Wills

Question 1

Per Capita by Representation/Modern Per Stirpes

Answer 1

Estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship

Question 2

If person dies intestate and is survived by issue and wife, how is property divided?

Answer 2

1) Spouse receives 1/3 personal estate and an estate for life in 1/3 of real estate.
2) W gets all community property
3) C gets 1/2 of personal property & remainder of W’s interest in real property

Question 3

If person dies intestate and no issue but surviving parent, sibling or decendant of sibling, what does spouse take?

Answer 3

All personal and 1/2 of real estate. Other 1/2 goes to

Question 4

TX Per Capita by Representation Intestate Distribution Scheme

Answer 4

• divide into as many equal shares as there are surviving heirs in the nearest degree
• each surviving heir in nearest degree receives 1 share
• share of each deceased person in that degree is divided among that person’s issue
• posthumous children are considered as living at death of their parent
• if no issue & no surviving spouse, parents of decedent take in equal portions
• if neither parent survives, entire estate passes to siblings & their descendants
• if no siblings & descendant, half of estate goes to paternal/maternal kindred

Question 5

Capacity to Make a Will

Answer 5

• at least 18 yrs old (or is lawfully married, or member of armed forces)
• testamentary intent - person must intend the document be a will
• testamentary capacity - person must be of sound mind

Question 6

Testamentary Capacity Elements

Answer 6

1) testator must understand document to be signed is a will
2) testator must understand the effect of the document is to distribute property after death
3) testator must know nature & extent of property subject to distribution
4) testator must know natural objects of his bounty

Question 7

Attested Will Execution Requirements

Answer 7

Must be signed by testator or in testator’s name by another person in testator’s presence & at testator’s direction

Question 8

Holographic Will Execution Requirements

Answer 8

• will written entirely in testator’s handwriting & signed by testator but not witnessed
• valid in TX

Question 9

Revocation in TX

Answer 9

Only permissible ways:

1) subsequent will, codicil, or other writing executed under written will formalities
2) the document’s being destroyed or canceled, w/ intent to revoke it, by the testator or by another at his discretion & in his presence
- TX DOES NOT RECOGNIZE partial revocation of an attested will by physical act

Question 10

Will Execution Requirements

Answer 10

1) at least 2 Ws
- W must sign “in the presence of the testator” but they don’t have to sign in the presence of each other
- testator doesn’t have to sign in presence of Ws (can sign earlier)
- Ws don’t have to know they are witnessing a will
- W w/ a pecuniary interest under the will is not a competent W (existence of an interested W never invalidates a will)
- bequest to interested W doesn’t void his testimony if corroborated by 1 or more disinterested & credible persons who testify the testimony of interested W is true & correct

Question 11

Presumption of Revocation

Answer 11

Arises when a will isn’t produced in ct & will was last seen in possession of testatrix or in a place where he had ready access & can’t be found after his death. Can be overcome by proof & circumstances contrary to presumption or proof will was fraudulently destroyed by another person (more than 1 way to disprove.

Question 12

Codicil

Answer 12

• must be executed w/ same formalities of a will
• republishes the will as of the date of the codicil
• modifies rather than replaces a will’s provisions unless there is express language of revocation or inconsistencies exist b/w codicil & will
• an addition to or alteration of a will
• TX permits holographic (or handwritten) codicils to either attested or holographic wills. A change in a will may be considered a holographic codicil if it is in T’s handwriting, was expressly intended to have a testamentary intent, & is separately signed by T.

Question 13

Revival/Dependent Relative Revocation (DRR Doctrine)

Answer 13

Allows a ct to disregard revocation of a will that was based on a mistake of law or fact. If testator revokes a subsequent will under mistaken assumption that he was reviving a prior will by doing so, then ct will revive 2nd will since revocation was based on mistake of fact or law & will had similar provisions

Question 14

Contractual Wills

Answer 14

K to make a will or devise, or not to make a will or devise, can only be established by:

1) provisions of a written agreement that is binding & enforceable; &
2) provisions of a will stating a K does exist & stating material provisions of K
- K must state clearly requirements of a will, as such Ks aren’t favored (K has same requirements as any other K)

Question 15

TX Antilapse Statute

Answer 15

Under common law, legacy or devise to a person who predeceased testator lapsed/failed. Some gifts that would’ve failed under common law nevertheless pass to surviving descendants of devisee. Testator may avoid effects of antilapse statute by making a substitute gift or by specifying gift should lapse (cts will give effect to testator’s intent when discernible).

Question 16

Ademption

Answer 16

• a testamentary gift is adeemed by extinction (fails) when property specifically bequeathed or devised isn’t in testator’s estate at time of testator’s death
• can occur by an intentional act by testator (sale or gift) or by involuntary circumstance (fire or theft)

Question 17

Disclaim/Renunciation of a Gift

Answer 17

• testator can’t force a beneficiary to accept a gift under a will
• beneficiary can disclaim or renounce gift for any reason (even to prevent creditors from gaining access)
• can be total or partial & is irrevocable
• beneficiary must give written notice of disclaimer to personal representative & probate ct for renunciation to be effective (statute specifies deadline to renounce)
• TX deadline is w/in 9 months of T’s death
• if T hasn’t provided for an alternate disposition, renouncing person treated as if pre-deceased T

Question 18

Class Gift

Answer 18

When a testator gives to a # of persons as a group & group # may change

• class closes at testator’s death if any members are then in existence
• if gift postponed, class remains open until time set for distribution

Question 19

Grounds for Will Contest

Answer 19

1) lack of testamentary capacity
2) undue influence
3) fraud
4) mistake

Question 20

Share of After-Born/Pretermitted Child

Answer 20

• birth of a child to, or adoption of a child by, testator doesn’t revoke previously executed will (neither does birth of child out of wedlock revoke father’s will if testator has been adjudicated the father or has acknowledged child as his by written instrument filed w/ ct)
• pretermitted child entitled to succeed to a portion of testator’s estate whenever he’s mentioned in testator’s will, provided for in testator’s will, or otherwise provided for by testator
• pretermitted child is considered provided for if a provision is made for him outsideT’s will that is intended to take effect at T’s death

Question 21

Uniform Simultaneous Death Act

Answer 21

• TX has adopted
• situation where decedent & an heir/beneficiary die together or under circumstances where it’s impossible to determine who died 1st.
• a person who fails to survive decedent by 120 hrs is deemed to have predeceased decedent
• decedent’s heirs are then determined accordingly to rules of intestacy

Question 22

Conditional Gift

Answer 22

• a gift that is to take effect only on the happening of a specific contingency stated in will
• gift is operative only if condition happens/occurs, but its operation is defeated by failure or non-occurrence of condition
• in TX, T may choose to make a particular gift, or the whole will, conditional on the occurrence of a specific event

Question 23

Undue Influence

Answer 23

• mental or physical coercion used on T to dispossess property in a certain way
• burden on person attacking will, must show by preponderance of the evidence
• question of fact based on: 1) opportunity to exercise U.I. on T; 2) T’s susceptibility to U.I.; 3) success of person exerting U.I. (look at totality of the circumstances)

Contestant must show existence & exertion of influence by another person that overpowered T’s mind resulting in execution of a will that T wouldn’t have made but for the influence.

Question 24

Lost Will

Answer 24

A lost will may be admitted for probate provided that certain conditions are met. When a will is not produced in court and it was last seen in the testator’s possession or in a place to which he had ready access and it cannot be found after his death, there is a presumption that the testator revoked the will. This presumption can be overcome by proof and circumstances contrary to the presumption or by proof that the will was fraudulently destroyed by someone else. Such proof must be by a preponderance of the evidence to be sufficient.
- if a will cannot be produced and the court concluded that the will was fraudulently destroyed by another person, that will can still be probated provided that the contents of the will can be proved by testimony of a competent witness who has read the will, heard the will read, or can identify a copy of the will