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96 Cards in this Set
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Administrator in Intestacy |
When a person dies intestate, administration shall be granted to: -The spouse of the decedent, if the spouse applies for it -Otherwise, next-of-kin, if such next-of-kin apply for it Note: If more than 1 next-of-kin apply, the probate court may decide which of the kin is entitled to the administration -Otherwise, a creditor of the decedent |
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Intestate Succession - In general and when does property pass by intestate succession |
Intestate succession is the statutory method of distributing the assets that are not disposed of by will. Property may pass by intestate succession where: 1. Decedent dies w/o having made a will 2. Decedent's will is denied probate 3. Decedent's will does not dispose of ALL of his property (resulting in partial intestacy) either b/c a gift has failed or b/c the will contains no residuary clause |
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Intestate Succession - Intestate Share of Surviving Spouse - No Descendants Survive |
Decedent survived by spouse & on descendants, surviving spouse takes entire estate |
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Intestate Succession - Intestate Share of Surviving Spouse - Descendants Survive |
Decedent survived by spouse & descendants, surviving spouse takes greater of: (i) a share equal to that of each of the decedent's children (1/2 if only 1 child) or (ii) 1/3 of the net estate |
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Intestate Succession - Intestate Share of Children and Other Descendants - |
The portion of the estate that does not pass to surviving spouse, or the entire estate if there is no surviving spouse, passes to decedent's children and descendants of deceased children. Parents and collateral kin never inherit if intestate is survived by children or more remote descendants. |
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Intestate Succession - Intestate Share of Children and Other Descendants - Issue take Per Stirpes (Per Capita w/ Right of Representation) |
Under TN statute, decedent's issue take their shares per stirpes, which is actually per capita w/ right of representation. The property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share & share of each deceased person at that level passes to his issue. |
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Intestate Succession - Shares of Others Heirs |
If the decedent is not survived by a spouse or issue, his estate passes to the following takers in order: 1. Decedent's parents (1/2 each) or surviving parent (who takes 100%) 2. Descendants of decedent's parents (decedent's siblings) with brothers & sisters taking equally and the issue of deceased brothers and sisters taking by representation 3. Half of estate to decedent's maternal grandparents or their issue and 1/2 to paternal grandparents or their issue 4. State of TN (escheats) |
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Intestate Succession - Effect of Status of Child or Sibling on Inheritance Rights - Adopted Children - As to Adopting family |
For purposes of intestate succession, adopted child treated same as a natural child of adopting parents. Adopted child can inherit from & through adopting parents and their kin can inherit from and through the adopted child. |
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Intestate Succession - Effect of Status of Child or Sibling on Inheritance Rights - Adopted Children - As to Natural parents |
Adopted child has no inheritance rights from or through natural parents, and vice versa. One Exception for adoption by spouse of a parent when the other parent has died: Child's right of inheritance from or through deceased parent or any relative of deceased parent will be unaffected. |
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Intestate Succession - Effect of Status of Child or Sibling on Inheritance Rights - Stepchildren & Foster Children |
These children have no inheritance rights |
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Intestate Succession - Effect of Status of Child or Sibling on Inheritance Rights - Posthumous Children |
A child in gestation at the time of father's death inherits as if born during decedent's lifetime |
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Intestate Succession - Effect of Status of Child or Sibling on Inheritance Rights - Nonmarital Children |
Nonmarital child inherits from and through mother. Also through natural father if: I. Parents participated in marriage ceremony before or after child's birth, even if attempted marriage was void II. Paternity is established by adjudication before or after death of the father III. Paternity is established after the death of the father by clear and convincing proof |
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When can a father inherit from a nonmarital child? |
Only if father openly treated child as his own and has not refused to pay child support & cannot inherit from child until all support arrearages are paid with interest.
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Intestate Succession - Effect of Status of Child or Sibling on Inheritance Rights - Half Blood and Whole Blood |
TN has abolished all distinctions b/w half and whole blood siblings and they all inherit equally. |
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Subsidiary Problems Common to Intestacy and Wills - Must Survive by 120 Hours to Take as Heir or Will Beneficiary |
TN has enacted Uniform Probate Code's 120 hour rule: A person must survive the decedent by 120 hours (5 days) in order to take as intestate heir or will beneficiary (absent a contrary will provision). |
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Subsidiary Problems Common to Intestacy and Wills - 120 Hour Rule - Intestate Succession |
A person who is not established by clear & convincing evidence to have survived decedent by 120 hours is deemed to have predeceased decedent for purposes of intestate succession, elective share, homestead allowance, exempt property, and year's support allowance. If a person fails to survive by 120 hours, decedent's estate is distributed as though the person predeceased decedent. If the time of death of 1 or both parties cannot be determined, it is presumed that the person failed to survive decedent for required period. |
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Subsidiary Problems Common to Intestacy and Wills - 120 Hour Rule - Wills |
120 hour rule applies to will beneficiaries, absent a contrary will provision. If beneficiary fails to survive decedent by 120 hours, will is read as though beneficiary predeceased testator. However, 120-hour rule does NOT apply if will contains a provision dealing with simultaneous death or deaths in a common disaster, or a provision requiring devisee survive by a stated period. The terms of the will control. |
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Subsidiary Problems Common to Intestacy and Wills - 120 Hour Rule only applies to Intestate Succession and Wills |
120 hour rule does NOT apply to other transfers, such as life insurance beneficiary designation or a joint tenancy with right of survivorship. These non-probate transfers are governed under Uniform Simultaneous Death Act, which provides that if there is insufficient evidence that the parties died other than simultaneously, the property of each passes as though he survived and the other party predeceased. |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Disclaimed Interest Passes as Though Disclaimant Predeceased Decedent |
No one can be compelled to accept a gift so if a beneficiary or heir disclaims their interest, the consequence is the interest passes as though the disclaiming party predeceased the decedent. Disclaimers are primarily made for tax reasons. |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Must be In Writing, Irrevocable and Filed w/in 9 Months |
To be effective for federal estate and gift tax purposes, disclaimer of a gift by will, intestate share, and life insurance and death benefit proceeds must be: I. In writing II. Irrevocable & III. Filed w/in 9 months of the decedent's death or the beneficiary's 21st bday To be effective for STATE purposes, disclaimer must: I. Be in writing II. Be signed III. Definitely describe the property disclaimed IV. Be filed w/in 9 months of the later of the date on which the transfer to be disclaimed is made or the day on which the disclaiming party turns 21. In contrast, a future interest must be disclaimed w/in 9 months after the interest was created. |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Must be In Writing, Irrevocable and Filed w/in 9 Months - Tenancy by the Entirety |
Surviving owner of a property owned as TBE may not disclaim the interest passing to him due to death of the co-tenant. The surviving owner is 'in possession of the whole from the inception' of the interest, and thus is not a recipient of property qualified to disclaim. |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Who May File Disclaimer |
-A donee of a gift -A recipient of property from the decedent;s estate, on the exercise of a power of appointment, from another person's disclaimer, or from any other type of gratuitous transfer -A fiduciary holding powers as a fiduciary -A beneficiary of a payable on death account, insurance policy, individual retirement account, annuity, or retirement plan |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Disclaimer may be made on behalf of infant, incompetent, or decedent |
Disclaimer may be made by a guardian or personal representative on behalf of infant, incompetent, or decedent |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Estoppel if any benefits accepted |
An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits (a person who transfers or encumbers the property or enters into a land sale contract is estopped from disclaiming it) |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Creditor's Claims |
A disclaimer CAN be used to defeat creditor's claims. B/c the effect of the disclaimer is that the property passes as though disclaimant predeceased decedent, disclaimant has no interest that can be reached by creditors. However, disclaimer cannot be used to defeat a federal tax lien, so the exception to the general rule is the IRS. |
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Subsidiary Problems Common to Intestacy and Wills - Disclaimers - Disclaimer of Life Estate Accelerates Remainder |
B/c disclaimed interest passes as though disclaimant predeceased decedent, upon disclaimer of a life estate, remainder is accelerated. |
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Subsidiary Problems Common to Intestacy and Wills - Killer of Decedent |
Any person who kills or conspires to kill a decedent forfeits any interest in the decedent's estate. The property passes as though the killer predeceased the victim. The statute does not apply if killing is accidental or in self-defense. |
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Subsidiary Problems Common to Intestacy and Wills - Killer of Decedent - Rule Applies to All Forms of Transfer & Benefits |
Statute disqualifies a killer from taking under will, by intestacy, as a beneficiary of a life insurance policy on decedent's life, an elective share, homestead life estate, exempt personal property, family allowance or pretermitted spouse |
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Subsidiary Problems Common to Intestacy and Wills - Killer of Decedent - Joint Ownership - Right of Survivorship Severed |
If one joint owner in a joint tenancy, tenancy by entirety or joint bank account kills the other, the killer loses the benefits of the right of survivorship (so keeps his own share but does not inherit the decedent's share). |
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Subsidiary Problems Common to Intestacy and Wills - Advancement of Intestate Share |
Advancement is a gift by a parent to a child w/ intent that the gift be applied against the share the chid would inherit. A gift determined to be an advancement is credited vs. recipient's share of intestate estate. An advancement may be partial, intended to cover a portion of the intestate share, or total, intended to cover the entire intestate share. |
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Subsidiary Problems Common to Intestacy and Wills - Advancement of Intestate Share - What is Required |
In TN, an inter vivos gift made by a parent to child is not considered an advancement unless: 1. Decedent declared it was an advancement in a contemporaneous writing or the child acknowledged it as such in writing, OR 2. Writing or acknowledgement otherwise indicates that the gift is to be taken into account in computing the division & distribution of the decedent's estate |
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Subsidiary Problems Common to Intestacy and Wills - Advancement of Intestate Share - Procedure if Advancement Found |
Amount advanced (valued at time of gift) is added to net value of estate for purposes of determining shares. Once shares are determined, an heir who has received an advancement has his share reduced by amount of advancement. However, if advancement is greater than the heir's intestate share, he is NOT responsible for returning the excess. |
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Subsidiary Problems Common to Intestacy and Wills - Advancement of Intestate Share - Recipient Predeceases Decedent |
If recipient of property predeceases decedent, the property is not taken into account when computing the division of the decedent's estate (no longer considered an advancement), unless the decedent's contemporaneous writing provides otherwise. |
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Subsidiary Problems Common to Intestacy and Wills - Satisfaction of Legacies |
A lifetime gift to a will beneficiary may satisfy the testamentary gift in whole or in part if testator intends the transfer to have that effect. The value of the gift is determined as of time the gift was made. Doctrine of Satisfaction of Legacies applies only to general legacies, not specific bequests. If a decedent makes a lifetime gift of a specific item of property devised in her will, doctrine of ademption by extinction applies. |
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Formal Requisites and Execution of Wills - What Constitutes a Will |
Will: An instrument executed with certain formalities that usually directs the disposition of a person's property, the guardianship of his children, or the administration of his estate at death. A will is revocable during lifetime of testator and operative only at his death. A codicil is a supplement to a will that alters, amends, or modifies the will. Note: B/c a will is not operative until testator's death, a beneficiary merely has an expectancy (not a property interest) until that time |
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Formal Requisites and Execution of Wills - Testamentary Intent & How it is established |
For will to be valid, testator must intend the particular instrument to operate as his will. Established if it is shown the testator: I. Intended to dispose of the property II. Intended the disposition to occur only upon his death, and III. Intended that the instrument accomplish the disposition |
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Formal Requisites and Execution of Wills - Testamentary Intent - Present Intent Required |
A signed & witnessed statement of an intent to make a will in the future is not a will Ex. I am going to make a will leaving all of my property to you |
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Formal Requisites and Execution of Wills - Testamentary Intent - Ineffective Deed cannot be a Will |
If a deed fails as an inter vivos conveyance, it cannot be probated as a will even though it was signed & attested by required # of witnesses.
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Formal Requisites and Execution of Wills - Testamentary Intent - Conditional Wills |
Conditional Will - expressly provides that it shall be operative only if some condition stated in the will is satisfied -Parol evidence is NOT admissible to show that a will absolute on its face was intended to be conditional, but may be admitted to show that the instrument was not meant to have any effect at all (ex. sham will), but not to show conditions. |
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Formal Requisites and Execution of Wills - Testamentary Capacity |
Must be 18 a of sound mind to have the right and power to make a will Note: Any will executed while under age 18 is invalid Sound Mind: 4 Part Test 1. Insane Delusion (generally sane) 2. Lucid Interval (generally insane) Testator Not Suffering from: 1. Undue Influence 2. Fraud 3. Duress |
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Mental Capacity to Make a Will - Generally |
The law presumes every person has sufficient capacity to make a valid will, and those contesting the will have the burden of proving otherwise. A testator has testamentary capacity if he/she generally: 1. Comprehends the nature and extent of his/her property 2. Understands the kind, nature and extent of his/her property 3. Knows the manner in which he/she desires his or her act to take effect 4. Realizes the effect his or her act will have upon his/her estate Where the issue is mental capacity of testator at the time of making the will, evidence of incapacity w/in a reasonable time before and after is relevant and admissible insofar as it tends to show mental condition at the time of execution of the will. |
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Formal Requisites and Execution of Wills - Execution of Attested Wills |
For a will to be valid and admissible to probate, testator must meet formal requirements of due execution. If statutory requirements are not met and will is not a valid noncupative or holographic will, the will is void. Formalities: 1. Will or codicil must be signed by the testator, or by another person at the testator's direction and in her presence *Any mark affixed by testator with intent the mark operate as testator's signature satisfies this requirement *Signing at the end is NOT required in TN 2. There must be 2 attesting witnesses 3. Testator must sign the will (or acknowledge her previous signature/acknowledge the will) in each of the witnesses' presence 4. Witnesses must sign in the testator's presence 5. Testator must publish will (declare to witnesses that the instrument is her will) 6. Witnesses must sign in the presence of each other *Exact order of signing is not critical as long as all sign as part of a single, contemporaneous transaction *Note: Only the words present at the time of execution are part of duly executed will |
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Formal Requisites and Execution of Wills - Execution of Attested Wills - Presence Requirement |
In TN, there are 3 presence requirements for due execution of a will: 1. Testator must sign or acknowledge her signature or will in presence of witnesses 2. Witnesses must sign in testator's presence 3. Witnesses must sign in presence of each other Presence is "Line of Sight Test" = party can actually see or could see the other if he wished (no physical object blocking view) |
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Formal Attested Wills - Competency of Witnesses |
Any person (including executors, trustees, and attorneys) competent to be a witness generally may act as a witness to a will If a witness is a beneficiary under the will, the will is validbut the witness will be purged of his or her bequest (to the extent it exceedsthe witness’sintestate share), unless there are two other competent disinterested witness. |
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Formal Requisites and Execution of Wills - Execution of Attested Wills - Interested Witnesses - Will Valid but Gift Void |
If attesting witness is also a beneficiary under the will, the will is valid, but the gift is void unless: 1. The witness is supernumerary (there are more than 2 witnesses & 2 are disinterested) OR 2. Interested witness would have been an intestate heir, in which case, the witness only forfeits so much of the bequest as exceeds the amount he would have taken had testator died intestate |
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Formal Requisites and Execution of Wills - Execution of Attested Wills - Attestation Clause |
Attestation clause recites the elements of due execution. Proof of signatures of testator + 2 witnesses raises presumption of law Proof of these 2 things above + attestation clause raises presumption of fact, which is substantive evidence and does not disappear in the face of contrary proof |
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Formal Requisites and Execution of Wills - Execution of Attested Wills - Self-Proving Affidavit |
If will is self-proven at time of execution, no witnesses are needed to testify later. Testator and witnesses sign will; then witnesses sign affidavits before a notary public reciting facts that they would be required to testify to in court to prove the will Note: Most courts count signatures on the affidavit as signatures needed on the will itself |
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Mental Capacity - Special Situations (Insane Delusion and Lucid Interval) |
Insane Delusion: A person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected a particular provision of the will. -A false concept of reality. A delusion is insane only if there is no factual basis for it. -Burden of proof: challenger Lucid Interval: A person who lacks sufficient mental capacity generally, but at the time of execution has a lucid interval thus rendering him competent. -'Lucid interval' not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act -Burden of proof: Proponents of will |
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Undue Influence |
Definition: Undue influence exists where there has been a fraudulent influence over the mind and will of another to the extent that the professed action (will) is not freely done but is in truth the act (will) of the one who procures the result. Burden and Elements: Person challenging the will bears the burden of demonstrating undue influence. While undue influence can be proved either by direct or circumstantial evidence, direct evidence is rarely available. Thus, in most cases, the contestants establish undue influence by proving the existence of suspicious circumstances warranting the conclusion that the will was not the testator's free and independent act. Presumption: The existence of a confidential relationship, together with a transaction by which the dominant party obtains a benefit from the other party or another suspicious circumstance, triggers a presumption of undue influence. Confidential Relationships: Attorney-Client; Trustee-Beneficiary; Attorney-in-fact (Power of Attorney) and Principal; Health Care Worker-Patient If an attorney or existing attorney-in-fact benefits under the will and is in a confidential relationship with the testator, the presumption of undue influence can be overcome ONLY by clear and convincing evidence of the fairness of the transaction. |
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Undue Influence - Suspicious Circumstances |
Most frequently relied on suspicious circumstances: 1. Existence of a confidential relationship b/w testator and beneficiary 2. Testator's physical or mental deterioration 3. Beneficiary's active involvement in procuring the will In addition to proof of a transaction benefitting the dominant person in a confidential relationship, other recognized suspicious circumstances include: 1. Secrecy concerning the will's existence 2. Testator's advanced age 3. Lack of independent advice in preparing the will 4. Testator's illiteracy or blindnes 5. Unjust or unnatural nature of the will's terms 6. Testator being in an emotionally distraught state 7. Discrepancies b/w the will and testator's expressed intentions 8. Fraud or duress directed toward the testator |
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Fraud |
Definition: Thetestator is deceived by a misrepresentation and does that which the testatorwould not have done had the misrepresentation not been made Types: Fraud in the Execution - Fraud in Factum (actually switched documents on testator) Fraud in the Inducement - Tell testator a lie to get something added/removed from will |
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Duress |
Definition: A bequest is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the testator into making a bequest that the testator would not otherwise have made Burden: The person challenging the will has the burden of proving fraud or duress |
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TN Probate Proceedings |
In TN, proponent of the will has the option to probate a will in either common form or solemn form Common Form is an ex parte proceeding, normally withoutnotice except to the witnesses of the will. Common form probate proceedings are heard by the clerk of the court. Solemn Form involves all interested persons tothe probate proceeding (so all interested persons must receive notice). Solemn formprobate proceedings are heard by judges. Contests: Prior to the entry of an order admitting a will to probate in common form or solemn form, the will can be challenged directly by means of a will contest |
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No-Contest Clauses |
Willsoften contain “no-contest”clauses to dissuade intestate heirs from challenging the validity of the will(e.g. lack of mental capacity, insane delusion, undue influence, fraud, andduress). A no-contest clause stipulates that a will beneficiary forfeits his or her bequest if he or she contests the will. General Rule: No contest clauses are valid in TN Exceptions - A no contest clause will not be enforced if: 1. If the challenge is brought in good faith (subjective) andon probable cause 2. Ifthe case is not a “contest”but rather a suit for construction of the will (ex. Ambiguous term). |
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Holographic Wills - Execution Formalities |
A holographic (handwritten) will is valid if: -The signature and all its material provisions are in the handwriting of the testator, and -The testator's handwriting is proved by 2 witnesses (after death) Note: Signature may be in the form of testator's name anywhere on will, subscription at end of will not required |
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Nuncupative Wills - Execution Requirements |
Anuncupative will may be made only by a person in imminent peril of death,whether from illness or otherwise, and shall be valid only if the testator diedas a result of the impending peril, and must be: (1)Declared to be the testator's will by the testator before two disinterestedwitnesses;§(2)Reduced to writing by or under the direction of one of the witnesses withinthirty (30) days after such declaration; and(3)Submitted for probate within six (6) months after the death of the testator The nuncupative will may dispose of personal property only and to an aggregate value not exceeding $1,000, except that in the case of persons in active military, air or naval service in time of war, the aggregate amount may be $10,000. Note: A nuncupative will neither revokes nor changes an existing written will |
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Conditional Wills |
OnJune 1, 2006, T executes a will which stated: “I amgoing on a long trip into the jungle. IfI do not return from the jungle, my estate should be distributed all to myfriend, A.” T journeys into the jungle, returns home, anddies six months later in an auto accident. T did not revoke or modify his June 1, 2006 will. T was survived by A and D (T’ssole heir). --> Ct. would say this is not a conditional will, but only his motivation for making a will b/c he knew he was going to do something dangerous so wanted to have a will just in case; everything goes to A Ex. of Conditional Will: “Thiswill is effective only if I die in the jungle.” |
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Choice of Law - Domicile |
State of decedent's domicile governs personal property Real property governed by state in which it is located |
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How is a Will Revoked? |
1. By a subsequent will/codicil (Expressly, or by Inconsistency) 2. By Physical Act 3. By Operation of Law 4. By Losing Will |
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Revocation by Subsequent Will/Codicil |
Express Revocation: A written will, or any part thereof, may berevoked by a subsequent written will or codicil or other revocatory writingexecuted as a will. -The subsequent document must meet all will requirements or the original will is still probated -Needsame mental capacity to revoke as needed to execute a will Implied Revocation: If the 2nd will does not expressly revoke the first, try to construe them together as an amendment; inconsistencies are revocation of the first will -If 2nd document contains a residue clause, most jurisdictions consider it an entirely new will that revokes the first entirely |
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Revocation by Physical Act |
A written will, or any partthereof, may be revoked by being burned, torn, canceled, obliterated, ordestroyed, with the intent and for the purpose of revoking it, by a competenttestator or by another person in the testator’s presence and by the testator’sdirection. -Must have physical evidence + Simultaneous Intent to revoke at time of the act Examples: -"X" across the words of the will or the signature = Cancellation Note: Nothing done to a copy is valid against the original -TN recognizes partial revocation by physical act so marking out someone's name/devise will revoke it and that devise will fall to the residue Note: Proxy may be used to destroy testator's will, but must be done in 'line of sight' presence of testator |
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Revocation by Operation of Law - Divorce |
Dissolution of marriage by absolutedivorce or annulment after making a will does not revoke the will of anytestator but, unless otherwise specifically provided in the will, it revokesall provisions in the will in favor of the testator's former spouse. If provisions are revoked solely by thissection, they are revived by the testator's remarriage to the former spouse (implied revival). Note: Legal separation not enough to revoke Note: TN does not recognize revocation automatically of devises to spouse's family even though former spouse removed from will upon divorce |
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Revocation by Operation of Law - Marriage + Birth of Child |
A will is revoked by both the subsequent marriage and thebirth of a child of the testator (and if don't write a new will, everything passes by intestacy). -Divorce or annulment of the subsequentmarriage does not revive a prior will. |
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Revocation by Losing Will |
Thepresumption is that if testator had originals of a will/codicil at death and they cannot be foundor are found in a destroyed fashion, she dies intestate Exception:If the first person who find them is the person who would benefit by them beinglost, courts might not recognize the wills and property would pass by intestacy |
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Impact of Revocation |
Revival Dependent Relative Revocation |
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Impact of Revocation - Revival |
In Tennessee, the mere act ofrevocation of a will does not of itself revive a former will and creates nopresumption for or against revival, but the question to be determined from allthe facts and circumstances is the intention of the testator. So revoking will #2 does not revive will #1 unless there is clear evidence that was intent of testator |
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Impact of Revocation - Doctrine of Dependent Relative Revocation |
Purpose: If a testator purports to revoke his or herwill (or part thereof) upon a mistaken assumption of law or fact, therevocation is ineffective if the testator (presumably) would not have revokedhis or her will (or part thereof) had the testator known the truth. Note: Courts do not look at the typed writing in TN to determine a hand written modification - it must be able to stand on its own as holographic codicil Elements: (1)the testator revokes his or her will (or part thereof) (2)the testator had an alternative plan of disposition that failed because of amistake of law or fact (3)the revoked will reflects the testator’strue intent (i.e., alternative plan)better than intestacy |
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How is a Will Construed? - What compromises the Will? |
Integration Republication by Codicil Incorporation by Reference Acts of Independent Significance Pour Over Wills |
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Integration |
Definition: All writings present at the time ofexecution, intended to be part of the will, are integrated therein. |
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Republication by Codicil |
Definition: A valid will is treated (for all purposes,including incorporation by reference, disinterested witnesses, pretermittedchildren) as re-executed as of the date of the most recent duly executedcodicil. |
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Incorporation by Reference |
Awriting inexistence whena will is executed may be incorporated by reference if the language of the willmanifests this intent and describes the writing sufficiently to permit itsidentification. -Incorporated writing need not be signed by testator to be validly incorporated -If incorporated writing cannot be included (b/c post-dated the execution of the will), the intended bequest passes to residue |
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Acts of Independent Significance |
A will may dispose of property byreference to acts and events that have significance apart from their effectupon the disposition made by the will, whether they occur before or after theexecution of the will. These acts andevents may include the execution or revocation of another individual's will andthe safekeeping of items in a secured depository. Note: Independent purpose will stand on itsown, even if there is a related testamentary purpose |
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Pour Over Wills |
A bequest may be made by a will to thetrustee ofatrust established or to be established by the testator or by some other person if the trust is identified in thetestator's will (can be a trust already created at time of will or a future trust the testator has planned). -The bequest is valid despite thefact that the trust is revocable or thatthe trust was amended after theexecution of the will. -A revocationor termination of the trust before the death of the testator shall cause the pour over bequest to lapse |
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Is the Will a Contract? Joint Wills - 2 people with the same will Mutual Wills - people have separate wills with different pronouns but common beneficiaries and language |
GeneralRule: No Exceptions: 1. Contract to make a will (or bequest) 2. Contract not to revoke a will (or bequest) 3. Contract to die intestate Under TN law, such contracts may be established only by clear and convincing evidenceof: (1) Provisions of a will statingmaterial provisions of the contract; (2) An express reference in a willto a contract and extrinsic evidence proving the terms of the contract; or (3) A writing signed by thedecedent evidencing the contract. *Requires written evidence, so no enforcement of oral contracts The execution of a joint will or mutualwills does not create a presumption of a contract to make a will, or to refrainfrom revoking a will. If one of the contractual parties breaches by making a new will after the first party's death, the original beneficiary has a breach of contract claim against the estate of the party who wrote a new will in violation of the contract. |
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How is a Will Interpreted? - General Construction Rules |
1. ImplementTestator’sIntent 2. Plain Meaning Rule (no extrinsic evidence) Exception: latent ambiguity (extrinsic evidence is admissible under Tennessee lawto clarify a latent ambiguity, but extrinsic evidence is notadmissible to clarify a patent ambiguity) Latent Ambiguity - seems clear on face of will, but when go out to distribute, there is ambiguity as to the meaning of the will's clause 3. No Reformation -But courts may disregard erroneousdescriptive information (by just marking it out) |
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How is a Will Interpreted? - Special Construction Rules |
1. Lapse 2. Ademption by Extinction 3. Satisfaction 4. Exoneration 5. Abatement 6. Accretion |
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Types of Bequests |
Specific Bequest - refers to specific piece of property or real estate General Bequest - cash Demonstrative Bequest - dollar amount that comes from a specific source Residuary Bequest |
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Lapse |
Subjectto the antilapse statute,if a beneficiary of: -a specific, general, ordemonstrative devise predeceases the testator, the property shall pass to theresiduary devisees. -a residuary devise predeceases thetestator (even by 4 days b/c of 120 hour rule), it shall augment the shares of the other residuary devisees or ifthere are no residuary devisees, then the property shall pass by intestacy. |
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Antilapse Statute |
If the following elements aresatisfied, a deceased beneficiary’s issue are substituted (and takeby representation) for the deceased beneficiary. 1. Lapsed devise (i.e., the beneficiary does not“survive”the testator). 2. The deceased beneficiary left issue who “survive”the testator. -Survive” means to outlive the testator by 120 hours. -Antilapse statute applies to every beneficiary in a will, not just family -Antilapse statute picks up beneficiaries that died b/w execution of the will and testator's death, as well as children who predeceased testator before execution of the will |
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Ademption by Extinction |
TN uses the "Identity Test" for Ademption Three-prong test: 1. Is this is specific bequest? 2. If so, is the specifically devised propertypart of the testator’sprobate estate? 3. If not, ademptionapplies and the beneficiary receives nothing. Identity Theory - Exceptions 1. Construe specific request as a demonstrative bequest if possible Note: The word "my' + actually owning a specific # of shares of the stock cannot be construed as demonstrative 2. Ademption does not apply to involuntary changes (ex. Automatic merger of a company testator owns shares in into another company - this is a change in form, not substance); condemnation proceeds or insurance proceeds if the property has been taken or destroyed |
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Satisfaction |
Application: General and (Shared) Residuary Bequests Rule: Satisfactionoccurs only if there is direct evidence that this was the testator’s intent;the party asserting satisfaction has the burden of proof. Note: Satisfaction is wills equivalent to Advancement -Direct evidence does not have to be written evidence and may be in form of an objective witness at trial |
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Exoneration |
Application: Specific Bequests Rules: Whenreal or personal property subject to a lien or security interest isspecifically devised, the devisee takes the property free and clear of theencumbrance, unless there is a contrary provision in the will. The encumbrance is paid out of the residue. |
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Abatement |
Ifthere is not enough property in the estate to satisfy all bequests, thebequests will, absent a testamentary indication as to the order of abatement,abate (i.e., fail) in the following order: (1) Property not disposed of by the will (i.e.,intestate property) (2) Residuary devises (3) General devises (4) Specific devises Forpurposes of abatement, a demonstrative devise payable out of a particular fundis treated as a specific devise to the extent of the fund and as a generaldevise to the extent it exceeds the fund. Abatementwithin each classification is pro rated.Personal property passing byintestacy and personal property in the residuary estate abate before realproperty in the residuary estate. |
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Accretions |
Application: Specific Bequests Rule: In the absence of a contraryintent, a legatee of a bequest of stock is entitled to the additional sharesreceived by a testator as a result of a stock split occurring in the intervalbetween the execution of his will and his death. -Cash dividends go to the residue |
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What Protection is Provided for Surviving Spouse and Children? |
Support during probate administration Elective Share (Spouse) - Cannot disinherit a spouse completely Pretermitted Children - Born or adopted after the will is executed and not specifically disinherited |
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Support Rights - TN |
1. Homestead - Tennesseeprotects the family residence up to an aggregate value of $5,000 for propertytitled in an individual’sname and $7,500 for property held jointly from creditors’claims. The surviving spouse is entitledto $5,000 (or $7,500) worth of the family home or the same amount in cash orpersonal property. Homestead defeats allcreditors, unless the rights were waived by both spouses in deed of trust ormortgage. 2. Year’s Support—Family Allowance - Tennesseeauthorizes the payment out of an estate of one year’ssupport to the surviving spouse. The purpose of the allowance is to providefunds for the support of the spouse (and children, if any) during the periodthat the decedent’sassets are tied up in probate administration. The year’ssupport is exempt from creditors’ claims and is in addition to homestead,exempt personal property, and the spouse’s share of the estate. The year’s support is to be a reasonable amountbased on the spouse’sprevious standard of living. 3. Exempt Personal Property—Up to$50,000 Fair Market Value§Inaddition to benefits passing by intestate succession, elective share,homestead, or a year’ssupport allowance, the surviving spouse of an intestate decedent,ora spouse who elects against a decedent's will, is entitled to receive from theestate of the decedent certain exempt personal property (not used primarily forbusiness) having a fair market value (in excess of any indebtedness or securityinterests in the property) that does not exceed $50,000. |
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Elective Share - TN (Step 1) |
Thesurviving spouse of an intestate decedent who elects against taking anintestate share, or a surviving spouse who elects against a decedent's will,has a right of election to take an elective-share amount equal to the value ofthe decedent's netestate, determined by the length of time thesurviving spouse and the decedent were married to each other, in accordancewith the following schedule: Less than 3 years - 10% of net estate 3 yrs. but less than 6 yrs. - 20% of net estate 6 yrs. but less than 9 yrs. - 30% of net estate 9 yrs. or more - 40% of net estate (2)For purposes of determining the number of years married, the number of years aperson is married to the same person shall be combined, even if notconsecutive. |
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Elective Share - TN (Step 2) |
The value of the net estateincludes all of the decedent's real property, and personal property subjectto disposition under the provisions of the decedent's will or the laws ofintestate succession,reduced by the following: -secured debts to the extent thatsecured creditors are entitled to realize on the applicable collateral -funeral and administrationexpenses, and -award of exempt property, homesteadallowance and year's support allowance. |
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Net Estate - Fraud Intro. |
Anyconveyance made fraudulently to children or others, with an intent to defeatthe surviving spouse of the surviving spouse's distributive or elective share,is, at the election of the surviving spouse, includable in the decedent's netestate. |
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Net Estate - Fraud Factors |
The leading case in this stateaddressing fraudulent transfers is Finley v. Finley..The Finley court established certain factorsthat the trial court should consider in its determination of whether aconveyance is fraudulent. Those factors are as follows: (1)whether the transaction was made with or without consideration, (2) the size ofthe transfer in relation to the [decedent's] total estate, (3) the time betweenthe transfer and the [decedent's] death, (4) relations which existed betweenthe [decedent] and the [surviving spouse] at the time of the transfer, (5) thesource from which the property came, (6) whether the transfer was illusory (transferred, but testator didn't really give up control), and(7) whether the [surviving spouse] was adequately provided for in thewill. Thesefactors should not be applied mechanically, but rather, the weight andsignificance to be given to each factor will depend upon the facts of eachparticular case |
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Elective Share - TN (Step 3) |
After the elective-share amount hasbeen determined, the amount payable to the surviving spouse by the estate shallbe reduced by the value of all assets includablein the decedent's gross estate (for estate tax purposes) that were transferred, or deemedtransferred, to the surviving spouse or that were for the benefit of thesurviving spouse, but excluding the homestead allowance, exempt property andyear's support allowance. -Subtracting from gross estate what the spouse already received in will or deemed transferred like insurance proceeds, payable on death accounts, joint tenancies --> Remainder is the Net Estate |
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Waiver of Spousal Rights - TN |
Aprenuptial agreement entered into by spouses concerning property owned byeither spouse before the marriage shall be binding if: Itwas entered into by such spouses freely, knowledgeably and in good faith andwithout exertion of duress or undue influence upon either spouse. Whilethe participation of independent counsel representing each party is not anessential element of enforceability, it provides the best assurance that thelegal prerequisites will be met (along with full disclosure of all assets) and that the antenuptial agreement will befound enforceable in the future. Prenuptialagreements are favored in Tennessee |
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Omitted Spouse Protection - TN |
A will or part thereof is revoked by: Boththe subsequent marriage and the birth of a child of the testator, but divorceor annulment of the subsequent marriage does not revive a prior will. Otherwise, spouse may opt for elective share. |
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Pretermitted Children |
Application: Children born or adopted after the execution of the will and all codicils thereto. Rule: Such child is entitled to an intestate share, unless - -The child is expressly disinherited from the will -The child was provided for in the will, or -The child was provided for by settlement made by the testator in the testator's lifetime If a subsequent will or codicil is drafted and executed after the birth of the child, the child takes nothing b/c it is assumed he was intentionally left out at that point. |
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Wills and Non-Probate Transfers |
Examples of Non-probate Transfers: -Life insurance policies -Joint checking accounts -Owning real property as joint tenants w/ right of survivorship |
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Exercise of General Power of Appointment |
Majority Rule regarding Testamentary General Powers of Appointment: Must be done in the will and cannot be passed through residue clause Minority Rule (TN): Testamentary General Powers of Appointment don't have to be stated specifically in will; Courts will assume testator meant for it to be left to residue -See slide 147 of Wills/Trust review |
