Wills

Question 1

requirements for duly executed will

Answer 1

T must be 18 years old

1. signed by T or someone ay T’s direction and in her presence ( proxy signature)
2. two attesting Ws over age 14
3. each W must sign in T’s presence

Question 2

residuary estate

Answer 2

estate that remains after administration expenses and debts have been paid and any specific bequests made by the will have been satisfied

Question 3

codicil

Answer 3

later amendment or supplement to the will… must be executed with the same formalities as a will

Question 4

does it matter if W1 signed before T

Answer 4

NO - exact order of signing is not critical when execution ceremony is contemporaneous transaction

Question 5

Ws must sign in T’s conscious presence… what does that mean

Answer 5

• not necessary that T be able to see Ws when they sign
• enough that Ws are in T’s presence, they are so near to him that he is conscious of where they are and what they are doing, and where T could see by some slight physical exertion on his part

Question 6

how to prove a will

Answer 6

• testimony of 1 attesting W in open court
• if all Ws are dead or unavailable, testimony of 2 persons as to the handwriting of the T or the handwriting of either W

Question 7

2 step will execution ceremony

Answer 7

T and Ws sign the will, then (after being sworn by notary) T and Ws sign the affidavit

Question 8

1 step will execution ceremony

Answer 8

will’s attestation clause recites all of the elements of due execution… attestation clause prepared as a sworn statement so T and Ws only sign once

Question 9

venue for probate of will and administration of estate

Answer 9

• county where principal property located
• county in which nearest of kin reside OR
• county where T died

Question 10

rule for examining contents of safe deposit box

Answer 10

may be examined without court order in presence of bank official by spouse, child, or executor

Question 11

right of beneficiaries to sue attorney for bad will

Answer 11

none! privity of K says the attorney’s duty only runs to the client who contracted for the attorney’s services

Question 12

bequest to interested W is void unless

Answer 12

• will can be proved without the interested W’s testimony
• interested W’s testimony is corroborated by the testimony of a disinterested and credible person
• the interested W would be an heir if this will were not probated… if so, the interested W takes whichever is lesser of the legacy under will or intestate share

Question 13

holographic wills

Answer 13

1. intent to be a will (extrinsic evidence admissible)
2. signed by T (doesn’t have to be at the end)
3. does not need to be dated
4. must be WHOLLY in T’s handwriting

Question 14

surplusage rule for holographic wills

Answer 14

extraneous printed words, not necessary to complete the will or its meaning can be disregarded

Question 15

to be a will or codicil it must be intended to take effect at…

Answer 15

death… a document that is operative during lifetime cannot be a will

Question 16

TX anti-lapse statute applies only when the predeceasing ben was…

Answer 16

descendant of T’s parents (child, grandchild, sibling, nephew, niece) AND left descendants who survive T by 120 hours

Question 17

surviving residuary beneficiaries rule

Answer 17

where the residuary estate is devised to 2 or + persons, and the gift to one of them lapses, the remaining residuary bens take the residuary estate in proportion to their interests

Question 18

class gifts rule of construction

Answer 18

in a gift by will to a class of persons, if a member of the class predeceases the T, the class members who survive T take

Question 19

rule of convenience

Answer 19

"class closing rule" defines the takers of a class gift... later born class members do not share in the gift when some class member is entitled to a distribution 
- any other result would be INCONVENIENT

Question 20

intestate succession applies when

Answer 20

1. decedent left no will or not properly executed
2. will does not make complete disposition of estate
3. heir successfully contests will and it is denied probate

Question 21

if a decedent dies intestate and is survived by descendants, all of whom are descendants of the surviving spouse, how should the CP be distributed

Answer 21

all to the surviving spouse

Question 22

if an unmarried decedent dies intestate survived by both parents and 2 kids, how should her estate be distributed

Answer 22

1/2 to each kid

Question 23

if a decedent dies intestate and leaves no spouse, kids or other descendants, or either parent, how should the estate be distributed

Answer 23

to his brothers and sisters or their descendants

Question 24

ways to establish inheritance rights between nonmarital kid and her father

Answer 24

• paternity is presumed by the Family Code
• paternity established in paternity suit
• paternity established in probate proceeding

Question 25

intestate shares of descendants are distributed in TX by

Answer 25

per capita with representation

Question 26

for purposes of inheritance, a nonmarital kid is treated the same as any other kid of the decedent if the court finds the decedent was the bio father by which evidentiary standard

Answer 26

clear and convincing evidence

Question 27

what type of trust will be imposed when an heir or will ben kills an intestate or T

Answer 27

constructive trust - imposed to prevent unjust enrichment

Question 28

a disclaimed interest passes as though

Answer 28

the disclaimant predeceased the decedent

Question 29

a class gift does not accrue to any person unless the person was...

Answer 29

born before or was in gestation at the T's death and survived by at least 120 hours

Question 30

a will must be signed by a T, or signed for him by another person as his proxy...

Answer 30

by his direction and in his conscious presence

Question 31

what proof is required to probate an attested will

Answer 31

testimony of 1 attesting W

Question 32

in TX a ben who contests a will with a no-contest clause...

Answer 32

does NOT forfeit her bequest if the challenge is unsuccessful but was brought in good faith and with just cause (question of fact)

Question 33

an action alleging the will was not properly executed triggers...

Answer 33

no-contest clause

Question 34

requirements to prove that a will of gift therein is the result of fraud

Answer 34

- false representations were made with intent to deceive T - T was ignorant of the falsity of the speaker's representations - T, relying on false representations, made a different will than he otherwise would have made

Question 35

to establish undue influence

Answer 35

1. the existence and exertion of an influence 2. the effect of the influence was to overpower the mind and free will of the T 3. the will would not have been executed "but for" the influence

Question 36

after a will is admitted to probate, who has the burden to prove testamentary capacity

Answer 36

burden shifts from will proponents to will contestants to establish capacity

Question 37

if the issue of testamentary capacity is raised at the time the will is offered for probate, who has the burden of establishing capacity

Answer 37

the will proponents

Question 38

a bequest to children does not include

Answer 38

nonmarital children

Question 39

TX anti-lapse statute covers predeceasing bens who are

Answer 39

descendants of the T's parents

Question 40

who bears the burden of proving the T did not revoke the will

Answer 40

will proponent

Question 41

elements to probate a lost will

Answer 41

1. due execution of the will must be proved by the testimony of at least 1 attesting W 2. cause of nonproduction must be proved to overcome presumption of revocation AND 3. contents of will must be substantially proved by the testimony of a credible W who has read or heard the will or can ID a copy of the will

Question 42

what is the effect of will ben serving as attesting W

Answer 42

will is valid and the W could take a share of the estate