Wills Flashcards

Question

requirements of valid will

Answer 1

Legal capacity Testamentary capacity Testamentary intent Formalities

Answer 2

18 years old and of sound mind exception: under 18 if married or in military

Answer 3

requirement Understand what testaor is doing Understand effect of what testator is doing Understand nature and extent of prop Recognize natural objects of testator’s bounty (family members) Ability to do the above at the same time and formulate an orerly scheme of disposition Determined at time of execution of will Comon issues Testaor with mental or physical ailments or drug addiction Have moment when have capcity= above requirements satisfied Adjudication of incompetence= rebuttable presumption Lucid intervals Sane person Lack at times bc intoxicated substances, disoriented bc accident or medical procedure

Answer 4

present intent that the instrument operates as their will parole evidence admissible to show that instrument not meant to have any effect unsure, testamentary intent found if shown testator - intended to dispose of prop - intended the disposition to occur only upon his death and - intended that the instrument in question accomplish the dispositon

Answer 5

In writing Signed by testator or proxy = mark made by testator with intent that it operates as their signature Most states dont mandate location Most says see signed Two witnesses States vary in whether witness has to know witnessing signing of will = publish the will States vary whether have to be disnterested= purging statute Whether witness losses gift= most states dont require this Usually must witness in testator’s conscious presence States vary whether witness have to sign in presence of each other UPC= will valid if either Attested by two competent witnesses or Signed by a notary

Answer 6

ecites elements of execution and is prima facie evidence of proper execution

Answer 7

Entirely in testator’s handwriting and has no attesting witnesses How much in handwriting varies Majority rule : virtually everything Minority rule: only material provisions

Answer 8

Abolished in most states Only dispostion of personal prop and only if made by soilder, sailors, or any person during their last sickness / immediate death Two or more witnesses often need

Answer 9

Devise: gift of real prop Bequest: gift of personal prop Specific bequest: prop distinguishable from rest of testator’s estate Specific bequest of general nature is not distinguishable from rest of estate L egacy: gift of personal prop not sufficiently described to be specific (usually money) Demonstrative legacy: gift of specific sum of money payable out of designated fund Residual gift: gift of remainder of estate after all debts and other gifts are paid

Answer 10

Gift fails bc prop is no longer in testator’s estate Beneficiary doesn’t get anything if it is not there applies only to specidic devises and bequests Exceptions in few states Replacement property Balance of purchase price Condensation or insurance proceeds Proceeds from sale by guardian

Answer 11

Beneficiary receives gifted property before testator’s death Most states require a writing Comes up with legacys Intent for a gift to be in satisfaction has to be at time inter vivos gift made Appreciation and depreciation normally irrelevant Still receive irrespective of change in value Securities acquired after wil execution Beneficiary receives increased # of shares from stock splits or stock dividends Benefifciary does not take new securities that have been purchased or acquired by the reinvestment of dividends

Answer 12

Some states: liens exonerated ( paid off with estate funds) UPC and other states: no exoneration unless will provides for it = beneficiary takes prop subject to debt

Answer 13

Process of reducing gifts when estate prop is inadequate to satisfy gifts and debts Order Property passing by intestacy Residual gifts General gifts Demonstrative gifts Specific gifts Beneficiary can disclaim gift from will within a classs, abatement is pro rata

Answer 14

Gift fails bc beneficiary fails to survive testator or is legally treated as not surviving testator How distribute Will’s terms Anti-lapse statute Residuary clause Intestatcy Anti-lapse statutes Prevent lapse by substituting descendants of predeceased beneficiary for predeceased beneficiary Relationship needed b/n testator and predeceased beneficiary varies by state Lapse in residuary gift Common law rule: deceased beneficiary’s share passes by intestacy Modern rule: surviving residuary beneficiaries divided the deceased beneficiary’s share if will makes gift too beneficiary who was dead at the time the will was executed, the gift is void

Answer 15

Will = intent not to die intestate Conflicting provisions = use one closer to testator’s death Construe as a whole Give ordinary words their ordinary meaning Give technical words their technical meaning Give effect to all language in will

Answer 16

Patent ambiguity: ambiguity is obvious Ct looks at extrinsic evidence Extrinsic evidence cannot be used to evidence is admissible Latent ambiguity : language is clear on its face but cannot be carried out w/o further clarification Ct will look at extrinsic evidence No apparent ambiguity: language is clear on its face and can be carried out, but someone thinks testator made a mistake traditional/ plain meaning rule: cannot disturb plain meaning of will Modern rule: extrinsic evidence permitted

Answer 17

Requirements Intent to incorporate writing Writing must be in existence when will is executed Writing must be clearly identified in will Effect Incorporated material is treated as if it were actually written out in full in the will Tangible personal property Testor’s will may refer to written list to dispose of tangible personal prop, even if list was not in existence at time of will execution

Answer 18

Something that has a legal reason for existing other than the disposition of property at death Specific gifts of a general nature Class gift designations Gifts to “my spouse” Gifts of content: in box , contents can change over time

Answer 19

Will that is to operate if certain event occurs or does not occur Courts construe will as general, not conditional, if possible example: " this will is to be effective if I die from this cancer" , will not be conditional will if diagnosis was mere inducement to write will

Answer 20

Amendment to existing will Republication by codicil Will and codicil treated as one document speaking from date of codicil Proof of codicil= proof of will even if original will was defective for some reason Codicil can incorporate defective will by reference

Answer 21

Provision in will that leaves prop to inter vivos trust Trust can be created before or after testator executes will Trust does not have to be previously funded

Answer 22

Must be able to show that all pages present at time of will execution are the same as pages present at time of probate physical attachment, internall coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed

Answer 23

CL: extrinsic evidence can est contractual nature of will Modern law: writing required Make a will in a certain way and not revoke it mere execution of joint wills or mutual wills does not raise a presumption that the wills were executed pursuant to a promise by each party not to revoke Can be revoked by agreement of parties while both alive Revoked by one person while both alive = other person can change will Revoked by one person after other dies = injured beneficiaries may sue to impose constructive trus on property they should have received Breach of K Grant constructive trust No remedy for breach of K not to revoke unless the 1st party dies in reliance on K

Answer 24

Owner of property (donor) transfers to the donee the power to appointment the new owner of the property General power of appt: power exercisable in favor of donner, their estate, their creditors, or creditors of estate Special power of appt: power exercisable in favor of limited class of appointees, not including donee, their estate, their creditors, or creditors of estate Presently exercisable power = exercisable by donee during lifetime Testamentary power = exxercisable only by donee’s will Exercise of powers of appointment Residual clause by itself does not exercise any power of appt held by the testator , some states says yes pass

Answer 25

Marriage after will execution In most states, marriage has no effect on prior will Some states and UPC: SPouse receives intestate share unless Will provides for pouse Omission was intentional or Testator executed will in contemplation of marriage Divorce after will All provisions in favor of ex-spouse are void Some states void to all exrelationships Voiding occurs upon final divorce Prop that would have gone to ex spouse passes under terms of will as if ex spouse had died first

Answer 26

Intent Mental capacity Physical act: burning , tearing, ripping, writing void across will Proxy revocation permitted if done at testator’s request and in testor’s presence Partial revocation : need sufficient evidence that the testator made the changes States vary when will executed in duplicate, an act done to either copy revokess the will unless there is evidence that the stator destroyed one copy to prevent connfusion relizing that there can be only one last will destruction of ann unexecuted copy with intent to revoke does not revoke the will

Answer 27

Will or codicil must meet formal requirements Revocation can be express New will completely disposes of testaor’s prop= old will completely revoked New will partially disposes of testator’s property= old will revoked only as to inconsistent parts revocation of a will revokes all codicils to it revocation of a codicil to a will does not revoke the entire will

Answer 28

Presumption of no revocation if will is found in normal location and there are no suspicious circumstances Will was in testator’s possession or control but cant be produced after testator’s death= presumption that testor revoked will

Answer 29

Fact pattern Testor executes valid will 1 Testator executes valid will 2 which expressly revokes will 1 Testaor then validly revoke will 2 Will 1 revived “ upc/ intent approach Look at testator’s intent Automatic revival approach Revoking will never took effect bc it was revoked No revival approach: revocation by subsequent writing takes effect immediately when signed

Answer 30

Express = okay Implied / de[emdent relative revocation Fact pattern Testator executes will 1 Testator validly revokes will 1 Testator executes will 2, but will 2 is invalid Does will 1 remain? DRR apply ? DRR= will 1’s revocation was impliedly conditioned on validity of will 2 if will 2 is invalid, will 1 remains More similar will provisions = more likely ct will apply DRR

Answer 31

clear and convincing evidence

Answer 32

Surviving spouse has right to portion of estate regardless of what will says Amount may be percentage or vary with # of children or length or marriage Some states give spouse share of augmented estate, which includes nonprobate assets community prop states No elective share bc spouse is protected by owning half of community prop Deceased spouse can give away only separate prop and their half of community prop

Answer 33

Purpose is to carry out testator’s presumed intent to provide for children Typically applies to children born or adopted after will execution Situations when pretermitted child does not receive forced share Entire estate left to pretermitted child’s other parent Omission was intentional Testator provided for pretermitted child

Answer 34

Homestead ( family residence) Family allowance = amount suppose to gt to survive after spouse has died , keep lifestyle In addition to amount passing by will, intestay, or elective share Exempt personal property

Answer 35

may be admitted to probate if - valid execution - cause of nonproduction ( proof will not revoked) -contents of will ( proved by at least 2 witnesses or production of photocopy of will)

Answer 36

Does not meet requirements of valid will (defective execution) Lack of legal capacity Lack of testamentary capacity Lack of testamentary intent

Answer 37

interested parties, heirs, beneficiaries of prior wills creditors, executors, and testamentary trustees are not interested parties

Answer 38

Persistent belief in facts that are against all evidence Must have a connection b/n insane delusion and prop disposition to be grounds for will contest

Answer 39

Influence existed and was exerted Influence overpowered testator’s mind and free will Influence cause testator to execute with different terms than would have (but for causation) Evidence of undue influence Unnatural disposition Opportunity to exert undue influence Confidential or fiduciary relationship Ability of testator to resist Beneficiary’s involvement in drafting will Attorney as drafter and beneficiary No automatic presumption b/n spouses presumption of undue influence arises when -there was a confidential relationship b/n the testator and beneficiary -that beneficiary was active in procuring, drafting, or executing the will - some states also require the will appear unnatural

Answer 40

form of undue influence but connotes violent conduct such as the threat of physical harm

Answer 41

False rep made to testator Knowledge of falsity by persn making statement Testator reasonably believed statement Statement caused testator to execute will testator otherwise would not have executed Types Fraud in the execution/factum: testator deceived as to identity or contents of instrument Fraud in the inducement: testator knows identity and contents of will but is deceived as to extrinsic fact and makes gift based on that fact

Answer 42

Mistake in execution/ factum : testaor is in error regarding contents or identity of instrument Mistake in the inducement: testator mistaken as to some extrinsic fact and makes will based on that fact Cts generally will not grant relief

Answer 43

Beneficiary forfeits interest in estate if they contest the will and lose Most states enforce clause unless contest was in good faith and with probable cause Some states give clause full effect even if contest was in good faith

Answer 44

personal rep= appt to carry out the estate administration exector= personal rep named in will administrator= personal rep not named in will

Answer 45

Person appt to carry out estate administration Called administrator if person died intestate Called executor if named in will Bond if required Take oath Duties Give notice to heirs and beneficiaries Give notice to creditors Collect and manage all probate assets Pay estate expenses and creditors Distribute prop to heirs or beneficiaries

Answer 46

Administration expenses Funeral expenses and expenses of last illness Family allowance Federal claims Secured claims Unsecured claims Heirs and beneficiaries collect

Answer 47

In writing Signed by declarant/ principal Witnessed by two adult witnesses

Answer 48

Principal names agent to make medical decisions when principal incapacity revoked by notifying either the agent or the principal's healthcare provider, and the revocation can be either oral or written

Answer 49

States individual’s desires regarding lif-sustaining procedures ( withdrawn or not used ) Use of antibiotice Artificial nutrition or hydration Living will can be revoked at any time by : physical act, written revocation of will, oral expression of intent to revoke the will

Wills Flashcards

(73 cards)