Wills

Front 1

When is a holographic will valid (3 requirements)?

Back 1

1. entirely in testator's handwriting
2. either signed by testator or her name in her handwriting appears on the will.
3. will is found in a "safe place"

Front 2

What is the NC surplusage rule?

Back 2

non-handwritten material in a holographic will will be ignored.

Front 3

How old must you be to execute a will?

Back 3

18

Front 4

What must a will be executed with?

Back 4

testamentary intent

Front 5

Does a will have to be written?

Back 5

generally yes, except nuncupative wills.

Front 6

What is the NC Scope of Vision Test?

Back 6

witnesses have to be able to each each other sign, were they to look.

Front 7

T executes a will that provides: "Fearing I might die during my Iron Cage match with Sable, I make this will. Barbara gets everything." Does Barbara take T's estate if T dies from a cause unrelated to the Iron Cage match with Sable?

Back 7

Yes, unless a court determines that the initial sentence of the will was intended to be a condition precedent to the will's effectiveness as opposed to a mere statement of the reasons which induced T to make a will.

Front 8

What happens if a portion of the will (e.g., clause naming personal representative) follows the testator's signature?

Back 8

Clause present at time of execution = no problem, the will including the clause is valid.
Clause added after execution = will is valid, but the additional clause is not.

Front 9

T writes a document in her own handwriting that reads: "This is my last will. I revoke all earlier wills. I leave everything to the YMCA." T signs the instrument. Is it admissible to probate?

Back 9

Yes, in NC.

Front 10

What if the above document was written on hotel stationary that had printed on it the name and address of the hotel?

Back 10

Not a problem. NC Surplusage Rule - non-handwritten material is completely ignored. Assumed the writing is complete.

Front 11

T's formally executed will leaves her entire estate to her daughter. At T's death, her will and the following handwritten and signed note addressed to her lawyer are found in her desk. The note, which is dated after the date on the will reads: Dear Lawyer: Please make the following change to my will. $10,000 is to go to my brother Frank. All else is to be left the same. Who takes what at T's death?

Back 11

Daughter gets everything because the handwritten note was not written with intestary intent.

Front 12

T in hospital bed with contagious disease when will executed. Two witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind the screen, "This is my will. It looks OK; where do I sign?" After T signs, will brought out to the hall. Witnesses hear T from behind the screen request them to witness. Witnesses sign in hall. Has will been validly executed?

Back 12

No. NC requires Scope of Vision Test - must be able to see each other sign, were they to look.

Front 13

6. T dies domiciled in Florida with a will that meets the requirements of Florida Law but not that of NC. At T's death, the Florida will is admitted to probate in Florida. Is this will valid to dispose of:
Personal property located in NC?
Real property located in NC?

Back 13

controls personal property worldwide.
real property wills must comply with NC statute.

Front 14

"I give my faithful nurse Nell the sum of $30,000." Nell is one of two attesting witnesses to the will.
Valid will?
What does Nell take?

Back 14

Yes, valid will.

Nell takes nothing.

Front 15

What is the Super-Numerary Rule?

Back 15

A bequest to a subscribing witness, to a person claiming under a subscribing witness, or to a spouse of a subscribing witness is void unless there are two other disinterested witnesses.

Front 16

Suppose the will was handwritten (and Nell is a witness)?

Back 16

Now Nell wins because holographic wills don't require witnesses.

Front 17

Earl executes valid will leaving all of his personal property to Mary. Subsequently, while Earl is in the hospital, he tells his minister and two nurses that he wishes to make an oral will disposing of his diamond ring to Donald. Shortly thereafter, Earl dies. Who takes the ring?

Back 17

Mary - nuncupative wills cannot be used to modify written wills.

Front 18

When is a nuncupative (oral) will valid?

Back 18

valid to dispose of personal property of unlimited value provided:
1) It is spoken in T's last illness;
2) Before two disinterested witnesses;
3) T dies from the illness; and
It is offered for probate within six months of when T spoke it or one of the witnesses reduces the statement to writing within 10 days of when T spoke it.

Front 19

What is necessary to admit a typewritten will to probate?

Back 19

by the testimony of two attesting witnesses who testify as to T's sound mind, T's signature and witnesses' attestation in T's presence. Where an attesting witness is dead, insane, or cannot be found, proof of the missing witness's signature will suffice.

Front 20

What is necessary to admit a holographic will to probate?

Back 20

3 witnesses must testify that the will is in T's handwriting. Additionally, one of the witnesses must testify that the will was found in a safe place. It is not necessary that the witnesses be disinterested.

Front 21

What is a self-proved will?

Back 21

at time will is signed by T and attesting witnesses (or some time thereafter, in T's lifetime), T and witnesses sign self-proving affidavit under oath before a notary public. Affidavit recites all elements of due execution. Will is admissible without testimony of any witness.

Front 22

In 2005 T properly executed a will in duplicate (2 copies with original signatures) giving all property to her children. In 2007 she wrote "VOID" on one of the copies of the 2005 will and drew many vertical lines across front of the one-page document. Will revoked?

Back 22

an act of revocation on one executed copy revokes ALL executed copies.

Front 23

What does revocation require?

Back 23

Revocation by physical act requires (i) intent to revoke; (ii) physical act: NC statute refers to "burned, torn, canceled, obliterated, or destroyed (or any synonym)." Neither standing alone is enough. One line through the text is sufficient.

Front 24

Presumption - Will last seen in T's possession and control not found after T's death. Reason it can't be found is that T destroy it with intent to revoke.

Back 24

Under the facts given, this will is presumptively revoked.

Front 25

T calls his attorney, the place where the will is located, and orders his attorney to destroy T's will. The order is never carried out. Will revoked?

Back 25

No

Front 26

What if on the above facts the attorney had destroyed the will pursuant to T's order? Would the will have been effectively revoked?

Back 26

No, Revocation by another person must be (i) done at T's direction and (ii) in T's presence.

Front 27

But if in this latter situation the will was not revoked, how could it be probated given the fact that it has been destroyed?

Back 27

by satisfying the "lost wills" statute. In NC, lost will requires:
1) Due execution must be proved in the normal way.
2) Contents of the will must be clearly and distinctly proved either by a copy of the will or the testimony of a witness.
3) Absence of the will must be explained.

Front 28

T's 201 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T's 2004 codicil (amendment to a will, requires the same formalities) leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?

Back 28

Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will. Result on above facts:
1) As to M: diamond ring
2) As to Y: $5k, no ring
3) As to X: Blackacre
4) As to Z: residue

Front 29

T's will devises entire estate "to my wife, Sheila if she survives me; if she does not survive me, in trust for my children." The will names Sheila as executor "if she is able," otherwise X is to serve as executor. Two years later Sheila divorces T; T dies two years after that without having revoked or modified his will. T is survived by Sheila, by two children and by X. Who takes what? Who serves as executor?

Back 29

X serves as executor. Divorce = revokes all provisions in favor of spouse.

Front 30

May Sheila take as beneficiary of T's:
Life insurance policy?
Revocable inter vivos trust?

Back 30

Yes.
Probably not, but NC hasn't ruled.

Front 31

T's typewritten will made a bequest of $10,000 to my friend X." Subsequent to the will's execution, T drew a line through the figure "$10,000" and wrote in above it "$15,000." T then signed his name in the margin opposite the change.
Has the $10,000 bequest to X been revoked?
Can the interlineation ($15,000 bequest) be given effect?
Should Dependent Relative Revocation [DRR] be applied to reinstate the original $10,000 bequest?

Back 31

a. Yes
b. No, unless reexecutes will afterwards or executes a codicil
c. DRR allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation. (Mistake-remedying doctrine)
i. Disregard the revocation (the cancellation of the $10,000 bequest)
ii. Because it was based on a mistake in law (that the interlineation would be effective).
iii. Provided the court thinks T would not have revoked the $10,000 bequest but for the mistake.
iv.Court compares undoing revocation with not undoing the revocation.
• If ineffective gift is larger than the original, apply DRR and give original. If ineffective gift is smaller than original, don't apply DRR and give nothing.

Front 32

Clause 3 of Jones' typewritten will provides: "I give $5,000 to my friend, Bill Ward." Subsequently, Jones drew a line through the clause and wrote in above it in his own handwriting: "I give $5,000 to my nephew Nic." He then signed the margin of the will opposite the change. Can the gift to Nic be given effect?

Back 32

Yes. Lift handwriting off paper and put it on blank sheet - would it work? Here yes

Front 33

In 1999, T executes WILL-1 which devises his residuary estate "in trust to pay the income to my grandson G until he attains the age of thirty, at which time to distribute the principal to G." In 2004, T executes a new will, WILL-2, "hereby revoking all wills heretofore made by me." WILL-2 devises his residuary estate to G outright. Important part of the story: T does not destroy WILL-1. In 2006 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper, "You know, I think the property should be held in trust for G after all." With this he destroys WILL-2 with the intent of reviving WILL-1. T dies in 2008. He is survived by G and by his daughter, S, whom he detests. Who takes what?
Has WILL-1 been revoked?
Has WILL-2 been revoked?
Did revocation of WILL-2 "revive" WILL-1?
Since WILL-1 is not revived, what other issue is raised by these facts?

Back 33

a. Yes, in 2004 at execution of WILL-2
b. Yes, destroyed with intent.
c. No in NC -- must reexecute WILL-1 or republish by codicil.
d. Using DRR - but for. WILL-2 will come back. DRR never gives us what the testator really wanted.

Front 34

T's will, after making several specific bequests, devised Blackacre "as designated in a memorandum, that I plan to write, and that will be found attached to this will." After T's death, her will and a signed but unwitnessed typewritten note were found in an enveloped marked "My Will." The accompanying note read: "I give Blackacre to the American Cancer Society." The note was dated two months after the date on the will. T's sole heir was a distant cousin, Henry, of whom she was not fond and from whom she had not heard for many years. Who takes Blackacre?

Back 34

Not the American Cancer Society.

Front 35

What is needed to incorporate an extrinsic document by reference?

Back 35

i. Writing must be in existence at the time will was executed
ii. Will must manifest an intent to incorporate the document
iii. Will must "describe the writing sufficiently to permit its identification."

Front 36

What if the facts were the same except that the reference was to a memorandum "that I have written," and the typewritten note was dated two months before the will was executed?

Back 36

Close, but still maybe not. Does the will describe the writing sufficiently to identify?

Front 37

3. "I devise the automobile that I own at my death to my nephew, Ned. I give the sum of $1,000 to each person who is in my employ at death." Three months after the will is executed T trades his VW in on a new Cadillac; the effect is to increase the value of the gift to Ned from $1,000 to $9,000. Six months after that T fires two longtime employees and hires three new ones. Then T dies. What is the effect of these events on T's will?

Back 37

- Not a concern because of Doctrine of Independent Significance - acts having an independent lifetime motive may have an impact on the will as well.
- Ned gets the car and new employees get the $$.

Front 38

T executes will in 2000; it provides (inter alia) "I give the sum of $5,000 to my sister, Paula." Paula dies in 2001; she is survived by her husband H and two children. Paula has a will which leaves all of her estate to H. T dies in 2006. Who takes the $5,000?

Back 38

Paula's kids split the $5,000.
When beneficiary named in the will dies before the testator, the gift lapses (fails, falls to residue and passes as part of residuary estate. UNLESS it is saved by the state's anti-lapse statute. c) The NC statute applies when the predeceasing beneficiary is T's grandparent or a lineal descendant thereof who leaves issue (descendants).

Front 39

"I devise Blueacre to the children of my good friend, John Bates; I leave the residue of my estate to X." At the time T executes his will, John Bates has three children: A, B and C. Thereafter, during T's lifetime, Bates has another child (D), and his son A dies leaving a child A jr. Then T dies. He is survived by Bates; by Bates' three children B, C and D; by Bates' grandchild A jr. and by X. Who takes Blueacre?

Back 39

B, C and D split evenly.

Class Gift Rule - when there is a gift by will to a group of persons generically described as a class ("children," nephews and nieces," etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.

Front 40

What if the instrument had devised Blueacre to "A, B and C, the children of my good friend, John Bates"?

Back 40

Not a class gift -- they're individually named.

Front 41

What if the gift were to the children of my brother John Bates?

Back 41

Back under anti-lapse. B, C, D and A jr.

Front 42

5. "I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my sister Carla Carter. Alan Andrews predeceases T, leaving a child (Alan jr.) who survives T. T, a widower, is also survived by Bates, by Carter. Who takes the residuary estate?

Back 42

a) 1/2 Bates, 1/2 Carter. If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in property to their interests in the residue. Similar to class gift rule.

Front 43

What if it was T's sister Carla who predeceased T leaving a child (Carla jr.) who survived T? Andrews and Bates also survived T.

Back 43

Back under anti-lapse. 1/3 to Andrews, 1/3 Bates, and 1/3 Carla jr.

Front 44

"I devise Blackacre [my 2001 Cadillac] to my son John."
What is this an example of?

Back 44

Specific devise.

Front 45

"I give the sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah."
What is this an example of?

Back 45

Demonstrative legacy

Front 46

"I give the sum of $10,000 to my daughter Donna."
What is this an example of?

Back 46

General Legacy

Front 47

"I give all the rest, residue, and remainder of my property to my wife, Agnes."
What is this an example of?

Back 47

Residuary bequest

Front 48

When there is a partial intestacy for some reason (e.g., all of the residuary beneficiaries predecease the testator, and the case is not covered by the anti-lapse statute).
What is this an example of?

Back 48

Intestate property

Front 49

What if, in the above situation, T's estate is partially insolvent? In what order are the gifts sacrificed to satisfy funeral expenses, expenses of administration, creditors' claims?

What is this process referred as?

Back 49

we start at the bottom of the list and work up. Any intestacy, then residue, then general legacy, etc.

Abatement

Front 50

Same will provisions. Some years before her death T sold Blackacre, which was specifically devised to John. What is the effect on the devise to John?

Back 50

The property is adeemed, John takes nothing.

Front 51

Which of the type of devises does ademption apply to?

Back 51

Only specific gifts.

Front 52

Suppose T died while sales contract was still executory.

Back 52

John still takes nothing.

Front 53

Suppose that Blackacre was sold by T's guardian after T had been judicially declared incompetent. Would ademption apply?

Back 53

No. NC recognizes guardianship exception. General cash legacy is equal to net sales price.

Front 54

10. "I give and bequeath my Rembrandt painting to my daughter Dora." The Rembrandt painting was stolen in 2008. The painting was insured, and the insurance company duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?

Back 54

Yes, NC recognizes involuntary conversion exception.

Front 55

"I bequeath my 100 shares of stock in Tax Shelters, Inc. to my son, Simon." At his death T owned 200 shares of stock in Tax Shelters, Inc., consisting of the 100 shares he owned when he executed the will, plus 100 shares distributed to T by the corporation six months after the will was executed. How many shares does Simon take?

Compare: Dividends and splits after T dies

Back 55

In NC, only the 100 shares.

Compared, he would get all 200 shares.

Front 56

What if, instead, Tax Shelters was acquired by Ling-Temco-Vought, and as a part of the merger each shareholder was given one share of LTV for every two shares of Tax Shelters, Inc. At T's death he owned 50 shares of LTV stock. Does Simon get the LTV stock?

Back 56

Common law no, modern trend yes, so in NC discuss both.

Front 57

"I bequeath my 100 shares of Coronado common stock to A; I bequeath 200 shares of Baker Co. stock to B." Thereafter T sells all of her Coronado stock and all of her Baker stock.
What are A's rights?
What are B's rights?

Back 57

A: Specific "my" = adeemed.

B: No possessive - no specific 200 shares = not adeemed. It's a gift of value of the shares. Executor takes cash from estate, goes into market, and buys the shares.

Front 58

"I devise Gatoracre to my son, Sylvester. I devise my residuary estate to my wife, Willette." At T's death Gatoracre is subject to a mortgage that is security for a note on which T was personally liable. Sylvester demands that the executor pay off the indebtedness ("exonerate the lien") so that Gatoracre will pass to him free and clear of the encumbrance. Is he so entitled?

Back 58

No. A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. A general direction in the will to pay debts does not show such an intent and thus. Devisee would take subject to the mortgage.

Front 59

"I give $5,000 to my nephew, John Paul Jones." At the time T executed the will he had two nephews whose names were James Peter Jones and Paul Frederick Jones. T had never met nor corresponded with either nephew, and no nephew named John Paul Jones ever existed. Who takes the $5,000?

Back 59

a) Extrinsic evidence is admissible to clear up a latent ambiguity. In the absence of clarifying evidence, gift fails and falls to residue.

Front 60

2. Suppose T had a nephew named John Paul Jones, whom he hadn't seen for ten years. After T's death, Paul Frederick Jones comes in and says, "There's been a terrible mistake! T told me on numerous occasions that he intended to, and that he had, left a legacy for me in the will." The stenographer who typed the will says "I goofed. I have the notes T gave me, from which I typed the will, and they show clearly that the legacy was supposed to have been given to Paul Frederick Jones." Is this evidence admissible?

Back 60

No, violates Plain Meaning Rule - cannot disturb the plain meaning of the will with extrinsic evidence

Front 61

T's will contained clause "I give $3,000 to _________________" (the name of the intended beneficiary was omitted.) Secretary later testifies that Ann was to receive the $3,000 and that Secretary mistakenly left name out of will. What result?

Back 61

Ann gets nothing. Court won't fill in blanks.

Front 62

4. T has will in which he leaves his estate in equal shares to his brother and sister. After being informed that his brother has been killed in an automobile accident, T executes a second will in which he revokes the first will and leaves everything to his sister. In fact, T's brother was not killed in the accident. T dies without ever learning the truth. What are brother's rights?

Back 62

a) Out of luck. There is no relief for a mistake in the reasons that induce a testator to make or not to make a provision in a will unless both the mistake and what would have been done but for it appear in the terms of the will itself.
Compare: brother can establish fraud. There is always a remedy for fraud (constructed trust).

Front 63

If survived by spouse and no issue or parent,

Back 63

spouse takes entire estate.

Front 64

If survived by spouse and parent but no issue

Back 64

spouse takes a 1/2 interest in real property and the first $50,000 plus 1/2 of balance of personal property.

Front 65

If survived by spouse and only one line of lineal descent,

Back 65

spouse takes a 1/2 interest in real property and the first $30,000 plus 1/2 of balance of personal property.

Front 66

If survived by spouse and more than one line of lineal descent,

Back 66

spouse takes a 1/3 interest in real property and the first $30,000 plus 1/3 of balance of personal property.

Front 67

Share not going to Spouse or All of Estate if No Spouse Survives, what then?

Back 67

1. All to issue, if any.
2. If no issue, to parents or survivor.
3. If no issue or parents, to siblings or their issue.

Front 68

What is the probate estate?

Back 68

This is the estate that could have been controlled by a will had T executed one. It does not include life insurance, property held in trust (even if revocable), right of survivorship property, or property T did not own at death.

Front 69

1. Frank gets Maude pregnant. After the child (Cliff) is born, Frank and Maude go their separate ways. Thereafter, Maude marries Steve; Steve does not adopt Cliff.
If Maude dies intestate, can Cliff inherit from Maude?
Assume instead that Frank dies intestate. Can Cliff inherit from Frank?
Assume, instead, that Steve dies intestate. Can Cliff inherit from Steve?

Back 69

a. yes
b. No, unless Cliff has been legitimated by marriage of Maude/Frank, or formal acknowledgement of paternity of Frank was made, or adjudication of Frank's paternity was made before Frank died.
c. No…unless adoption by estoppel (unperformed agreement to adopt)

Front 70

Shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.
If Mr. or Mrs. Anderson dies intestate, can Cliff inherit from them?
If Cliff dies intestate, can Mr. or Mrs. Anderson inherit from him?
If Maude dies intestate, can Cliff inherit from her?

Back 70

a. Yes
b. Yes
c. No

Front 71

Rancher and wife, Lulu, involved in auto accident in which Rancher killed instantly. Lulu survived for three days, then died. Rancher died intestate. Is Lulu a heir for purposes of intestate distribution?

Back 71

No, lapses

120 Hour Rule - when passage of title to property depends on priority of depth, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120hours (5 days).

Front 72

Same as above except Rancher had a will that left "all of my estate to Lulu." Does Lulu take under will?

Back 72

No

Front 73

What if will provided: "I leave all of my estate to Lulu if she survives me by two days."

Back 73

Yes, she takes

Front 74

Suppose Lulu was the named beneficiary of Rancher's life insurance policy. Would Lulu be entitled to the insurance proceeds?

Back 74

No, lapses, 120hours.

Front 75

Suppose Lulu and Rancher owned Redacre as joint tenants with right of survivorship.

Back 75

No, 120hours

Front 76

H, a widower, gives his daughter A land worth $12,000 on A's birthday and tells his other two kids (B and C) that they will receive similar gifts when they reach twenty-five. H dies before the other gifts are made. H dies intestate leaving an estate worth $78,000. At H's death A's land is worth $15,000. How should H's estate be distributed?

Back 76

Common law: any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate's estate.
NC: doctrine extended to gifts to any heir (including spouse) BUT all gifts are presumed NOT to be advancements and no gift to a spouse is an advancement unless the intent to have it treated as such is in writing.

Front 77

What is Surviving spouse's right to a years allowance?

Back 77

A surviving spouse is entitled to an allowance of $10,000 for one year after decedent's death. This allowance is in addition to intestate share but is charged against any share under decedent's will. An additional allowance of $2,000 per minor child (or child under 22 who is a full time student) is also available. Total allowances may not exceed one-half of decedent's average income for final three years of life. The allowances are exempt from the claims of general creditors.

Front 78

What is Surviving spouse's right to a forced (elective) share?

Back 78

The amount of the elective share is one-third of the net assets if the decedent was survived by two or more lines of lineal descent; otherwise the share is one-half.
Exception where descendants of former spouse survive: if the decedent left one or more descendants of a former spouse, the second spouse's elective share is only one-half of the amount described above.

Front 79

H and W were married in 1989. Later that same year, H executed a will leaving all of his property to W if she survived him, otherwise to M, his mother. In 1995, H and W had a child, A. W died in childbirth. In 2008, H died in an automobile accident. He had never revoked or modified his 1989 will. What are A's rights to share in H's estate?

Back 79

A pretermitted child is born or adopted after the will and is entitled to take an intestate share UNLESS
• It appears from the will that omission was intentional
• The will provides for the child (amount of provision is not relevant)
• H had other children at the time he executed his will and the other children don't take anything under H's will either.
• H leaves his entire estate to his surviving spouse
• H made other provision for child outside of the will by a transfer that takes effect at death (e.g., life insurance)
- Result on our facts: gets an intestate share - the entire estate. Issue takes before a parent.

Front 80

2. What if, in the above case, H had executed a codicil after A's birth. In the codicil he named Smith instead of B as executor; in all other respects he reaffirmed and ratified the previous will. Do we have a pretermitted child situation?

Back 80

No because of republication by codicil which redates the will.

Front 81

What do will contracts do?

Back 81

to the extent they deal with real property, contracts to make a will, not to revoke a will, or to die intestate, must be in writing, supported by adequate consideration after fair disclosure.

Front 82

What is the test for lack of testamentary capacity?

Back 82

a. Did T understand the nature of the act he was doing?
b. Did T know the nature and character of his property?
c. Did T know the natural objects of his bounty?