Wills

Front 1

Will - Subject Requirement

Back 1

(1) Dispose of Prop
(2) Nominate Personal Rep
(3) Revoke or Modify Another Will

Front 2

Will - Requirements

Back 2

At Time of Execution
(1) Capacity (18yrs-old)
(2) Signed at logical end

*Not in margins, Clauses following signature are not valid unless signed again (Re-Executed) or accompanied by a separate document attesting to change (Re-Publish)

**No handwritten distinction (holographic); oral wills are not recognized

***Self Proved Wills: Testator and W sign stating all formalities of execution were followed. Conclusive on formalities, but will can still be challenged on basis of fraud, duress, undue influence

Front 3

Wills - Witnesses

- Requirement
- Interested and Supernumeracy

Back 3

Wills signed by testator do not require a witness

2 Witnesses: If testator signs w/ a mark or someone else signs for testator

- W is a competent attesting witness if (1) signing was in W's conscious presence, (2) ability to observe testator, and (3) can comprehend the nature of the testator's act

- Interested W (beneficiary) receives the lesser of intestate or will, if enough witnesses otherwise then supernumeracy (most of the time)

Front 4

Express Revocation of a Will

Back 4

(1) Intent to Revoke
(2) Writing

Front 5

Revocation by Physical Act

Back 5

(1) Intent to Revoke
(2) Physical Act (burn, tear, void over text) at same time as intent

Revoking a valid "executed" copy revokes all copies (photo or photocopy is not a valid copy)

Front 6

Revocation by 3rd Party (Revocation by Proxy)

Back 6

2 Witnesses must attest that testator directed destruction/revocation by proxy to the 3rd Party in their presence

Front 7

Presumption of Revocation

Back 7

(1) Testator last person known to have the Will and it cannot be found
(2) Will found mutilated

Front 8

Revocation of Codicils

Back 8

(1) Revoking a Will, revokes all related Codicils
(2) Revoking a codicil (same manner as a Will can be revoked) revokes only the codicil

Front 9

Revokation by Later Will

Back 9

Can be revoked in full or in part. Absent language clarifying revoking earlier will, provision in earlier Will will be void where inconsistent with later Will.

Front 10

Lost Wills

Back 10

Requires proponent to prove contents by Clear and Convincing Evid

* Atty can bring copy

* Interested Witness is not allowed to testify

Front 11

Revocation by Divorce

Back 11

Unless intent is found in the Will that provision is to survive divorce, Divorce revokes all provisions in favor of divorced spouse.

* Remarriage to each other revives
* Separation is not a divorce
* Divorce also revokes inter vivos Trusts and Life Insurance policies entered after 1992

Front 12

Requirements for Additions Interlineations & Revivals

Back 12

Re-Execution: Add/Modify and re-sign

Re-Publish: Add/Modify and Execute a separate document attesting to alteration

Front 13

Effect of invalid Modifications

Back 13

Partial revocation as to provision modified

*DDR may allow disregarding the revocation (back to the original)

Front 14

Effect of Revoking a Will that Revokes an earlier Will

Back 14

Just means that everything is revoked, i.e., previously revoked Will is not revived by revoking the instrument that revoked it

Front 15

Dependent Relative Revocation (DDR)

Back 15

Ct may disregard a revocation when conditioned, based, or induced by a mistake of law that (1) the new gift would be effective and (2) the old gift would be revoked.

Use a "but for test" to determine how best to follow intent of testator.

--> But for the alteration would the testator's intent be best matched by (1) disregarding the provision all together (voiding) or (2) reviving the pre-alteration provision

Front 16

Incorporating By Reference

Back 16

Can Incorporate documents by Reference in a Will

Requires
(1) intent in Will that document be incorporated,
(2) document be in existence at time of execution
(3) Sufficient description permitting identification of the document

Front 17

Independent Significance

Back 17

Acts having independent lifetime motive may impact Will

Ex: Purchase fancy new car before death

Front 18

Lapses

Back 18

If named beneficiary dies before testator, the gift lapses and goes to residuary estate

Front 19

Residuary Rule and Class Gifts

Back 19

Gifts to generic class members and residuary to more than one beneficiary --> surviving members take

Front 20

Anti-Lapse Statute and Limitations

Back 20

If the deceased beneficiary is the Testator's spouse, decendents,siblings, or sibling's children then the Issues of the deceased beneficiary take

Ex: If Deceased beneficiary is the testator's sister, her share will go to her issues (children) but not her husband.

Limitation: If the Testator's spouse or issue (child) are the residuals, the Anti-Lapse statute will not function to prevent lapse.

Ex: Gift to issues of testator's sister, above, will be allowed to lapse if the testator's spouse or issue will receive the residual.

Front 21

Abatement

Back 21

Sacrifice of gifts to satisfy funeral, estate administration expenses, and creditor claims

Front 22

Abatement Order

Back 22

(1) Intestate Prop (if prop slips into intestate b/c some residuaries predecease testator)
(2) Residuary Bequests
(3) General Legacy (pecuniary sum)
(4) Demonstrative Legacy (pecuniary sum to be funded from some specified property)
(5) Specific Devised prop (spouse and issue gifts go last)

Front 23

Ademption of Specifically Devised Prop

Back 23

Gift gone or destroyed at time of testator's death --> Beneficiary is SOL

Front 24

Exceptions to Ademption of Specifically Devised Prop

Back 24

(1) Testator is Incompetent When Prop disposed of and does not become sane for a duration of one year before death
--> Beneficiary awarded general legacy for value

(2) UNPAID amounts relating to the property that has been destroyed or disposed of.
-- Unpaid balance on purchase price on executory K at time of death
-- Casualty or Insurance proceeds remaining to be paid
-- Condemnation award amt that has yet to be paid

(3) Stocks dividends, splits, and other stocks as a result of merger, consolidation, dividends ... etc
--Can get more or different "100 shares of my ABC stock" --> 200 Shares after split or 50 shares of XYZ after merger
--Can get Screwed/Adeemed "100 shares of my ABC stock" that were sold
--If not specific enough to indicated present stock then estate may fulfill gift "100 shares of ABC" --> Estate purchases 100 shares of ABC

Front 25

Exoneration of Liens

Back 25

Estate does not pay off liens of devised property unless intent to do so is clear

Front 26

Ambiguities and Mistakes

(1) Plain Meaning Rule:

(2) Latent Ambiguities:

Back 26

(1) Plain Meaning: Cannot disturb plain meaning of Will w/ extrinsic evidence

(2) Latent Ambiguity: Extrinsic evidence can be introduced to clarify Will

Ex: "to my cousin Tommy"

--Cousin Jim can't introduce evidence that he is the "Tommy" referred to and not another cousin really named Tommy.

-- if two cousins are named Thomas, evidence of intent threw letters showing nickname or relating to bequeath of the specific property can be introduced)

Front 27

Surviving Spouse Inheritance (Intestate)

(1) No issue or parent:
(2) Parent but no issue:
(3) Issues, all of spouse:
(4) Issues, not all of spouse:

Back 27

(1) No issue or parent: All

(2) Parent but no issue: first 30k + 1/2 of remainder

(3) Issues, all of spouse: first 30k + 1/2

(4) Issues, not all of spouse: 1/2

Front 28

Hierarchy Intestate Shares After Spouse

Back 28

Issues > Parents > Siblings and their children

Front 29

Distribution of Intestate Shares After Spouse

Back 29

Per Capita if all same degree of Relationship, otherwise by representation "per stripes"

-- Each line of equal relationship get same % (4 kids get 25%, if a kid is deceased then his issues split his 25%)

-- If only grandchildren remain, then they divide equally



Per Stripes - if

Front 30

Intestate Rights of Children Born Out of Wedlock

Back 30

(1) Parents later marry
(2) Parent holds out to community as own and provides support or takes in home
(3) Clear and Convincing Evid of Paternity (obviously maternity would be easy)

Front 31

Intestate Rights of Adopted Children

Back 31

Adoption creates a legal parent-child relationship
* Part of children class

May have Intestate rights from biological family if maintained a continuous family relations

---BUT not natural parent(s) b/c the rights have been legally severed, including stepparent adoptions

Front 32

Simultaneous Death (120 Day Rule)
- Wills
- Insurance
- Intestacy
- Joint Tenancy

Back 32

Treat as if beneficiary predeceased testator

Wills - Residual, Potential anti-lapse statute application

Insurance - Secondary beneficiary takes

Intestacy - Just apply rules

Joint Tenants - Destroys right of survivorship (1/2 to each estate)

Front 33

Intestate Advancement

Back 33

Inter vivos Gifts are considered an advancement for intestate purposes if

(1) Testator declared the gift to be an advancement

(2) Heir acknowledges the gift to be an advancement

Front 34

Testate Satisfaction

Back 34

Inter vivos Gifts are considered a satisfaction for interest provided for in a Will if

(1) Will provides for satisfaction or

(2) Both parties acknowledge in writing gift is a satisfaction

Front 35

Surviving Spouses 3 Options

Back 35

To be able to choose (1) the Will must have been executed prior to marriage and not in contemplation of marriage "Pretermitted Spouse"

Time of execution is not important for choice (3)

(1) Intestate Share --> Amt w/o Will, e.g., 30k + 1/2 remainder

(2) Amt provided for in Will if Greater than intestate share

(3) Elective Share --> 1/3 of net testamentary estate (cash value or mixed)

Front 36

Elective Share
- Purpose
- 1/3 Elective Share of Net Testamentary Estate
- Interests Spouse must disclaim or reduce share by
- Waiver

Back 36

Elective Share
- Purpose. Protect Spouse from intentional disinheritance

- Net Testamentary Estate = (Estate after Expenses and Creditors) + (Donative transfers to Spouse or others, these serve to increase the amount of the net estate)
* Prop interest w/ right of survivorship (joint tenancy, joint accounts)
* Transferes in Excess of 3k made by decedent w/in 1yr of death (gift to mistress)
* Transfers where testator retains the power to revoke for his own benefit (revocable trust)

- Interests Spouse must disclaim or reduce share by (if keeps)
* Willed interests
* Insurance policies
* Trusts
* Pension plans

- Waiver. Elective Share rights can be waived w/ fair disclosure and in writing (like in a prenup)

Front 37

Pretermitted Children

Back 37

Children Born or Adopted after Execution of the Will

* ENTITLED TO INTESTATE SHARE UNLESS CLEAR THAT OMISSION WAS INTENTIONAL
---Later Codicil shows omission was intentional (has effect of redating will to date of codicil)

---NOTE. Never take from Spouses Testate property to satisfy a pretermitted child's share

Front 38

Children Believed to be Dead

Back 38

If omitted due to mistaken belief they were dead at time of execution, they do not have a right to otherwise devised prop in the estate unless Will provides reason child left out ("leave car to X b/c my kid is dead, otherwise kid would take all")

Exception: Fraud in the inducement. If testator was tricked into thinking his kid was dead, the prop is held in a constructive trust for child.

Front 39

Conduct Barring Party from Sharing in the Estate

Back 39

Intentionally Killing -- No Benefit Rule-- As if killer predeceases testator for purposes of Intestate, elective share, life insurance . . .
**Joint Tenancy w/ right of survivorship: half to estate, half to killer for life w/ remainder to victim's estate

**Acquittal is not controlling --> "preponderance of the evid"

Desertion for more than one year. willful and maliciously or otherwise fails to support

Front 40

K's to Make, not to Make, or not to Revoke a Will

Back 40

Valid. Don't need to follow Will formalities, governed by K law.

Must be in writing or referenced in Will (extrinsic evid allowed if referenced only in Will)

Cause of action based on the K against estate for damages, quasi K, or imposition of constructive trust (separate action, don't oppose will in probate)

Front 41

Joint Will

Back 41

Single instrument executed by two or more testators to serve as the Will for each.

Front 42

Mutual Will

Back 42

Separate Wills executed by two or more testators containing substantially similar or reciprocal provisions

Front 43

Revocation of Joint and Mutual Wills

Back 43

Revocable at anytime by either party.
Revocation by one is not binding on other.
Revocation is effective, but may give rise to break of K.

NOTE: If one party has accepted performance/benefits under a prior decedent's will, a constructive trust may be imposed to prevent unjust enrichment

Front 44

Estate Admin -- Appointing Probate Rep

Back 44

-- Wills must be probated to be effective

-- Probate ct will appoint a probate rep
-- Rep can be a PA citizen not charged in death, a PA bank/trust, or non-citizen named in Will
-- Priority to named individuals, residuals, heirs, creditors
-- Full representative power
-- may need a bond
-- publishes Letters in legal journal and newspaper of general circulation
-- collects and takes inventory of assets
-- Distributes --> Creditors, family exemptions, funeral, 6mo rent prior to death, then follows will
-- Must account

Front 45

Standing to Contest Will

Back 45

Person whose share would increase if Will was invalid

--Personal Rep must defend. If personal rep wants to contest Will, he must resign as personal rep

Front 46

Lack of Testamentary Capacity (Will Contest)

Back 46

Generally, the testator did not understand nature of his acts or the nature and character of his property

* Incapacity must be at time of execution, not after
* Just b/c dude is old, doesn't mean he is crazy
* Adjudication of incompetent is not conclusive, must follow rule above. (jury could determine Will executed during a lucid period)

Front 47

Insane Delusion - Will Contest

Back 47

testator is otherwise sane, but apparently suffers from a delusion w/ respect to the Will or gift in the Will is product of an insane delusion --- No basis in fact or in reason

Front 48

Undue Influence - Will Contest

Back 48

Contesting party must show that:

The Influence exerted overpowered the mind and will of testator resulting in a Will that, but for the undue influence, would not have been executed

*PRESUMPTION: Principle beneficiary under the will stands in a confidential relationship with the testator.

*Mere access to the testator is not enough, but illness, age, unnatural disposition where some children get some and others get none is circumstantial evid of undue influence

Front 49

Enforcement of Forfeiture Clauses in Wills upon a Contestant

Back 49

Not enforced as long as the contestor had probable cause to contest