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
Reading...
Front

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

image

Play button

image

Play button

image

Progress

1/138

Click to flip

138 Cards in this Set

  • Front
  • Back
Generally, in what 3 circs do the intestate descent and distribution rules apply?
1) Descedent left no will;
2) Partial intestacy; OR
3) Will denied probate
When survived by spouse only, who takes in intestate succession?
Spouse takes 100%
When survived by spouse and all children area common, who takes in intestate succession?
Spouse takes 100%
If decendent has a surviving spouse, what portion do parents and collateral kin take in intestate succession?
None
When will surviving spouse not take through intestate succession?
Willful desertion or abandonment maintained until death.
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?
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
What is the rule for inheritance by descendants?
Per capita at the first level and then by representation
If T has 4 children, 2 surviving, 2 deceased, and no surviving spouse, who takes?
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
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?
Each of the 5 grandchildren take 1/5.
If T dies intestate with no spouses or children, who takes?
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
What is a anti-laughing heir statute? How does VA apply?
It limits the degree of kinship that qualifies to be an heir. VA has no anti-laughing heir statute.
What do half-bloods inherit? (intestacy)
1/2 as much as whole bloods.
What do adopted children inherit? (intestacy)
Same as blood children
What inheritance rights do adopted children have from their natural parents or their kin?
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
What inheritance rights for children born out of wedlock?
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)
Outside of marriage, and filiation adjudication, how is father's paternity proven?
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
Who does a bequest to person's children or descendants include?
-Full bloods, half-bloods, and nonmarital children if proven by MAC BAD CAT
If nonmarital child dies intestate, can biological father inherit?
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
What is the rule regarding deaths in quick succession?
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
How do lifetime gifts to heir affect intestate share?
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)
What is the satisfaction of the legacy?
-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
Can an intestate heir or will beneficiary disclaim a share/gift?
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)
Can a beneficiary disclaim income from a spendthrift trust?
Yes. The spendthrift restriction doesn't attach until the beneficiary accepts.
Can a beneficiary disclaim an interest in a spendthrift trust?
No. Estoppel applies to stop from disclaiming after already accepting income.
What is the benefit of disclaiming an interest in the decedant's estate?
1) avoid gift taxes (but must be filed within 9 months after decedent's death)
2) avoid decedent's creditor's claims
What are the 5 requirements for a witnessed will?
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)
What is a codicil and what are the requirements for a properly executed codicil?
-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
Can a will be signed by someone other than T for execution purposes?
Yes. If signed at T's direction and in his presence.
What does VA not require for a witnessed will?
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)
What are the requirements for T's signature?
Very minimal. Need not be legible. Any volitional act and a mark intended as T's signature sufficient.
What is a holographic will? Is it recognized in VA?
-It is a handwritten, signed, unwitnessed will that is WHOLLY in testator's writing
-They are valid in VA
What are the requirements for a valid holographic will?
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
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.
1) Was the document writtent with testamentary intent, AND
2) Was it intended to be offered for probate
Does Virginia recognize oral wills?
Yes but ONLY for:
1) persons serving in the armed forces, OR
2) mariners at sea
And even then, only for personal property
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?
-Write out teh will
-Use a proxy signature (Terry by Bob Smith)
-Two Ws
Who has the burden of proof in probating a will and what are the issues at probate?
1) BOP on proponents of will
2) Sole issue is devisavit vel non (will or no will)
Are most wills ex parte or inter partes?
Ex parte
What is an inter partes will probate?
Probates with a full judicial proceeding w/ notice to interested parties
What is required for a self-proving will and what is its significance?
-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
How can a will be challenged?
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
How is a holographic will proven?
-Testimony by 2 DISINTERESTED witnesses that will is wholly in testator's handwriting
What is the time limit on when a will must be offered for probate?
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
How many witnesses do you need to testify to the due execution of a typewritten will? How many for a holographic will?
1) typewritten = 1 witness of signing of instrument
2) holographic = 2 witnesses to testify wholly in T's writing
If a will is probated out of state, what steps must be taken for descendants to take property located in VA?
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
When the will beneficiary predeeases the testator, what happens to the will gift?
-it lapses (fails) unless saved by an anti-lapse statute (rationale: can't make a gift to a dead person)
When does the VA anti-lapse statute apply? (2 req'ts)
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
When does the anti-lapse statute not apply?
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
What happens to bequests and devises that lapse and are not saved by the anti-lapse statute?
They fall into the residuary estate
Does the 120 hour rule apply to testamentary gifts conditioned on survival?
Yes.
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.
-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
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.
-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.
What happens if a will provides a clause that states "surviving residuary beneficiaries" rule?
Anti-lapse statute trumps that rule and others
What is the residuary gift rule?
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
In a gift by will to a class of persons, what happens if a member of the class predeceases the testator?
Class members who survive the testator take
Rationale: T was group-minded in making the gift and wanted only this group to share
What is the rule of convenience?
-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
When does a class close?
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
What happens when testator marries after executing will?
Omitted spouse takes intestate share unless it appears from the will that the omission was intentional (no extrinsic evidence)
What happens when testator divorces after the will is executed?
Divorce or annulment REVOKES all gifts and fiduciary appointments in favor of former spouse
-Will read as though former spouse predeceased
Does the "divorce revokes" rule apply to relatives of the former spouse?
No
What does divorce do to the title of a joint tenancy or tenancy by the entirety?
Severs the right of survivorship
What happens if the testator has a child after the will is executed?
-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)
What is a pretermitted child? What significance in VA?
-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]
How can a will be validly revoked?
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
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
1) Not a valid revocation
2) Valid revocation
3) Not valid revocation by physical act
4) Valid revocation
5) Valid revocation
Can a will be validly revoked by the act of another person?
Yes, but must be:
1) at testator's request, AND
2) in testator's presence
What presumptions are made regarding revocation?
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
When do presumptions in favor of T's revocation by physical act (if will missing or mutilated) not arise?
1) if T had no access
2) if the will was last seen in the possession of someone adversely affected by its contents
What is the burden to rebut a presumption that testator destroyed missing will or mutilated will?
-Clear and convincing evidence can rebut the presumptions
-Declarations of testator are admissible to rebut presumption of revocation
What effect does a will have during lifetime of testator?
GR: will is an abulatory document with no effect during life
EX: first will revoked when second will (with revocation clause) is validly executed.
Can a revoked will be revived?
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)
What is dependent relative revocation?
-"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
Why is dependent relative revocation sometimes called the "second best solution"?
-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
How can lost wills be proved?
-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
What do we do in the situation where there are 2 wills and the later will makes no mention of the first?
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
Are changes after the will is signed and witnessed valid?
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
What happens to a changed phrase in a will after signing and witnessing?
-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
What happens if testator signs a holographic will and then later crosses out a provision and writes in a different one?
-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)
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
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
What do we do with legacies to pay debts and expenses?
-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
How are estate taxes paid?
GR: Each beneficiary's interest is reduced pro rata
EX: Gifts that qualify for marital/charitable deductions are exempted
What happens to specifically devised property if it is not in the estate at T's death?
-Ademption by extinction
-Recipient gets nothing
What happens to specifically devised property if T entered into a contract for the sale of the property prior to death?
-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
Does ademption by extinction apply to demonstrative or feneral legaices?
No, only specific devises and bequests. (other assets sold if needed)
What are the statutory exceptions to the doctrine of ademption by extinction?
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.
What happens to property specifically devised but encumbered with liens on it?
-Residuary must be used to pay off liens/mortgages
May an extrinsic document not present when the will was signed be incorporated by reference?
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)
When does the strict incorporation by reference rule not apply?
-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
What is the "Act of independent significance" doctrine?
-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
What is the plain meaning rule and when does it apply?
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
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?
-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
If extrinsic evidence is allowed and does not cure a latent ambiguity or misdescription problem, what happens to the gift?
It fails because there's no ascertainable beneficiary/property
What is a patent ambiguity?Is evidence allowed in to cure "patent ambiguities" in the will?
-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
Is a lawyer liable to a will's intended beneficiaries for negligence?
NO. Only duty is to the client who contracted for the lawyer's services
What does a bequest of "all my personal property" include?
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
What is the docrtine of ejusdem generis?
-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
Describe the power of appointment.
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
(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?
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
Are reciprocal wills containing mirror provisions considered contractual based on attorney's unrebutted evidence that this is what the spouses intended?
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
If a will is held contractual, and one party violated/breached that contract, what do you do?
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
What are nonprobate assets and what happens to them on death of the testator?
-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
When does REF come into play?
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)
What are the rights a surviving spouse may have upon T's death?
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)
How does a surviving spouse's elective share compare to an intestate share?
-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
What is the procedure a spouse must follow to receive her share under the Elective Share Statute?
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
If S is incapacitated and wishes to make an election under the ESS, who can make it for her?
-ONLY the court may make the election
-Not the guardian or conservator
If an election is made under the Elective Share Statute, how do beneficiaries contribute?
-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
When must a spouse file notice of election under the Elective Share Statute?
1) within 6 months after:
a) will is admitted to probate, OR
b) if no will, after the administrator of intestate estate is appointed
Are nonprobate transfers included in the augmented estate for purposes of ESS?
-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)
What transfers to the spouse are included in the ESS augmented estate?
-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
How do you determine which lifetime transfers are included/excluded from T's augmented estate?
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)
Who has standing to bring a will contest?
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
What are the grounds for a will contest?
1) Lack of testamentary capacity, and
2) Undue influence
Who bears the burden of proof in a will contest based on lack of testamentary capacity?
-The will proponent, BUT
-Wills executed in compliance with statutory formalities raises the presumption of capacity
What is the test in determining whether the testator had testamentary capacity?
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?
When must testator have had capacity?
-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
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?
-Almost none
-It is too remote in time
Will extreme old age or failing memory suffice to disprove testamentary capacity?
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)
Will adjudication of incapacity allow a directed verdict w/r/t the issue of testamentary capacity?
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
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?
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)
Who bears the burden of proof in proving undue influence in a will contest?
The contestants (contrasted to capacity, which proponents must prove)
What is the will contest test for undue influence?
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
Evidence of undue influence is usually circumstantial, but what 3 things alone are not enough to prove?
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]
What must will contestants prove to get the benefit of a presumption of undue influence?
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
What types of facts give rise to the special rule of presuming undue influence in the execution of a will?
-In a nursing home, redrafts will leaving everything to the home, etc.
Can will contestants bring an action for tortious interference with an expectancy where a will has been changed?
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
What is the will contest test for undue influence?
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
Evidence of undue influence is usually circumstantial, but what 3 things alone are not enough to prove?
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]
What must will contestants prove to get the benefit of a presumption of undue influence?
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
What types of facts give rise to the special rule of presuming undue influence in the execution of a will?
-In a nursing home, redrafts will leaving everything to the home, etc.
Can will contestants bring an action for tortious interference with an expectancy where a will has been changed?
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
What is the majority rule on no-contest (in terrorem)clauses in wills?
GR: fully enforceable is a contest is brought, UNLESS:
it was made in GOOD FAITH with PROBABLE CAUSE
What is the minority rule on no-contest (in terrorem)clauses in wills?
Give full effect to the no-contest clause without regard for probable cause
What is the Virginia rule on no-contest (in terrorem) clauses in wills?
-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
Where does venue lie for estate administration?
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
What must an executor do to qualify?
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)
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?
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
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)
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)
Who has priority for appointment as adminstrator?
-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"