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102 Cards in this Set
- Front
- Back
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TN - What is the status of a lawsuit filed in the name of a decedent after death
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It is a nullity; Deceased party lacks capacity to sue. You can keep it alive however, but SUBSTITUTION of parties.
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TN - What happens to actions against decedents for injury to person or property
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At common law, they died with the decedent. NOW, in TN, a civil action, except for actions for wrongs affecting the character of the P, is NOT abated and can be continued by or against the estate
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TN - What happens when a decedent sues and dies before judgment
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The action can be continued by the estate and the proceeds are an asset of the estate and pass under the will or intestacy.
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TN - What happens to actions for injury to person or personalty not commenced before decedent's death
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Other than a suit for wrongful death, they abate.
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TN - What happens to actions for injury to real property not commenced before decedent's death
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They survive and may be pursued by the personal representative
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TN - What happens to wrongful death actions after death of decedent?
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The action passes to surviving spouse, if any, and if not, to the children or next of kin. Suit may be maintained by the personal representative for the benefit of these statutory beneficiaries. NB: Recovery is FREE from claims of creditors.
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Three types of wills recognized in TN
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Attested, holographic, nuncupative
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Holographic will
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Will and signature are entirely in handwriting of the Testator
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Nuncupative (oral)
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Cannot effect real property; can only dispose of personalty up to $1000; must be uttered by a T in IMMINENT PERIL OF DEATH WHO DIES AS A RESULT OF THAT PERIL; need two disinterested witnesses, one of whom reduces it to writing w/in 30 days after uttered and offers it for probate w/in 6 months after T's death; MAY not revoke or alter an existing written will
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Attested will
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Requirements: Two witnesses who knew what it was (publication); wits must see T sign or must see it when T acknowledges it; wits must sign in presence of testator AND each other; attestation clause creates rebuttable presumption that will was duly executed; T's signature - he may sign himself, acknowledge a signature he already made or have someone sign for him in his presence; Signing at the end of the will (subscription) is not required in TN
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Having an interested witness during execution (TN)
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Does not invalidate will, but that witness can take no more than an intestate share
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Effect of notary's signature
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May help probate will if witnesses are not present, but has NO impact on validity of will itself
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Requirements for holographic will
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Must be entirely in the handwriting of the T and signed by him; no witnesses required, but signature must be proved by two witnesses at probate; Testamentary intent is hard to show, but TN courts have stretched to find validity (recent cases: informal letter covering two pages ok, suicide note ok)
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Attestation clause on holograph
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Does NOT give rise to a presumption
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Choice of law
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TN, valid if done outside TN and in accordance with the laws of place of execution; or done in accordance w/ law of T's domicile at time of execution; or done in accord w/ TN law
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Incorporation by Reference
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Will refers to another writing NOT executed in accordance with statute, can still be incorporated into the will as though originally a part of it IF: 1) writing was in existence at time will was executed AND 2) writing is described specifically in the will so that there can be no question as to the document intended to be incorporated AND 3) the intention to incorporate is unambiguous
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Doctrine of Independent Significance
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Allows a testator's intention to be proven by reference to facts that have significance apart from their effect upon the disposition in the will.
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Testamentary capacity
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Any person of sound mind and 18 years of age; Sound mind: testator knows the nature and effect of the act of making the will, nature and extent of his property, names and kinship of persons who are the natural objects of his bounty. Soundness of mind is tested at the time of the making of the will
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Two types of confidential relationships giving rise to presumption of undue influence
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1) Legal confidential relationship (atty-client) and 2) family relationship (but here we need proof of additional elements of dominion and ctrl to give rise to presumption) -- Other relationships to watch out for: guardian or conservator and ward, physician or nurse and patient, spiritual adviser and layman, persons in an extramarital or immoral relationship
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TN rule on confidential relationships
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Where there is a "confidential relationship" followed by a transaction in which the dominant party receives a benefit from the other party, then a presumption of undue influence arises that may be rebutted only by clear and convincing evidence of the fairness of the transaction. A confidential relationship is any relationship which gives one person dominion and control over another
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Does mistake avoid a will
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Not ordinarily. Mistake alone is not typically enough to invalidate a will. To invalidate a will, it must be apparent from the will itself that a mistake existed and that BUT FOR THE MISTAKE the testator would have made a different will
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Joint will
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A single testament stating the will of two or more persons
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Mutual wills
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Testaments of two or more persons containing reciprocal, and possible independently enforceable provisions
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Revocation
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Will may be revoked by a later instrument: 1) a subsequently validly executed attested or holographic will containing a clause expressly revoking it specifically or as a part of a class such as "all prior wills and codicils", 2) a subsequently INCONSISTENT validly executed attested or holographic will, 3) a document of revocation executed will all of the formalities of an attested or holographic will, 4) if the revocation is expressly conditional upon the occurrence of another event, that condition generally will be given effect, 5) by act (burning, tearing, canceling, obliterating or destroying with intent and for the purpose of revoking, by the T or by another person in T's presence and at his direction)
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Revocation by operation of law
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Marriage plus birth of a child revokes pre-marital will; Divorce or annulment of a subsequent marriage does NOT revive prior will; If after executing will, T gets divorced, then provision for spouse is revoked - but would later be revived by remarriage to spouse; NB: A decree of separation is not a divorce for this purpose
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Pretermitted child statute
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a child born after the will of his parent and not provided for nor disinherited in the will nor provided for by the T in his lifetime is entitled to take an intestate share; NB: Intent to disinherit may be inferred from surrounding circumstances; Parole evidence as to declarations of the T that his intent was to disinherit is NOT admissible
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Lost or spoliated will
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To establish (chancery or probate court): Must show: will was duly executed, substance or contents of will, will has not been revoked and will is lost or destroyed and cannot be found after a due and proper search
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Presumption of revocation over lost will
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Where will was in the custody of the T and cannot be found, then the presumption of revocation would prevent the missing will being established without strong proof
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Uniform Simultaneous Death Act (common disaster)
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Where persons die in a common disaster, and there is not sufficient evidence that they died other than simultaneously, then each person is deemed to have survived the other with respect to his own property.
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Uniform Simultaneous Death Act (120 hour rule)
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An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead, years support, exempt property, elective share, and intestate succession; Same with will (unless will expressly states otherwise); Does NOT apply if result would be escheat
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Class gift statute (antilapse)
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Where the class gift statute (when there is a gift to a class of persons subject to fluctuation) applies, the surviving issue takes the share which the deceased member would have taken, absent a clear intention to the contrary in the document creating the gift.
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Lapsed Legacy Statute (antilapse)
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When a devisee or legatee predeceases the T leaving issue surviving the T, the issue will take per stirpes in the absence of a contrary provision in the will (if there are no issue, then the common law rule applies and the legacy lapses)
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Ademption
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When subject matter of a legacy does not exist in T's ownership at time of death; TN statute - A SPECIFIC legatee or devisee has a right to the specifically gifted or devised property in the T's estate at death. If it is not there, then he can also take: any balance of the purchase price together with any security interest (by reason of sale of the property), any amount of a condemnation award for the taking of the property unpaid at death; any proceeds unpaid at death on fire or casualty insurance on, or other recovery for injury to the property AND property owned by the T at death and acquired s a result of foreclosure of the security interest for that property.
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Advancements
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A gift is treated as an advancement only if there was a contemporaneous writing or an acknowledgment by the donee in writing that the gift was an advancement
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In terrorem clause
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Valid in TN; Enforceable ONLY when the contest is pursued in good faith and upon reasonable cause.
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Antenuptial and postnuptial agreements
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Enforceable if entered into freely, knowledgeably and in good faith; other party needs full disclosure
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Intestate succession
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Surviving spouse takes all if no issue; If issue, SS takes a child's share or one-third whichever is greater; Whatever does not pass to SS goes to issue, equally if of the same degree and by representation (per stirpes) if not, then to parent or parents equally if no issue, then to brothers and sisters equally if no parents, then to their issue (by representation), then to grandparents, then to state of TN
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Half bloods
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Intestacy: Persons of half blood inherit the same share as they would inherit if they were of full blood
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Children born out of wedlock
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Child is treated as child of the father if paternity is established, but NEITHER PARENT CAN INHERIT THROUGH CHILD UNTIL THEY ARE CURRENT ON CHILD SUPPORT
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Elective share
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from NET ESTATE: 0-3 years: 10%; 3-6 years: 20%, 6-9 years: 30%; 9+ years: 40%; PLUS homestead allowance, years support, exempt property
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Net estate
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All of the decedent's real and personal property REDUCED BY: secured debts to the extent that secured creditors are entitled to realize on the applicable collateral, funeral and administration expenses and award of exempt property, homestead allowance and years support.
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Creditors and the elective share
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Elective share is exempt from claims of unsecured creditors of decedent's estate and not subject to inheritance or other death transfer tax
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Time to elect the elective share
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surviving spouse has nine months after death to make election; Personal representative MUST - upon request - disclose condition of decedent's estate to help spouse decide; failure to do this extends the time for election
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Waiving the elective share
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A valid antenuptial or postnuptial agreement can waive the right to take the elective share
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Fraudulent conveyances
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Fraudulent conveyances by the decedent to deprive the SS of the elective share are prohibited; transfers are voidable at election of the SS.
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Slayer statute
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One who intentionally kills or conspires to kill forfeits the inheritance. Self-defense does not forfeit. Statute does not apply to accidents - so vehicular homicides will not implicate the slayer statute
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Family allowances
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Exempt property, homestead allowance, years support
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Exempt property
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Up to $50k; surviving spouse who takes through intestacy or elective share (against will or intestacy) may receive certain exempt property up to $50k (tangible personal property used in or around principal residence of D - cars, etc.), if no SS, then to decedent's UNMARRIED MINOR CHILDREN
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Homestead allowance
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Basic amount: $5k; $7500 for joint owners; if unmarried and over 62, then $12,500; if married and one is 62 or over it is $20k; if married and both are 62 or older then $25k. $25k for an individual who has custody of one or more minor children.
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Years support
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Available to SS who takes through intestacy or who takes elective share; reasonable allowance in money out of the estate for maintenance for a year; free from creditors claims
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Paying for upkeep
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Personal representative MAY pay reasonable costs of routine upkeep of any realty passing under the will or through intestacy for FOUR MONTHS after death, including dad to day maintenance, insurance premiums, but NOT mortgages, real property taxes, major repairs or extraordinary expenses
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TN - What is the status of a lawsuit filed in the name of a decedent after death
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It is a nullity; Deceased party lacks capacity to sue. You can keep it alive however, but SUBSTITUTION of parties.
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TN - What happens to actions against decedents for injury to person or property
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At common law, they died with the decedent. NOW, in TN, a civil action, except for actions for wrongs affecting the character of the P, is NOT abated and can be continued by or against the estate
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TN - What happens when a decedent sues and dies before judgment
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The action can be continued by the estate and the proceeds are an asset of the estate and pass under the will or intestacy.
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TN - What happens to actions for injury to person or personalty not commenced before decedent's death
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Other than a suit for wrongful death, they abate.
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TN - What happens to actions for injury to real property not commenced before decedent's death
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They survive and may be pursued by the personal representative
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TN - What happens to wrongful death actions after death of decedent?
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The action passes to surviving spouse, if any, and if not, to the children or next of kin. Suit may be maintained by the personal representative for the benefit of these statutory beneficiaries. NB: Recovery is FREE from claims of creditors.
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Three types of wills recognized in TN
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Attested, holographic, nuncupative
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Holographic will
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Will and signature are entirely in handwriting of the Testator
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Nuncupative (oral)
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Cannot effect real property; can only dispose of personalty up to $1000; must be uttered by a T in IMMINENT PERIL OF DEATH WHO DIES AS A RESULT OF THAT PERIL; need two disinterested witnesses, one of whom reduces it to writing w/in 30 days after uttered and offers it for probate w/in 6 months after T's death; MAY not revoke or alter an existing written will
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Attested will
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Requirements: Two witnesses who knew what it was (publication); wits must see T sign or must see it when T acknowledges it; wits must sign in presence of testator AND each other; attestation clause creates rebuttable presumption that will was duly executed; T's signature - he may sign himself, acknowledge a signature he already made or have someone sign for him in his presence; Signing at the end of the will (subscription) is not required in TN
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Having an interested witness during execution (TN)
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Does not invalidate will, but that witness can take no more than an intestate share
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Effect of notary's signature
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May help probate will if witnesses are not present, but has NO impact on validity of will itself
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Requirements for holographic will
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Must be entirely in the handwriting of the T and signed by him; no witnesses required, but signature must be proved by two witnesses at probate; Testamentary intent is hard to show, but TN courts have stretched to find validity (recent cases: informal letter covering two pages ok, suicide note ok)
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Attestation clause on holograph
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Does NOT give rise to a presumption
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Choice of law
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TN, valid if done outside TN and in accordance with the laws of place of execution; or done in accordance w/ law of T's domicile at time of execution; or done in accord w/ TN law
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Incorporation by Reference
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Will refers to another writing NOT executed in accordance with statute, can still be incorporated into the will as though originally a part of it IF: 1) writing was in existence at time will was executed AND 2) writing is described specifically in the will so that there can be no question as to the document intended to be incorporated AND 3) the intention to incorporate is unambiguous
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Doctrine of Independent Significance
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Allows a testator's intention to be proven by reference to facts that have significance apart from their effect upon the disposition in the will.
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Testamentary capacity
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Any person of sound mind and 18 years of age; Sound mind: testator knows the nature and effect of the act of making the will, nature and extent of his property, names and kinship of persons who are the natural objects of his bounty. Soundness of mind is tested at the time of the making of the will
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Two types of confidential relationships giving rise to presumption of undue influence
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1) Legal confidential relationship (atty-client) and 2) family relationship (but here we need proof of additional elements of dominion and ctrl to give rise to presumption) -- Other relationships to watch out for: guardian or conservator and ward, physician or nurse and patient, spiritual adviser and layman, persons in an extramarital or immoral relationship
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TN rule on confidential relationships
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Where there is a "confidential relationship" followed by a transaction in which the dominant party receives a benefit from the other party, then a presumption of undue influence arises that may be rebutted only by clear and convincing evidence of the fairness of the transaction. A confidential relationship is any relationship which gives one person dominion and control over another
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Does mistake avoid a will
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Not ordinarily. Mistake alone is not typically enough to invalidate a will. To invalidate a will, it must be apparent from the will itself that a mistake existed and that BUT FOR THE MISTAKE the testator would have made a different will
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Joint will
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A single testament stating the will of two or more persons
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|
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Mutual wills
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Testaments of two or more persons containing reciprocal, and possible independently enforceable provisions
|
|
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Revocation
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Will may be revoked by a later instrument: 1) a subsequently validly executed attested or holographic will containing a clause expressly revoking it specifically or as a part of a class such as "all prior wills and codicils", 2) a subsequently INCONSISTENT validly executed attested or holographic will, 3) a document of revocation executed will all of the formalities of an attested or holographic will, 4) if the revocation is expressly conditional upon the occurrence of another event, that condition generally will be given effect, 5) by act (burning, tearing, canceling, obliterating or destroying with intent and for the purpose of revoking, by the T or by another person in T's presence and at his direction)
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Revocation by operation of law
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Marriage plus birth of a child revokes pre-marital will; Divorce or annulment of a subsequent marriage does NOT revive prior will; If after executing will, T gets divorced, then provision for spouse is revoked - but would later be revived by remarriage to spouse; NB: A decree of separation is not a divorce for this purpose
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Pretermitted child statute
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a child born after the will of his parent and not provided for nor disinherited in the will nor provided for by the T in his lifetime is entitled to take an intestate share; NB: Intent to disinherit may be inferred from surrounding circumstances; Parole evidence as to declarations of the T that his intent was to disinherit is NOT admissible
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Lost or spoliated will
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To establish (chancery or probate court): Must show: will was duly executed, substance or contents of will, will has not been revoked and will is lost or destroyed and cannot be found after a due and proper search
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Presumption of revocation over lost will
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Where will was in the custody of the T and cannot be found, then the presumption of revocation would prevent the missing will being established without strong proof
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Uniform Simultaneous Death Act (common disaster)
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Where persons die in a common disaster, and there is not sufficient evidence that they died other than simultaneously, then each person is deemed to have survived the other with respect to his own property.
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Uniform Simultaneous Death Act (120 hour rule)
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An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead, years support, exempt property, elective share, and intestate succession; Same with will (unless will expressly states otherwise); Does NOT apply if result would be escheat
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Class gift statute (antilapse)
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Where the class gift statute (when there is a gift to a class of persons subject to fluctuation) applies, the surviving issue takes the share which the deceased member would have taken, absent a clear intention to the contrary in the document creating the gift.
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|
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Lapsed Legacy Statute (antilapse)
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When a devisee or legatee predeceases the T leaving issue surviving the T, the issue will take per stirpes in the absence of a contrary provision in the will (if there are no issue, then the common law rule applies and the legacy lapses)
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|
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Ademption
|
When subject matter of a legacy does not exist in T's ownership at time of death; TN statute - A SPECIFIC legatee or devisee has a right to the specifically gifted or devised property in the T's estate at death. If it is not there, then he can also take: any balance of the purchase price together with any security interest (by reason of sale of the property), any amount of a condemnation award for the taking of the property unpaid at death; any proceeds unpaid at death on fire or casualty insurance on, or other recovery for injury to the property AND property owned by the T at death and acquired s a result of foreclosure of the security interest for that property.
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Advancements
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A gift is treated as an advancement only if there was a contemporaneous writing or an acknowledgment by the donee in writing that the gift was an advancement
|
|
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In terrorem clause
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Valid in TN; Enforceable ONLY when the contest is pursued in good faith and upon reasonable cause.
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|
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Antenuptial and postnuptial agreements
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Enforceable if entered into freely, knowledgeably and in good faith; other party needs full disclosure
|
|
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Intestate succession
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Surviving spouse takes all if no issue; If issue, SS takes a child's share or one-third whichever is greater; Whatever does not pass to SS goes to issue, equally if of the same degree and by representation (per stirpes) if not, then to parent or parents equally if no issue, then to brothers and sisters equally if no parents, then to their issue (by representation), then to grandparents, then to state of TN
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Half bloods
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Intestacy: Persons of half blood inherit the same share as they would inherit if they were of full blood
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Children born out of wedlock
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Child is treated as child of the father if paternity is established, but NEITHER PARENT CAN INHERIT THROUGH CHILD UNTIL THEY ARE CURRENT ON CHILD SUPPORT
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Elective share
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from NET ESTATE: 0-3 years: 10%; 3-6 years: 20%, 6-9 years: 30%; 9+ years: 40%; PLUS homestead allowance, years support, exempt property
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|
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Net estate
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All of the decedent's real and personal property REDUCED BY: secured debts to the extent that secured creditors are entitled to realize on the applicable collateral, funeral and administration expenses and award of exempt property, homestead allowance and years support.
|
|
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Creditors and the elective share
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Elective share is exempt from claims of unsecured creditors of decedent's estate and not subject to inheritance or other death transfer tax
|
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Time to elect the elective share
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surviving spouse has nine months after death to make election; Personal representative MUST - upon request - disclose condition of decedent's estate to help spouse decide; failure to do this extends the time for election
|
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Waiving the elective share
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A valid antenuptial or postnuptial agreement can waive the right to take the elective share
|
|
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Fraudulent conveyances
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Fraudulent conveyances by the decedent to deprive the SS of the elective share are prohibited; transfers are voidable at election of the SS.
|
|
|
Slayer statute
|
One who intentionally kills or conspires to kill forfeits the inheritance. Self-defense does not forfeit. Statute does not apply to accidents - so vehicular homicides will not implicate the slayer statute
|
|
|
Family allowances
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Exempt property, homestead allowance, years support
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|
|
Exempt property
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Up to $50k; surviving spouse who takes through intestacy or elective share (against will or intestacy) may receive certain exempt property up to $50k (tangible personal property used in or around principal residence of D - cars, etc.), if no SS, then to decedent's UNMARRIED MINOR CHILDREN
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Homestead allowance
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Basic amount: $5k; $7500 for joint owners; if unmarried and over 62, then $12,500; if married and one is 62 or over it is $20k; if married and both are 62 or older then $25k. $25k for an individual who has custody of one or more minor children.
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Years support
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Available to SS who takes through intestacy or who takes elective share; reasonable allowance in money out of the estate for maintenance for a year; free from creditors claims
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Paying for upkeep
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Personal representative MAY pay reasonable costs of routine upkeep of any realty passing under the will or through intestacy for FOUR MONTHS after death, including dad to day maintenance, insurance premiums, but NOT mortgages, real property taxes, major repairs or extraordinary expenses
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