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104 Cards in this Set

  • Front
  • Back
What are 4 ways that a person's property may pass intestate?
- dies without a will

- the will is denied probate due to improper execution or a successful will contest

- the will specifies that all his property should pass according to the intestacy laws

- Parital intestacy: the will fails to dispose of all property
When will the spouse of an intestate take the entire estate?
When no descendants of the decedent survive or all those descendants are also the children of the surviving spouse
How much will the surviving spouse take if the surviving spouse also has children that are not also descendants of the deceased as well as children of the deceased?
Three Fifths

(Survivng spouse has other children)
How much will the surviving spouse take if one or more of the decedant's descendants are not also descendants of the surviving spouse?
One Half

(decedant spouse has other children)
What rule does WV follow for the intestate distribution to descendants?
The modern "Per Capita at Each Generation" Rule
How is property divided under the "Per Capita at Each Generation" Rule?
- shares are initailly divided at the first generational level where there are survivors

- then the shares are divided at that level for any deceased members and so on

- this means that members at a certain level always receive equal shares with other members of that level
What taking order is followed if the intestate dies without descendants?
1) Parents
2) Descendants of parents
3) Grandparents (1/2 to each side, or whole if there is only one side left)
4) Descendants of grandparents
5) Escheats to the state
When property escheats to the state, how is it allocated?
Real property: to state auditor, credit from sale to the general school fund

Personal property: to the state treasurer, proceeds to the general revenue fund
Can a step-child inherit from an intestate step-parent?
No, but in WV, a step-child is entitled to part of the damages from a wrongful death suit for the step-parent's death
Can a child in gestation at the time of the father's death inherit intestate?
Yes, as if he were born before the death
May illegitimate children inherit?
Yes, paternity must be established through clear and convincing evidence
Is there a distinction between whole bloods and half bloods in WV?

§ 42-1-3e
For how long must an heir survive the decedant in order to inherit under intestacy laws?
120 hours or the death will be deemed simultaneous
When a will is drafted, how long must the heir survive the decedant?
If no mention is made, 120 hours. The will may include a clause of a definite time (Ex: 60 days)
What 3 elements must be present for a disclaimer to be effective for gift tax purposes?
Must be:
- in writing
- irrevocable
- filed within 9 months
How long does a beneficiary have after his 21st birthday to disclaim a bequest?
Until 9 months after his 21st birthday
- or the disclaimer may be made on behalf of an infant, incompetent, etc and the court may grant if foudn to be in the best interest of the devisee
What theory will prevent a disclaimer if the beneficiary has accepted the property or any of its benefits?
What happens when a life estate is disclaimed?
The remainder is accelerated
WV has adopted the UPC approach to advancements. What 2 conditions must a life time gift meet to be considered an advancement?
- must be declared as an advancement in a contemporaneous writing by the donor

- must be acknowledged in writing by the donee
What will happen to the gift considered an advancement if the advancee predeceases the donor?
the property will not be taken into account in the division of the estate, unless the decedent has provided otherwise in a contemporaneous writing
Does Wv have a negative bequest statute?
Yes, a person may add a provision that specifically describes how he does NOT want property to be disposed
In absence of a statement of testamentary intent, what must be found in the document in order to establish testamentary intent?
- the testator intended disposition to occur at and only upon his death

- and intended that the instrument accomplish disposition of the property
What intent must the testator have to make a will?
Present Testamentary Intent
Is a signed and witnessed statment to make a will in the future with a specific provision a valid will?
(ex: I promise to make a will leaving you all my belongings)
Is the presumption of intent rebuttable?
Yes, a party may contest the will as a sham will

(ex: made to induce a girlfriend to sleep with him)
If a deed fails, can it probated?
No, even if was signed and attested by the required number of witnesses.
Since the owner intended for the instrument to convey property during his lifetime, it cannot be a will.
Is parol evidence admissible to show that a will was intended to be conditional?
No, it may only be admitted to show tha the instrument was not meant to have any effect at all. (a sham will)
Mary make a writing that reads "I am going on safari in Africa. If I die on the trip, I want all my property to go to Roger".
If Mary makes it back from the trip, but dies 5 years later, can this instrument be probated?
Yes, in WV it will be admitted to probate as long as testamentary intent exists in the writing.
What is the attestation requirement of witnesses in WV?
2 competent witnesses must be present at the same time and sign in the presence of the testator.
The testator may acknowledge his prior signing in front of the 2 witnesses as equivilent of signing in front of them.
There is no age minimum for witnesses.
What is the "Conscious Presence" standard for witnesses in WV?
each party involved is conscious of where the other parties were and what they were doing, the act of signing took place nearby within the general awareness of the other parties
Will a will be valid when witnesses by an interested party?
Yes, but the bequest to the interested witness is void, unless either of the 2 exceptions apply
What are the 2 exceptions that will allow an interested witness to take?
1)The supernumerary rule: there were more than the required 2 witnesses and the will can be proved by the disinterested witnesses.

2)The interested witness would take if the will had not been admitted to probate. In this case, the witness takes the lesser of either the legacy or the share under this will.
Is an attestation clause required in WV?
No, but a well drafted will should have one anyway.
How can a will be self-proved in WV?
Self-proving affadavit - It can be signed and attested before a notary public and each other with all recitations of legitimacy,etc
Is an attorney liable for preparation and supervision of execution of a will in WV?
Yes, and the amounts recoverable can be substantial
Does WV recognize holographic wills?
What elements must a writing satisfy to be a valid holographic will?
- Must be entirely in the testator's handwriting; typed material may be stricken, but the writing must make sense alone
- the signature (or mark) can be made at any point in the writing, not just at the end
- must have testamentary intent
Are oral wills valid in WV?
No, W.Va. Code is specific that a will must be in writing
Must a codicil be executed with the same formalities as a will?
Yes, and the date is important because - a will is treated as having been executed on the date of the last valid codicil (doctrine of republication by codicil)
What requirements must be met in order to incorporate an extrinsic document?
- there must be an express intention to incorporate the document

- the document must exist at the time of the will execution (but there is an exception for lists of personal, tangible property)

- the document must be explicitly described so that it may be reasonably identified
What is the "Acts of Independent Significance" Doctrine?
A will may dispose of property by reference to acts and events that have significance apart from their effect on the dispositions made in the will
What are 3 types of "Acts of Independent Significance"?
1) ID of beneficiaries: I leave $1,000 to each of my employees

2) ID of property: I leave "my house" to my brother, Tom

3) Acts of 3rd persons: "I leave the residue of my estate to any charitable trust established by the Last Will and Testament of my brother, Tom"
In WV, is a devise or bequest made to a trustee of an inter vivos trust valid?

May a person who has contracted to NOT revoke his will, revoke the will?
Yes, the will must be denied admission to probate.
However, there may be an action for breach of contract against the decedent's estate and the remedy may be the imposition of a constructive trust upon the beneficiaries under the will
What are the 3 methods of will revocation in WV?
1) Operation of law
2) Subsequent instrument
3) Physical act
In what situations can a will be revoked (paritally or totally) by operation of law?
Subsequent divorce, birth or adoption of children
Does WV law provide for a spouse when the marriage was subsequent to the will?
No, the spouse is provided with an elective share
Does divorce revoke all provisions in wills, revocable trusts, life insurance policies and other non-probate transfers?
Divorce or anullment destroys all provisions for the former spouse in wills and revocable trusts, but NOT in non-probate transfers.
How much are pretermitted (born or adopted) children allowed?
As must as if the testator had dies intestate; general rules of abatement apply
What writings can revoke a will?
- a validly executed instrument of revocation including subsequent wills or codicils

- a valid holographic will
If a testator creates a will that has no revocation clause, how is the first will treated?
The 2 documents will be read together, if there are any inconsistancies, that portion will be revoked as to the first will
What acts are sufficient in WV to physically revoke a will?
cutting, tearing burning, obliterating,etc... the will <or> the signature, with the intent to revoke
What is revocation by proxy?
The testator may allow a person to commit a physical act of revocation as long as it is:
- at the testator's discretion
- in the testator's presence
Is a partial revocation by physical act permitted?
yes, and extrinsic evidence is permitted to show whether the testator intended a full or partial revocation
What will happen if a will is not found after death?
If the will was last in the testator's possession - revocation is presumed

If the will was last in the possession of a 3rd party - no presumption arises
Where does the burden of proof lie when:

1) proving execution

2) proving revocation
1) upon proponent

2) upon contestant
Does physical revocation of a will also revoke:
1) codicils to that will
2) duplicates of that will
1) yes, but destruction of only the codicil does not destroy the will, it is presumed that the testator only wanted to make it as though the codicil never executed

2) yes
How can probate of a lost will be permitted? (3 elements must be proved)
1) valid execution

2) the cause of the non-production

3) the contents of the will (at least 2 witnesses or a carbon copy)
May a will or codicil be revived in WV?
Yes, by re-execution (2 witnesses, etc) and only to the extent that an intent to revive is shown
What is Dependent Relative Revocation?
The testator revokes believing (mistakenly) that another disposition of her property was valid
T makes a 2nd will that is not valid. The first will shall remain in effect because it is closer to what T wanted than intestacy.
Are contracts to make, not make or revoke a will valid?
Yes, under contract law
At common law must a contract to make, not make or revoke a will be in writing?
No, unless it involves the sale of land
Under the UPC, what 3 ways may there be a contract to make, not make or revoke a will?
1) a provision in the will states the material provisions of the contract

2) there is an express reference in a will to the contract and extrinsic evidence proving the terms of the contract
3) there is a writing signed by the decedent evidencing the contract
Is a promise to provide care enough consideration to contract for a provision in the will?
Yes, the promise suffices, even if there was not enough time to provide much care
What are the remedies for breach of a contract to make, not make or revoke a will?
The promisee can seek damages equal to the value of the property promised. If the promise was to devise specific property, the court will usually impose a constructive trust on the property for the promisee's benefit
What is the difference between a

1) Joint Will

2) Reciprocal Will
1) two testators on the same document (if one revokes, it still serves as a valid will for the other)

2) Two testators, two documents, that contain substantially the same provisions
What will happen to a gift if the beneficiary dies before the testator?
The gift lapses
What are Anti-Lapse Statutes?
A statute that allows a devise to pass to the heirs of a devisee if the devisee predeceases the testator -
The testator would have to add a very specific phrase to frustrate the statute
How is lapse handled in situations of residuary lapse or class gifts?
The property is then passes to the remaining residuary beneficiaries or members of the class in proportion to their relative shares in the residue (or class gift)
- This is in contrast to the Anti-Lapse Statute
- The Anti-Lapse Statute will apply if the group of beneficiaries is comprised of only relatives
How is a gift treated when a beneficiary is dead at the time the will was executed?
The Anti-Lapse Statute will apply, or the gift will be void in absence of a taker.
What is the Doctrine of Ademption?
When specifically bequeathed property is not in the testator's estate at death, it is adeemed (it fails)
- it applies only to specific bequests
Tom devises Blackacre to his brother, Bill. Tom sells Blackacre and deposits the money into his account. When Tom dies, will Bill get the money?
No, unless Tom has expressly devised the proceeds to go to Bill (and that they can be traced)
- however if the gift is of the testator's interest in the property instead of the actual property, the gift may not be adeemed
Does the court imply intent when a gift is not in the estate of the testator?
No, the ademption issue is solely objective
Does ademption apply to general or demonstrative bequests?
No, it must be specific

General: a dollar amount payable out of the general estate

Demonstrative: gift of a general amount from a particular source in the estate
What is an elective share?
The spouse can elect to take (either against the will or intestate share)an amount determined by the number of years the spouse was married to the decedent
~ Elective Share Chart ~
Less than 1 year - Supplemental amount only
1-2 years - 3%
2-3 years - 6%
3-4 years - 9%
4-5 years - 12%
5-6 years - 15%
6-7 years - 18%
7-8 years - 21%
8-9 years - 24%
9-10 years - 27%
10-11 years - 30%
11-12 years - 34%
12-13 years - 38%
13-14 years - 42%
14-15 years - 46%
15 years or more - 50%
What is the minimum elective share?
How long does a spouse have to file for elective share?
9 months after death or 6 months after probate, whichever is longer
If the spouse dies shortly after the decedent, can the personal representative of the spouse file for an elective share?
If a spouse married the decedent after he had executed a will (wherein she was not a beneficiary) can she take an elective share?
Yes, as long as:
- it doesnt apply to the amount devised to a child of the decedent who was born before the marriage to the current spouse (not a child of the current spouse)
- it appears from the will that the decedent executed the will was executed in contemplation of marriage
- will expresss the intention that it should be effective even with a subsequent marriage
- testator provided for the spouse by a transfer outside the will and the intent to substitute this transfer for a testamentary provision can be shown
Is abandonment a bar to elective share?
What is the Pretermitted Child Statute?
To provide an intestate share for a child who was born after the will was executed; as long as the child was not provided for by any settlement or expressly excluded by the will
What is the possible reversion in the Pretermitted Child Statute?
If the child dies before age 18, the share will revert back to whomever it would have originally gone
What is the Homestead Allowance?
The statute protects $5,000 of the value of the family residence from claims of decedent's creditors
What is the age requirement for will execution?
A person must be 18 to make a will
What is the mental capacity for making a valid will at the time the will is executed?
- lower standard than for making a contract

The testator must understand:
- the nature of his act
- the nature and extent of his property
- the persons who are the natural objects of his bounty
- the nature of the disposition he is making (the effect the will shall have)
What capacity factors will NOT effect the validity of a will?
- old age

- drug addiction or habitual drinker

- adjudicated insanity: can be overcome
Will Insane Delusion render a person incapacitated to form the intent to make a will?
yes, it may cause the entire will or only a provision to fail - but it must be shown that the delusion itself caused the disposition in the will

Standard: no rational person would believe the "facts" existed
What makes an influence "undue"?
The free will of the testator is destroyed; the contestants of the will must prove:
- influence was exerted on the testator
- the effect of the influence was to overpower the mind and free will of the testator
- the product of the influence was a will that would not have been executed otherwise

Circumstantial evidence cannot be used here, such as mere opportunity, susceptability or that the testator made an unatural disposition
Is there a presumption of undue influence where there is a confidential relationship?
Yes, when the beneficiary participated in drafting the will
What is requird for a finding of fraud in the execution of a will?
The testator has been willfully deceived as to
- the character or the content of the instrument (fraud in the factum)
- the extrinsic facts that would induce the will or a particular disposition (fraud in the inducement)
- or with facts material to a disposition
What is the result when a mistake in execution of the will is asserted?
Extrinsic evidence will be admitted to show that the testator was unaware of the nature of the instrument he signed.
If it is shown that the testator was not aware of the nature of the instrument, the testator lacks the requisite intent to make a will and it is therefore invalid.
What is the result when the testator makes a will based on a mistake of fact? (such as believing a family member is dead)
No relief, the testator is not able to testify, therefore leading to possible fraudulent testimony.
What is the result when there are patent or latent ambiguities in the will?
Extrinsic evidence is admitted on both occasions to help clear the ambiguity
Does WV enforce no-contest clauses?
Yes, if a person accepts their gift under the will, they are barred from contesting it
- However, the court may decide that the party had probable cause for contesting and then the share is not forfeited
What is the difference in the terms "executor" and "administrator"?
Executor: named in the will

Administrator: named by the court
What are the powers and duties of a personal representative?
- give notice to devisees, heirs and claimants against the estate
- discover and collect the decedent's assets and file and inventory
- manage the assets of the estate udring administration
- pay expenses of administration, claims against the estate and taxes
- distribute the property

- the representative is entitled to compensation from the estate as decided by the court or it may have been allocated in the will itself as a gift
What are the main forms of non-probate transfers?
- Inter vivos gifts
- joint tenancy
- tentative trusts and payable on death accounts
- payable on death notes
- a deed deposited into escrow with delivery conditioned on the grantor's death construed as a life estate reserved by the grantor, if the grantee has possession of the deed)
What is a durable health care power called in WV?
A medical power of attorney; it becomes effective only at the time of incapacity
What are the elements for valid execution of a living will or medical power of attorney?
Must be:
- in writing
- signed by the testator or representative
- witnessed by 2 adults
- all signatures acknowledged before a notary

The testator must be a capacitated adult.
In what 3 ways may a living will or medical power of attorney be revoked?
- physical acts
- writing
- orally (with a witness and confirmation of the witness)
A principal may appoint anyone as an agent except:
- treating health care provider

- employee of the treating health care provider (if they are not a relative)

- owner, operator or admin of the health care facility where treatment is given
What is the agent's authority under a medical power of attorney?
To act in the principal's best interest, follow any orders or wishes proscribed in the instrument, can admit or discharge, consent or refuse, obtain medical records, or do anything else that the testator would have been able to do
What is the agent liable for relating to health care decisions?
Nothing, as long as he acted in good faith