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184 Cards in this Set

  • Front
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Requirements for a validly executed will
T must be 18 years old
Signed by the testator (or at T's direction--"proxy signature")
Two attesting witnesses
Each witness must sign in the testator's presence
Codicil
a later amendment or supplement to a will must be executed with the same formalitites
1. Tess types a will that disposes of all her property. T takes the will across the street to Ned to sign. Ned signs on the first witness line, and then T signs. T's signature is barely legible. T then goes across the street to O to attest her legal doc. O signs and thinks its a POA. Should T's will be probated?
Questions follow
Does it matter that one of the witnesses signed before Tess signed?
No. Exact order of signing is not critical when the execution transaction is a CONTEMPORANEOUS TRANSACTION (but forgetting to sign, and signing 3 days later is not contemporaneous; probate denied)
Does it matter that T's signature is barely legible?
No. Any mark intended as T's mark works.
What constitutes signing "in the testator's presence" (hypo)
2. T is confined to the hospital, his bed hidden by a vinyl screen. A will is handed to T when 2 witnesses are in the doorway, but not in T's line of sight b/c of the screen. T signs it, and nurse carries will to witnesses, who T cannot see. Was the will validly executed?
UPC & Majority rule?
Yes, under the conscious presence test, it is not necessary that the T actually see the witnesses sign. They are in his presence if he is so near to them that he is conscious of where they are and what they are doing.
Illinois law?
No. witnesses must be in T's line of sight. T doesn't have to see witnesses sign, but witnesses must have been within T's uninterrupted scope of visions, so he could have seen it had he looked
Can an attorney be held liable for the negligent preparation of a will?
3. Lawyer prepares draft of that bequeaths the residue to nephew. T then decides to add a gift to grandchild. Lawyer makes the change, and accidentally omits the original residue to Ned. Tom signs it without noticing. T dies, will is probated, and b/c there is no residuary clause, 1/2 to N and 1/2 to Ollie. Does Ned have a cause of action against Lawyer for negligence?
Minority rule
No, because there is no privity of contract. The attorney's duty only runs to the client who contracted for the attorney's services.
Illinois Rule
Yes, because privity of contract is rejected as a defense. Under Illinois law, the attorney's duty also runs to intended beneficiaries of the services
What happens when a will beneficiary is an attesting witness to the will? (hypo)
next slide
Will includes these provisions: "I give 30k to Nellie Nurse, and the rest of my estate to by sister Sue. I appoint Hobie Gates as executor." Nell and Hobie are attesting witnesses to the will. Can the will be admitted to probate when Nell is both a beneficiary and an attesting witness?
Yes.
Interested witness situation never affects the validity of the will, but the beneficiary-witnesses loses legacy (called "purging statute") unless:
1. there are two disinterested attesting witnesses (beneficiary-witness is 3rd witness)
2. witness-beneficiary would take a share of the estate if this will were not admitted to probate, in which case she takes the lesser of
(i) bequest given by the will OR
(ii) intestate share (or legacy under an earlier will revoked by this one)
Thus, if Nell would have been T's heir if T left no will, Nell would take the lesser of:
1. the 30k bequest or
2. the intestate share
Does Nell take the bequest under the IL statute?
No. niether exception applies.
there is no 3d witness, nor is she related (so no intestate share)
Is Hobie gates, who signed the will as a witness, entitled to compensation for serving as executor under the overwhelming majority rule?
Yes. In most states, the interested witness statute applies ONLY TO BENEFICIAL gifts, not earned compensation
Is Hobie Gates entitled to compensation for serving as executor (or testamentary trustee) under the IL interested witness statute?
No. compensation denied by statute.
Note that the IL compensation statute applies only to the executor who signs the will as an attesting witness. It does not apply if:
a bank is the executor and a bank employee is a witness OR
if an attorney signs as a witnesses, the attorney nor his firm are disqualified from being compensated for representing the estate as attorneys
Suppose Nell did not witness the will, but her husband Norman was one of the two attesting witnesses
question follows
Does the interested witness statute void a legacy to a witness's spouse under the majority rule?
No, only a bequest to the witness herself triggers the statute
Does the statute void a legacy under the Illinois interested witness statute?
Yes.
Under UPC, several states have abolished the interested witness rule
A will or codicial, or any part of it, is not invalid b/c the will is signed by an interested witness
What are holographic wills, and are they valid? 9hypo)
Winkie writes a document in her own handwriting that reads (July 24, 2005. I, W, declare this my last will. I leave all my property to the Charity /s/ W" the writing is not witnessed
Is the will admissible to probate under the UPC?
Yes. the UPC recognized holographic--handwritten and signed, but unwitnessed wills.
Is the will admissible to probate in IL?
No. IL does not recognize holographic wills. All wills in IL must be signed by two attesting witnesses (handwritten or not)
A holographic will written in a state that recognizes holographic wills is
admissible to probate in IL
Does IL recognize oral wills?
No.
What is a conditional will? (hypo)
6. Ted writes a will that is properly signed and witnessed: "I am going on an expedition to Everest. If anything happens to me on the trip, I leave all my property to Alice." Ted climbs, returns safely, and dies 3 years later w/o changing his will, which is found in his desk draw?
Argue both sides:
1. This was a conditional, and probate should be denied, b/c the condition did not occur (Ted didn't die on the trip)
2. Probate the will b/c Ted's reference to the trip was merely a reflection of the motive or inducement for making a will.
What does it take to revoke a will?
Mere intent is not enough. A will can be revoked only by:
1. later testamentary instrument OR
2. physical act
Hypo: Hobie's will is found among his papers after his death. At the bottom of each page of the will is written, in Hobie's handwritting: "this will is VOID. Hobie Gates)
Did Hobie validly revoke his will?
In states that recognize holographic wills?
Yes, its a valid revocation by subsequent interest. It's in his handwriting and signed; doesn't have to be on a separate piece of paper
Under IL law?
No. not a valid revocation by subsequent interest because not witnessed by 2 witnesses
Was it a valid revocation by physical act?
No. Hobie's writing didn't cross over any of the words of the will
What if H had written I cancel this will. Revocation by cancellation
No, need a physical act
Suppose Hobie had crossed out his signature with a big X. Valid revocation?
Yes, it is a divisive act of revocation.
Hypo: the executed copy of A's will is in his safe deposit box. a copy of t that ahows the signatures (his and the witnesses) is at his home. A destroys the copy with an intent to revoke his will. Valid revocation?
No. Physical act must be on the original will--not a copy.
to be a valid recocation by physical act by another person (proxy revocation), must be:
1. at T's direction
2. and in T's presence
How can a lost or destroyed will be probated?
By satisfying the Proof of Lost Will Statute
Proof of Lost Will Statute requires showing:
1. Proof of due execution (testimony of attesting witnesses)
2. Cause of will's nonproduction (overcome presumptions)
3. Contents must be substantially proved by a copy of the will or testimony of witnesses
Revocation rebuttable Presumptions
1. Where a will last seen in testator's possession or control is not found after death, presumption that T revoked it by physical act
2. Where a will last seen in testator's possession or control is found mutilated after testator's death: presumption is that testator revoked it by physical act
Presumptions don't arise if
will was last seen in the possession of someone adversely affected by its contents
Hypo: In 2004, T executes his last will. In 2006, T executes another last will. The 2006 will does not contain language of revocation of earlier wills. What do you do?
Read the two wills together. The second will is treated as a codicil to the first will, and revokes only the first will to the extent of inconsistent provisions.
But if the second will is WHOLLY INCONSISTENT with the earlier will, ...
the first will is revoked by implication
Dependent Relative Revocation
DRR permits a revocation to be disregarded when the act of revocation was dependent upon a mistake of law or fact as to the validity of another disposition.
DDR Hypo:
T executes a will that bequeathed his residuary estate to grandchild Gary. Two years later, T executes a new will, "revoking all earlier wills" This will bequethed T's residuary estate to G for life, remainder to G's children. Tim did not destroy the earlier will. Then T decides he wants his will to go to G outright. He destroys the 2nd will with the intention of revoking it and reviving the earlier will. Is either will admissible to probate?
1. First will was revoked when second will (with its revocation clause) was executed
2. Second will was revoked by physical act
3. No revival of revoked wills (unless will re-executed or republication by codicil)
4. DDR applies, and we disregard the revocation of the 2nd will
DDR is sometimes referred to as ...
a second best solution
But if we apply DRR and disregard the revocation of the 2nd will, how can the 2nd will be probated when it was destoryed?
Proof of Lost Wills Statute
What is the effect of changes on face of will after it has been executed
In IL, no effect at all (T can't change amounts in will after execution)
Hypo: E's will says 5k to Hobie Gates, and 2k to Susan Slade. Then she crosses out the gift to Hobie, and strikes out the 2k and writes 5k for susan's gift.
What effect?
In IL,
no effect at all
Was the legacy to Hobie valdily revoked under the UPC?
Yes, partial revocations by physical act are valid
Was the legacy to Hobie validly revoked under IL law
No. partial revocations by physical act are not valid
Does susan get the 5k under IL law?
No. words added to a will after it has been signed and attested are disregarded
Elsie crossed out 2k before writing in 5k. Is susan nontheless entitled to the 2k in the UPC states?
Yes, under DRR.
Elsie crossed out 2k before writing in 5k. Is susan nontheless entitled to the 2k in IL?
yes, because partial revocation by physical act is not valid.
If Elsie wanted to change her will
write a new will or codicil
Suppose it can be show that Elsie crossed out 2k and wrote in 5k before the will was signed at witnessed, are the changes valid?
yes. if it can be established by proof
When a will beneficiary predeceases the testator, the gift _________, unless ________________
LAPSES
THE GIFT IS SAVED BY THE STATE'S ANTI-LAPSE STATUTE
Under the UPC, the anti-lapse statute applies
when the predeceasing beneficiary was a descendant of the testator's grandparent
In IL, the anti-lapse statute applies only when ...
the predeceasing beneficiary was a child or other descendant of the testator
Two elements have to be present before the anti-lapse statute applies
the predeceasing beneficiary
(i) must have been in the prescribed degree of relationship to the testator AND
(ii) must have left descendants who survived the testator
HYPO: Tim's will devises Blueacre to his son Sam, and the residuary estate to his wife Lois. Sam predeceases Tim leaving a child (junior) who survives Tim. Sam left a will leaving all of his property to wife sara. Time dies. Who takes blueacre?
Junior takes as the substitute taker under the anti-lapse statute
BUT what about the fact that Sam's will bequeathed his entire state to his wife Sara?
Doesn't matter. the Anti-lapse statute names a substitute taker
What if Same left no descendants (meaning the anti-lapse statute wouldn't apply), who would take blueacre?
The bequest lapses, and the lapsed gift falls into the residuary estate. So Lois gets it
What if the land was devised to Sam "if he survives me"? Would the anti-lapse statute apply in favor of junior?
No. the condition to the gift was not
Anti-lapse statutes also apply to ________ gifts
VOID
this is where beneficiary is dead at the time the will is executed
HYPO: T's will bequests "my residuary estate in equal shares to my nephew Hobie Gates, my friend Bill Baker, and my daughter Mary. Hobie dies before Teresa, leaving a child (junior). Teresa, a widow is survived by junior, bill, and mary. who takes the residary estate
Bill & Mary (1/2 each).
The anti-lapse statute doesn't apply b/c junior not a descendant of T
Illinois majority Surviving residuary beneficiaries rule
If residuary estate is devised to two or more persons and gift to one of them lapses, the surviving residuary beneficiaries take the entire residuary estate, in proportion to their interests in the residue
What if it was T's daughter Mary who predeceased T, leaving a child, Missy who survived T? Hobie and Bill survivied T. What happens to mary's 1/3 share?
Anti-lapse rule applies. Missy gets 1/3 along with Bill and Hobie.
The anti-lapse statute _________ the surviving residuary beneficiaries rule if the predeceasing residuary beneficiary (i) was within the scope of the statute and (ii) left descendants who survived the testator
TRUMPS
Class Gift Rule
In a gift by will to a class of persons, if a member of the class predeceases the testator, CLASS MEMBERS WHO SURVIVE THE TESTATOR TAKE (gestation rule too)
Class gift rule rationale
testator was "group minded" in making the gift, and wanted this group and only this group to share the property
HYPO: T's will devises blackacre to the children of my good friend Joe, and his residuary estate to wife Rose. When the will is executed, joe has two kinds, A and B.. After will is executed, but before Ted dies, Joe has another kid: C. A dies, but is survived by Junior. Ted ties and will is admitted to probate. 18 months later Joe has another kid: D. Who owns blackacre
B & C (1/2 each) as surviving class members.

Antilapse doesn't apply to Al
Contrast this to individual gifts: If a gift lapses it falls into the ____________
residuary estate (rather than being split in the class)
What if gift were "to children of my son, Joe"
Then, anti-lapse rule applies, and junior, b and C each get 1/3
What about D?>
never takes under the rule of convenience
Rule of convenience
the class is closed, meaning later-born class members do not share in the gift when some class member is entitled to distribution. This way there are no rebates.
HYPO: Mom and Son, riding in a car, are hit broadside by a train. Both die instantly. Mom dies intestate. Is son an heir?
Yes.
Simultaneous Deaths and deaths in quick succession are goverened by the USDA:
When title to property depends on order of deaths and there is NO SUFFiCIENT EViDENCE that the persons died otherwise that simultaneously, the property of each passes as though he or she survived
USDA for wills
As though testator survived and beneficiary predeceased (lapsed gift and anti-lapse)
USDA for intestacy
as though intestate survived and heir predecased
USDA for insurance
as though insured survived and beneficiary predecased
HYPO: if joint tenants or tenants by entirety die simletansouly:
1/2 passes through A's estate as though A survived B and one 1/2 passes through B's estate as though B survived A (treats it like TIC)
What if the autospy shows Mom dies instantly, and Son died six minutes later?
Sonny is an heir
UPC has the 120 hour rule, but IL is under the
USDA
HYPO: Hobie, who is single writes a will leaving his estate to his Mom. 2 years later he married Winkie, and then dies without changing his will. He is survived by Mom and Winkie. Who takes?
Under the UPC, if a testator writes a will and then marries, the omitted spouse takes an intestate share of the testator's estate.

IN IL, however, marriage following execution of a will has no effect on the will.
HYPO: H's will devises Blueacre to his wife Ida, and the rest of his estate to his sister Sue. The will names Ida as executor, "if she is able, and if my brother Sam is to be executor" 2 years later H and Ida divorce. H dies without changing his will. He is survived by Ida (her daugher wookie) and by sue and sam. who takes blueacre?
Sue under the residuary clause
Who serves as executor?
Sam
Effect of divorce
In IL, FINAL decree of divorcement or annulment revokes all gifts and fiduciary appointments of a former spouse. Estate is distributed and fiduciaries are named as thought the former spouse predeceased the testator.
Anti-lapse statute doesn't apply in divorce either
So wookie doesn't take either
Does the divorce revokes statute apply to a life insurance policy naming Ida as his beneficiary?
NO
Does the statute apply to legal seperation?
No only to final divorce or annulment
HYPO: at the time he made his will, T and his wife had one child A. After Tony made the will he and wife adoped child B. T dies survived by Wife, A and B. His will left 1/3 of his 300k estate to his wife and the other 2/3s to a sister. What rights to the children have in T's estate and why?
A has no rights. He was alive when the will was executed, and the pretermitted child statutes apply only to after born and adopted children.

B is a pretermitted child (born or adopted after the will was executed) and takes an intestate share (the will applies to the remaining assets)
UNLESS it appears from the will (no extrinsic evidence) that the ommission was intentional
Does the pretermitted child statute apply to a life insurance policy taken out before billy was adopted?
No
Two years after adopting B, T executes a codicil to his will naming 2nd bank as executor (rather than 1st bank). Is B still protected?
No. Under the doctrine of repuiblication by codicil, the will speeks on the date of the last codicil.
Types of testamentary gifts
1. specific devise
2. demonstrative devise
3. general legacy
4. residuary gift
5. intestate property
I devise blackacre to my son John
Specific devise. A gift of specifically described property
I give the sum of 25k, to be paid from the proceeds of my shell oil stock to Sally
Demonstrative. its a hybrid: gift of a general amount from a specific source
I bequeath 10k to my nephew Ned
General legacy
I give the rest and residue of my estate to Betty
Residuary gift
Intestate property
If the will does not make a complete disposition of the estate because the will, poorly drafted, does not include a residuary clause (resulting in partial intestacy)
the abatement problem
what we do when there are so many claims that there aren't enough assets to satisfy all of the gifts
In what order are gifts sacrificed (abated) to pay creditor's claims?
1. intestate property
2. residuary assets
3. general legacies
4. specific bequests
A demonstratiuve legacy is treated the same as a specific bequest (and thus is the last to abate), but only to the extent of value of the referenced asset. If shell oil stock work 18k at death
the 18k is treated as a specific bequest, and the 7k balance abates as a general legacy
HYPO: I leave Blackacre to my son JOhn, and my residuary estate to my wife. A year later, T sells blackacre for cash, and uses the sale proceeds to buy whiteacre. Terry dies. what does john take?
Nothing. Where a will makes a specific gift of property, and the property is not owned by the testator at death, ADEMPTION APPLIES
H's will says I give 25k, to be paid out of the proceeds of sale of my shell oil stock to sally. One year before death, H sells all shell stock and uses proceeds to buy Exxon stock. Does ademption apply to demonstrative legacies
No.
Sally gets what
25k. Executor would, though, have to sell any shell oil stock first to pay out the 25k
What if Terry had sold blackacre for 10k in cash and a 90k note secured by a mortgage on blackacre. T dies and balance on mortgage is 65k. What does John take?
Nothing. the Sales contract is fully performed, and ademption applies. Equitable conversion only applies before the contract was signed--e.g., fully performed. Under equitable conversion Hohn takes remaining payments
Exceptions to the Ademption Doctrine (UPC statutory, in IL done via judicial decision)
1. Will executed before T became incapacitated: If a specifically devised property is sold by guardian or conservator, or if the condemnation award or insurance proceeds relating to the property are paid to the guardian, under the UPC, the specific devisee has a right to a general legacy equal to the net sale price. (T didn't have capacity)
Exception 2
The illinois courts have granted relief in the incapacity situations (where the testator did not have the capacity to change her will), but the speific beneficiary gets the price, condemnation, or insurance proceeds, but only to the extent they can be traced and haven't been expended for the ward's care
Exception 3
The IL Cts have also granted relief where testator did not have an opportunity to change his will under circumstances that there would be no intent to work an ademption (T devises 99' Buick to B, T is killed in accident in which Buick is demolished. B is entitled to insurance proceeds from the collision)
T executes a will that says:
I give MY 100 share of IBM stock to Avins
I give 100 shares of Kodak stock to Baker
T sells his IBM stock and invests the proceeds in 200 shares of AT&T. then he sells his kodak stock and ivnests the proceeds in 200 shares of poloriad stock. What does Avin get?
Nothing. Ademption applies
What does Baker get?
the value of the 100 shares of kodak stock at the date of death.
Its treated as a general legacy
What if T didn't sell is his Kodak stock, and kodak stock splits 2-for-1, and the certificaters are in T's safe deposit box?
B gets all 200 shares because the gift of stock was a specific bequest.

this works for stick splits, and from mergers, but not for STOCK DIVIDENDs (but UPC does include this)
Stock divedends
aren't part of specific devise in IL (but they are under UPC)
T's will devises blueacre to J and her residuary estate to B. Blueacre is subkject to a mortage securing a 10k note on which T was personally liable. J demands that executor pay debt out of the residury estate. Must executor pay the debt
Under CL, yes. Liens on specifically devised property are exonerated from the residuary estate
In IL?
No. beneficiary takes title subject to a lien.
HYPO: on 7/1/02 T executes a will providing "I devise Blackacre to the persons named in a memo dated 5/4/02 that I have written and placed in my safe deposit box. I give my residuary estate to Ben" After T's death, the memo is founded, signed, but not witnessed. The memo says I want blackacre to go to norman. Does Norman take?
Yes
An extrinsic document, not present when the will was executed and thus not part of the duly executed will, can be incorporated by reference into the will IF:
1. document was in existence when will executed
2. will must refer to document as being in existence
3. will must describe the document sufficiently to permit its identification
HYPO: With T's will was a memo stating "in my will i referred to alist that I would prepare AT A LATER DATE leaving certian items of personal property, and this is it: golf clubs to Hobie, fishing tackle to Son Sam, and 2k to daughter Donna. /s/ Testator" Document dated five weeks after the will was signed, and was not witnessed. Valid disposition in IL?
No. it wasn't in existence when the will was signed
But, under UPC...
valid disposoiotn for clubs and fishing. Not valid for 2k. UPC allows after-will written list for tangible personal property.
HYPO: ***** T dies leaving a will that provides "i give my auto that I own at my death to Norman. I give the furniture and furnishings in my living room to my sister sue." A year before her death, T trades her pinto in for a mrecedes, and moves the picasso print from her den to the living room wall. What is the effect of these acts
Norman takes the mercedes.
Sue takes the picasso
Acts of independent signficance are
lifetime acts with a lifetime motive or purpose
Same result for gifts of "contents of my sea chest"
Yes
EXCEPT for title documents (e.g., deeds, stock certificates)
Tom tells his lawyer to draw his will and to give his nephew 300 shares of Exxon stock. A typist makes a mistake and types in 200 shares. Tom doesn't notice when he signs the will. At tom's death he owns 300 shares of Exxon. What does Ed get?
200 shares.
Plain meaning rule. There being no ambiguity, no extrinsic evidence is admissible to overturn the plain meaning of the will. Don't forget respondeat superior and attorney liability
Absent suspicious circumstances, it is conclusively presumed that:
T read the will and intended all of its contents
Tim's will bequeaths 10k to my nephew John Paul Jones and his residuary estate to his sister. Problem: Tim has a nephew james peter jones and a nephew harold paul jones, but no nephew named john pual jones. who takes?
this is a latent ambiguity b/c there is a misdescription.
extrinsic evidence is admissible, including facts and evidence, and T's statement to an attorney who prepared the will
Testator's declaration of intent are not admissible
Gift fails if extrinsic evidence does not cure the ambiguity
T's lawyer prepares a will that includes the gift "I bequeath the sum of twenty five dollars ($25,000) to my brother Bob. What does bob get?
This is a patent ambiguity, b/c its a mistake on the face of the will.
Extrinsic evidence is admissible (same rules as latent ambiguity)
(facts and circumstances and att'ys notes, but not evidence of testator's declarations of intent)
Contractual Joint wills UPC
Under the UPC, a will is never contractual unless the will expressly states that a contract does exist
Contractual Joint Wills IL
In Illinois, execution of a joint will may be found contractual (the contract being that the survivor will not revoke the agreed-upon disposition) if all or most of the following factors are present:
- will labeled joint and mutual
- will leaves entire estate to surviving spouse
- will disposes of all thier property in a unified disposition
- there is a common dispositive shceme on the death of the survivior
If a will is contractual
1. apply wills law
2. apply contract law (constructive trust)
Reciprocal wills
are never presumed to be contractual unless clear and convincing evidence of a contract
HYPO: T's will devises Redacre to his Son Sam and his residuary estate to his wife Ann, and then says I intentionally make no provision for my duaghter Nancy, as she has married out of the faith. T divorces Ann, and then dies without changind will. Who takes the residuary clause
Son gets redacre (not residuary clause)
In IL, Sam and Nancy each get 1/2 of residuary estate
Disinheritence under UPC
Under the UPC's negative bequest rule, a will can provide how property shall not be disposed of (disinheritance allowed), and nancy takes nothing
Disinheritance under IL law
when a will does not make a complete disposition of the estate (partial intestacy), words of disinheritance in the will are ineffective
Condtions encouraging divorce or total restraint on marriage
are invalid and against public policy
Partial restraints on marraige (jeweish faith marraige)
are okay
condition to only pay income to wife until she remarries is
okay
Illinois Slayer statute
Killer forfeits interest in victim's estate if he intentionally and unjustifiebale causes the death of another. Victim's estate is distributed as though killer predeceased victim.
Statute doesn't apply to accidents
Slayer statute applies to
life insurance, land joint tenancy
Slayer statute applies to _____ cases
civil cases.
OJ case liable
Major types of nonprobate assets
1. property passing by right of survivorship (joint accounts)
2. property passing by contract (life insurance, retirement)
3. property held in revocable trust
Intestacy applies only on
IEE, not MEE
where:
1. descendant left no will
2. descendant's will us denied probate (not properly executed, or contested by heirs)
3. will, but no complete disposition (partial intestacy)
4. pretermitted child
Under IL intestacy, the surviving spouse's intestate share is
1/2 if T survived by descendants
all if not survived by descendants
ALSO entitled to family allowance
The distribution rule in IL is
classic/strict per stirpes, meaning one share for each line of living descendants.Each child is a root or line, and the descendants of deceased children take by representation the share their parent would have taken. (always cut the shares at child level, even if no living children)
(also applies to collaterals)
Sam, who was single, died intestate, survived by Mom, Dad and three sisters: A, B, C.
Majority rule: parents take all
In IL, all take equal share: Mom & Dad: 1/5 each. A, B, C: 1/5 each
If Mom died before Sam
Sole parent gets double share:
D: 2/5 A, B, C: 1/5 each
A parent is disqualified from taking as heir if
he neglected, deserted or failed to care for the child
Children adopted under age 18 and thier descendants have
full inheritance rights from adoptive family and vice versa
Stepchildren, cannot
inherit
Once a child is adopted, the child has no inheritance rights from
the natural parents
EXCEPTION
when child is adopted by spouse of a natural parent
Children adopted over 18 take from adopting parent, but not
the adopting parent's kin
In IL a child born out of wedlock can only inherit from natural father if:
1. paternity suit
2. acknowledged paterntiy
3. probate proceedings show he is father
Advancement
CL, a lifetime gift to a child was presumptevely an advancement (advance ayment) of the child's intestate share
IL Rule re: advancements
a lifetime gift to an heir is not an advancement of intestate share unless:
(i) declared as such in writing by the donor OR
(ii) acknowledged as such in writing by the donee
Satisfaction of legacies
IL applies the common law rule as to satisfaction of legacies: a lifetime gift to a child named as a beneficiary in an earlier will is presumptively in partial satisfaction of the legacy, but not a lifetime gift to any other beneficiary
Satisfaction of Legacies UPC
No satisfaction of legacy unless:
(i) declared as such in a contemporanous writing by the donor
(ii) acknowledged as such in writing by donee
Disclaimer definition
An intestate heir, will beneficiary, or any other interest can disclaim the interest in whole or part
Disclaimer req's
Once made is irrevocable
To be valid:
(i) must be in writing, signed, and delivered to executor or trustee
(ii) IL has no time limit
But to be effective for tax purposes, must be done w/in 9 months
Disclaimer treats disclaimer as
predeceasing the testator (the anti-lapse rules can apply)
Why disclaim?
(i) avoid gift tax
(ii) avoid creditor claims
Amount of Elective Share in IL
If decedent was survived by descendants: 1/3 of net estate
If decedent was not survived by descendants: 1/2 of net estate
COMPARE w/intestate share for surviving spouse 1/2 and ALL
To file for elective share:
1. File notice of election w/in 7 months
2. election make be made by guardian of incapacitated spouse, with court approval
In making up the elective share, all will beneficiaries contribute pro rata, but property devised outright to the spouse by will is applied
FIRST
HYPO: Hank established a revocable inter vivos trust naming Bank as trustee: Income to Hank for life, and on Hank's death remainder to son Steve. Hank died a few years later leaving a will that bequeathed his estate to wife Wendy and Steve in equal shares. While that sounds fair, nearly of all Hank's property has been placed in the trust. Hank left a net estate of 36k, and the trust is worth 900k. Wendy files for elective share.
What happens under UPC?
Under IL Law?
UPC Law
Elective share applies to the augmented estate, which includes lifetime transfers in which the grantor retained the power to revoke, or to invade, consume or dispose of principal (revocable trusts, totten trusts)
IL Law
No. elective share applies to probate estate and does not apply to nonprobate transfers
Only _____ parties have standing to bring a will contest
interested parties (economic interest that would be adversely affected)
Lack of testamentary capacity
Burden on will contestant. Did the testator have sufficient capacity to:
- understand the nature of the act he was doing (he was executing a will)
- know the nature and approximate value of his property
- know and understand the approximate value of his property
- know the natural objects of his bounty
- understand the disposition he was making
Adjudicated of incapacity does not mean lack of testamentary capacity
different tests.
Undue Influence
contestants have the burden to show:
- existence and exertion of influence
- effect of which was to overpower the mind and will of the testator
- product is a will that would not have been made but for the influence
Opportunity, susceptibility, and unnatural disposition are
not evidence of undue influence
Where a person in a confidential or fiduciary relationship was active in procuring the will, and that person will receive a substantial benefit under the will, there is a ___________ presumption of undue influence, which can only become overcome by:
clear and convincing evidence that there was no influence asserted
No-contest clauses in IL
No contest clauses are given full effect regardless of probable cause
EXCEPTION: contest filed by gaurdian
No-contest clauses in UPC states
No contest clauses given effect unless the court find the action was made in good faith and with probable cuase
with a general testamentary power of appointment
the donee is not limited in the class of beneficiaries to whom she can appoint (she can appoint herself, or her creditors, or her state)
A power of appointment must be expressly exercised (must reference PoA in will) OR
takers in default take
A special testamentary power of appointment
limits the class of beneficairies to whom she can appoint (not herself, estate, or creditors)
A blanket exercise of a PoA is
VALID in IL
A PoA requiring a specific reference requires
a specific reference
No Contracts for exercising PoA
Donee of PoA not supposed to benefit