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48 Cards in this Set
- Front
- Back
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Who may contest validity of will?
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Person who can show has (or will) suffer harm.
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In terrorem clause
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No contest clause
In CO unenforceable if interested party has probable cause |
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Testator issues
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Age
Mental Capacity Insane Delusions No undue influence No fraud |
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Age
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CO and UPC - 18 y.o.
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Testamentary Capacity
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T must know/understand:
nature of act extent of property proposed disposition natural object sof bounty will represents wishes "Cunningham test" |
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Insane Delusion
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A persistent belief resulting from illness or disorder in the existence or non-existence of something which is contrary to all evidence
Invalidates entire will |
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Typical will format
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Statement declaring will
statement of relations gifts residue nomination of pr signature of witnesses (if not holographic) |
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Undue influence
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Usually proved through circumstantial evidence
CL definition: - T susceptible to UI or domination - opportunity to exercise UI - disposition to influence - provisions unnatural - influence resulted in control of T's mind |
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Fraud CL elements
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- material or misleading
- known to be false made with intent of deceiving - caused the T to act in reliance - resulting in damages |
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Types of testamentary fraud
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- fraud in execution
- fraud in inducement |
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Will conflicts of interest
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- joint representation
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Witness requirements
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- signed by at least wo
- prior to or after T's death - within a reasonable time - witness either t's signing or acknowledgement of signature |
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CL - who can be witness
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Competent + disinterested
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CO - who can be a witness
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competent, need no be disinterested
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CL exceptions for T observing Ws
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- line of sight test
- presence test - conscious presence test |
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Substantial compliance
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only arises if document is signed or ack. by decedent as his will or if established by C&C evidence that decedent erroneously signed will of spouse.
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CO - types of self-proving affidavits
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simultaneous execution form
post-execution form - any time after execution |
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Self proving affidavit
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creates presumption of valid execution
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Enforcement of holographic wills
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Not universal, but ok under UPC and in CO
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Holographic requirements
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in writing
signed by T material portions in T's handwriting T intent valid whether or not witnessed |
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Document integration
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Internal
External |
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Document issues
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- republishing
- incorporation by reference - acts of independent significance - memo of disposition |
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Republishing
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Can cure testator issue but NOT procedural execution issues
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Incorporation by reference
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- intent to incorporate the document
- will describes a separate document - document must exist when will executed - underlying will must be valid |
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Act of independent significance
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- act of non-testamentary signficance
- it's t's act had a testamentary motive then not independent & violates SOWills |
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Memo of disposition
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- signed by T or in T's handwriting
- describes items and devisees w/ reasonable certainty - may or may not exist at tiem of writing - can be altered after its preparation - may be a writing that has absolutely no significance apart from its effect on dispositions - must refer to this power - only tangible personal property, not cash |
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Types of ambiguities
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Latent - not obvious on face
Patent - obvious on face Ask: would a proofreader notice the problem? |
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Extrinsic evidence admissible:
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- to show an ambiguity exists
- to clarify it |
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Mistake
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A mistake can be altered if it is harmless error and not altering the T's true intent.
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Traditional view - mistake
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No remedy for correcting a mistake
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Ways to revoke a will
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- T's intentional act
- by proxy - by another testamentary document |
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Intentional act
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burn, tear, cancel, obliterate or destroy with intent to revoke.
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By operation of law
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most common:
- divorce - felonious killing |
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CO revival possibilities
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- no potential revival
- potential revival - first will remains revoked unless revived by third will Previous will can also be revived if it is evident from circumstances or T's declarations. |
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Testate gift classifications
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- specific
- general - demonstrative - residuary |
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General gift
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- certain dollar amount
- quantity payable from general assets - no requirement gift be paid from designated source - T's intent is to give more of a monetary benefit |
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Demonstrative
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- specific amount or quantity paid from a specific source
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Testate property issues
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- ademption by satisfaction
- ademption by extinction - abatement - exoneration |
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Inter-vivos gift treated as whole or partial satisfaction of testamentary gift only if
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- will provides a deduction for the gift
- T declared in a contemporaneous writing that ademption intended - devisee acknowledged in a writing that ademption was intended |
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CO ademption by extinction
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Go through each option and STOP when you reach the applicable scenario under CRS 15-11-606
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Order in which gifts abate
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- property not disposed of by will
- residuary devises - general devises - specific devises |
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Alternate gift and anti-lapse
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Valid alternate gift trumps anti-lapse
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Class gifts function traditional/modern
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Traditional: only surviving class members take, anti-lapse not applied
Modern: try to apply anti-lapse to share of each pre-deceased. If not possible, default to traditional rule. |
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Common law closing rules
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Natural closing
Rule of Convenience |
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Blood v. affinity
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No step-child provisions in CO anti-lapse
Watch out for "uncle," "aunt," do not include affinity here. Half-bloods = whole bloods |
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Relationship test
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Is the pre-deceased devisee the T's
- grandparent or - a lineal discendant of the T's grandparent |
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Will Contract
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Contracts not to revoke, amend, etc.
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Will K's under UPC
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only established by will provision, express reference in a will, or a writing signed by decedent evidencing the K
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