What is the burden on the proponents of a will to establish testamentary capacity?
- Recollecting his property
- The natural objects of his bounty
- Their claims upon him
- Knew the business about which he was engaged
- How he wished to dispose of his property
These elements must be proven by a preponderance of the evidence at the time the testator executed the will.
True or false: The appointment of a guardian for an old/disabled person is prima facie evidence that they lack testamentary capacity.
FALSE
This means that having a guardian does not automatically imply a lack of testamentary capacity.
What happens to a person’s property when they die intestate?
It passes through the intestate succession scheme
This scheme determines how property is distributed when there is no valid will.
If a person dies intestate but is survived by a spouse, what is the spouse entitled to?
The entire estate passing through intestacy, UNLESS:
* Spouse deserted
* The deceased spouse had children not also children of the surviving spouse
In such cases, the surviving spouse and children split the estate.
What is the elective share for a surviving spouse in the Commonwealth?
50% of the value of the marital property portion of the augmented estate
This claim must be made within 6 months from the time of the admission of the will to probate.
Fill in the blank: Desertion bars _______ and intestate succession.
elective share
This means that if a spouse deserts the other, they lose rights to the elective share and intestate succession.
What is the Simultaneous Death Act?
If two people die within 120 hours of one another, each is considered to have predeceased the other
This applies when there is no will that expressly addresses this situation.
What happens if a beneficiary dies before the testator?
The gift laps
This means the intended gift does not go to the beneficiary’s heirs unless saved by an anti-lapse statute.
What is the anti-lapse statute?
Saves the gift if the pre-deceasing beneficiary was a grandparent or lineal descendant of a grandparent
This statute allows the gift to pass to the descendants of the deceased beneficiary.
What happens when a testator makes a specific devise and the property is no longer in the estate at the time of death?
The gift is adeemed and the beneficiary gets nothing
Ademption occurs when the specific property is not available to be given.
What does it mean for a person to die partially intestate?
They have a valid will but it doesn’t dispose of all their property
Remaining property passes through intestacy laws.
List the order of heirs for intestate succession.
- Spouse
- Children
- Mother/Father
- Brother/Sister and their descendants
- Aunt/Uncles and their descendants
This order determines who inherits the property when someone dies without a will.
What is required for a will to be valid if it is not wholly in the testator’s handwriting?
Must be signed or acknowledged in the presence of 2 competent and uninterested witnesses
This ensures that the will is properly executed.
Where can a will be probated?
- Place of residence of the decedent
- Where they had real estate
- Where they died
These locations are relevant for determining jurisdiction for probate.
What must a valid holographic will include?
- Entirely in the handwriting of the testator
- Signed by the testator
- Testamentary intent must be clear
No extrinsic evidence is allowed to prove intent.
What is the process to execute probate?
- Take the will and death certificate to clerk of court
- If not self-proving, at least one witness must appear to verify
The proponent of the will must also pay fees and post bond.
What is a codicil?
A later testamentary instrument that amends, alters, or modifies a previously executed will
It needs the same formalities as a will.
What is the presumption regarding a person’s legal residence when they enter a nursing home?
Rebuttably presumed to be the place where they were living before becoming a patient
This presumption can be challenged with clear and convincing evidence.
What must a child born out of wedlock to a deceased parent do to establish paternity?
- File an affidavit alleging parenthood
- File an action seeking adjudication of parenthood
Paternity must be established by clear and convincing evidence.
What are the requirements for a contract to make a will to be enforceable?
- Certain and definite
- Based on valuable consideration
- Proven by clear and convincing evidence
- Must be in writing if real estate is involved
This ensures that the contract is legally binding.
What is required for a bequest through an unattested document to be valid?
Must meet the requirements to be incorporated into a will by reference
This includes describing tangible personal property and intended recipients.
What are the three requirements for a valid transfer of property by gift?
- Donative intent
- Acceptance
- Delivery of a properly executed deed
These elements ensure that the gift is legally recognized.
What is the default remedy for enforcement of real property contracts?
Specific performance
This means the court can compel the parties to fulfill the contract terms.
What is the order of debt payment from an estate?
- Expenses of administration
- Family and homestead allowances
- Funeral expenses
- Debts and taxes with priority under federal law
- Medical and hospital expenses
- Debts and taxes due to Virginia
- Debts and taxes to localities
- All other claims
This order ensures that debts are settled appropriately.
