Wills Va Final

Front 1

Generally, in what 3 circs do the intestate descent and distribution rules apply?

Back 1

1) Descedent left no will;
2) Partial intestacy; OR
3) Will denied probate

Front 2

When survived by spouse only, who takes in intestate succession?

Back 2

Spouse takes 100%

Front 3

When survived by spouse and all children area common, who takes in intestate succession?

Back 3

Spouse takes 100%

Front 4

If decendent has a surviving spouse, what portion do parents and collateral kin take in intestate succession?

Back 4

None

Front 5

When will surviving spouse not take through intestate succession?

Back 5

Willful desertion or abandonment maintained until death.

Front 6

What other statutory rights does a surviving spouse (with at least one non-common surviving child) have in intestate succession or if taking through elective share?

Back 6

REF
1) Residence - SS can live in the principal family residence until the SS's rights are determined
2) Exempt - exempt personal property up to $15,000
3) Family allowance - as needed for 1 year and up to $18,000

Front 7

What is the rule for inheritance by descendants?

Back 7

Per capita at the first level and then by representation

Front 8

If T has 4 children, 2 surviving, 2 deceased, and no surviving spouse, who takes?

Back 8

1) 2 surviving take 1/4 each
2) Children of 2 deceased take equal shares of the 1/4 that would have gone to their parents

Front 9

Intestate succession. No SS. T had 4 children but all predeceased. T's 4 children had some children. D1 had 2 children and D2 had 3 children. Who takes and what share?

Back 9

Each of the 5 grandchildren take 1/5.

Front 10

If T dies intestate with no spouses or children, who takes?

Back 10

1) All to parents or surviving parent; none surviving then
2) First-line collaterals (e.g., brothers, sisters, descendants of bros/sis); none surviving then
3) 1/2 to maternal grandparents or descendants, 1/2 to paternal grandparents or descendants.
Short form---------
1) parents
2) siblings
3) grandparents and their descendants

Front 11

What is a anti-laughing heir statute? How does VA apply?

Back 11

It limits the degree of kinship that qualifies to be an heir. VA has no anti-laughing heir statute.

Front 12

What do half-bloods inherit? (intestacy)

Back 12

1/2 as much as whole bloods.

Front 13

What do adopted children inherit? (intestacy)

Back 13

Same as blood children

Front 14

What inheritance rights do adopted children have from their natural parents or their kin?

Back 14

GR: None
Ex: if adopted by second husband, etc., because 1st H died, then can inherit from mother, adoptive father, and natural father's kin

Front 15

What inheritance rights for children born out of wedlock?

Back 15

They can inherit in full from both mother and father but to inherit from father, must meet one of the MAC tests.
M: marriage
A: adjudicated in filiation
C: clear and convicing that he's a BAD CAT (See later card)

Front 16

Outside of marriage, and filiation adjudication, how is father's paternity proven?

Back 16

Clear and convincing evidence that he's a BAD CAT.
B: birth certificate by consent
A: admits paternity in court
D: DNA test or other medical proof
C: cohabitation with mother ten months before child's birth
A: allowed child to use surname
T: tax return--claimed child as dependant on tax return

Front 17

Who does a bequest to person's children or descendants include?

Back 17

-Full bloods, half-bloods, and nonmarital children if proven by MAC BAD CAT

Front 18

If nonmarital child dies intestate, can biological father inherit?

Back 18

Yes but only if: Marriage/attempted marriage, Adjudicated, Clear and convincing, BUT ONLY if:
openly treated child as own and didn't refuse to support child

Front 19

What is the rule regarding deaths in quick succession?

Back 19

120 rule. Survivor must survive 120 hours after other to be considered an heir.
Includes life insurance, intestacy, joint tenancies and tenancies by the entirety

Front 20

How do lifetime gifts to heir affect intestate share?

Back 20

Virginia applies the common law doctrine of ADVANCEMENTS, which makes lifetime gift presumptively payment in advance or child's intestate share (date-of-gift value)

Front 21

What is the satisfaction of the legacy?

Back 21

-A common law rule that presumes a lifetime gift will be a partial/total satisfaction of a will legacy.
-VA DOES NOT recognize satisfaction of legacies unless:
(i) declared in a contemporaneous writing by donor; OR
(ii) acknowledged as such in writing by the donee at any time

Front 22

Can an intestate heir or will beneficiary disclaim a share/gift?

Back 22

Yes. Estate will pass as thoguh the disclaimant predeceased. To be valid, a disclaimer must:
1) be in writing and signed
2) be delivered (no time limit) to personal rep of estate, trustee (inter vivos trust), or payor (life insurance)

Front 23

Can a beneficiary disclaim income from a spendthrift trust?

Back 23

Yes. The spendthrift restriction doesn't attach until the beneficiary accepts.

Front 24

Can a beneficiary disclaim an interest in a spendthrift trust?

Back 24

No. Estoppel applies to stop from disclaiming after already accepting income.

Front 25

What is the benefit of disclaiming an interest in the decedant's estate?

Back 25

1) avoid gift taxes (but must be filed within 9 months after decedent's death)
2) avoid decedent's creditor's claims

Front 26

What are the 5 requirements for a witnessed will?

Back 26

1) T must be 18 unless emancipated
2) Signed by testator
3) T must sign in the presence of both witnesses, at the same time (both must witness at same time)
4) Two attesting witnesses,
5) Each witness must sign will in T's presence (both need not witness each other witness's signing)

Front 27

What is a codicil and what are the requirements for a properly executed codicil?

Back 27

-a later amendment or supplement to a will
-must be signed with same formalities as the original execution (18, signed by T, signed in presence of 2 Ws, 2 Ws, Each W signs in T's presence) unless it's a holographic codicil

Front 28

Can a will be signed by someone other than T for execution purposes?

Back 28

Yes. If signed at T's direction and in his presence.

Front 29

What does VA not require for a witnessed will?

Back 29

1) T need not sign at foot or end (diff't for holographic wills)
2) Ws need not know they're witnessing a will
3) Ws need not sign in each other's presence
4) No interested witness rule (Ws can be beneficiaries)

Front 30

What are the requirements for T's signature?

Back 30

Very minimal. Need not be legible. Any volitional act and a mark intended as T's signature sufficient.

Front 31

What is a holographic will? Is it recognized in VA?

Back 31

-It is a handwritten, signed, unwitnessed will that is WHOLLY in testator's writing
-They are valid in VA

Front 32

What are the requirements for a valid holographic will?

Back 32

1) wholly in testator's writing (fill-in-blanks may be okay if writing part complete of itself)
2) Signed in such a manner as to make it manifest that the name is intended as a signature
3) Signature need not be at the end but it must show the finality of the instrument
4) Must have testamentary intent

Front 33

If an exam question includes a handwritten, signed letter or memo, unless facts say (1) it's a will or codicil, or (2) will says "this is my last will and testament," ask two questions.

Back 33

1) Was the document writtent with testamentary intent, AND
2) Was it intended to be offered for probate

Front 34

Does Virginia recognize oral wills?

Back 34

Yes but ONLY for:
1) persons serving in the armed forces, OR
2) mariners at sea
And even then, only for personal property

Front 35

Hypo: Terry is critically injured and taken to a hospital. He says he wants a will and only has two hours to live. He cannot sign due to injuries. What should you do?

Back 35

-Write out teh will
-Use a proxy signature (Terry by Bob Smith)
-Two Ws

Front 36

Who has the burden of proof in probating a will and what are the issues at probate?

Back 36

1) BOP on proponents of will
2) Sole issue is devisavit vel non (will or no will)

Front 37

Are most wills ex parte or inter partes?

Back 37

Ex parte

Front 38

What is an inter partes will probate?

Back 38

Probates with a full judicial proceeding w/ notice to interested parties

Front 39

What is required for a self-proving will and what is its significance?

Back 39

-Self-proving affadavit reciting facts of due execution acknowledged by testator and sworn to by witnesses before a notary public
-If self-proving, no need to call attesting witnesses
-Sworn statement accepted as if it had been given ore tenus (oral testimony) before the court
-Self-proving affadavit serves same function as deposition or interrogatory

Front 40

How can a will be challenged?

Back 40

1) 6 months to challenge in Circuit Court after will is probated or denied probate in an ex parte proceeding, OR
2) 1 year to file a bill in equity to impeach or establish the will
-In either case, trial is de novo

Front 41

How is a holographic will proven?

Back 41

-Testimony by 2 DISINTERESTED witnesses that will is wholly in testator's handwriting

Front 42

What is the time limit on when a will must be offered for probate?

Back 42

GR: no time limit in VA
EX: a BFP of real property from an heir is protected unless probated within 1 year of testator's death

Front 43

How many witnesses do you need to testify to the due execution of a typewritten will? How many for a holographic will?

Back 43

1) typewritten = 1 witness of signing of instrument
2) holographic = 2 witnesses to testify wholly in T's writing

Front 44

If a will is probated out of state, what steps must be taken for descendants to take property located in VA?

Back 44

Must file certified copies of:
1) the will, AND
2) the order admitting it to probate in foreign state
-In the county where the real property is located

Front 45

When the will beneficiary predeeases the testator, what happens to the will gift?

Back 45

-it lapses (fails) unless saved by an anti-lapse statute (rationale: can't make a gift to a dead person)

Front 46

When does the VA anti-lapse statute apply? (2 req'ts)

Back 46

Only applies where:
1) predeasing beneficiary is a grandparent or descendant of grandparents, AND
2) predeasing beneficiary leaves descendants who survive testator by 120 hours

Front 47

When does the anti-lapse statute not apply?

Back 47

1) if either predeceasing beneficiary is not grandparent or descendant of grandparent of T or descendants of gift beneficiary do not survive T by 120 hours, OR
2) there are no descendants
3) there are conditions attached to the gift

Front 48

What happens to bequests and devises that lapse and are not saved by the anti-lapse statute?

Back 48

They fall into the residuary estate

Front 49

Does the 120 hour rule apply to testamentary gifts conditioned on survival?

Back 49

Yes.

Front 50

Hypo: Tillie's will, after making various gifts, provides: "I give all the rest, residue and remainder of my estate in equal shares to my good friend Hobie Gates, my neighbor Bill Baker, and my sister Sue." Hobie predeceases Tillie, leaving a child (Hobie Jr.) who survives Tillie. Tillie, a widow is survived by Bill and Sue. Who takes the residuary estate.

Back 50

-Bill & Sue = 1/2 each as surviving residuary beneficiaries
-Anti-lapse statute doesn't apply in favor of Hobie Jr. because grandparent or descendant of a grandparent of Tillie

Front 51

Hypo: Tillie's will, after making various gifts, provides: "I give all the rest, residue and remainder of my estate in equal shares to my good friend Hobie Gates, my neighbor Bill Baker, and my sister Sue." Sue predeceases Tillie, leaving a child (Sue Jr.) who survives Tillie. Tillie, a widow is survived by Bill and Hobie. Who takes the residuary estate.

Back 51

-Anti-lapse statute saves Sue's share in favor of Sue Jr.
-1/3 to Bill, 1/3 to Hobie, 1/3 to Sue Jr.

Front 52

What happens if a will provides a clause that states "surviving residuary beneficiaries" rule?

Back 52

Anti-lapse statute trumps that rule and others

Front 53

What is the residuary gift rule?

Back 53

If the residuary estate is devised to 2 or more persons and the gift to one of them fails, the other residuary beneficiaries take the residuary estate, in proportion to their interests in the residue (absent contrary provision)
Note: anti-lapse statute, when it applies, trumps this rule

Front 54

In a gift by will to a class of persons, what happens if a member of the class predeceases the testator?

Back 54

Class members who survive the testator take
Rationale: T was group-minded in making the gift and wanted only this group to share

Front 55

What is the rule of convenience?

Back 55

-defines takers of a class gift
-class is closed when some member is entitled to distribution
-in outright gift by testator's will, class closes at T's death, subject to the 10 month gestation principle

Front 56

When does a class close?

Back 56

The rule of convenience determines and closes class when any member is entitled to distribtion or for outright gifts by will, at T's death subject to the gestation principle

Front 57

What happens when testator marries after executing will?

Back 57

Omitted spouse takes intestate share unless it appears from the will that the omission was intentional (no extrinsic evidence)

Front 58

What happens when testator divorces after the will is executed?

Back 58

Divorce or annulment REVOKES all gifts and fiduciary appointments in favor of former spouse
-Will read as though former spouse predeceased

Front 59

Does the "divorce revokes" rule apply to relatives of the former spouse?

Back 59

No

Front 60

What does divorce do to the title of a joint tenancy or tenancy by the entirety?

Back 60

Severs the right of survivorship

Front 61

What happens if the testator has a child after the will is executed?

Back 61

-The VA Pretermitted Child Statute protects ONLY children born or adopted after the will's execution
-Pretermitted children protected by the statute take the following:
1) if no children at the time of the will--child takes intestate share
2) if other children at the time of the execution of the will,pretermitted child takes the lesser of: a) intestate share, OR b) value of bequests to other children (if more than 1 other child, the larger of the bequests)

Front 62

What is a pretermitted child? What significance in VA?

Back 62

-A child left out of the will of a testator
-The VA Pretermitted Child Statute protects ONLY children born/adopted after the will was executed
-Protected pretermitted child takes:
1) if no other children at time of will--intestate share;
2) if other children at time of the execution, the lesser of: a) intestate share, OR b) value of bequests to other children at (but if more than 1 other child, then the larger of the bequests) [unless after-born/adopted child was provided for/mentioned in will]

Front 63

How can a will be validly revoked?

Back 63

1) by executing a subsequent testamentary instrument with proper formalities; OR
2) by physical act (cutting, tearing, obliterating, canceling, or burning)
Note: holographic will can revoke a typewritten will and vice versa

Front 64

Is a will validly revoked in the following situations:
1) Bottom of a one-page will, T writes in T's handwriting: "I've changed my mind. This will is void"
2) "I've changed my mind. This will is valid. Signed, T Smith"
3) Just wrote "void" without signature
4) Crossed out his signature with a big "X"
5) Tore up will

Back 64

1) Not a valid revocation
2) Valid revocation
3) Not valid revocation by physical act
4) Valid revocation
5) Valid revocation

Front 65

Can a will be validly revoked by the act of another person?

Back 65

Yes, but must be:
1) at testator's request, AND
2) in testator's presence

Front 66

What presumptions are made regarding revocation?

Back 66

1) if will last seen in T's possession or control and not found after death--presumed revoked by physical act,
2) if found mutilated and last in T's possession and control, presumption is that T did the mutilating and revoked by physical act

Front 67

When do presumptions in favor of T's revocation by physical act (if will missing or mutilated) not arise?

Back 67

1) if T had no access
2) if the will was last seen in the possession of someone adversely affected by its contents

Front 68

What is the burden to rebut a presumption that testator destroyed missing will or mutilated will?

Back 68

-Clear and convincing evidence can rebut the presumptions
-Declarations of testator are admissible to rebut presumption of revocation

Front 69

What effect does a will have during lifetime of testator?

Back 69

GR: will is an abulatory document with no effect during life
EX: first will revoked when second will (with revocation clause) is validly executed.

Front 70

Can a revoked will be revived?

Back 70

No. When a will is validly revoked (by physical act or later will), it is considered dead and cannot be revived by simply destroying the later will UNLESS:
1) earlier will is re-executed - signed by T and 2 Ws, OR
2) doctrine of republication by codicil applies (e.g., T validly executes a "codicil to my 1992 will" that makes various changes)

Front 71

What is dependent relative revocation?

Back 71

-"DRR" permits a revocation to be disregarded when premised upon, conditional upon, dependent upon a mistake of law or fact as to the validity of another disposition
Shorthand-----
-DRR allows the revocation of a second will to be disregarded if T mistakenly believes that destroying it revived the first will
-ONLY works for

Front 72

Why is dependent relative revocation sometimes called the "second best solution"?

Back 72

-The best solution would be to allow the first will to be revived but because law does not permit that, reviving an older will is better than going to intestacy

Front 73

How can lost wills be proved?

Back 73

-By meeting the proof of lost wills:
1) due execution proved just like any other case,
2) cause of will's non-production must be proved (and overcome the presumption of revocation), AND
3) contents of the will proved by clear and convincing evidence

Front 74

What do we do in the situation where there are 2 wills and the later will makes no mention of the first?

Back 74

1) Read the two documents together and treat the second "last will" as a codicil, only revoking the first to the extent of inconsistent provisions, OR
2) if wholly inconsistent, first will is revoked by implication

Front 75

Are changes after the will is signed and witnessed valid?

Back 75

GR: no; if words are crossed out and written over, will will be construed as a partial revocation and the additions will be disregarded
CAV: if will is typewritten, can make valid changes in handwriting prior to signing and witnessing

Front 76

What happens to a changed phrase in a will after signing and witnessing?

Back 76

-Phrase crossed out treated as partial revocation
-New phrase disregarded as unattested words
-To be valid, amended words do not need to be on a separate sheet of paper but must represent a complete thought (think of it as a plastic overlay)
-BUT original gift might be saved by DRR

Front 77

What happens if testator signs a holographic will and then later crosses out a provision and writes in a different one?

Back 77

-Change is valid so long as the standard holographic will evidentiary test is met (2 persons who can testify that it's wholly in testator's writing)

Front 78

What are the following testamentary gifts called?
1) "I devise Blackacre to my son Jon"
2) "I bequeath $25k, to be paid from the proceeds of sale of my Shell stock, to Sally"
3) "I bequeath $10k to my nephew Ned"
4) "I give the rest, residue, and remainder of my estate to Susie"
5) Partial instestacy because will poorly drafted without a residuary clause

Back 78

1) Specific bequest (one specific asset)
2) Demonstrative legacy (general amount from a specific source)
3) General legacy (money)
4) Residuary gift (residue to x)
5) Intestate property

Front 79

What do we do with legacies to pay debts and expenses?

Back 79

-GR: Personal property before real property sold to satisfy debts in the following order:
1) intestate property
2) residuary assets
3) general and demonstrative legacies
4) specific bequests

Front 80

How are estate taxes paid?

Back 80

GR: Each beneficiary's interest is reduced pro rata
EX: Gifts that qualify for marital/charitable deductions are exempted

Front 81

What happens to specifically devised property if it is not in the estate at T's death?

Back 81

-Ademption by extinction
-Recipient gets nothing

Front 82

What happens to specifically devised property if T entered into a contract for the sale of the property prior to death?

Back 82

-Virginia does not apply the doctrine of equitable conversion w/r/t ademption by extinction
-Devisee takes a note and security interest if payments are remaining

Front 83

Does ademption by extinction apply to demonstrative or feneral legaices?

Back 83

No, only specific devises and bequests. (other assets sold if needed)

Front 84

What are the statutory exceptions to the doctrine of ademption by extinction?

Back 84

1) any condemnations award for the taking of property paid to devisee/bequestee to the extent of payments paid after T's death
2) Any fire/casualty insurance proceeds paid to the extent paid after T's death
3) if specifically devised property is sold by a guardian (due to T's incapacity before death), specific devisee has right to general legacy equal to net sale price
4) Any bequest of securities, get all of it--even split, merger, etc.

Front 85

What happens to property specifically devised but encumbered with liens on it?

Back 85

-Residuary must be used to pay off liens/mortgages

Front 86

May an extrinsic document not present when the will was signed be incorporated by reference?

Back 86

Yes, if:
1) writing was in existence when will was executed
2) will shows an intent to incorporate the writing, AND
3) must describe the writing with REASONABLE CERTAINTY, so there may be NO MISTAKE as to the document referred
WITH STATUTORY EXCEPTIONS for: tangible personal property, and giving fiduciary/agent power to make discretionary distribution or health care decisions
(these 2 exceptions escape the "in existence at the time when will was executed" requirement)

Front 87

When does the strict incorporation by reference rule not apply?

Back 87

-A will or trust may refer to a written statement or list that disposes of TANGIBLE PERSONAL PROPERTY not specifically disposed of by will
-Must be signed by T and describe the property with reasonable certainty but NEED NOT be in existence at the time of the will
Rationale: provides a way to dispose of items of sentimental value without having to amend the will each time

Front 88

What is the "Act of independent significance" doctrine?

Back 88

-lifetime acts with lifetime purpose can modify the will
-applies to tangible personal property and cash only
e.g., if "I leave my car to Bob" and T buys a new car--Bob takes the car; but if "I leave the contents of my sea chest," and it includes deeds, stock certs, bank passbooks--does not qualify as a nontestamentary act

Front 89

What is the plain meaning rule and when does it apply?

Back 89

It applies to mistakes/ambiguities in the will and states that if there is no ambiguity on the face of the will, extrinsic evidence will not be admissible to overturn the words in the will

Front 90

What if, "I leave 10k to my nephew, John Paul Jones" and T has only nephews named James Peter Jones and Harold Paul Jones but no John Paul Jones?

Back 90

-Called a latent ambiguity because there is a misdescription
-Extrinsic evidence is admissible to cure latent ambiguities, including the "facts and circumstances" about family, etc., and testator's declarations of intent

Front 91

If extrinsic evidence is allowed and does not cure a latent ambiguity or misdescription problem, what happens to the gift?

Back 91

It fails because there's no ascertainable beneficiary/property

Front 92

What is a patent ambiguity?Is evidence allowed in to cure "patent ambiguities" in the will?

Back 92

-It is a mistake clear from the face of the will
-Extrinsic evidence is allowed in but more limited than latent ambiguity evidence
-Facts and circumstances evidence allowed in, statements made to attorney allowed in, but no testator's declarations of intent to third parties

Front 93

Is a lawyer liable to a will's intended beneficiaries for negligence?

Back 93

NO. Only duty is to the client who contracted for the lawyer's services

Front 94

What does a bequest of "all my personal property" include?

Back 94

GR: Tangible and intangible property
EX: under the doctrine of ejusdem generis, if a list of specific items followed by words of general import, the general words are construed to include only items of the same import as the listed items
e.g., "all of the furniture and personal property located therein" only includes similar items--personal property

Front 95

What is the docrtine of ejusdem generis?

Back 95

-States that in a bequest where a list of specific items is followed by a general descriptive word, it should be interpreted like the specific items
-e.g., "all of the furniture and other personal property located therein" only applies to tangible personal property not intangible property

Front 96

Describe the power of appointment.

Back 96

1) allows testator to give life income to beneficiary and for her to designate remaindermen
2) the donor creates the power of appointment
3) the donee is the recipient of the power
4) if the power is a general appointment (not limited to whom she can appoint), she can appoint anyone
5) takers in default take if the power is not EXPRESSLY exercised; EX: if d'ee attempts to dispose of the property as though it were her own, power of appointment exercised BY IMPLICATION

Front 97

(1) Joint will executed by spouses, leaving all to surviving spouse and then to children, both from prior marriage. One spouse dies, then surviving spouse executes new will revoking earlier wills and giving all property to own child (excluding decedent’s child from 1st marriage). Child of decedent then seeks to have a constructive trust imposed, contending that the joint will was contractual. Can she?

Back 97

No, unless there is "clear and satisfactory" proof of a contract/agreement:
1) in the will,
2) from extrinsic evidence, OR
3) by clear implication from surrounding circumstances

Front 98

Are reciprocal wills containing mirror provisions considered contractual based on attorney's unrebutted evidence that this is what the spouses intended?

Back 98

Yes, although it seems inconsistent with the "clear and satisfactory proof" test that requires the proof be from 1) the will, 2) extrinsic evidence, 3)clear implication from the surrounding circumstances

Front 99

If a will is held contractual, and one party violated/breached that contract, what do you do?

Back 99

1) apply Wills law and admit the new will to probate
2) apply Contract law and impose a constructive trust for the party's breach of contract

Front 100

What are nonprobate assets and what happens to them on death of the testator?

Back 100

-Assets that do not pass through the person's probate estate
-They include the following main groups:
1) property passing by right of survivorship (join bank accounts, etc.) and T.O.D. and P.O.D. (transfer/pay on death) transfers
2) Property transfers passing by contract (life insurance policies, employee benefit plans payable to a benficiary rather than the estate)
3) Property held in trust where the terms govern
4) Property over which the D held a power of appointment

Front 101

When does REF come into play?

Back 101

2 situations only:
1) If S files for elective share, OR
2) If T dies intestate leaving S and descendants from former marriage
THEN, -R-esidence (rent free right to occupy until S's rights determined), -E-xempt personal property up to $15k, and -F-amily allowance up to $18k (or more if judge approves)

Front 102

What are the rights a surviving spouse may have upon T's death?

Back 102

1) Ommitted spouse intestate share: if S marries T after execution of will, she takes intestate share (1/3 if survived by descendants; all if not)
2) Statutory rights (REF): if files for elective share or T died intestate survived by descendants from another marriage, S entitled to rent-free Residence, Exempt personal property up to $15k, and Family allowance up to $18k until S's rights are determined
3) Elective Share Statute: if spouse was disinherited, S can nonetheless take a share (1/3 augmented estate if T survived by descendants from S or other marriage; 1/2 augmented estate if T has no descendants)

Front 103

How does a surviving spouse's elective share compare to an intestate share?

Back 103

-Always less unless estate includes large non-probate transfers (bc intestate is estate and ESS is augmented estate)
a) if survived by descendants, some not of S, 1/3 intestate share; 1/3 augmented estate for ESS
b) all of T's descendants from S, ALL intestate; 1/3 augmented estate ESS
c) if T not survived by descendants, ALL intestate; 1/2 augmented estate ESS

Front 104

What is the procedure a spouse must follow to receive her share under the Elective Share Statute?

Back 104

1) Must file notice of election within 6 months (a) after will admitted to probate, or (b) if no will, after administrator of estate appointed
2) Spouse must make the election or if she's incapacitated, the COURT may make it on her behalf (not guardian or conservator) (if spouse dies before election, it dies with her)
3) if election is made, all beneficiaries contribute ratably ("equitable apportionment")
4) Spouse is disqualified from an ESS, intestate share, and REF if she willfully deserted or abandoned the deceased spouse and it continued until T's death

Front 105

If S is incapacitated and wishes to make an election under the ESS, who can make it for her?

Back 105

-ONLY the court may make the election
-Not the guardian or conservator

Front 106

If an election is made under the Elective Share Statute, how do beneficiaries contribute?

Back 106

-all beneficiaries contribute ratably
-their interests are reduced pro rata, in proportion to their interests in the augmented estate
-But, interests passed to spouse outright are first applied to spouse's elective share

Front 107

When must a spouse file notice of election under the Elective Share Statute?

Back 107

1) within 6 months after:
a) will is admitted to probate, OR
b) if no will, after the administrator of intestate estate is appointed

Front 108

Are nonprobate transfers included in the augmented estate for purposes of ESS?

Back 108

-There is a bright line rule to avoid evasion of the ESS
-ESS applies to (1) property owned and passing at death by will/intestacy, AND:
(2) transfers to the spouse (except tangible personal property--jewelry, etc.); AND
(3) certain lifetime transfers to third parties (STRINGY LEGS)

Front 109

What transfers to the spouse are included in the ESS augmented estate?

Back 109

-All lifetime transfers to spouse with the exceptions for:
1) tangible personal property (jewelry, bday presents, etc.)
2) with survivorship estates between spouses (joint tenancy, tenancy by the entirety, joint bank accounts), it is REBUTTABLY presumed that each spouse furnished one-half of the consideration, so the augmented estate is only reduced by that one-half

Front 110

How do you determine which lifetime transfers are included/excluded from T's augmented estate?

Back 110

STRINGY LEGS don't JOG

---included---

-Strings-attached- lifetime transfers (D retained right to income, power to revoke, etc. -- includes REVOCABLE trusts)
-L-ife insurance paid to a 3rd party at D's death
-E-mployee death benefits under a retirement plan including VRS accounts and Group Term Life policies paid to a third party
-G-ifts in excess of $10k within 5 preceeding years
-S-urvivorship estates: joint bank accounts, joint tenancies

--not included--

-J-oinder: transfers with spouse's joinder or written consent (it's to protect spouse, so shouldn't allow her to take back consented to gifts)
-O-ld transfers: irrevocable transfers to 3/ps before Jan 1, 1991
-G-ifts to deceased spouse from someone other than surviving spouse IF D maintained property separately from S (like in a trust)

Front 111

Who has standing to bring a will contest?

Back 111

Only "interested parties" meaning persons with economic interests that would be adversely affected by the will's probate
-NOT a close friend not named as legatee in earlier will

Front 112

What are the grounds for a will contest?

Back 112

1) Lack of testamentary capacity, and
2) Undue influence

Front 113

Who bears the burden of proof in a will contest based on lack of testamentary capacity?

Back 113

-The will proponent, BUT
-Wills executed in compliance with statutory formalities raises the presumption of capacity

Front 114

What is the test in determining whether the testator had testamentary capacity?

Back 114

Did testator have capacity to:
1) understand the NATURE OF THE ACT he was doing (that it was a will)?
2) know the NATURE, CHARACTER, and APPROXIMATE vALUE of his property?
3) know the natural objects of his bounty?
4) understand the disposition he was making?

Front 115

When must testator have had capacity?

Back 115

-Must relate to the circumstances at the time the will was executed or shortly before or shortly thereafter
-The more distant in time from the execution a particular fact may be, the less significance

Front 116

In determining testator's capacity, what weight will the fact that 6 months before signing his will, testator had been in a mental hospital suffering from paranoia and depression?

Back 116

-Almost none
-It is too remote in time

Front 117

Will extreme old age or failing memory suffice to disprove testamentary capacity?

Back 117

NO. Mere old age, physical frailty, failing memory, or vacilating judgment are not inconsistent with testamentary capacity
-What counts is the 4-pt test (nature of the act; nature, char, appx val of prop; natural objects of his bounty; disposition he was making)

Front 118

Will adjudication of incapacity allow a directed verdict w/r/t the issue of testamentary capacity?

Back 118

No.
1) Adjudication of incapacity involves different legal tests than capacity to make a will (only nature of the act; nature, char, appx val of prop; natural objects of his bounty; disposition he was making matter)
2) Adjudication of incapacity will be admissible as evidence but not prima facie evidence

Front 119

On the exam, if a long fact pattern appears that lays out eccentric behavior by testator and then says nephew is considering contesting the will, what should you do?

Back 119

1) Lay out the tests for incapacity (4-pt) and undue influence, THEN
2) Discuss tests in the context of the facts presented (balance the facts against the test)

Front 120

Who bears the burden of proof in proving undue influence in a will contest?

Back 120

The contestants (contrasted to capacity, which proponents must prove)

Front 121

What is the will contest test for undue influence?

Back 121

Contestants must show:
1) EXISTENCE and exertion of influence
2) EFFECT is to overpower the mind and will of the testator
3) PRODUCT is a will that would not have been executed BUT FOR the influence

Front 122

Evidence of undue influence is usually circumstantial, but what 3 things alone are not enough to prove?

Back 122

1) Mere opportunity to exert influence
2) Mere susceptibility to influence
3) Mere fact of unnatural disposition (more to one child than the others)

[opportunity, susceptibility, unnatural disposition not enough]

Front 123

What must will contestants prove to get the benefit of a presumption of undue influence?

Back 123

Contestants must prove by C&C evidence that
1) testator was enfeebled in mind and body,
2) will was procured by one in a confidential or fiduciary relationship, AND
3) testator had previously expressed a contrary intent in disposing of her property
THEN presumption of undue influence

Front 124

What types of facts give rise to the special rule of presuming undue influence in the execution of a will?

Back 124

-In a nursing home, redrafts will leaving everything to the home, etc.

Front 125

Can will contestants bring an action for tortious interference with an expectancy where a will has been changed?

Back 125

NO. As long as no undue influence, heirs cannot complain about lifetime transactions because they had only an expectancy while the testator was still alive

Front 126

What is the will contest test for undue influence?

Back 126

Contestants must show:
1) EXISTENCE and exertion of influence
2) EFFECT is to overpower the mind and will of the testator
3) PRODUCT is a will that would not have been executed BUT FOR the influence

Front 127

Evidence of undue influence is usually circumstantial, but what 3 things alone are not enough to prove?

Back 127

1) Mere opportunity to exert influence
2) Mere susceptibility to influence
3) Mere fact of unnatural disposition (more to one child than the others)

[opportunity, susceptibility, unnatural disposition not enough]

Front 128

What must will contestants prove to get the benefit of a presumption of undue influence?

Back 128

Contestants must prove by C&C evidence that
1) testator was enfeebled in mind and body,
2) will was procured by one in a confidential or fiduciary relationship, AND
3) testator had previously expressed a contrary intent in disposing of her property
THEN presumption of undue influence

Front 129

What types of facts give rise to the special rule of presuming undue influence in the execution of a will?

Back 129

-In a nursing home, redrafts will leaving everything to the home, etc.

Front 130

Can will contestants bring an action for tortious interference with an expectancy where a will has been changed?

Back 130

NO. As long as no undue influence, heirs cannot complain about lifetime transactions because they had only an expectancy while the testator was still alive

Front 131

What is the majority rule on no-contest (in terrorem)clauses in wills?

Back 131

GR: fully enforceable is a contest is brought, UNLESS:
it was made in GOOD FAITH with PROBABLE CAUSE

Front 132

What is the minority rule on no-contest (in terrorem)clauses in wills?

Back 132

Give full effect to the no-contest clause without regard for probable cause

Front 133

What is the Virginia rule on no-contest (in terrorem) clauses in wills?

Back 133

-Argue both the majority rule of good faith and probable cause and the minority rule of full effect and conclude that VA probably doesn't recognize the probable cause exception.
-CAV: a will construction suit doesn't trigger a forfeiture

Front 134

Where does venue lie for estate administration?

Back 134

GR: In the city/county where, at the time of death, decendent had a mansion house or known place of residence
BUT: where person becomes a patient in a nursing home/similar institution, presumptively the place of legal residence before moving into the nursing home

Front 135

What must an executor do to qualify?

Back 135

1) take oath to faithfully perform her duties, AND
2) give bond to secure her performance (surety required on bond unless req't of security is waived by will)

Front 136

Hypo: John died in 2004, leaving a will that left his entire estate to his wife Mary and that named Mary as executor. What steps must Mary take to be appointed as executor?

Back 136

Mary must:
1) take an oath that the will is John's true last will as far as she knows, AND
2) that she will faithfully perform the duties of her office, AND
3) post bond equal to the value of John's personal estate + the value of any real estate over which the executor is given a power of sale
-Security must be given on the bond unless the will waived the requirement of surety

Front 137

Can an individual who is a nonresident of VA serve as a personal representative of decedent's estate, or as trustee of a testamentary trust? (3 situations)

Back 137

GR: yes but must appoint resident agent for service of process (typically a law firm)
-A nonresident bank CANNOT serve as executor or testamentary trustee
-But even a nonresident bank may serve as the trustee of an inter vivos trust (even if the inter vivos trust is the recipient of a "pourover" gift from settlor's will)

Front 138

Who has priority for appointment as adminstrator?

Back 138

-During the first 30 days:
1) spouse who is sole distributee (bc decedent not survived by descendents)
2) spouse who has written consent of ALL of D's competent children,
3) ANY distributee who is sole heir,
4) ANY distributee who sercures written waivers from all other competent distributees
-After 30 days, any distributee may be appointed "as the court of clerk sees fit"