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119 Cards in this Set

  • Front
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Probate
Judicial proceeding where court:
1) Decides decedent left behind validly executed will (or died intestate and determines heirs)
2) Appoints personal representative (executor in will; administrator by court) that’s issued letter testamentary (or letters of administration) showing authority to wind up and administer estate
3) Does not include non-probate transfers- interests that pass by right of survivorship or under contracts terms
Residuary estate
Estate remaining after administration, debts, taxes paid, specific bequests
Requirements for a duly executed will or codicil
T must be 18/married/or armed forces.

1. Signed by T (or proxy)
2. 2 attesting witnesses over 14
3. Must sign in T’s presence
Will execution does NOT require
- Witnesses know they’re witnessing a will
- T sign in witnesses’ presence (T can have signed will earlier)
- Witnesses sign in each other’s presence
- T sign at foot/end of will
Exact order of signing not critical in will execution
Just need a contemporaneous, continuous transaction.
Attestation clause not mandatory. Useful.
Benefits:
1) Recites elements required for due execution (“On the above date…presence..etc.”)
2) Is prima facie evidence of recited facts
3) Great when shitty memory or hostile witness
"conscious presence test"
- Witnesses must sign in T's conscious presence.

- Test satisfied when he could see them by some slight physical exertion on his part
Proving a will in probate
1) Testimony of one attesting witness in open court [may use deposition or interrogatory]

2) If all W are dead or can’t located, testimony of 2 persons as to handwriting of T or handwriting of either attesting W. If only one such person located, sufficient for presumption of all testamentary formalities.
Venue for probate of will and estate administration
County where decedent resided.

If no domicile or fixed place of residence in the state, then:
1) county where principal property located or 2) county where he died
Contents of a safe deposit box
Can be examined w/o court order if in presence of bank official by spouse/child over 18/person named as executor.

Will found in box may be delivered to executor or probate court.
Self-proving affidavit
Can be executed any time after will’s signed. T and W sign will, then execute sworn affidavit before notary. Contains statements that W would testify to in open court. Serves as live testimony of attesting W in open court

1991 statute: can use signatures to validate a will, but consequence is that will is NOT self-proved.
Intended beneficiaries generally can't have a CoA against an attorney for negligence
No privity of contract
Trust beneficiaries can't discover ACR communications by an attorney who represents a trustee or executor?
Duty only runs to fiduciary who retained him. No ACR with beneficiaries. (Huie v. Deshazo)
Executor can sue an attorney for loss to estate
For excess estate taxes paid because of negligent estate planning advice (Huie v. DeShazo).

Can sue for loss to estate from allegedly negligent mischar of assets as separate property rather than CP (Belt v. Oppenheimer)
Interested witness statute

When an attesting W is a beneficiary, this doesn't affect will validity.
Void the bequest to witness unless:

1. Will can be proved w/o interested W’s testimony
2. Interested W’s testimony is corroborated by disinterested/credible person
3. Interested W would be an heir if will weren’t probated; would takes lesser of legacy (bequest) in will or intestate share
TX recognizes holographic wills

So long as it's "wholly in T's handwriting" and signed by T.
Can have a holographic codicil to a typewritten, witnessed will
Holographic can be valid in TX though invalid in another state
It's the law of the state domiciled at death that controls.
Analysis for admission to probate
1) Was document intended as a will or written with testamentary will? Look for words; can use extrinsic evidence if ambiguous.

2) Was it signed by T? Signature can appear anywhere.
To prove a holographic will
1) It needs to be wholly in handwriting. Block print is ok.

2) Need 2 people who can testify it's wholly in T's handwriting.

Dating will unnecessary.
Surplusage rule
Extraneous printed words unnecessary to complete the will or its meaning can be ignored.
Will or codicil cannot be operative during T's lifetime. MUST be intended to take effect at death.
If not a will, enforceable as promissory note only if consideration given.
Oral wills not okay. Statute authorizing oral wills in last sickness repealed as of 9/1/07.
Can 1) have him tell you what he wants; 2) write something out; 3) proxy signature with 4) 2 witnesses
TX Anti-Lapse Statute

Saves a gift when a will beneficiary predeceases T.
Applies when:

1) Predeceasing beneficiary was descendent of T’s parents (child, grandchild, brother, sister, nephew, niece) AND
2) left descendants who survive T by 120 hours
"Surviving residuary beneficiaries" rule?
If residuary estate is devised to two or more persons, and gift to one of them lapses, remaining residuary beneficiaries take in proportion to their interests (absent contrary provision).
Anti-Lapse Statute v. Surviving Residuary Beneficiaries rule.

Who wins?
ALS trumps the Surviving Residuary Beneficiaries rule.
If someone in a class gift predeceases T, surviving class members take absent contrary provision.
If predeceasing class member within ALS scope, then ALS trumps class gift rule.
"Class closing" rule of construction

Define takers of class gift; later-born class members do not share in gift when some class member is entitled to a distribution.
"Rule of Convenience” when will class closes at T’s death (gestation principle; Family code presumption: 300 days from conception to birth)
Gift is void hen beneficiary named in will was dead at time of will execution.
All of above rules (ALS; surviving residuary beneficiaries rule) apply to void gifts.
Rules of intestate succession
1) Decedent left no will (or will wasn’t validly executed)
2) will does not complete disposition of estate (“partial intestacy”)
3) Heir successfully contests the will and will is denied probate
Intestate Succession

When survived by a spouse, what happens to CP?
1) If survived by descendants, all of whom descendants of surviving spouse (1-marriage situation), surviving spouse takes all

2) If survived by descendants, some of whom were NOT descendants of surviving spouse, then half to surviving spouse; divvy up rest among descendants
Intestate Succession: Separate Property

When survived by spouse, who takes?

1) In case of personal property?
2) In case of real property?
1) Personal property: surviving spouse takes 1/3; remainder to children or descendants (of this marriage or earlier)

**Parents/collateral kin NEVER inherit SP if survived by spouse

2) Separate real property: surviving spouse gets 1/3 life estate; children or descendants, of this marriage or an earlier marriage, get remainder (2/3) outright, plus remainder following 1/3 life estate
Intestate succession: Separate Real Property

If not survived by descendants...

1) Survived by wife and parents or siblings?
2) Do grandparents or first-line collaterals inherit?
1. If not survived by descendants, intestate distribution gives ½ in fee simple to spouse and ½ to parents (or descendants of parents)

2. Grandparents or first-line collaterals don't inherit separate real property.
In any will or intestacy question w/ a surviving spouse..... HEF!!!!
HEF. (Homestead; exempt property set-aside; family allowance)
HEF
a. Homestead: spouse entitled to exclusive occupancy for so long as she occupies it

b. “Miscellaneous personal property assets” may qualify for exempt personal property set-aside in spouse’s favor

c. If spouse owns little or no SP, can petition for family allowance in amount for 1 yr

d. *EF “off the top” of the estate before intestate distribution is made (over and above what’s passed on)
Intestate Succession: Not survived by spouse or descendants.

If survived by parents, 1/2 to each parent. Subject to Bad Daddy Rule.
BD Rule: Parent can’t inherit from/through a child if clear and convincing evidence that parent:

1) abandoned/failed to support child,
2) knowingly abandoned/ failed to support mother during pregnancy, or
3) was criminally responsible for death or serious injury of child
Intestate Succession: Not survived by spouse or descendants.

If survived by 1 parent and collaterals, who takes?
½ to parent; brothers and sisters (and descendants of deceased brothers and sisters) take per capita with representation (divide at level of living!)

In inheritance by collateral kind, half-bloods inherit as much as whole bloods.
TX has no laughing heir statute

No limit on degree of kinship qualifying an heir.
If no parents or descendants of parents survive, ½ to maternal grandparents and their kin, ½ to paternal grandparents and their kin, etc., “and so on without end” until heirs found on both maternal and paternal sides
In TX, if you have a substantial estate and no immediate family, what do you do?
Hire genealogist
If a child is born out of wedlock and not adopted, can he inherit from natural father?
Cannot inherit unless:

1. Presumption of paternity under Family Code

2. Man signed sworn statement acknowledging paternity

3. Paternity was established in paternity suit

4. Paternity established in probate proceedings by:
How can you establish a presumption of paternity under the Family Code?
1) Child was born during (or w/in 300 days after) marriage or attempted but void or voidable marriage

2) Parties married after child’s birth and man voluntarily asserted paternity one of 3 ways [in a record filed w/Bureau of Vital Statistics, by consenting to be named father on birth certificate, by promising in a record to support the child]

3) During first two years of child’s life he resided with the child and represented to others that the child was his
Inheritance rights of a stepchild are nil [no legal relationship]
... unless doctrine of adoption by estoppel (unperformed agreement to adopt).

Foster parent: yes
Foster parent's kin: no
Under TX law, adoption establishes parent-child relationship for all purposes of Texas Law
1. Adoptee can inherit from natural mother unless in decree terminating PCR, inheritance rights expressly terminated

2. Adult adoptee can inherit from adopting parent, not biological

3. Probate code provision allowing child to inherit from mother/mother’s kin is a one-way street
120-hour rule
1) Must survive T by 120 hours to take as heir; otherwise,predeceased

2) Applies to wills, absent contrary provisions, and everything: CP, life insurance policies, joint and survivor bank accounts, and property held in joint tenancy with right of survivorship (in effect, treated as tenancy in common: ½ passes as though one JT survived; ½ passes as though the other JT survived)
To trigger a right of survivorship, does a party have to survive the other by 120 hours?
Yes.
Heir or beneficiary makes an effective disclaime
1. Must be written, signed and acknowledged (before notary public)

2. Must be filed within 9 months after decedent’s death

3. Must be filed w/probate court w/copy to personal rep ( 2 copies)
Can you partially disclaim an estate?
Yes, you can partially disclaim an estate.
Disclaim an estate to avoid gift taxes, creditors' claims. Can't avoid federal tax liens! (Drye)

1) Can intestate heirs disclaim an estate?

2) Can deceased or incapacitated beneficiary disclaim?

3) Can a minor child disclaim?
1) Yes, intestate heirs can.

2) No. Executor or guardian can.

3) No. Only a legally appointed personal representative can disclaim on child's behalf.

* If effective disclaimer, treat as though predeceased T.
When can a beneficiary of a life insurance policy or employee death benefit disclaim?
Within a 9 month period.
When can a beneficiary of an irrevocable intervivos trust disclaim?
With 9 months of trust creation.
What can a beneficiary of a revocable trust claim?
Within 9 months after trust becomes irrevocable (ie, settlor's death)
When can a child disclaim an interest?
Within 9 months after becoming 21.
When can a charitable beneficiary disclaim? Why would they?
Within 1 year after receiving notice of bequest or 6 months after inventory of estate filing. (whichever's later)

Environmental/hazardous waste concerns.
Under TX law, how is a lifetime gift to a descendant (or any heir) treated?
TX statute says that lifetime gift not treated as an advancement (advance payment of intestate share) unless:

1. Declared as such in contemporaneous writing by the donor or

2. Acknowledged as such in writing (not necessarily contemporaneous) by the donee (“Thanks mom!” note) or

3. Will provides that bequests are to be reduced by such lifetime gifts

If written evidence of advancement, treat advanced property as partial satisfaction of bequest at its date-of-gift value
Describe a decedent's property right in authorized commercial use of name, voice or likeness.
Half and half rule provides:

1. Party making unauthorized use can be held liable for damages, profits, exemplary damages, attorney’s fees

2. Recovery (absent disposition during lifetime or by will) goes ½ to surviving spouse and ½ to descendants; all to spouse if no descendants; all to descendants if no spouse; if no family then all rights expire after 1 year
No pretermitted spouse rule (if T marries after will execution)
NO effect on will (because it's a CP state!)
What claims may a spouse assert against separate estate?
HEF:

1. If J. owned residence, probate homestead (10 acres if urban; 200 if rural) – right to occupy rent-free

2. If didn’t own residence, $15,000 in lieu of homestead

3. Family allowance: amount for support for one year

4. Exempt personal property set-aside: up to $60,000 of tangible personal property items

5. $5,000 allowance in lieu of #4 (items not on exempt property list)
If a T divorces after a will execution, annuls/revokes
1) Divorce/annulment revokes all gifts and fiduciary appointments in favor of former spouse and relatives of former spouse (who aren’t relatives of T)

2) Distribute as though former spouse (and relatives of former spouse) predeceased T

3) Similar rules apply to revocable trusts, life insurance policies
If a couple reconciles and remarries so they're together at death, who takes?
Spouse gets to take.
Pretermitted child
A child born or adopted after the will is executed.

Statute protects against accidental omissions of children born/adopted after will execution.
If no other children exist when will executed, what does pretermitted chlid take?
Pretermitted child takes intestate share of all property not bequeathed to other parent of child.

[as if T died intestate, unmarried, and owning only that portion of his estate not bequeathed to the child’s other parent]

UNLESS child’s provided for by nonprobate transfer (life insurance, joint bank account) taking effect at T’s death
If there are other children when a will is executed, who ARE NOT provided for, what does pretermitted child take?
Pretermitted child takes intestate share of all property not bequeathed to other parent of the child

[as if T died intestate, unmarried, and owning only that portion of his estate not bequeathed to the child’s other parent]

UNLESS child’s provided for by nonprobate transfer (life insurance, joint bank account) taking effect at T’s death
1) If there are other children when a will is executed, who ARE provided for, what does pretermitted child take?

2) What happens if provided-for children are given different amounts?
1) Pretermitted child's share is limited to the gift to such other children. No one else's gift is reduced. Look only to gifts of other children.

2) Likely that you'd divvy up proportionate to number of kids.

UNLESS child’s provided for by nonprobate transfer (life insurance, joint bank account) taking effect at T’s death
After using ________ to determine pretermitted child share, apply the ________ to remaining assets.
1) intestacy law

2) will
When does the pretermitted child statute NOT apply?
1) Child is provided for or mentioned in the will (general bequest to “my children”); or

2) Child is provided for by nonprobate transfer effective at T’s death (ie, life insurance)
Republication of codicil
A will "speaks" (is deemed executed) on date of last codicil to will.
Revocation of wills
1) Subsequent testamentary instrument executed w/like formalities (formalities required for a will) or

2) Physical act (T destroy or cancel will or causing it to be done in his presence); holographic instrument can revoke typewritten, attested will (and vice versa)
Presumed will revocation

[evidence admissible to rebut presumption of revocation]
1) Will last seen in T’s possession or control is not found after death, presumption: T destroyed by physical act with intent to revoke

2) Will last seen in T’s possession or control is found torn or mutilated, presumption: T revoked by physical act

*Presumed revocation does NOT arise when last seen in possession of someone adversely affected by its contents
3-point test to probate a lost will
1. Prove due execution (if don’t know attesting witnesses, no will!)

2. Prove cause of will’s non-production (overcome presumption of revocation raised by nonproduction)

3. Someone who's read/heard/can identify will must substantiall prove contents
How do you treat words added to a typewritten will after execution (signing/witnessed)?
Disregard them. Not part of duly executed will.
Is partial revocation by physical act (i.e., crossing out) valid on a typewritten will?
No. Read as originally written.
Ways to change a will
1) Write a new will
2) Write a codicil to a will

Can have holographic codicil to typewritten will (if it's complete thought on its own, w/a signature)
For a holographic will, crossouts and interlienations valid if meets evidentiary test.
Need 2 people who can testify it's wholly in her handwriting
"No revival of revoked wills" doctrine?
TX uses common law doctrine.

Once revoked by later will, old will is "legally dead" unless:

1) Re-executed with attesting witnesses or
2) Republished by a duly executed codicil
Dependent relative revocation
TX revokes a will based on mistake of law or fact as to validity of another disposition.

Equity-type doctrine allows court to disregard revocation based on mistake of law or fact if it finds that acts of revocation was premised/conditioned/dependent on validity of another disposition.

**NEVER tested by TX bar exam
A "last will" is executed in 2002, then another "last will" executed in 2006. No language of revocation contained. What then?
Read 2 instruments together. 2006 operates as codicil to first will. Revokes first will only to extent of inconsistent provisions.

If second is wholly inconsistent, then first revoked by implication.
Revocation of a codicil does not revoke an underlying will
Part of will modified or revoked by codicil is restored and takes effect as though codicil never executed.
Specific devise or bequest
“I devise Blackacre to my son Steve”
Demonstrative Legacy: (hybrid)
General $ amount from specific source.

“I bequeath $25k to be paid out of the proceeds of the sale of my Exxon stock, to Steve.”
General Legacy
I bequeath $10,000 to my brother Steve.
Residuary gift
I give all the rest, residue and remainder of my estate to Steve.
Intestate property
E.g., partial intestacy because will, shittily drafted, does not contain a residuary clause
Abatement of legacies:

So many creditors claims, not enough assets to cover all gifts made by will, w/o provision there’s order of abatement of T’s property to pay claims; within each category, bequests and devises abates pro rata
1. Intestate property (if the T died partially intestate)
2. Residuary estate—personal property
3. Residuary estate—real property
4. General legacies of personal property
5. General legacies of real property
6. Specific bequests of personal property
7. Specific devises of real property

Statute doesn’t address how demonstrative legacies are treated. It's likely that you would treat same as specific bequest (and is last to be abated) to the extent of the value of the specific property, and as a general legacy to the extent of any excess
Pro rata apportionment of estate taxes
Absent contrary provisions, estate taxes are equitably apportioned amongst all estate beneficiaries (everyone’s interest is reduced)
Exception to pro rata apportionment of estate taxes
Gifts that qualify for marital deduction or charitable deduction are not subject to apportionment, because these gifts do not generate any tax
Ademption
1) Applies to specifically devised property not in estate at death (can't gift what you don't own)

2) Does NOT apply to demonstrative or general legacies, only to specific gifts

3) TX applies common-law “identity” doctrine- objective test; T’s probable intent is irrelevant (if property’s there, then you get it)
Ademption in application to bequests of securities
1) Look at presence of possessive pronouns in construction and determination of ademption application (avoid if possible-- general legacy then ademption inapplicable, gets DOD value)

2) Specific bequest of stock includes stock produced by a stock split or stock dividend declared after the will was executed, but not cash dividends declared before death, even though not paid until after death—for this purpose, the date dividend is declared by the corporation controls

3) Bequest of stock can be specific for one purpose (stock split) and general for another (ademption) beneficiary wins! (general explaining principle)

4) Specific bequest of stock includes securities of another entity owned by the testator as the result of a merger, takeover, consolidation, etc., but does not include securities acquired through the exercise of a stock option
Specific gift of encumbered property--> are liens exonerated?
1) For wills executed before 9/1/05, absent contrary will provision, liens are exonerated from residuary estate (title passes free and clear)

2) Wills executed on/after 9/1/05, no “exoneration of liens” doctrine

Execution means effective date of will; watch for republication by codicil!
Incorporation by reference
An extrinsic document, not present at will execution and not part of duly executed will, can be incorporated if:

1) Writing existed when will executed;
2) Will showed intent to incorporate the writing; AND
3) Document was clearly identified by language in the will, “such that there can be no mistake as to the identity of the document referred to.”
Acts of independent significant ("nontestamentary acts")
A lifetime act with a lifetime motive or purpose
Given full effect.
Bequest to "my chest and its contents" includes tangible property and cash. Not title docs.
Bequest of item in general doesn't include contents.
If no ambiguity in will, extrinsic evidence inadmissible to overturn will terms. Plain meaning rule.
Absent suspicious circumstances, it’s conclusively presumed that T read will and intended all contents.
Latent ambiguity? (ex: misdescription)
Can admit extrinsic evidence to find out meaning of words.

If evidence doesn’t cure, gift fails because no ascertainable beneficiaries
If patent ambiguity (mistake--> oops!) on will's face...
... admit any extrinsic evidence you want.
Establish a contract to make a will or not to revoke a will
1) Provisions in will stating that a contract exists and stating its material provisions or

2) A binding and enforceable written agreement (a buy-sell agreement, or provision in a premarital agreement)
Execution of joint will/reciprocal wills does not suffice as evidence of the existence of the contractural will
Revoke a contractual will by giving notice to other party to the K
Nonprobate (nontestamentary) assets:

Interests that pass at death other than by will or intestacy are not part of probate estates for administrative purposes
1. Property passing by right of survivorship (joint bank account, etc)
2. Property passing by K (life insurance, employee death benefits)
3. Property in trust (including revocable; trust terms govern distribution)
4. Property over which decedent held a power of appointment
Disinheritance clause ("negative bequest")
1991 statute: Words of disinheritance in a will are given full effect even if a partial intestacy (treat as if predeceased)
Power of appointment- allows life beneficiary to designate remainderman
1) Donee of a general testamentary power of appointment isn’t limited to class of beneficiaries to whom she can appoint (can appoint to anyone including herself, her creditors or her own estate)

2) If power of appointment not exercised, descendants are default takers
Power of appointment
1) Will must expressly exercise/refer to power
2) Law recognizes exercise by implication
3) No “blanket” exercise of power; statute mandates that to exercise power of appointment, must be a specific reference to the power (“with respect to the power… I hereby appoint…”)
Assuming T of legal age, what shows that a T had sufficient mental capacity to make a will?
4 point test. Did T have sufficient capacity to:

1. Understand the nature of the act he was doing? (writing a will)
2. Know the nature and approximate value of his property?
3. Know the natural objects of his bounty? (married w/children)
4. Understand the disposition he was making?
Evidence of T's capacity (or lack thereof) should relate to circumstances at the time the will was executed or shortly before or thereafter.
More distant in time a fact may be, the less significance it has on the question in issue
Adjudication of incapacity different from adjudication of testamentary capacity?
Different tests.

Jury could find will executed during a lucid interval (fleeting moment when 4 point test made). Bottom line: Jury's decision.

Adjudication of incapacity admissible as evidence of lack of testamentary capacity, but it will not support a directed verdict
If will contested at probate, who bears the burden of proof to show T had capacity?
Will proponents
After will admitted to probate (upon proof of proper execution), contestants have burden of proof on capacity.
2 years to file a will contest.

For fraud or forgery, contestants have 2 years after its discovery; person under disability (including minor) can file contest w/in 2 years after disability removed
Someone who accepts benefits under a will are stopped from contesting it.
Only if he had full knowledge of the facts on which contest might be based when he accepted distribution
Only interested parties. (persons w/an economic interest adversely affected by the will’s probate) have standing to contest will
1) Heirs, legatees under earlier will whose interest could be defeated if this will probated
2) Close personal friend, not named as legatee in earlier will, has no standing
Undue influence
Existence of a testamentary capacity subjected to and controlled by a dominant influence of power.
Assuming that a person is of sufficient age and capacity to make a will, contest has burden of proof to prove undue influence
Contestant, who has burden of proof, must prove:

1. Existence and exertion of the influence;
2. Effect was to overpower the mind and will of the testator; and
3. Product was will (or gift) that wouldn’t have been made but for influence
Mental duress (in relation to undue influence definition)
“Influence is not undue unless free agency of T was destroyed and a will produced that expresses the will, not of T, but of the one exerting the influence”
Insufficient on own to establish undue influence
- Mere opportunity to exert influence
- Mere susceptibility due to illness, age
- Mere fact of unnatural disposition

**Surmise, suspicion, conjecture are insufficient—need EVIDENCE!
T capacity and undue influence are fact questions for the jury.
1) List 4 point test for testamentary capacity and discuss facts in context of legal test;

2) List 3 point test for undue influence and discuss facts in context of legal test (also discussing opportunity, susceptibility, effect of an unnatural disposition)
If a will is procured by someone in a confidential relationship, there is an inference of undue influence.
Strengthened with suspicious circumstances.
Inference of undue influence doesn't affect burden of proof (still w/contestant)
BUT will proponent has burden of going forward with evidence that no undue influence was exerted.

If will proponent does not produce sufficient rebuttal evidence, the inference satisfies the contestant’s burden of proof.
Fraud in the inducement
Ex: Mother wrote a new will after son falsely told her that the other son died.
Void gift if lawyer drafts will gifts to lawyer, his parent or a descendant of a parent, his employee or to their spouses
Void unless beneficiary was related to T within 3d degree of consanguinity (birth or adoption) or affinity (marriage)
How do you determine degree of consaniguinity?
Count and add 1) steps from T up to common ancestor and 2) steps down from common ancestor to beneficiary
Shady marriage statute
Action to annul marriage on ground that T lacked capacity to consent to marriage can be filed if marriage took place within 3 years of T’s death and action is filed w/in 1 year of his death
If a Testator's will contains a no-contest ("in terrorem"" clause), what effect?
Full effect unless trial court finds that contest was brought in good faith and with probable cause.

No-contest clauses are strictly construed (Courts don’t like them)
Situations that do not trigger a no-contest clause
1) Will construction suit or action brought against execution alleging improper will administration (doesn’t challenge will validity)

2) Not triggered by action of someone other than beneficiary

3) Not triggered by mere filing of a will contest if party takes voluntary dismissal