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115 Cards in this Set

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Execution of a Will
1. Must be signed by the testtor or by another person at the testator's direction and in her presence
2. there must be two attesting witnesses
3. testator must sign the will in the presence of both witnesses
4. witnesses must sign in the testator's presence
5. testator sing at the end of will
6. testator must publish the will
Signature Requirement
Any mark with intent that the mark operate as teh testator's signature. Testator's name must be written near mark.
Must be at the end.
Prsence Requirement
Each witness must sing in the testator's presence, and the testator must sing or acknowledge the will or signature in the prsence of both witnesses.
Witness Requirement
Witensses must be 18 years or older and disinterested.
Interested Witnesses
Will eliminate the intersted witness share unless:
1. Supernumerary Rule- more than two witnesses sing
2. Witness-Beneficiary Would take if testator had died intestate- takes the lesser one
Attestation Clause
Appears immediately below the signature line for the testator and above the witnesses' signature lines, recites the elements of execution. Prima Facie evidence of facts.
When are attestation clauses useful?
1. witness with no memory
2. witness with faulty memory
Self-proving affidavit
The testator and the attesting witnesses sign the will, adn then the witnesses sing a sworn affidavit before a notary public reciting that the tstator declared to the witenss that the intrustment was her will, and taht the testator and the witnesses signed in the presence of each other.
Benefits of a self proving affidavit
1. Substitutes for Court testimony of attesting witness- witnesses sworn tstimony can be suecred at the time iwll is executed
Signatures on affidavit can be counted as signatures needed on will
Holographic Will
One that is entirely in the testator's handwriting and has no attesting witnesses. May be made by any testator with capacity.
Testator's Handwriting
The will must be entirely in testator's handwriting. Most states accept a will that conatins some typewritten texts as long as the portion not in teh testator's handwriting is not material.
Testator's Signature
A holographic will must be signed by the testator, but there is not requirement that it be signed at teh end of the will.
Conflict of Law Issues
1. Real Property- validity determined by the law of the state where the property is located
2. Personal Property- law of testator's domicile at teh tiem of her death
Foreign Wills
A will is admissible to probate in Arkansas if it has been executed in accordance with:
1. the law of arkansas
2. the law of the state where the will was executed; or
3. law of the testator's domicil at the time the will was executed
Integration
Intent and presence are presumed when there is a physical connection of the pages or when there is an internal coherence by the provisions running from one page to the next. May be established by the testimony of witenss or other extrinisic evidence.
Codicil
A codicil must be excuted with the same testamentary formalities as a will. A will is treated as having been executed on teh date of the last validly executed codicil thereto. (republication by codicil)
Incorporation by Reference
1. the document must be in existence at the time the will was executed
2. the language of the will must sifficiently describe the writing to permit its identification and
3. the will must manifest an intent to incorporate the document
Exception for List Disposing of Items of Tangivle Personal Property
The writing must be in the testator's handwriting or signed by the testator and must describe the items and teh devisees with reasonable certainty. It may be prepared before or after teh execution of the will, and it may be altered by the testator after its initial preparation.
Exception--Pour over Gift to Trust
1. Trust Must be in existence before or executed Concurrently with Will
2. Trust May be Amendable and REvocable
3. Gift is valid even though trust unfunded during settlor's lifetime
Identification of Extrinsic Document
The will must refer to the extinsic document in such a way as it may be reasonably identified, and the document must correspond to the description given in the will.
Acts of Indipendent Significance
a will may dispose of property by reference to acts and events that have significance apart from their effect on the dispositions made by the will. Even though the identification of a beneficiary or the amount of a bequest will be determined by some future unattested act, the bequest is nonetheless valid if the act has some lifetime significance other than providing for a testamentary gift.
Examples of Acts of Independent Significance
1. A will giving $1,000 to my employees at my death
2. A will bequeths my house and contents at death
3. One executes a will dvising residue of estate to any charitable trust established by teh last will and testament of his brother.
Nonprobate Assets Cannot be Disposed of By will
A will cannot make a gift of "nonprobate assets"--intersts that pass at death other than by will or intestacy.
Three principal categories of nonprobate assets
1. Property Passing by Contract- Life Insurance Proceeds and Employee Benefits
2. Property Passing by Right of Survivorship
3. Property Held in Trust
Revocation of Wills
1. Must have capacity to Revoke
2. One who has validly contracted not to revoke a will may do so. There may be an action for breach of contract.
3. Must be one of the three methods
Methods of Revoking a will
1. Revocation by Operation of Law
2. Revocation by Written Instrument
3. Revocation by Physical Act
Revocation by Operation of Law
May be revoked by operation of law in the event of subsequent marriage, divorce, or birth or adoption of children.
Divorce or Annulment
Divorce or annulment following execution of a will revokes all gifts and administrative appointments in favor of the former spouse. The rest of the will remains valid.
Pretermitted Children
If the testator unintentionally fails to provide in his will for any of his children, the child is entitled to a share of the estate equal in value to what he would have received if teh testator had died intestate.
Revocation by Written Instrument
1. Instrument of Revocation must be executed with Testamentary Formalities
2. Revocation by implication--inconsistent privileges- the second properly executed instrument will win against inconsistent provisions.
Revocation by Physical Act
1. Physical Act
2. Intent to Revoke
Physical Acts that constitute a revocation
1. burning
2. tearing
3. obliteration- damaging material part of the will
4. cancellation- lining out or writing an X or void
Intent to Revoke
the intention to revok must be persent at the time of the physical act for revocation to be effective.
Revocation by Proxy
Is permitted if:
1. it is at the testaor's direction and
2. in the testator's presence
Partial Revocation by Physical Act
Arkansas recognizes total and partial revocation by phsical act. The revocation is invalidif it increases the gift of a named person.
Presumptions as to Revocation
1. Will Not found after testators death- presumption arises of revocation if last scene in teator's possession, but no presumption of revocation if last seen in hands of third party
2. Will Found after death in mutilated Condition- if last seen in testator's possession, presumption that inent to revoke
Evidence to Overcome Presumption of Revocation
To overcome the presumption of revocation raised in the foregoing situations, extrinisc evidence is admissible to show the testator's intention
Effect of Revocation on Other Testamentary Instruments
1. Revocation of Will- revokes all codicils
2. Destructionof Duplicate Will- destruction of one creates a rebuttable presumption that testator intended to revoke
3. Revocation by Codicil- revokes only the codicil
What if there is a lost or destroyed will?
Must prove:
1. valid execution
2. the cause of nonproduction
3. contents of the will- must be proved clearly and distinctly by testimony of at least two witnesses
Revival of Revoked Wills
Must be reexecuted or republished by codicil. Thus, a will revoked by a subsequent instrument is not automatically revived when teh revoking instrument is itself revoked.
Reexecution
A will can be reexecuted with full testamentary formailities or by the testator acknowleding her signature on the will or acknowledging the will and having this attested to by two witnesses
Republication by Codicil
Provided the first will is still in physical esitnece, it may be revived by teh valid execution of a codicil that expressly refers to it.
Contract to make a gift by will
Assuming all the valid contract elements are present, a contract to make a will is valid. A will still has to be executed, though. One cannot oppose probate based upon a contract...only a will. If it fails, then it will probably be a constructive trust.
A contract to make a will or not to revoke a will can be established only by:
it need not be in writing unless land is involved:
1. Provisions in the will stating the material provisions of the contract
2. an express reference in a will to the contract and extrinsic evidence proving the tersm of teh contract, or
3. a writing signed by the decedent evidencing the contract
Remedies for Breach of Contract to Make a Will
If the promisor fails to make the promised testamentary gift, the promisee can seek damages equaling teh value of the property promised. If the promise was to devise specific property, however, the usual remedy is for the court ot mpose a constructive trust on the property for the promisee's benefit.
Joint Will
Two or more persons executed on teh same piece of paper and intended to serve as the will of each. It is admissible to probabe the death of each testaor; it is as if there were separate pieces of paper. Revocable even though it says it isn't.
Reciprical Wills
Separate will executed by two or more testators that contain substantially similar or reciprocal provisions. revocable even though it says it isn't.
Contracts not to Revoke Wills
Either party may revoke a contractual will provided she gives notice to the other party to the contract, so thata the other party will have a chance to change his will. Relief is denied if first party dies in breach without notifying of revocation.
Constructive Trust Remedy if Survivor Dies in Breach
H and W execute a joint will that expressly provides taht the will is contractual and taht the surivor cannot revoke it after the first party's death. H dies; W then probates the will and accepts its benefits. Later, W executes a new will taht revokes the joint will and devises her estate to otehr beneficiaries. After W's death, both wills are offered for probate. The beneficiaries of the joint will can now bring an action to impress a constructive trust against the beneficiaries of the second will, since execution of that will was in breach of W's contract with H.
Anti-Lapse Statute
Arkansas has an anti-lapse statue that operates to save teh fift if the predeceasing beneficiary (i) was a descendant of the testator and (ii) left descendants who survived teh testator. The beneficiary's descendants take by substitution under the anti lapse statute.
Anti Lapse Statue Does not Apply if contrary provision in will
if the will says that the gift is contingent on the beneficiary surviving the testator, then the antilapse statue does not apply.
Lapse in Residuary Gift
The Residue goes to the class...if there were three, and one dies, then the class divides the amount by 2.
Class Gift Rule
If a will makes a gift to a class of persons and a class member dies during the testator's lifetime, those class emmbers who survive teh testator take the gift.
What if anti lapse statute applies to class gift
as with the surviving residuary beneficiaries rule, the class gifl rule gives way to teh anti lapse statue when the predeceasing class member was witini the scope of that statute and left descendants who survive the testator.
Beneficiary Dead When Will Executed
If a will akes a gift to a beneficiary who was dead at the time the will was executed, the gift is void.
Ademption
When specifically bequeated property is not in the testaor's estate at death, the bequest is adeemed, it fails. ADEMPTION ONLY APPLIES TO SPECIFIC DEVISES.
Identity Theory
Whether the spcifically bequeather property is a part of the estate at testator's death. Don't care about intent.
Modifications to Ademption
1. casualty insurance proceeds after testator's death
2. condemnation is found before death, but not paid until after death
3. if under executory contract, ben is entitled to all testator's reights
4. asset changes form and teator had no control over the change (securites change form)
5. testator becomes incompetent and devised property is sold by a guardian, will get proceeds
Patial Ademption
Ademption applies only to the portion of the property not in the estate, but the remaining portion in teh estaet at the death passes to the beneficiary. Such as big pieces of property that testator sells a little of it.
Ademptions does not apply to
1. General Legacy- dollar amount
2. Demonstrative Legacy- general amount that identifies a particluar asset as the primary source of payment
3. Bequests of Securities- whether 200 shares or "my" 200 shares(applies to these)
Increases to Property after execution of the will
1. Increases occurring before testator's death- improvements go to specific devisee, rents to general estate
2. Increases aftter testators death go to the beneficiary
3. sotck split- beneficiary gets stock split but not shares by dividends
Elective Share
Gie the spouse an election to take a statutory share of the decednt's estate in lieu of taking under teh decedent's will. To take an elective share in Arkansas, the surviving spouse must have been married to teh decedent for more than a year.
Effect of Election on Testamentary Plan
The elective share is paid pursuant to the abatement ruels taht pply to credotrs' claims
May a Parent disinherit a child
Not in Arkansas. if the child is born after the will execution, the child may take what he would have taken had the testator died intestate. Arkansas allows a child who was in existence at the time the will was executed but not mentioned or provided for in the will likewise take a share equal to his intestate shares.
Grounds for Contesting a Will
1. Defective execution
2. will has been validly revoked
3. testator lacked testamentary capacity
4. testator lacked testamentary inent
5. will or a gift therein is a product of undue influence
6. the will or gift therein was procured by fraud or
7. document was executed as a mistake
Time For contest
1. another will found- contest must be filed before distribution and within 5 years of death
2. for any other reason- prior to or at the probate hearing of which teh constestant received notice by personal service or registered mail
3. if notice by publication- within 3 months of publication or within 45 days after notice
4. three year limit- three years from probate regardless
Proper Contestants
Only interested parties, they must have a direct interest in teh estate that would be adversely affected by the admission of the will to probate. Creditors do not have standing to contest a will, neither do executors or testamentary trustees named in earlier wills.
Ncessary Parties
All legatees under teh will and all heirs are necessary parties to a will contst and must be given notice. If the ground for contest include introduction of another will, then all heris legatees, and executors name din both wills must be given notice
Mental Capacity to Execute a Will
The testator must have sufficient capacity to be able to understand:
1. the nature of her act
2. the nature and extent of her property
3. the persons who are the natural objects of her bounty and their claims upon her
4. the nature of the diposition she is making
Does a person who has had a guardian appointed lack capacity to execute a will?
No. it is not conclusive and can be overcome by showing that the tstator still met the specific standards.
Insane Delusion
A person may have suffiient mental capacity to conduct his affiar and to amke a will, but may be suffering from an insane delusion so as to require a particular provision in a will to fail on teh ground of testamentary incapacity.
Insane Delusion Defined
an insane delusion is a legal not psychiatric concept. Such a dlesusion is a belief in facts taht do not exist and taht no ration person would beliee existed.
Burden of Proof
Courts presume the testator was competent. If the contestatnt introduces evidence sufficient, if believed, to warrant a finding of mintal incpacity, the prsumption drops, and the proponent must now introduce evidence of capacity.
Undue Influence
To establish
1. influence was exerted on teh testator
2. the effect of the influence was to overpower the mind and free will of the testator, and the product of the influence was a will that would not hve been executed but for the influence
Presumption of Undue Influence
1. That a confiential relationship existed between the testator and teh beneficiary who was alleged to have exerecised undue influence
2. that benfeficiary participated in some way in procuring or drafting the will or in some other significant acitivity in will making and
3. that the provisions of the will appear to be unnatural and favor the person who allegdly exercised undue influence
Fraud
The testator must have been willfully deceived as to the character or the content of an instrument, or as to the extrinsic facts that would induce the will or a particular diposition, or with respect to facts materials to a dispostion.
Fruad in Execution
Theres is a misrepresentation as to the nature of the contents of the instrument
Effect of Election on Testamentary Plan
The elective share is paid pursuant to the abatement ruels taht pply to credotrs' claims
May a Parent disinherit a child
Not in Arkansas. if the child is born after the will execution, the child may take what he would have taken had the testator died intestate. Arkansas allows a child who was in existence at the time the will was executed but not mentioned or provided for in the will likewise take a share equal to his intestate shares.
Grounds for Contesting a Will
1. Defective execution
2. will has been validly revoked
3. testator lacked testamentary capacity
4. testator lacked testamentary inent
5. will or a gift therein is a product of undue influence
6. the will or gift therein was procured by fraud or
7. document was executed as a mistake
Time For contest
1. another will found- contest must be filed before distribution and within 5 years of death
2. for any other reason- prior to or at the probate hearing of which teh constestant received notice by personal service or registered mail
3. if notice by publication- within 3 months of publication or within 45 days after notice
4. three year limit- three years from probate regardless
Proper Contestants
Only interested parties, they must have a direct interest in teh estate that would be adversely affected by the admission of the will to probate. Creditors do not have standing to contest a will, neither do executors or testamentary trustees named in earlier wills.
Ncessary Parties
All legatees under teh will and all heirs are necessary parties to a will contst and must be given notice. If the ground for contest include introduction of another will, then all heris legatees, and executors name din both wills must be given notice
Mental Capacity to Execute a Will
The testator must have sufficient capacity to be able to understand:
1. the nature of her act
2. the nature and extent of her property
3. the persons who are the natural objects of her bounty and their claims upon her
4. the nature of the diposition she is making
Does a person who has had a guardian appointed lack capacity to execute a will?
No. it is not conclusive and can be overcome by showing that the tstator still met the specific standards.
Insane Delusion
A person may have suffiient mental capacity to conduct his affiar and to amke a will, but may be suffering from an insane delusion so as to require a particular provision in a will to fail on teh ground of testamentary incapacity.
Insane Delusion Defined
an insane delusion is a legal not psychiatric concept. Such a dlesusion is a belief in facts taht do not exist and taht no ration person would beliee existed.
Burden of Proof
Courts presume the testator was competent. If the contestatnt introduces evidence sufficient, if believed, to warrant a finding of mintal incpacity, the prsumption drops, and the proponent must now introduce evidence of capacity.
Undue Influence
To establish
1. influence was exerted on teh testator
2. the effect of the influence was to overpower the mind and free will of the testator, and the product of the influence was a will that would not hve been executed but for the influence
Presumption of Undue Influence
1. That a confiential relationship existed between the testator and teh beneficiary who was alleged to have exerecised undue influence
2. that benfeficiary participated in some way in procuring or drafting the will or in some other significant acitivity in will making and
3. that the provisions of the will appear to be unnatural and favor the person who allegdly exercised undue influence
Fraud
The testator must have been willfully deceived as to the character or the content of an instrument, or as to the extrinsic facts that would induce the will or a particular diposition, or with respect to facts materials to a dispostion.
Fruad in Execution
Theres is a misrepresentation as to the nature of the contents of the instrument
Fraud in Inducement
The testaor intends to execute the instruemtn as her will and to include the particular contents of that instrument, but she is fraudulently induced into make this will or some particular git therein by misrepresentations as to facts which influence her motivation.
Mistake
Go Over
No Contest Clauses
provides that a beneficiary who contests the will forfeits his interst under the will. A no contest clause is enforceable.
Probate
refers to the proceeding in which an instrument is judically determined to be the duly exectued last will of decdent. A personal representative is appointed to carry out the estate administration. If named in will, executor, if named by court, administrator.
Probate Rules and Procedure
1. Any interested person may file a petition for probate
2. custodian of a will must produce it within a certain time after teh death of the testator
3. a will must be probated in order for a person to take under its terms
4. a probated will cannot be collaterally attacked when a specified short SOL after probate ahs run
5. lost or destroyed will may be rpobated, provided its contents can be proved
What facts must be proven in a probate proceeding?
1. that the testor is dead
2. that the formalities of execution were observed; and
3. that the notice requirements for probate have been complied with.
right to demand notice
any intersted party has the right to demand notice of petition for probate
hearing for petition of probate
will happen immediately if no demand for notice is given. if court hears a case without notice, the period for challenging is extended. if contested or demand for notice, hearing scheduled and just like lawsuit.
proof of will
an attested will should be proved by the testimony of two attesting witnesses. if none, then two disinterested parties taht were there. if self proving affidavit, don't need. if holographic, three disinterested witnesses.
ante mortem probate
if the testator is conerned that there will be a will contest, he can seek during his lifetime, a declaratory judgment that his will is valid.
personal representative
primary functions are:
1. to give notice to devisees, heirs, claimants against the estate;
2. discover adn collect teh decedent's assets adn file inventory
3. manage teh assets of the estate during administration
4. pay expenses of administration, claims agaisnt the estate, and taxes
5. disribute the property
preference for appointment
1. person in will
2. surviving spouse
3. any will beneiciary
4. any other qualified person
compensation of personal rep
allowed reasonable compensation as determined by teh court
Administration of Estate
testate estates must go through some form of administration.
Creditors Claims and Administration of the estate
1. notice- first taks is to give notice to the creditors of the estate, advising them of the penency of the administration and when and where claims must be filed. may be made through publication, but known creditors must receive through mail.
Nonclaim Statute
Ceridtors claims must be filed within three months after notcie or they are barred. it is six months for claims of injry or death cause by the decedent.
if notice is not given to creditors in accordanc with the statue, claims are barred only after two years have passed since the date of first publication of notice to creditors
priority of claims
1. administration expenses
2. reasonable funeral expenses, reasonable expernse of the last illness, and wages of decedent's employees
3. claims based on teh decedent's liability for state taxes or taxes due as a result of death
4. all other claims
special procedure for certain small estates
if 45 days after teh decedent's death:
1. no petition to appoint a personal representative is pending
2. distributee files an affidavit stating that hter are no unpaid debts or claims against the estate and
3. the value of the estate minuse encumbrances, homestaed, and stautory allowances does not exceed $50,000, assets distributed without representative
Abatement
Abatement is the process of reducing testamentary gifts in cases where teh estate assets are not sifficient to pay ll claims against the estate and satisfy all statutory shares and allowances, bequests, and devises.
Order of Abatement
1. REal or personal property passing by intestacy
2. residuary estate
3. general legacies, which abate pro rata, and
4. specific devisess and bequests
Exonerations of Liens
If specifically devised property is, at the testator's death, subject to a lien that secures a note on shich the testaor was pesonally liable, the beneficiary is entitled to have the lien exonerated. Thus, the beneficiary is entitled to demand payment of the debt out of the estate assets so that the proepry passes to him free of any encumbrances
Testator's Intent
1. Will Clear- Extrinsic Evidence is inadmissible
2. Will Ambiguous--extrinsic evidence admissible
3. intent as of time of execution should be sought
Rules of construction
When no evidence of actual intent of the testator,
1. favor those who would take intestate
2. favor the construction that avoids intestacy
3. favor the construction that is consistent with the perceived plan of disposition
4. every portion of the will soudl be given effect if possible
5. between toatlly inconsistent clauses, the latter is most likely the final intent