Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

72 Cards in this Set

  • Front
  • Back
Reqs for validly executed will
T must be 18 yrs old.
1. signed by T
2. 2 attesting witnesses
3. Each witness must sign in T's presence

IL does NOT req: that T sign "at the foot or end" of the will, that the witnesses know they are witnessing a will, that the witnesses sign in each other's presence
person who executes a will
persons who take by intestate succession
Persons who take under a will
personal representative
Administers the state

2 types:
1. executor if named in a will
2. administrator if apptd by the ct
the ct proceeding in which 1) it is jud det that decedent left a validly exec will (or that decedent died intestate and his heirs are det), and 2) a personal rep is apptd to administer the estate.
What constitutes signing:

Conscious Presence Test (UPC and maj rule)

Line of Sight Test (IL)
Not necessary that T should actually see the witnesses when they sign. Enough that he is so near to them that he is conscious of where they are, what they're doing.

T does not have to see the actual signing, but witnesses must be w/in the uninterrupted scope of T's vision when they sign (i.e., he could have seen them if he looked)
Attorney liability for negligence in preparation of will
IL (maj): Attorney's duty also runts to descendants; they have C of A for negligence.

Minority: attorney's duty only runs to client who K'd for the atty's svcs, so only client can sue for negligence (if client dead, descendants can't sue)
Interested Witness statute
interested witness situation never affects validity of a will, but beneficiary witness loses legacy (purging statute)
Interested Witness statute applies, UNLESS (2 rules)...

1) supernumerary rule - there were 2 disint attesting witnesses -OR-
2) whichever is least rule - witness/bene would take a share of the estate if this will were not admitted to probate, in which case she takes the lesser of a) bequest given by the will or b) intestate share
Does the interested witness statute void a legacy to a witness's spouse under overwhelming maj rule?
NO. In most states, only a bequest to the witness herself triggers the statute.

BUT - in IL - the statute voids a legacy to a witness's spouse too.

UPC, several states - abolished the int witness rule.
Holographic wills:

Are they valid?
UPC & 30 states: Yes, recognized.

IL: NO - all wills must be signed by 2 witnesses

Exception: Execution of foreign wills act. A holo will written in a state that recognizes holo wills is admissible to probate in IL.
Oral wills:

Are they valid?
NO! IL does not recognize oral wills.
Conditional wills:
Is this a conditional will, meaning should probate be denied b/c a condition did not occur?
(e.g., if anything happens on my trip, all my stuff to A. Nothing happens on trip)

NO MAJ or clear rule.

Discuss it being a cond'nl will, or merely reflecting the motive or inducement for making a will. Discuss factors.

What constitutes a valid revocation?
A will can only be revoked by 1) later testamentary instrument, exec w/ proper formalities, or 2) physical act (burning, tearing, canceling, obliterating, other act of destruction)

T wrote on each page of will, "This is VOID." Valid revocation?
Yes, if state recognizes holo wills.

NO, in IL - need 2 witnesses and a later testamentary instrument.

To be a valid revocation by physical act by another person (proxy revocation), must be:
1 - at T's direction, and
2 - in T's presence

Same rule as signing by proxy.

Proof of Lost Wills statute (if will destroyed)
A lost will can be probated if
1) proof of due execution (testimony of attesting witnesses)
2) cause of will's nonproduction must be proved (must overcome presumptions as to revocation set out below)
3) contents must be subs proved by copy of will or by testimony of witnesses who have read it or heard it read

Will not found after death,
will found mutilated after death
Presumption: T revoked it by phys act

BUT: neither presumption will arise if the will was last seen in the possession of someone adversely affected by its contents
Dependent Relative Revocation
permits a revocation to be disregarded when the act of revocation was premised upon, cond'ned upon, dependent upon, a mistake of law or fact as to the validity of another disposition. e.g., T revoked a 2nd will by phys act, thinking it would revive 1st will. In IL, does not revive. DRR effect: *disregard* the revocation of the 2nd will
Dependent Relative Revocation - notes
Necessary to app of DRR is that the dist that results from disregarding the revocation IS the 2nd best sol'n, and comes closer to giving effect what T tried (but failed) to do than would intestate dist.
Changes on face of will after it's been executed:

E crosses out w/pen bequest of $5k, and changes a $2k bequest to $5k and initials. Valid?
UPC/Maj: partial revocations by phys act are valid.

Under IL law: NO effect at all. Orig amts stand.
Changing a will:

To change a will in IL, 2 options:
1. make a new will
2. create a codicil with 2 witnesses
Changing a will:

E crosses out w/pen bequest of $5k and changes a $2k bequest before signing. Valid changes?
YES - if this can be established by proof. The words were part of the duly executed will
Beneficiary dies during T's lifetime:

Anti-lapse statutes
UPC: applies when the predeceasing bene was a descendant of T's grandparent.

IL: applies only when the predeceasing bene was a child or other descendant of the T
Anti lapse statute elements
The predeceasing bene 1) must have been in the prescribed degree of rel to the T, and 2) must have left descendants who survived the T.

All rules applie to void gifts too
Beneficiary dies during T's lifetime:

Surviving residuary beneficiaries rule
IL (maj): If resid estate is devised to two or more persons and gift to one of them lapses, the surviving resid benes take the entire residuary estate, in proportion to their interests in the residue
Beneficiary dies during T's lifetime:

Class gift rule
In a gift by will to a class of persons, if a member of the class predeceases the T, Class members who survive the T take.
Rule of convenience
A rule of construction used to define takers of a class gift. Class is closed when some class member is entitled to distribution
Deaths in quick succession:

Mom and son die in train wreck. Is son an heir?
IL (maj): Simultaneous deaths and deaths in quick succession are governed by the Uniform Simultaneous Death Act. When title to property dep on order of deaths and there is no suff evid that the persons have died otherwise than simultaneously, the property of each passes as though he or she survived (absent contrary provision)

UPC: 120 hour rule - must survive by 120 hrs to inherit
Marriage after execution of will - how does it change will's status?
IL & most states: marriage following the exec of a will has no effect on the will

UPC and some states: if a T writes a will and then marries, the omitted spouse takes an intestate share of T's estate
Testator divorced after will executed - effect on will?
IL/maj: final decree of divorce or annulment revockes all gifts and fid apptmts in favor of former spouse. Estate is dist and fid are named as though the former spouse predeceased the T. Must be FINAL decree of divorce. Only applies if divorced at death.

Note: if couple reconciles and remarries, spouse takes under will.
Pretermitted Child statute
IL/maj: a child born or adopted after the will is drafted will receive intestate share - will applies to remaining assets
Republication by codicil doctrine
The will "speaks" (is deemed to have been executed) on the date of the last codicil thereto.
Testamentary gifts:

Specific devise or bequest
a gift of specifically described property
Testamentary gifts:

Demonstrative legacy
A hybrid: gift of a general amt from a specific source
Testamentary gifts:

General legacy
"I bequeath $10k to my nephew Ned"
Testamentary gifts:

Residuary gift
"I give all the rest and residue of my estate to Betty"
Testamentary gifts:

Intestate property
If a will does not make a complete disposition of the estate b/c the will, poorly drafted, does not contain a residuary clause
Abatement of legacies
Absent a contrary will provision, debts and administration expenses are first paid out of:
1) intestate property (if there is a partial intestacy for some reason)
2) thenn residuary assets
3) then general legacies
4) specific bequests
within each category, no distinction is made between real and personal property

Where a will makes a spec gift of property, and the prop is not owned by the T at death...
Ademption applies, person who would have gotten the gift gets nothing

Does NOT apply to demonstrative (or gen) legacies

Only IL statute on ademption: if T entered K for sale of land but died before closing, son would take remaining pymts under the K
Exceptions to the ademption doctrine
1. Will executed before T became incapacitated. If spec devised prop is sold by guardian/conservator, spec devisee has rt to general legacy equal to the net sale price
2. Il cts hae granted relief in the "incapacity" situation above, but only to the extent that they can be traced and haven't been spent for ward's care
3. IL cts also grante relief where T did not have opp to chg will under circs that there would be no intent to work an ademption.
Specific Gifts of Encumbered Property (i.w., with a mortgage on it)- is lien exonerated?
CL: YES. Absent contrary provision, liens on specifically devised property are exonerated from the residuary estate

IL/UPC: NO - spec legatee of encumbered property is not entitled to have the lien exonerated unless the will expressly directs exoneration. Taker takes title subj to a lien.
Acts and Events outside of the will:

Incorporation by reference doctrine
An extrinsic doc, not present when the will was exec and thus not part of the duly exec will, can be inc by ref if:
1. Doc in existence when will exec
2. Will must refer to doc as being in existence
3. Will must desc the doc suff to permit its ID
Acts and Events outside of the will:

UPC approach to extrinsic docs
UPC: allows disposition of tangible personal prop by ref to a list, if signed and describes prop w/ reas certainty. May be written before or after the will exec, chgd any time.
Acts and Events outside of the will:

Acts of independent sig doctrine
aka Doctrine of nontestamentary acts. Will can validly refer to acts of independent significance, such as "my car that I own at death" or "furniture in living room". Tangible property and cash only. NO title docs.
Plain meaning rule
There being no ambiguity, extrinsic evidence is not admissible to overturn the plain meaning of the will
Latent ambiguity
A misdescription in the will (wrong name, address, but otherwise will ok). Extrinsic evid admissible - incl facts and circs evid, but not evidence of T's declarations of intent unless said to T's atty who made the will (perjury risk).

If ext evid does not cure the ambig - gift fails, no ascertainable beneficiaries.
Patent ambiguity
A mistake on the face of the will (e.g. "give twenty thousand dollars ($20) to bob")

Extrinsic evidence admissible - same rules as latent ambig.
K's relating to wills:

UPC and IL approaches
UPC/sev states: A will is never contractual unless the will expressly states that a K does exist.

IL/some states: Execution of ajt will by a hub and wife may be found contractual (the K = surv will not revoke the agreed-upon disp.) if all or most of these:
1 - "Joint & mutual"
2 - will leaves entire estate to spouse
3 - unified will disp of all their property
4 - common dispositive scheme on death of the survivor
K's relating to wills:

reciprocal wills
reciprocal wills - separate wills containing "Mirror" provisions are never presumed to be contractual unless clear and convincing evid of a K
K's relating to wills:

Approach, if will is held to be contractual
1. Apply wills law. (a T can always revoke an earlier will even though it was subj to a K that it wouldn't be revoked)

2. Apply K law. (if revocation of the an earlier will breached a K, impose constructive trust against benes under later will.)
Effect of words of disinheritance in a will
UPC: negative bequest rule - a will can provide how prop shall NOT be disposed of; words of disinheritance are given effect. Disin person treated as though predeceased.

IL/maj: when a will doesn't make a complete disp of the estate (partial intestacy), words of disin are ineffective.
Effect of unlawful conditions on will
If against public policy (encourage divorce, total restraint on marriage) then condition is invalid and bene takes free of cond'n. Partial restraints are valid.
IL slayer statute
Killer forfeits interest in vic's esetate if he intentionally and unjustifiably causes the death of another. Estate dist as though killer predeceased the vic; affects all forms of transfer.
Nonprobate assets
interests that are not subj to disp by will or inheritance, and do not pass through a person's probate estate for purposes of administration. Incl property:

1. passing by rt of surv.
2. passing by K
3. held in revocable trust
Intestate succession:

When do intestacy rules apply?
1. when decedent left no will
2. when decedent's will is denied probate (not validly exec, or successful contest by heirs)
3. when the decedent left a valid will, but incomplete disp of estate (partial intestacy)
Intestate succession:

IL intestacy - share of spouse
Surviving spouse's share is
- 1/2 if survived by descendants
- all if no descendants

surviving spouse also entitled to family allowance, min $10k plus $5k for each minor or disabled child.
Intestate succession:

IL intestacy - share of descendants
Strict per stirpes, meaning one share for each line of living descendants.

Half-brothers take same as brother of the whole blood.
Intestate succession:

Child dies first
Maj: child's estate goes to parents
IL: child's estate split in equal shares between parents and sibs. if only one parent alive, that parent takes 2 shares.
Intestate succession:

Re: adopted children
- children adopted under 18 hae full inheritance rts. A stepchild, if not adopted, can't inherit.
- Once adopted, child has no inher rts against bio parents/kin. Except: where child is adopted by spouse of a natural parent.
- adopted over 18, inherits from parent, but not parent's kin
Intestate succession:

Children born out of wedlock
IL/most states: child born out of wedlock can inherit from natural father only if PAP:

- Paternity suit - man was adjudicated to be the father, OR
- Acknowledged paternity by man, OR
- Probate proceedings - prove to have been father of child during probate proceedings by C&C evid
Lifetime gifts to heir or will beneficiary
CL: lifetime gift to a child was presumptively an advancement of the child's intestate share; acctd for on dist of estate.

IL/maj: lifetime gift NOT an advancement unless declared in writing by donor or donee
Satisfaction of legacies
IL/CL: a lifetime gift to a child named as bene in an earlier will is presumptively in partial satisfaction of the legacy, but not a lifetime gift to any other bene. (e.g., will gives $25k to niece; later T gives $10k cash. N takes full 25k unless evid showing 10k was part satis of legacy)
Disclaimer requirements
to be a valid disclaimer:
1. must be in writing, signed, notarized: delivered to T's personal rep, trustee, or person in possession of property
2. IL, no time limit on when a disclaimer must be made, but can't do after accepting property/income. For tax purposes, must be filed w/in 9 mos after decedent's death
Right of renunciation
1. spouse must file notice of election to renounce will w/in a spec period (7 mos after probate in IL)
2. election can be made on behalf of a legally incap spouse by guardian
3. in making up the elective share, all will benes cont pro rata, but prop devised outright to spouse by will is first applied.
Elective shares:

IL statute
If spouse renounces will, can then take:

1/3 of net estate if surv by dependents

IL: applies to probate estate only. UPC: applies to all property (incl trusts, jt and surv bank accts, etc.)

1/2 of net estate if not survived by descendants
Will contests:

Lack of testamentary capacity
B of P on will contestants.

Test: Did the T have suff cap to
1. Understand the nature of the act he was doing?
2. Know the nature and approximate value of his property?
3. Know the natural objects of his bounty?
4. Understand the disposition he was making?
Will contests:

Undue influence
B of P on contestants. Must show:
1. Existence and exertion of infl
2. Effect was to overpower the mind and will of the T
3. Result - will/gift would not have been made but for infl

"influence is not undue unless the free agency of the T is destroy and a will is produced the reflects the will, not of the T, but of the person exerting the influence."
Will contests:

Undue influence circs, Presumption of undue influence
these alone are not enough:

unnatural disposition

Presumption: where a person in a confid or fid rel was active in procuring the will, and that party will receive a subs bene under the will, there is a presumption of UI, which can be overcome by C&C evid.
Will contests:

No-contest clauses
UPC/most states: no contest clauses are given effect unless ct finds that the contest was brought in GF and w/ PC

IL: no-contest clauses get full effect, regardless of PC. Except: contest filed by guardian on behalf of minor or incap bene. Construction suits ok, merely want to det what interests were created in will. Spouse can still file for elec share.
Powers of appt:

purpose, cast of chars
Permits the life bene of a trust to desig the remaindermen.

General - Donee of P of A ca appoint anyone, incl herself, her estate, creditors.

Special - Donee must appt from a specified group