Wills Mee 2013

Front 1

Execution of a Will

Back 1

T must be 18 or older.
Instrument must be executed/signed with testamentary intent.
Execution (or acknowledgement of previous signature) must be witnessed by two witnesses.

Holographic: all material provisions (property & beneficiaries) must be in own hand writing, signed, no witnesses required.

Front 2

“Presence” of Witnesses

Back 2

Minority: Scope of Vision test. Must be in the line of sight, no impediment to visual contact.

Majority: Conscious Presence. Conscious of where each other is and what each other is doing.

UPC has no presence requirement.

Front 3

Revocation

Back 3

(i) Intent to revoke (ii) physical act (on Will itself, not a copy, anywhere for UPC, must cross language for most states) (if done by another person, must be in T’s presence).

If Will is destroyed or can’t be found, but was last in T’s possession, presumption is it was revoked.

Front 4

Codicil
Second Will

Back 4

If second will has no residuary clause, presumptively a codicil to the first. Implied revocation to extent of inconsistency.

Where a codicil makes no reference to will but contains slightly inconsistent provisions, read together, later document revokes inconsistent provisions in prior will.

Front 5

Divorce

Back 5

Divorce following a will revokes all provisions in favor of the ex-spouse, construe the will as if she were dead.

Property settlement agreement does same thing.

Does same thing to revocable inter vivos trust.

Front 6

Dependent Relative Revocation

Back 6

Disregard a revocation because it was based on a mistake of law, provided the court thinks T would not have revoked but for the mistake.

If revocation followed by SMALLER amount, doesn't apply. Person gets nothing.

Front 7

Incorporation of Extrinsic Document by Reference

Back 7

(i) Must exist at time will was executed.
(ii) Will must manifest intent to incorporate the document.
(iii) Will must describe the writing sufficiently to permit its identification.

Will may refer to a written list that disposes of tangible personal property not specifically disposed of by will. Must be signed.

Front 8

Modification by Action / Doctrine of Independent Significance

Back 8

Each action has an independent significance. Acts having an independent lifetime motive may impact the will, but this is okay. It is unlikely the T would take these actions for the purpose of modifying the will.

Front 9

Lapse

Back 9

Beneficiary dies before T, gift lapses (fails) and falls to the residue, passes as part of residuary estate.

UNLESS it is saved by a state’s anti-lapse statute, gives to beneficiary’s issue if beneficiay is T’s grandparent, or lineal descendant of T’s grandparents.

Front 10

Hierarchy of Gifts

Back 10

Specific Devise: Blackacre/car to John.
Demonstrative Legacy: general legacy w/ funding instructions.
General Legacy: I give $10K to daughter.
Residuary Bequest: rest, residue to wife.
Intestate Property: balance not testated.

Front 11

Abatement

Back 11

If estate is insolvent, gifts at bottom are abated first to pay expenses.

Front 12

Ademption

Back 12

If specific gift is no longer part of estate at death, gift is adeemed. Only applies to SPECIFIC bequests

Front 13

Latent Ambiguity

Back 13

Read will, looks fine, try to apply will, obvious error. Extrinsic evidence admissible to clear up latent ambiguities.

Cannot disturb the plain meaning of a will with extrinsic evidence.

Courts will not fill in Blanks.

Front 14

Intestacy

Back 14

Survived by:
Spouse, no issue, no parent: spouse takes all.
Spouse, issue with spouse: spouse takes all.
Spouse, issue not all spouses: spouse takes fixed amount plus fraction.
Issue: all. Parents: all. No issue or parents: issue of parents.
Per capita with representation. Per capita at each generational level.

Front 15

Advancement

Back 15

If (i) declared as such in contemporaneous writing by the decedent, or (ii) acknowledged as such in writing by the heir.

Front 16

Satisfaction

Back 16

(i) will so states (ii) T declares gift is to be deducted from devise or is in satisfaction of devise, or (iii) devisee acknowledge in writing that gift is satisfaction.

Front 17

Spouse/Child

Back 17

Gets Homestead, exempt property, and family allowance exemptions.

Pretermitted Spouse/Child: gets intestate share under UPC.

Elective share: of elective estate.

Front 18

Lack of Testamentary Capacity / Insane Delusion

Back 18

(1) Understand NATURE of ACT
(2) Understand NATURE of PROPERTY
(3) Know NATURAL OBJECTS of BOUNTY
(4) Understand the DISPOSITION he wished to make

Otherwise sane but will or gift is PRODUCT of insane delusion having NO BASIS in FACT or REASON

Front 19

Undue Influence

Back 19

Show influence that overpowers the mind of the testator, resulting in a will that would not have been executed but for the influence.

Front 20

Class Gift Rule

Back 20

When there is a gift by will to group GENERICALLY described as a class and some members PREDECEASE T and lapse DOES NOT apply, surviving class members take

Front 21

Residuary Estate Devise

Back 21

Residuary Estate to 2 or more people and one gift fails --> Surviving devises take entire residuary in proportion

Front 22

Situations that Avoid Ademption

Back 22

(1) Unpaid K for property @ T's death
(2) Unpaid condemnation/foreclosure @ T's death
(3) Unpaid fire/casualty insurance @ T's death
(4) Real/Tangible property acquired as replacement

Front 23

Doctrine of Increase

Back 23

C/L - Stock splits pass / Dividends - You only get the amount written

UPC - Take all the increase regardless of source

Front 24

Merger of Stocks in Will

Back 24

C/L - Adeemed

UPC - OK / Specific devisee takes securities owned by T as a result of the merger, consolidation, etc.

Front 25

Encumbered Gifts

Back 25

C/L (MIN.) - Take free of encumbrance

UPC (MAJ.) - Take with encumbrance

Front 26

Simultaneous Death Act

Back 26

(1) Passage of property depends on timing of death
(2) Looks like they both died simultaneously
(3) Property of each passes as though he survived

Front 27

120 Hour Rule

Back 27

UPC

(1) Absent provision to contrary
(2) Person deemed to predecease the other UNLESS she survives by 120 hours (5 days)

Front 28

Renunciation

Back 28

Ben. can renounce
(1) Within Nine months
(2) in WHOLE or in PART
(3) in WRITING

Front 29

Living Will

Back 29

(1) In writing
(2) signed
(3) 2 witnesses

Revocation: (1) Intent; (2) Physical act (no regard to capacity)f

Front 30

Responsibilities of a Personal Rep.

Back 30

(1) Bond
(2) Court permission to sell
(3) Make inventory (include value)
(4) Publish to creditors

Front 31

Standing for Will Contest

Back 31

Any person who would
(1) take more as heir if there were NO WILL or
(2) as a beneficiary under a PRIOR WILL

Front 32

No Contest Clause

Back 32

Ben. contests and wins = No problem

Ben. contests and loses = clause not enforced as long as he had probable cause to contest