Definitions

Question 1

Unequivocal Intent

Answer 1

Testator must intend the instrument to dispose of his property upon death.

Question 2

Wrong Will Signed

Answer 2

Majority: Mistakenly signed will is not admissible because the testator did not intend the instrument he signed to be his will.

Modern courts may grant relief through mistake.

Question 3

Conditional Will

Answer 3

A will that is made expressly conditional upon the happening of an event. If the event does not happen, the will will be denied in probate.

Question 4

Mental Capacity to Create a Will

Answer 4

At the time of making the will, testator must Know and Understand the

1) nature and extent of his bounty;
2) persons who are natural objects of his bounty and;
3) nature of his disposition.

Question 5

Insane Delusion

Answer 5

Ideas or beliefs which spring spontaneously from a diseased or perverted mind without reason or foundation in fact. Testator must act on idea or belief.

Question 6

Fraud in the Execution v. Fraud in the Inducement

Answer 6

1. Fraud in the Execution: Testator tricked by bene into signing a document not knowing it to be a will (no intent)
2. Fraud in the Inducement: Testator has the intent to make a will but fraudulently is induced into making a particular gift.

Question 7

Undue Influence

Answer 7

Influence so great as to destroy the free agency of the testator.

Question 8

Four Elements (considerations) to Undue Influence

Answer 8

1. Was Testator susceptible to influence?
2. Opportunity to exercise influence
3. Disposition to influence for improper purpose.
4. Are provisions unnatural?

Question 9

Ambiguity

Answer 9

Particular words/descriptions subject to multiple interpretations.

Question 10

Three Elements to Witnessing a Will

Answer 10

1. Being present at the same time.
2. Understand that the instrument they are witnessing is a will.
3. Must sign during the Testator’s lifetime.

Question 11

Mistake in the Inducement v. Mistake in the Execution

Answer 11

Mistake in the Inducement: General rule; no relief.

Mistake in the Execution: General rule; it will fail for lack of testamentary intent.

Question 12

Exception to Mistake in the Inducement

Answer 12

Relief will be granted where both the mistake and the actual alternate disposition appear on the face of the instrument.

Question 13

Ambiguity

Answer 13

Particular words/descriptions that are open to multiple interpretations

Question 14

Three Requirements for a Formal Will

Answer 14

1. Must be in writing
2. Must be signed by 2 wits
3. Must be signed by Testator (CA. does not require sig to be at end of document)

Question 15

Three Requirements for Valid Witnesses

Answer 15

1. Signing by Testator or acknowledgment by Testator that he signed the will must be in presence of both witnesses.
2. Witnesses must understand that the document the witnesses signed is the Testator’s will.
3. Witnesses must sign the will while Testator is alive.

In CA, the witnesses do not need to sign in the presence of each other.

Question 16

Interested Witness

Answer 16

A witness who is receiving a benefit under a will. The fact that the will makes a devise to a subscribing witness creates a rebuttal presumption that the witness procured the devise by duress, menace, fraud, or undue influence.

Question 17

Integration

Answer 17

A will written on more than one piece of paper

Question 18

Codicil

Answer 18

A testamentary instrument executed subsequent to the execution of a will ordinarily intended to expand, alter or modify the will. (Same formalities required)

Question 19

Incorporation by Reference

Answer 19

Document is incorporated into the will be reference so that it is considered part of the will.

Question 20

Three Elements to Incorporation be Reference

Answer 20

1. Document must be in existence at the time the will/codicil was written.
2. Will must refer to and show intent to incorporate.
3. The document must be identifiable and that which is mentioned must be the document that was incorporated.
4. Cannot incorporate by reference a document to be written in the future.

Question 21

Incorporation by holographs

Answer 21

Most states allow holographs to incorporate by reference printed or typed matter. Thus, a codicil can incorporate a defectively executed typewritten will.

Question 22

Acts of Independent Significance

Answer 22

Court may fill in “blanks” in a will by reference to an act or event which will have significance apart from its significance to the will.

Question 23

Four Ways to Revoke a Will

Answer 23

1. Subsequent Testamentary Instrument
2. Physical Act
3. Operation of Law
4. Dependent Relative Revocation

Question 24

Two Ways to Revoke by Subsequent Testamentary Instrument

Answer 24

1. Express Revocation

2. Implied Revocation

Question 25

Express Revocation

Answer 25

A will may be revoked in whole or in part by the express terms of a later will or codicil.

Question 26

Implied Revocation

Answer 26

A will may be revoked in whole or in part by implication from the terms of a subsequent instrument. Total Inconsistency: If the second will is totally inconsistent with the first, the first will is revoked instantaneously and can no longer by admitted to probate even if the later will is revoked unless the Testator intended to revive the will Partial Inconsistency: The latter will prevails over the first to the extent of the partial inconsistency. The prior will is admitted to probate along with the later instrument and the earlier instrument is not revoked but is merely superseded as to the inconsistencies.

Question 27

Revocation by Physical Act

Answer 27

A will may be revoked by burning, tearing, cancellation, being defaced, obliterated or destroyed with the "requisite intent". The physical act must be accompanied simultaneously with the requisite intent.

Question 28

Four Ways a Will can be Revoked by Operation of Law

Answer 28

1. Marriage 2. Children 3. Divorce 4. Forfeiture Statute

Question 29

Revocation by Marriage

Answer 29

If a person marries after the decedent's execution of their last testamentary instrument, and the spouse survives the marker but the spouse is not provided for, the surviving spouse may take, in addition to his or her share of the community and quasi-community property, his or her intestate share of the estate.

Question 30

If a child has been omitted from a will, they will not inherit if the following three exceptions are met.

Answer 30

1. The Testator's failure to provide for the child in the will was intentional and that intention appears from the will. 2. When the will was executed, the testator had one or more children and devised substantially all the estte to the other parent of the omitted child. 3. The Testator provided for the child by transfer outside the will and the intention that the transfer be in lieu of a testamentary provision.

Question 31

Omitted child born before the last testamentary instrument

Answer 31

Does not receive a share of the estate unless the child is omitted solely because the testator mistakenly believed the child to be dead or was unaware of the birth of the child.

Question 32

Revocation by Divorce

Answer 32

If Dissolution/annulment of the testator's marriage after execution of a will occurs after 1-1-85, the will is automatically revoked with regards to all dispositions and powers in the will to the ex-spouse unless the will provides otherwise.

Question 33

Revocation by Forfeiture Statute

Answer 33

Deems abusers of elders or dependent adults to have predeceased the decedents.

Question 34

Dependent Relative Revocation

Answer 34

Doctrine applies when a testator revokes his will/gift upon a mistaken belief that another disposition of his property would be effective and, but for the mistake, would not have revoked his will/gift.

Question 35

Revival

Answer 35

A theory allowing a revoked will to be probated because the revoking will was itself revoked.

Question 36

Order of Payment of Claims

Answer 36

Debts, Funeral Expenses, Taxes, Expenses of Administration and Family advances.

Question 37

Devise

Answer 37

Any disposition of real/personal property

Question 38

Bequest

Answer 38

Gift of personal property

Question 39

Four Classifications of Gifts

Answer 39

1. Specific: Gift of a particular identifiable item 2. General: Gift out of general estate 3. Demonstrative: General legacy payable first from particular property and then out of the estate if that property is insufficient. 4. Residuary: Whatever is left after all other expenses and gifts have been paid.

Question 40

Ademption

Answer 40

A specific legacy or devise is adeemed (fails) when the specific property given is not part of the testator's estate at the time of death.

Question 41

Abatement

Answer 41

Reduce gifts to beneficiaries under a will because the testator's estate is not sufficient to pay all estate obligations, bequests and devises.

Question 42

General Order of Abatement

Answer 42

1. Intestate property 2. Residuary gifts 3. General bequests-abate on a pro rata basis in accordance with the percentage of the estate that each gift represents. 4. Demonstrative bequests 5. Specific Requests

Question 43

Pretermitted Child

Answer 43

Means of protecting children who have been unintentionally omitted born after the making of the last testamentary instrument. Intent to disinherit must not appear on the face of the will. Effect is that the pretermitted child receives and intestate share.

Question 44

Pretermitted Spouse

Answer 44

Means of protecting spouse when an individual marries after making of the last testamentary instrument and does not mention the spouse. If omitted, the spouse may take, in addition to his or her share of the community and quasi-community property, his or her intestate sheare of the estate.

Question 45

Adopted Child

Answer 45

For purposes of succession, adopted child inherits from her adopted parents and not from her natural parents. Exception is if natural parent was married to or cohabiting with other natural parent and parent died before birth. Or adoption was by spouse of natural parent.

Question 46

Lapse Statute

Answer 46

When a devisee/legatee dies after a testator executes his will but before T dies, the gift to him fails in the absence of testamentary or statutory provisions to the contrary.

Question 47

Anti-Lapse Statute

Answer 47

Inheritance by descendants of predeceased devisee/legatee. The court will apply the anti-lapse statute if the beneficiary is kindred (blood relative) of the testator and leaves lineal descendants. A spouse is not kindred.