction of others.

Back 13

element.

1. at T direction

and

2. In T's presence. (phone is not good enough)

Front 14

what happens if the will was if will was destroyed and not probated.

Back 14

by satisfying the proof of lost will statute.

1. Proof of due execution (testimony of attesting witness as in any case.

2. cause of will's non production must be proved. (must overcome presumption as to revocation set out below)

3. Content must be substantially proved by
a. copy of will
or
b. testimony of witness who have read it or heard it read.

Front 15

what are the revocation of the will resumption.

Back 15

1. where a will last seen in testator possession or control is not found after death: presumption testator revoked by physical act.

2. Where a will last seen in testator's possession or control is found mutilated after testator death = revocation.

---neither arises if---

1. last seen in someone adversely affected by the will.
2. evid. is admissible to rebut the presumption of revocation where will cannot be found or is found in damage condition.

Front 16

what happens if there is two wills.

Back 16

both of the Will be read together to extent as possible.

but if wholly inconsistent = the new will be treated as codicil and revoke earlier will by implication.

Front 17

how does revocation of codicil.

Back 17

Revocation of codicil will not revoke the will = part of the will modified by the codicil is restored; takes effect as though the codicil had never been written.

Front 18

what is the rule for dependent relative revocation.

Back 18

1. first will was revoked when second will (with its revocation clause) executed.

2. second will must be revoked by physical act.
--no revival of revoked will.--
unless
a. the will was re executed-signed by T and 2 witness
or
b. doctrine of republication by codicil applies.

3. dependent relative revocation = mistake of law or fact as to the validity of another disposition.
ex-T torn up codicil in mistaken belief that old will would come into play.

Front 19

what is the rule for effect of change of face of will after it has been executed.

Back 19

under illinois law = no effect at all.
partial revocation by physical act are not valid.
words that have been added to a will after it has been signed and witness are disregarded.

Front 20

when does an anti-lapse statute save the gift.

what does this apply too also.

Back 20

1. when beneficiary predeceases the testator, the gift lapses.

2. unless the gift is saved by state's anti-lapse statute.

3. illinois = only applies if predeceasing beneficiary was a child or other descendant of the testator.

element:
a. must have been related to testator
and
b. must have left descendent who survived testator.

---this also applies to void gifts---

Front 21

hypo:

what happens here.

T daughter M who predeceased T, leaving a child (missy) Who survives T? H and B survived T.

what happens to M's 1/3 share for residuary estate.

Back 21

Illinois rule.
under the surviving residuary beneficiaries rule = devised of two or more persons and gift to one of them lapses or fail, the surviving residuary beneficiaries take the entire estate.

but

anti lapse statute trumps survivor residuary rule if the predeceasing residuary beneficiary
1. was related to dead.
2. survived the testator.

Front 22

what is the rule for class gift rule for construction.

Back 22

gift to a group of people.
if the person survive testator they take.

Rationale = testator was "open minded" making the gift, and wanted to this group and only this group to share the prop. ( you read this will and determine takers of a class gift as of testator's death).

rule of convenience: class is closed when some class members is entitled to a distribution.
subject to gestation principals.
------common law presumption: 280 days from conception to birth.------

Front 23

what is the rule for Uniform Simultaneous Death Act.

Back 23

unlike the 120 hrs rule.

illinois its called Uniform Simultaneous Death act.
have to survive Testator by any amount of time = you take.

Front 24

what happens when execute will and then marries.

Back 24

In illinois and gen. nothing change.

reason:

elective shares.

Front 25

what happens if there is a divorce in regards to gift in a will.

Back 25

Illinois = final decree of divorce or annulment revokes all gifts and fiduciary appointment in favor of former spouse.

estate is distributed and fiduciary are named as though the former spouse predeceased the testator--must be final decree of divorce:

no revocation of gift it divorce action has been filed and is pending.

-------caveat---------(illinois + majority)
this will not revoke life insurance policy for the name beneficiary.

Front 26

what is rule for "permitted child" statute

Back 26

Illinois and majority rule = if child is alive when will is executed, child will be omitted.

if a child is born after the will executed = child takes intestate share.

UNLESS= extrinsic evidence was intentional.

if codicil is republished after child is born child is deemed to have been excluded from taking.

Front 27

name this.

I devise Blackacre to my son John.

Back 27

Specific devise or bequest.

Front 28

name this.

Gift of Gen. amount from a specific source. " i give the sum of 25k to be paid from the proceeds of the sale of my shell oil stock, to Sally.

Back 28

Hybrid: Demonstrative legacy.

Front 29

name this.

I bequeath 10 to my nephew Ned.

Back 29

Gen. legacy.

Front 30

name this.

I give all the rest and residual of my estate to Betty.

Back 30

Residuary gift.

Front 31

If the will does not make a compete disposition of the estate because the will, poorly drafted, does not contain a residuary clause ( resulting in a partial intestacy)

Back 31

Intestate property.

Front 32

what is the order to pay the abatement of legacies to pay claims.

Back 32

1. intestate prop.

2. residuary assets.

3. Gen. legacies

4. Specific bequest.

(no distinction btwn real and personal prop.)

Front 33

how does ademption work and what happens.

Back 33

if the specific prop. is not in the estate at time of death. you loose.

but ademption does not apply to

1. Demonstrative
or
2. Gen. legacies gifts.

Front 34

what is illinois statute of admeption of equitable conversion.

Back 34

if Testator entered into a k before death and died in the middle. Bequest get the remainder of payment under k.

---only if die in the middle of k--
if k is fully done= bequest gets nothing.

Front 35

what are the illinois rules for Incapacitation and how illinois crt have handled the situation.

Back 35

1. If T becomes incapacitated and guardian/conservatorship sells prop. = devisee has the right to gen. legacy equal to the net sale price, condemnation or insurance proceed.

2. Illinois crt have granted proceed relief where T incapacitate and could not change the will= devisee only to the extent they can be traced and haven't been expended for the ward's care.

Front 36

what is the rule for the specific bequest of encumbrance of prop.

Back 36

Common law = Liens on specifically devised prop are exonerated from the residuary estate (take w/o lien)

Under illinois law= Specific legatee of encumbered prop. i not entitled to have the lein exonerated unless that will expressly directs exoneration.

person takes as good as the giver has it = with the lien.

Front 37

what is the rule for reference outside the will to be incorporated with the will.

Back 37

elements: illinois.

1. doc. must be in existence when the will executed.

2. Will must refer to the doc. as being in existence.

3. Will must describe the doc sufficiently to permit its ID.

Uniform Probat Code:

1. can dispose of tangible personal prop. ( no money)

2. signed by testator

3. written before or after the will is executed.

Front 38

what happens here.

T writes will give my car to nephew and all furnishing to my niece.

T has ford and trades it in for aston at time of death and brings down and picasso painting before her death.

Back 38

Acts of independent significance.

nephew gets aston.

niece gets the picasso.

Front 39

what is the rule for mistake or ambiguity in the will terms.

Back 39

ILL= plain meaning what is written is what the person gets.

UPC= will can be reformed to to correct the mistake if the mistake is made by clear and convincing evidence.

Front 40

what happens if there is ambiguity in the will.

Back 40

--- latent because there is misdescription--

admissible:

1. extrinsic evidence.

2. facts and circumstances of evidence.

3. testator's statement to attn who prepares the will.

if still have issue the gift fails.

Front 41

what is the diff. called when.

misdescription vs. mistake on the will.

Back 41

Latent ( misdescription)

Patent (mistake appears on the face of the will)

Front 42

what is the rule for will k.

Back 42

UPC (uniform probate code) = usually never a k.

ILL= execution of a joint will by husband and wife may be found contractual
if all/most found.

elements
1. will labeled = joint and mutual.
2. will leaves entire estate to surviving spouse.
3. will disposes of all of their prop. in a unified disposition.
4. there is a common dispositive scheme on the death of the survivor.

-------------------------steps---------if k

a. apply will law.
= T can always revoke an earlier will even though it was subject to a k that it wouldn't be revoked.
will must be admitted to probate.

b. Apply k law.
= Since revocation of a 2004 will breach a k, impose constructive trust against beneficiary under the will.

Front 43

what is rule for disinheritance in a will.

Back 43

ILL = will does not make a compete disposition of estate (partial intestacy), words of disinheritance in the will are ineffective.
---it passes pursuant to intestacy statute, not decedent's will---

Uniform Probate Code= estate distributed as if the person predeceased the testator.

Front 44

what is the rule for instate succession.

Back 44

1. survived by spouse or descendent.

distribution =

1/2 to spouse
1/2 to child
---look at the chart.

Front 45

what is the rule for uniform simultaneous death act law.

Back 45

wils = if no sufficient evid. of survival
prop. of each passes as thought she survived joint saving acct.

distributed 1/2 as though A survived B.
1/2 as though B survived A.

Simultaneous death act did not apply if there was sufficient evidence of survival by several minutes.

Front 46

what is the law for advancements, satisfaction of legacies.

Back 46

--no advancement where no writing is signed by donor or donee heir.--

--No presumption of satisfaction of legacy when beneficiary no related to the testator--

Front 47

what is the law for disclaimer

Back 47

Disclaimer by child named as a will beneficiary = anti lapse statute applies.

Caveat = cant disclaim so to avoid creditor's claim.

Front 48

what is the rule for execution of wills.

Back 48

1. signature of testator with initials

2. signing in testator presence--line of sight and must be conscious. ( witness) (proxy signature is ok)

3. need 2 witness for a will.

4. words added after will = no valid = unless resigned.

---illinois does not recognize holographic wills---
---illinois does not recognize oral will---

Front 49

what is the rule for interested witness

Back 49

Interested witness:
1. will valid.

2. gifts to witness = beneficiary void.

3. both witness were beneficiary = will valid but bequest = void.

Front 50

what is the revocation; proof of lost will.

Back 50

1. Second will with no revocation clause treated as codicil; revoked earlier will only to extent of inconsistent provision.

2. revocation by implication where will #2 wholly inconsistent with will # 1.

Front 51

what is the rule for revocation by acts.

Back 51

1. writing void across face = not revoked

2. must do physical act to by instrument = new will

or

3. physical act = tearing.

= illinois = no partial revocation by physical act.

Front 52

what is the rule for revocation by 3rd party.

Back 52

can do it

1. T's discretion and in T's presence.

2. but if will was found in T' presence there is a presumption of revocation is rebutted.

Front 53

what is the rule for the revival of will.

Back 53

No revival of wills = illinois.

caveat= Revocation of the codicil by physical act revokes only the codicil and restores the will.

----caveat----

The doctrine that regards as mutually interrelated the acts of a testator destroying a will and executing a second will. In such cases, if the second will is either never made or improperly executed, there is a rebuttable presumption that the testator would have preferred the former will to no will at all, which allows the possibility of probate of the destroyed will.

Front 54

What is the rule for marriage or divorce following execution of a will.

Back 54

Marriage has not effect on earlier will.

divorce revokes gift and appointment of earlier spouse.

Divorce rule only applies if final divorce decree, not where divorce action is pending "this does not apply to legal separation also"

Front 55

what is the rule for permitted child statute.

Back 55

1. permitted child takes = instate succession.

2. statute only applies to after-born or after adopted children: does not protect existing child.

--only applies to will--
--not life insurance before the child was born.--

Front 56

what is the rule for incorporation by reference: acts of independent significance.

Back 56

1. Incorporated by ref. applied by memo was in existence when T wrote will.

2. No incorporation by ref. where doc or memo was not in existence when T wrote the will.
--Exception--
= UPC list of tangible personal prop. written after the will was signed.

Front 57

what is the rule for contractual will.

Back 57

Joint and mutual will were contractual
survivor could not revoke agreed upon disposition reciprocal wills not contractual

Unless

Clear and Convincing evid. of contract.

Front 58

what is the rule for conditions that are against public policy.

Back 58

Partial restrain on marriage are permitted

ex.
can get money if he marries jewish girl.

can get money if she doesn't remarry.

all ok.

Front 59

what is the rule for lapsed gift and anti-lapse gift.

Back 59

this only applies to child parent.

1. anti lapse statute applies to bequest to testator's child who predeceased testator.

2. applies to class gift.

----does not apply----

if there is a condition "only if he survives me"


if son kills parents anti-statute applies and will pass as if son died before parent.

Front 60

what is the rule for class gift.

Back 60

gets if

1. surviving class members take.

----caveat----
anti-lapse staute applied to bequest to testator's children, trumping class gift rule.

Front 61

what is the rule for ademption.

Back 61

where specific bequeath prop. was not in estate at time of death.

can get if in the same form but not if it changes in substance.

----caveat---
this does not apply to gen. legacies.

1. does not apply where under circumstances where T could not have intended ademption.
***insurance money from death of car accident*** (was gonna give you that car i died in)

Front 62

what is the rule of bequest of security.

stock dividend included in bequest of stock?

Back 62

bequest of "my Gm stock" = specific bequest; ademption applied.

bequest of 100 share of stock = gnu legacy = ademption purpose.

---Not in illinois
but
---yes under UPC.

Front 63

what is the rule for exoneration of liens.

Back 63

No exoneration of liens

unless will allows it.
Just debts clause not sufficient directive that liens be exonerated.

Front 64

what is the rule for mistake/ ambiguity.

Back 64

if ambiguous = extrinsic evid. allow to show intent of testator.

patent ambiguity is given effect to both.
give both person the gift.

bequest to my best friend = not valid. = no ascertainable beneficiary.

Front 65

what is the rule for will contest- no contest clause.

Back 65

1. burden of proof on contestant.
things to talk about.
a. undue influence
1. opportunity.
2. susceptibility.
3. unnatural disposition.

b. evidence.

c. lack of testamentary ( relationship)
1. understand the nature of the act he was doing.
2. know the nature and the approximate value of this prop.
3. know the nature of object of his bounty.
4. understand the disposition he was making.

--no contest is given effect in illinois--
regardless of probable cause

Front 66

what is the rule for elective share/ spousal rights.

Back 66

1/3 share where dead was survived by kids.

1/2 where dead was not survived by kids.

wife gets elective share even if legally separated by husband.

Front 67

what is the rule for other will doctrine.

Back 67

1.apply "abatement of legacy" rule where residuary estate was exhausted. (take money from gen.)

2. words of disinheritance in a will are ineffective if there is a partial intestacy.

3. slayer statue applies to life insurance policy where son murdered parents = even though found non-guity in criminal proceedings. .

Front 68

what is the rule for power of appointments.

Back 68

Gen. ref. in residuary clause (includes any prop. over which I may have power of appointment.) exercise power of appointment.

But Gen. ref. did not exercise power that require specific ref. for its exercise contract to exercise special testamentary power of appointment in favor of the child is invalid special power to appoint among kids.

---appointment to charity invalid--

Front 69

what is the rule for probate asset.

Back 69

JT who dies first couldn't win his 1/2 interest

this will pass by right to the survivorship.
Life insurance--beneficiary cant be changed by will = k governs.

Front 70

what is the rule for durable power of attorney.

Back 70

Sprining = durable power of attorney became effective when the principal became incapacitated duties of agent under durable power of attorney.

Front 71

who does prop. pass in illinois.

what is the process.

Back 71

per stirpes.


A
B. (d) C D(d)
1/3 1/3 1/3

b1----b2 d1
1/6 1/6 1/3

Front 72

what is the rule for intestate shares of surviving spouse.

Back 72

if survived by spouse and descendant =

1. spouse takes 1/2 = descendant takes 1/2

2. if only spouse = spouse takes all.

Front 73

how much can the surviving spouse take and child award.

Back 73

10k + 5k for any kids.

if no spouse = 10k for adult kids + 5k for the minor kids.

until will is read.