Wills

Front 1

Wills: big picture questions

Back 1

- Is there a will?
- What DOCUMENTS constitute the will?
- DEFENSES to the will?
- 4 R's
- If there is no will: intestate succession

Front 2

Requirements of a will

Back 2

- Testamentary CAPACITY
- Present testamentary INTENT
- FORMALITIES of a will

Front 3

Formal will: requirements

Back 3

+ Writing
- Signed by T or at T's direction & presence

+ WITNESSES:
- 2 competent
- both consciously present at same time
- both sign & know it is T's will

Front 4

Interested Witness Rule

Back 4

COMMON LAW: will is invalid!
MODERN: will is valid, but rebuttable presumption that interested witness obtained their gift by fraud or undue influence

Front 5

Holographic will

Back 5

- writing
- material terms handwritten
- signed by T
- last in time
- T was not incapacitated (if issue is raised)

Front 6

will: components

Back 6

- integration
- incorporation by reference
- codicil
- acts of independent legal significance
- pour over trusts

Front 7

integration

Back 7

Bringing separate papers together into an entire will.

Requirements:
- all papers physically present at the same time
- INTENT to integrate papers!

Presumptions:
- physical connection
- natural flow
- recitations
- sequence

Front 8

codicil

Back 8

Testamentary instrument executed after the will with the applicable formalities and with the intent to modify

- formal requirements must be met (but one can be holographic)
- will speaks of date of codicil
- valid codicil can revive a prior invalid will!

Front 9

Pour over trust

Back 9

- testamentary gift to a pre-existing trust where the assets of T's estate are added to a trust created during T's lifetime
- incorporation by reference or acts of independent legal significance used to sustain pour over trust
- UTATA: Uniform Testamentary Additions to Trusts Act validates a testamentary gift to any valid trust sufficiently described in T's will

Front 10

defenses to a will

Back 10

- FRAUD
- MISTAKE
- UNDUE INFLUENCE

Front 11

defenses to a will: fraud

Back 11

- fraud in the EXECUTION
- fraud in the INDUCEMENT
- failure to REVOKE
- fradulent PREVENTION of a will
- CONSTRUCTIVE trust: wrondoer holds property in trust for the person who deserves it

Front 12

defenses to a will: mistake

Back 12

mistake
- in the EXECUTION: will invalid
- in the INDUCEMENT: will valid
- in the CONTENT: no relief
- in the DESCRIPTION: admit parol evidence
- dead CHILDREN: intestate share
- invalid SUBSEQUENT will or codicil: dependent relative revocation

Front 13

defenses to a will: undue influence

Back 13

- burden on party asserting

ELEMENTS:
- susceptible T
- opportunity
- disposition to exercise undue influence (wrongdoer had something to gain)
- unnatural result (eg. natural object of T's bounty excluded)

+ rebuttable presumption of undue influence arises when:
- confidential or fiduciary duty
- active participation
- undue benefit

- EFFECT: invalid! Either entire will or at least part affected by undue influence

Front 14

The 4 R's

Back 14

- revocation
- republication
- revision
- DRR

Front 15

ways to revoke a will

Back 15

- physical act
- subsequent instrument
- operation of law
- post-will child
- ademption
- satisfaction
- advancement
- restriction

Front 16

ademption

Back 16

T devised something that wasn't owned at death. Gift is revoked unless intended replacement

Front 17

revoking the new will: is the old will revived?

Back 17

COMMON LAW: Revocation of a subsequent will automatically revives prior will

UPC & CA: re-execution or republication of prior will is required

Front 18

dependent relative revocation

Back 18

You revoke an old will with the expectation that the new will, will be valid. If the new will isn't, then the old will should be probated.

INTENT: which is better, first will or intestacy?

Front 19

contracts to make wills

Back 19

- T CAN contract to make, not make, or revoke
- contracts must be in writing and are always revocable
- joint & mutual wills are enforceable
- will substitute is a written instrument which conveys gift upon decedent's death: treated as nontestamentary gift!

Front 20

wills: constructional rules

Back 20

- preference toward passing property to the natural objects of T's bounty
- use of extrinsic evidence permitted to resolve ambiguities, but T's declaration not admissible

Front 21

lapse

Back 21

COMMON LAW: beneficiary must survive T.
CA: issue of deceased legatee can take (if blood relative of T)

Front 22

abatement

Back 22

- look for abatement provision (duh)
- take from intestate property
- take from residuary
- reduce other gifts proportionally
- gifts to spouse & blood relatives abate last

Front 23

gifts causa mortis: if you don't die, can you get it back

Back 23

yes you can

Front 24

federal tax: who pays?

Back 24

prorated among beneficiaries

Front 25

what happens to encumbrances?

Back 25

NO EXONERATION.

Front 26

if they die at the same time

Back 26

uniform simultaneous death act

- joint tenants: split it up
- insured & beneficiary: assume they get the insurance
- devise is conditional on one beneficiary surviving the other: assume they did

Front 27

intestate succession: surviving spouse gets how much of decedent's SP?

Back 27

decedent's SP:
if more than 1 child: spouse takes 1/3
1 child or less: spouse takes 1/2

Front 28

conflict of laws

Back 28

personal property: decedent's domicile
real property: state where it's located

Front 29

mistake in the EXECUTION

Back 29

will invalid!

Front 30

mistake in the INDUCEMENT

Back 30

will invalid!

Front 31

mistake in the CONTENT

Back 31

no relief

Front 32

mistake in the DESCRIPTION

Back 32

admit parol evidence

Front 33

Testator thinks kids are dead but they're really still alive

Back 33

give them intestate share

Front 34

invalid SUBSEQUENT WILL or CODICIL

Back 34

dependent relative revocation!

Front 35

integration requirements

Back 35

- all papers physically present at the same time
- INTENT to integrate papers!

Front 36

integration presumptions

Back 36

- physical connection
- natural flow
- recitations
- sequence

Front 37

can valid codicil can revive a prior invalid will?

Back 37

YES

Front 38

undue influence: elements

Back 38

- susceptible T
- opportunity
- disposition to exercise undue influence (wrongdoer had something to gain)
- unnatural result (eg. natural object of T's bounty excluded)

Front 39

undue influence: rebuttable presumption arises when

Back 39

- confidential or fiduciary DUTY
- active PARTICIPATION
- undue BENEFIT

Front 40

undue influence: what effect?

Back 40

invalid! Either entire will or at least part affected by undue influence

Front 41

definition: will substitute

Back 41

will substitute is a written instrument which conveys gift upon decedent's death: treated as nontestamentary gift!

Front 42

if they die at the same time: joint tenants

Back 42

split it up

Front 43

if they die at the same time: insured & beneficiary

Back 43

assume they get the insurance

Front 44

if they die at the same time: devise is conditional on one beneficiary surviving the other

Back 44

assume they did