Wills Finals_Deck2

Question 1

Will Req//

____ _____: Must be (18) and of “Sound mind.”

Answer 1

Testamentary capcity

Question 2

Will Req//

Req. of 2-502?

Answer 2

A writing that is:
1. Signed by T
2. Two attesting Ws
3. Singed in their presence or acknowledge prior sign. in their presence

Question 3

What constitutes a signature?

Answer 3

Any mark affixed by T, with the intent that the mark serve as his signature. Can even be fingerprint. IE: Any detectable media

Question 4

Interested witness in the UPC?

Answer 4

No prob in the UPC. 2-505

Question 5

_____ _____ : A well drafted will invariably contains this. Appears immediately below the signature line for T and above W signature line. Recites elements of due execution.

Answer 5

Attestation clause

Question 6

An_____ _______ is prima facie evidence of the facts recited therein. Unlike a self-proving affidavit (see 5., infra), however, an attestation clause does not constitute sworn testimony and cannot serve as a substitute for the courtroom testimony of the attesting witnesses.

Answer 6

Attestation clause

Question 7

Many states and the UPC permit a will to be made self-proved at the time it
is executed. The testator and the attesting witnesses sign the will, and then sign a sworn affidavit before a notary public reciting that the testator declared to the witnesses that the instrument was her will, and that the testator and the witnesses all signed in the presence of each other. (Subs court testimony)

Answer 7

Self-Proving affidavit

Question 8

Regarding testamentary capacity, (1) 18 and (2) sound mind. What is sound mind?

Answer 8

(1) the nature and extent of the individual’s own property
(2) the natural objects of his bounty in terms of who is receiving his property
(3) the nature of the testamentary act being performed, and
(4) how the first three items relate together to create an orderly plan to dispose of the individual’s property. [Breeden v. Stone]

Question 9

Proving undue influence?
1.
2.
3.

Answer 9

1. Fiduciary relationship
2. Suspicious circumstances
3. Unnatural disposition of estate

// The more you have easier to prove. // In re estate of Moses

Question 10

A testator suffers from an [insane delusion] if he adheres to a persistent belief in a nonexistent state of facts against all evidence.

However, to invalidate a will, an [insane delusion] must materially affect the testator’s disposition of his property. (T/F)

Answer 10

True!

Question 11

Under the ______ ______ rule, a document that was not executed in compliance with the rules to create a valid will may still be treated like a valid will if there is
[[clear and convincing evidence that the decedent intended the document to be the decedent’s will.]]

Answer 11

Harmless error rule

Question 12

Harmless error jurisdictions can cure a will so long as we have…

Answer 12

[[clear and convincing evidence that the decedent intended the document to be the decedent’s will]]

Question 13

T/F) a holographic will does not need to be witnessed.

Answer 13

True

Question 14

T/F) a holographic will does not need to be entirely handwritten; only the material portions.

Answer 14

True

Question 15

If T directs another to sign for him the UPC… allowed?

Answer 15

Yes. So long as done in his conscious presence.

Question 16

_______ ________ : The Testator must be aware—through sight, hearing, or general consciousness—that the witness is signing or acknowledging the will.

The witnesses doesn’t need to be physically touching or facing the Testator, and the Testator don’t necessarily need to see the signature happen.

Answer 16

Conscious Presence

Question 17

UPC 2-510 requirements?

Answer 17

(1) the writing must be in existence when the will is executed,
(2) the will must manifest the intent to incorporate the writing, and
(3) the will must describe the writing with sufficient detail to permit identification of the writing.

Question 18

UPC 2-513?

UPC 2-510

Answer 18

(1) be signed by the testator and
(2) describe the items and the devisees with reasonable certainty.
Tanglble PP only
______________________________

(1) Existance when will made
(2) Manifests intent to incorp.
(3) Describe items w/ sufficient certainty.
any property

Question 19

Key difference between 2-510 and 2-513?

Answer 19

1. 2-513 can be created anytime.
2. 2-513 only for tangible PP.
3. 2-513 is “reasonable” certainty, while 2-510 is “sufficient” certainy.
4. 2-510 is broader, covers any items.

Question 20

Code?
A will may validly dispose of property by reference to acts and events that occur either before or after the execution of the will or before or after the testator’s death

Answer 20

2-512 // Doctrine of Independent Significance

Question 21

To physically revoke a will, what is required?

Answer 21

Physical act must be performed by:
(1) by the testator personally or
(2) by an individual in the testator’s conscious presence and at his direction.

Question 22

T/F) A Testator need not execute a new will to revoke an existing will.
If a will was validly revoked by a destructive act and no new will was executed, then the decedent will be found to have died intestate

Answer 22

True

Question 23

T/F) If a subsequent will is inconsistent with a previous will, the subsequent will replaces only the portions of a prior will that are inconsistent with the newer will.

Answer 23

True

Question 24

T/F) If a subsequent will makes an incomplete disposition of the testator’s estate, then the subsequent will revokes and replaces only any inconsistent portions of the previous will and supplements the remaining portions

Answer 24

True!

Question 25

T/F) Under the doctrine of dependent relative revocation, if a subsequent will is invalid, then it does not revoke the previous will; instead, the previous will remains in effect.

Answer 25

True

Question 26

3 wills. Will 01 replaced by 02 only partially. Will 02 replaced by Will 03 completely. Will 03 invalid. Which will controls?

Answer 26

1. Will 2 + portions of Will 1 that was not revoked. They sort of layer each other to make full picture. Note: Under doctrine of DRR, we may say the concept of Will 3 controls if more in-line with T likely, presumed intent.

Question 27

The three ways to revoke a will are revocation:

Answer 27

(1) by act, (2) by writing, and (3) by presumption.

Question 28

To perform physical revocatory act...

Answer 28

(1) revocatory destructive act, (2) performed with the intent and purpose of revocation. Performed by T or another at his direction & in his conscious presence.

Question 29

To be a valid, non-attested or holographic will: (1) (2)

Answer 29

(1) the testator must have handwritten the [material portions] of the will; and (2) the testator must have personally signed the will. (In writing)

Question 30

Under the doctrine of ____ _____ _____, if a subsequent will is invalid, then the later will does not revoke the previous will; instead, the previous will’s terms remain in effect.

Answer 30

Dependent relative revocation

Question 31

For holographic wills, can someone else sign it at T direction / conscious presence? IE: Just like regular wills.

Answer 31

No! Material portions by T and signed by T.

Question 32

T/F) Republication by codicil can revive prior non-valid wills.

Answer 32

True. If codicil is properly executed, it will cure any defect in the underlying will itself.

Question 33

Can incorporation by reference (2-510) be used to incorporate prior invalid wills?

Answer 33

Yes.

Question 34

T took her will once she signed it and without using any witnesses, she acknowledged it before a notary public. Is this a valid will?

Answer 34

Yes. Attested will can be 02 witness or T can acknowledge before a notary public.

Question 35

T/F) U.P.C. section 2-502 requires attesting witnesses to sign in T presence.

Answer 35

Tricky. True but limited to his conscious presence within "reasonable time after."

Question 36

A valid holographic will requires: A Material provisions in the testator's handwriting.Material provisions in the testator's handwriting. - correct B The date of execution.The date of execution. - no response given C At least one attesting witness.At least one attesting witness. - no response given D The testator's signature at the end.

Answer 36

A

Question 37

Holo wills / approach to pre-printed sections of will: 1. 2.

Answer 37

1. Mudder / Gonzalez: Allowed. It adds context to T intent. 2. Black / Feree: Not allowed.

Question 38

T/F) Tractor fender may constitute valid holo will.

Answer 38

True. (So long as signed by T.)

Question 39

UPC req. for valid holo will?

Answer 39

1. Signed by T 2. Mat. Portions by T *Need not be witnessed *EE allowed

Question 40

Material portions test regarding holo wills?

Answer 40

If preprinted shit eliminated, does remaining handwriting evidence T intent?

Question 41

Electronic wills requirements?

Answer 41

1. Readable 2. Signed by T 3. Attested by 2 witnesses (physically or electronically); 1. or acknowledged by T 2. or acknowledged by T before a notary public.

Question 42

1. Strict compliance 2. Substantial compliance 3. Harmless error

Answer 42

1. Will must comply with formalities of 2502. (Groffman) 2. Court may cure defective will if C&C evidence that purposes of 2502 fulfilled. (Ranney) 3. Court may excuse non-compliance if C&C evidence that decedent intent. (Hall)

Question 43

Attestation requirements for a will?

Answer 43

1. Witness T signing; 2. Or T acknowledge the signature / will before witnesses or notary public.

Question 44

What if slayer is acquitted?

Answer 44

Civil standard applied, PPE. Victim families bring action.

Question 45

SLAYER 1. Mahoney 2. Majority 3. Minority

Answer 45

1. Constructive trust 2. Treated as PDD T 3. Passes to Slayer

Question 46

PH Child inheritance: 1. Property law 2. Woodward J 3. UPC

Answer 46

Can inherit if: 1. Later born alive + child's best interest. 2. Woodward: Child best interest; state interest; reproductive rights of parent. 3. UPC: survive by 120 hours; D PR notice 6 months; embryo inside 36 months D death; born inside 45 months after D death.

Question 47

2109 Advancements requirements?

Answer 47

1. Contemporaneous writing from T 2. or acknowledgement in writing from beneficiary

Question 48

2513 requirements?

Answer 48

1. Signed by T 2. Describe items with reasonable certainty

Question 49

Scenarios when DRR may come in to save previous will?

Answer 49

Only applies to scenarios of invalidity (no accidental destructions) based on fact or law. Also applies to scenarios where new will created from UI, fraud, coercion, lack of capacity, etc. (Old man and nurse)

Question 50

Do accidental destructions count as revocatory act?

Answer 50

No. Must have T intent. Requirements are: 1. T destroys 2. T directs another to destroy (CP) **Intent must be present

Question 51

If a specific gift in a will no longer exists, who takes? 1. Common law 2. UPC

Answer 51

1. Beneficiary gets. nothing. 2. Beneficiary entitled to proceeds & replacements of that gift per UPC 2-606

Question 52

If a gift lapsed into the residuary b/c intended beneficiary died, who takes? Say, it was to Bro and Sis of T. 1. Common law 2. UPC 2604 Anything that could have helped Sis descendants?

Answer 52

1. Bro gets his half at CL. Other half goes into intestacy. 2. UPC 2604 Bro takes all. Sis descendants = Anti-lapse statute, which steps in to save heirs of Sis if protected class.

Question 53

T/F) However, anti-lapse applies only if the intended beneficiary is a relative of the testator (e.g., a grandparent, a descendant of a grandparent, a child, or a stepchild). If the beneficiary is not a relative, then the anti-lapse statute does not apply, and the gift lapses and becomes part of the residuary estate.

Answer 53

True

Question 54

A condition precedent to a bequest requiring the putative devisee to marry within a particular faith is a reasonable restriction that does not violate public policy or the Fourteenth Amendment of the United States Constitution.

Answer 54

Shapira v. Union National Bank

Question 55

"An adopted person does not have the right to inherit from the estate of a natural parent who dies intestate, nor the right to inherit through that natural parent by way of representation."

Answer 55

Hall v. Vallandingham

Question 56

"Under Georgia law, a contract for adoption is invalid unless entered into by a parent or guardian, the only persons with authority to contract for adoption."

Answer 56

O'Neal v. Wilkes

Question 57

Will execution? Big picture.

Answer 57

1. Capacity = 18 & Sound Mind 2. T Intent 2. Written 3. Signed (by T or another at his direction) 4. Attested (2 witnesses or Notary acknowledgment) 5. Test. Intent (Breeden v. Stone)

Question 58

What if T didn't have two witnesses? Any other options?

Answer 58

1. Acknowledge the will before two witnesses now. 2. Take to a notary public and acknowledge there.

Question 59

T/F) UPC permits T to sign anywhere on the will.

Answer 59

True

Question 60

Witness "presence" in the UPC?

Answer 60

Conscious presence only

Question 61

If an anti-lapse statute applies, who takes?

Answer 61

Under an anti-lapse statute, the surviving descendants of the beneficiary take the individual gift, per capita at each generation. (If protected class, if not, still lapses.)

Question 62

AL & Abatement: T > 100 acres to Friend T > 50 acres to Bro. T > Residual to Sis. Friend dies. T dies. Has 130 acres in Estate. State has AL statute which mirrors UPC. Who takes?

Answer 62

1. Sis gets 80 acres 2. Bro gets 50 acres Abatement order: 1. Intestate 2. Residuary (Sister) 3. General 4. Specific (Brother) 5. RP last

Question 63

Courts interpret wills based on the _____ ______ rule: Meaning, the testator’s intent must be determined from the text of the will itself, unless there is ambiguity.

Answer 63

Four Corners rule

Question 64

What is EE admissible for / not admissible for?

Answer 64

1. Correct erroneous descriptions 2. Clear ambiguities (Mahoney v. UPC) 3. Scrivener / clerical errors NO adding / altering will. IE: Adding beneficiaries. (4 corner rule)

Question 65

Exoneration of Liens ) How UPC tackles?

Answer 65

Mortgage transfers with the lien. However, if T will provides for "right to exonerate lien," then the estate may pay off the lien upon transfer. Otherwise, estate subject to liens in UPC.

Question 66

The common-law doctrine of ____________ by extinction applies if a testator’s will makes a specific gift that is no longer in the estate at the time of the testator’s death. What does BNF get at CL vs UPC?

Answer 66

Ademption by extinction: 1. CL = Zilch (Identity) 2. UPC 2-606 = Sale proceeds, insurance money, replacements, etc. (Follows Intent theory)

Question 67

Extrinsic evidence typically allowed for?

Answer 67

1. Ambiguity (Mahoney v. UPC) 2. Scriviner errors 3. Validity Not adding or altering (4 corners)

Question 68

Three ways that items may be prevented from lapsing?

Answer 68

1. By T in the will, designating alternate beneficiary 2. (2-603) Goes to protected class descendants 3. (2-604) Can go to other members of that class.

Question 69

T/F) Under an anti-lapse statute, the surviving descendants of the beneficiary take the individual gift, per capita at each generation.

Answer 69

True, if a protected class.

Question 70

T/F) A personal representative is entitled to the compensation provided in the decedent’s will, OR IN ALTERNATIVE, if it cost more, any reasonable compensation, for his or her services.

Answer 70

True

Question 71

A decedent was domiciled in County A, owned real property in County A and County B, and died in a County C hospital. Which probate court has primary jurisdiction over the probate of the decedent’s estate?

Answer 71

County A = Primary County B = Ancillary

Question 72

HE code? What does it look for?

Answer 72

2-503 // Can probate will if there is clear and convincing evidence that the testator intended the document to be his will.

Question 73

UPC § ________ specifically authorizes a “negative will”

Answer 73

2--101 (b)

Question 74

Ademption by extinction only applies to what gifts? Two approaches?

Answer 74

Specific // (1) Identity, CL and (2) Intent, UPC 2606

Question 75

T/F) UPC § 2–606 adopts an intent theory of ademption.

Answer 75

True

Question 76

Heirarchy for gift abatement?

Answer 76

1. Intestate 2. Residuary (Sister) 3. General 4. Specific (Brother) 5. RP last

Question 77

What are "mat portions" typically?

Answer 77

Words which ID property to be devised & BNF to receive.

Question 78

What if T makes will that is bunch of loose papers not connected together?

Answer 78

Doctrine of Integration says that all papers existing at time of execution, which T intended to be part of will, IS part of the will.

Question 79

Two primary effects of republication by codicil? (In addition to whatever amendments it makes)

Answer 79

1. Re-dates the will to codicil date, (2) If properly executed, cures any defect in underlying will.

Question 80

Can a will reference and incorporate another document?

Answer 80

2510: Yes, so long as (1) Must exist at time will executed, (2) Will manifests intent to incorporate, (3) Sufficiently described so court can ID it.

Question 81

Statutory extension of 2510?

Answer 81

2510) Lists devising PP. (No money, no RP) 1. Signed by T 2. Describes items w/ "Reasonable certainty" Can be made after will

Question 82

T/F) The 02 Ws must sign in the presence of T.

Answer 82

True.

Question 83

A specific devisee is entitled to “any real or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised property." Code?

Answer 83

2-606: Non-ademption of Specific Devisees // In the UPC, this permits BFF to get replacements, proceeds, insurance$, for any lost gift which was intended for BFF.

Question 84

T/F) Most states that recognize holographic wills give effect to handwritten changes made by the testator after the holographic will is completed.

Answer 84

True, amendments / alterations to holographic wills are ok so long as material portions in T handwriting.

Question 85

If the testator executes a will and subsequently executes a second will that does not expressly revoke the first will, which will controls? Responses A The first will controls and impliedly revokes the second will in its entirety.The first will controls and impliedly revokes the second will in its entirety. - no response given B The first will controls and impliedly revokes the second will to the extent of any inconsistent provisions.The first will controls and impliedly revokes the second will to the extent of any inconsistent provisions. - no response given C The second will controls and impliedly revokes the first will in its entirety.The second will controls and impliedly revokes the first will in its entirety. - no response given D The second will controls and impliedly revokes the first will to the extent of any inconsistent provisions.

Answer 85

D ) If the subsequent writing does not contain any express language revoking an earlier will, the two instruments are read together to the extent possible; i.e., the second instrument is treated as a codicil to the will. However, the second instrument revokes the first to the extent of any inconsistent provisions.

Question 86

T/F) If the subsequent writing does not contain any express language revoking an earlier will, the two instruments are read together to the extent possible; i.e., the second instrument is treated as a codicil to the will. However, the second instrument revokes the first to the extent of any inconsistent provisions.

Answer 86

True

Question 87

A contestant may establish a presumption of undue influence by proving:

Answer 87

1. Fiduciary relationship 2. Suspicious circumstances 3. Unnatural disposition

Question 88

T/F) A mortgage remains attached to any specific gift of property, and the beneficiary will remain responsible for the mortgage in the UPC.

Answer 88

True, but T can provide that estate pays off mortgage upon death.

Question 89

Typically, a will’s execution must be proven, usually by witness testimony in court... However, witness testimony is not required if the testator makes her will _______________before death.

Answer 89

Self proving (sep notarized affidavits they complete after signing, which provides that will formalities were followed)

Question 90

A Totten trust, or tentative trust, is an account held by a depositor who has designated himself or herself as the trustee for a named beneficiary. These are fully revocable during T lifetime by withdrawing funds. Totten trusts are fully revocable during the depositor’s lifetime. Because Totten trusts are more casual than formal trusts, the usual trust-revocation procedures do not apply. Instead, the depositor may generally revoke the trust simply by withdrawing the funds. (T/F)

Answer 90

True

Question 91

Revocatory physical act requires joinder of two factors. What are they?

Answer 91

1. Intent 2. Revocatory act **These must be concurrent**

Question 92

What are examples of revocatory acts?

Answer 92

Burning, tearing, cutting, obliterating, destroying.

Question 93

Revocation on copies valid?

Answer 93

Act of revocation on a copy of will revokes other copies, but not the will. (no)

Question 94

T/F) In the UPC, T may cancel a will (IE: VOID) anywhere on the will. What if wrote on copy?

Answer 94

True // Copy VOID no good.

Question 95

T/F) Revocation of a will auto revokes codicils. T/F) Revocation of a codicil auto revokes will.

Answer 95

True False

Question 96

Can a person other than T revoke?

Answer 96

Yes. We always need (1) Intent and (2) Revocatory act. This can be done by another if at T direction & in T presence.

Question 97

Under UPC __________, If the residue is left to two or more persons, and one gift fails for any reason, the remaining residuary devisees take the failed share in proportion to their interests — unless a contrary intent appears.

Answer 97

UCP 2604

Question 98

Residuary gift Lapse scenarios: 1. Common law: 2. UPC §2-604: 3. UPC §2-603 (anti-lapse):

Answer 98

1. Lapsed residuary gift → intestacy for Sister’s half. 2. Brother takes all unless anti-lapse applies. 3. Sister’s descendants would take her share if she left any.

Question 99

Residual gift lapse CL = 2-603 = 2-604 =

Answer 99

CL = Intestate probate (no residue of residue rule) 2-603 = Protected descendants of PDD benf. may take 2-604 = Other members of class can take

Question 100

T/F) Extrinsic Evidence is not admissible to otherwise add a beneficiary in a will.

Answer 100

True, EE typically allowed for (1) Clerical errors or clearing up (2) ambiguity.

Question 101

T/F) Generally, no-contest clauses are unenforceable if probable cause exists for contesting the will, regardless of whether the challenge is ultimately successful.

Answer 101

True. If PC existed to challenge, person may still inherit, regardless of the clause.

Question 102

Revocation by inconsistency: T dies w/ 2 inconsistent wills. If 2nd does not expressly revoke 1, they are read together. (T/F)

Answer 102

True, to the extent of any inconsistent provisions, it is the latter doc that will control.

Question 103

Does divorce cut of entitlement under a will?

Answer 103

Yes, treated as if PDD T. 2-804 cuts off former spouse and their relatives, such as stepkids.

Question 104

What is couple sep., but does not divorce.

Answer 104

Does not cut off will inheritance.

Question 105

Does divorce cut off L/I inheritance?

Answer 105

Yes, in UPC.

Question 106

Subsequent marriage effect on will?

Answer 106

UPC = Pretermitted spouse entitled to claim her share of probate.

Question 107

T/F) Note that under the Uniform Probate Code, there is no requirement that the witnesses sign before the testator’s death, as long as the reasonable-time requirement is met.

Answer 107

True, fucking dumb.

Question 108

T/F) A testator still has testamentary capacity despite an insane delusion if the delusion does not “materially affect the disposition in the will.”

Answer 108

True. Breeden v. Stone

Question 109

3 ways to transfer prop. at death?

Answer 109

1. Wills 2. Intestacy 3. Trusts & Ks (will substitutes)

Question 110

_____________: Property owners have nearly unrestricted right to dispose of their property as they please.

Answer 110

Freedom of disposition

Question 111

ROL: A condition in a will that requires the person getting the inheritance to marry within a certain religion is a reasonable restriction. It does not go against public policy or the Fourteenth Amendment of the United States Constitution.

Answer 111

Shapira v. Union National Bank

Question 112

T/F) If a will directs the destruction of property at or after death (for example, “burn my house,” or “bury my car with me”), courts often refuse to enforce those instructions.

Answer 112

True // Violates public policy and is wasteful.

Question 113

ROL: A property right not owned by the testator at the time of death may not be devised by will. // UPC 2602

Answer 113

Shaw family archives v. CMG worldwide. Rule captured by UPC 2602.

Question 114

Intent is supreme. Get to know client and his wants/needs. Code?

Answer 114

1102

Question 115

Informal (code) and Formal (code) probate

Answer 115

Informal (3301) and formal (3401)

Question 116

Core function of probate is protecting who?

Answer 116

Creditors // In practice, reverse is true. Creditors barred from making claims after specified time.

Question 117

ROL: "To cancel a will because the person who made it was not in their right mind due to insanity, the person challenging the will has to prove that the person who made the will was not of sound mind and that any crazy beliefs they had affected how they decided to give away their stuff when they died."

Answer 117

Breeden v. Stone

Question 118

In the UPC, only property owned at death may be dispersed.

Answer 118

2602 & Shaw family archives

Question 119

§_______ grants spousal-like rights to the good-faith partner — but only until they learn the marriage was invalid.

Answer 119

§209 Putative spouseT

Question 120

T/F) A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance and property division.

Answer 120

True, until they learn marriage was invalid, per §209.

Question 121

USDA = 2104 =

Answer 121

USDA = Sufficient evidence of survivorship, by PPE. (Janus) 2104 = 5 days /120 hours by C&C evidence.

Question 122

What UPC code replaced USDA?

Answer 122

2104

Question 123

This case used the USDA, which required "sufficient evidence" of survivorship.

Answer 123

Janus v. Tarasewicz

Question 124

Surviving Spouse share?

Answer 124

2102

Question 125

2102= Share of spouse (a) Ds descendants all SS (b) Ds descendants all SS, who has kids outside marr. (c) Ds descendants not all SS. (d) D survived by SS and Parents, no kids.

Answer 125

(a) All to spouse (b) 225K + 1/2 (c) 150K + 1/2 (d) 300K + 3/4

Question 126

2-101 (b) 2-102 2-103 2-104 2-105 ______ 2-118 2-117 2-114 ______ 2-602 2-603 2-604 2-606 _______ 2-510 2-513

Answer 126

2-102 = Spouse share 2-103 = Other relatives 2-104 = Survivorship 2-105 = No taker / Escheat to State _____ 2-118 = Adopted P/C relationship 2-117 = No distinction based on Martial Status (P/C R) 2-114 = Parent barred from Inheritance ____ 2-602 = Only property owned at death may be transferred. 2-603 = Protected class may take (Anti-Lapse) 2-604 = Other bros can take (If 2-603 no apply) 2-606 = Can get replacement shit (non-ademption) _______ 2-510= Integration by Reference (Any property) 2-510 = Sep. Written statement or list (Tang. PP only)

Question 127

2-603 = 2-604 = 2-606 =

Answer 127

2-603 = Saves gifts from lapsing when a beneficiary dies before the testator, if that beneficiary is in a protected class. (Protected BFFs // Primary AL Statute) 2-604 = A failed share of the residue goes to the remaining residuary takers, not intestacy probate. (If 2-603 does not apply) 2-606 = ABE: BFF has right to replacement, proceeds, insurance $$.

Question 128

(Intestate Succession) _________ : A stipulation that, if a BFF PDD T, the BFF share goes to his heirs.

Answer 128

Per Stirpes

Question 129

_________: Of an individual means all of his or her (blank), of all generations, w/ P-C relationship.

Answer 129

Descendant / Issue

Question 130

_______: Means persons, including SS & the state, who are entitled to intestate succession.

Answer 130

Heir

Question 131

________ system: Find your nearest relatives (on both paternal and maternal sides) and distribute evenly. (UPC)

Answer 131

Parentelic

Question 132

___________ system: Count the degrees (generations) between decedent and relative living. Whichever closest, inherits. If same degrees, we split evenly.

Answer 132

DOR (minority)

Question 133

__________ __________: Term for an individual who is so remotely related to a deceased person (decedent) who died without a will (intestate) that they suffer no sense of bereavement at the death. Such an heir "laughs all the way to the bank" upon inheriting a windfall from a person they likely never knew or met. UPC handle it how?

Answer 133

Laughing heir. UPC has cutoff for heirs that are too far removed.

Question 134

T/F) Step-kids and in-laws not typically included in UPC inheritance.

Answer 134

True

Question 135

An attestation clause is a statement at the end of a legal document (like a will, deed, or contract) confirming it was properly signed and witnessed. Does it eliminate need for court testimony?

Answer 135

Attestation clause. No, reduces the need of it.

Question 136

What is a SP affidavit?

Answer 136

Sworn and notarized statement saying will created correctly. Eliminates need for court testimony.

Question 137

For 2-101 (b), if heir has been barred, can his heirs take by representation?

Answer 137

Yes.

Question 138

____ ____ test for kids: (1) Woman who contributed egg (2) Man who contributed sperm

Answer 138

Traditional Biological Test

Question 139

When is there a presumption that a p/c relationship exists?

Answer 139

Child born during marriage

Question 140

When does UPC cut off a parent's inheritance from PDD child? :(

Answer 140

If child died (1) before 18 and (2) C&C evidence of termination of rights by neglect, nonsupport, abuse, etc. (2-114)

Question 141

T/F) UPC allows children born out of wedlock (sometimes historically referred to as “illegitimate” children) to inherit from their parents, just like children born within a marriage.

Answer 141

True, so long as a parent–child relationship has been established.

Question 142

2-114 = 2-117 = 2-118 = 2-705 =

Answer 142

2-114 = Inheritance cut of for non-support. 2-117 = P/C relationship, regardless of martial status. 2-118 = Adopted kids 2-705 = Not parent but may be counted as one if (1) performed those functions b4 18 or was stopped by death / other reason. (C&C EVD)

Question 143

ROL: "An adopted person does not have the right to inherit from the estate of a natural parent who dies intestate, nor the right to inherit through that natural parent by way of representation."

Answer 143

Hall v. Vallandingham / Transplant theory / 2-118

Question 144

T/F) Under UPC § 2-118, an adult adoptee is treated as the child of the adoptive parent for inheritance purposes. They can inherit from and through the adoptive parent, unless state law or circumstances limit it.

Answer 144

True

Question 145

Limits in UPC for adopted adults? 2-118

Answer 145

Yes, some states bar them from inheriting from remote collateral heirs or those adopted for purpose of inheritance. (Minary v. Citizens Bank)

Question 146

When class gift under will / trust whereas non-adoptive parent involved, how can adoptee be included?

Answer 146

1) Performed functions of parent b4 18; or 2) Wanted too, death or other cut off. (2-705) But we need C&C evidence.

Question 147

T/F) Except as provided by Slayer / Divorce statutes, a change in circumstances will NOT revoke a will.

Answer 147

True, UPC 2-508

Question 148

2-803 (b) 2-803 (c) 2-803 (g)

Answer 148

b = Slayer disclaimed c = J/T > TIC g = Conviction is conclusive. If no conviction, court must (upon petition), determine if Killer by PPE.

Question 149

Mahoney slayer rule?

Answer 149

Title passes to slayer, who holds in constructive trust for heirs.

Question 150

UPC 2-705? This code applies to facts presented in Minary v. Citizens Bank.

Answer 150

Non-parent may be treated as parent if: (1) Performed functions of parent b4 child turned 18; or (2) Wanted to but was stopped by death / other reason.

Question 151

PH children, property rule?

Answer 151

PH children can still inherit if (1) Later born alive and (2) In child’s advantage to do so.

Question 152

Uniform Parentage Act §204

Answer 152

Creates rebuttable presumption of parentage of child born (1) Within 300 days of dad death. And, it is a martial child if conceived before dad died.

Question 153

PH kids, woodward test?

Answer 153

(1) The best interests of the child, (2) The State’s interest in orderly admin of estates, and (3) Reproductive rights of genetic parent. (Balancing test)

Question 154

UPC 2-104 (b) (3) Pregnancy after D death test for kid to inherit?

Answer 154

(1) Live at least 120 hours, (2) PR of D gets notice inside 6 months, (3) embryo no later than 36 months, or (4) Born NLT 45 months after D death.

Question 155

Cunningham test from Breeden v. Stone

Answer 155

1) Understand natural extent of property, 2) nature of bounty, 3) relationship among them, 4) and the actual disposition.

Question 156

Value of ADV?

Answer 156

Valued at time of D death or time that BFF came into possession, whichever occurs first.

Question 157

Attested will requirements:

Answer 157

2-502 (a) 1. T Capacity = (1) 18 and (2) Sound mind 2. T Intent = Intent this final rep. of PP to convey prop. 3. Writing 4. Signed by T (Or another at CP of T) 5. Attested by 02 W (Reasonable time after) / Notarized 6. Free of UI, Fraud, Duress.

Question 158

2-502 (c)?

Answer 158

Intent that doc is T will can be established by EE, including for holo wills, portions not in T handwriting.

Question 159

SP Affidavits create conclusive presumption of validity. So, Ws can't be called to trial for anything. (T/F)

Answer 159

False. May be called to trial for Qs of capacity / undue influence.

Question 160

2-502 (a) = 2-502 (c) = 2-503 = 2-504 = 2-505 = 2-507 = 2-508 =

Answer 160

2-502 (a) = Att. Wills Form. 2-502 (c) = EE 2-503 = HE 2-504 = SP Aff. 2-505 = Int. W 2-507 = Revocation 2-508 = Change in Circumstance

Question 161

T/F) 3.If will is SP Aff., conclusive evidence of validity. If notarized by not SP, rebuttable presumption that its valid.

Answer 161

True

Question 162

1. In re Groffman = 2. Taylor v. Holt = 3. In re Pavlinko Estate = 4. In re Snide =

Answer 162

1. Strict compliance wills 2. Anything can be signature 3. Mutual will sign not valid 4. Mutual will sign valid, just clerical errors, still comply with formalities.

Question 163

1. In re Will of Ranney = 2. In re Estate of Hall = 3. Javier Castro 4. Kimmel Estate = 5. Gonzalez / Mudder = 6. Ferree / Black = 7. Baker

Answer 163

1. Sub Compliance 2. Harmless Error application 3. Electronic Wills 4. Holo Will 5. Holo will, preprinted ok 6. Holo will, preprint not ok 7. Can sign anywhere on holo

Question 164

2-503, Court may “excuse” noncompliance if C&C evidence that D intended docx to be his...

Answer 164

1. Will 2 Revocation of will 3. Addition to will 4. Revival of will

Question 165

Assurance that docx is (1) Authentic, (2) Signature is genuine, (3) Signer acted without duress, fraud, UI.

Answer 165

Notarization

Question 166

EE may be used for what purpose regarding Holo wills?

Answer 166

Establish Testamentary Intent

Question 167

Material Provisions Test per UPC?

Answer 167

A valid holograph might even be executed on some printed will forms if the printed portion could be eliminated and the handwritten portion could evidence the testator’s will.

Question 168

1. Groffman 2. Ranney 3. Hall / Kimmel / Baker

Answer 168

1. Strict Comp. 2. Sub. Comp. 3. HE / Baker = can sign anywhere

Question 169

Case: Signature can be anything.

Answer 169

Taylor v. Holt

Question 170

Cases: 1. Strict compliance 2. Sub Compliance 3. Harmless error 4. Holo 5. Can sign holo anywhere 5. Sig. is very broad

Answer 170

1. Groffman 2. Ranney 3. Hall 4. Kimmel 5. Baker 6.. Taylor v. Holt

Question 171

Cases: 1. Strict comp. 2. Sub Comp. 3. Harmless error 4. Revocation 5. EE for holo wills (Montana) 6. Revocation by another (M Falcon)

Answer 171

1. Groffman 2. Ranney 3. Hall 4. Stoker 5. In re Kuralt (montana prop.) 6. Harrison v. Bird

Question 172

In re estate of Stoker

Answer 172

Valid revocation even though 2nd will not witnessed. State followed HE. He had clear intent to revoke 1st will.

Question 173

For holo wills, what can EE be used to show? (In re estate of Kuralt)

Answer 173

T intent, including portions of docx not in T handwriting.

Question 174

____ ____ Test: A valid holograph might even be executed on some printed will forms if the printed portion could be eliminated and the handwritten portion could evidence the testator’s will.

Answer 174

Material Provisions test

Question 175

2-507?

Answer 175

Revocation

Question 176

Will Revocation code?

Answer 176

2-507

Question 177

Will revocation? 2-507

Answer 177

1. T intent to revoke 2. Revocatory Act (Physical, Writing, Law, presumption) done by T or another in his CP + by T direction.

Question 178

Types of revocatory acts?

Answer 178

1. Physical (tearing, crossing) 2. Writing (new will / codicil) 3. Law (Divorce / Slayer) 4. Presumption All need T present intent to revoke.

Question 179

T revoked will# 1 but will #2 failed for reasons of fact/law. It was the mistake of law of fact/law that caused said failure. Therefore, we allow prior will to return. Doctrine?

Answer 179

DRR

Question 180

T/F) T may not tell another person to revoke.

Answer 180

False. This is acceptable if done in T (1) CP and by T (2) direction. Case: Harrison v. Bird, whereas will destroyed outside CP not valid)

Question 181

Are partial revocations permitted under UPC 2-507?

Answer 181

Yes, if: 1) T present intent to revoke. May use EE to prove intent.

Question 182

How can subsequent instrument revoke a will under UPC 2-507?

Answer 182

1) Expressly or by 2) Inconsistency.

Question 183

2-507 (c) / (d)

Answer 183

(c) Presumption of revocation: If T disposed entire property, presumption arises. May only be rebutted by C&C evidence. (d) Presumption of supplementation: If T did not dispose entirely, likely codicil. C&C evidence to rebut.

Question 184

T/F) Codicils do not need to meet will requirements.

Answer 184

False

Question 185

This case showed that HE usually comes in to save botched physical revocations, such as new will not atestted.

Answer 185

Estate of Stoker

Question 186

2509 (a), (b), (c)?

Answer 186

(a) = If Will 2 revoked, Will 1 not coming back. (PNR) (b) = (portions) If Will 2 revoked, portions of #1 comes back. (PR) (c) = Will #2 revoked by Will #3, #1 no come back unless text of #3 says so. (PNR)

Question 187

2-804?

Answer 187

1. Revokes anything to spouse and her relatives. (Stepkids) 2. Transforms J/T property interest into TIC.

Question 188

T revoked will# 1 but will #2 failed for reasons of fact/law. It was the mistake of law of fact/law that caused said failure. Therefore, we allow prior will to return. Case?

Answer 188

Lacroix v. Senecal

Question 189

Why is DRR not really needed in UPC?

Answer 189

We have other statutes to address botched changes / revocations (HE) and statutes to address revival (Lazarus).

Question 190

Uniform Probate Code: 2-104 2-104 (b) (3) 2-105 2-109

Answer 190

2-104 = Survival 2-104 (b) (3) PH kids 2-105 = Escheat 2-109 = ADV

Question 191

2-114 2-117 2-118 2-705

Answer 191

2-114 = non inheritance for non supportive parents 2-117 = P/C relationship no depend on marriage 2-118 = Adopted / Transplant 2-705 = Conditions for non parent to be parent

Question 192

2-502 (a) 2-502 (b) 2-502 (c) 2-503 2-504 2-505 2-507 2-508

Answer 192

2-502 (a) = Attested wills 2-502 (b) = Holo wills 2-502 (c) = EE 2-503 = HE 2-504 = SP Affidavit 2-505 = Int W okay 2-507 = Revocation 2-508 = CIC

Question 193

2-602 = 2-603 = 2-604 = 2-606 = 2-803 = 2-804 =

Answer 193

2-602 = Prop. owned at death only 2-603 = AL Statute 2-604 = Bros can take 2-606 = Non Ademption 2-803 = Slayer 2-804 = Divorce

Question 194

Capacity to make a will? Can a few isolated acts of abnormal behavior rebut presumption of capacity?

Answer 194

Cunningham test 1. Nature & extent of bounty 2. Natural objects of bounty 3. Disposition that he is making of prop. Relation of all No.

Question 195

What if a person is mentally capacitated but wants to make a will?

Answer 195

Even if MI, if they have a lucid interval during, then the transfer is valid.

Question 196

2-512? 1. 2.

Answer 196

Will may dispose property by: 1. Reference to Acts or events 2. That have significance apart from effect on disposition of property. Note: Does not matter whether or not they occur b4 or after execution of will.

Question 197

For 2-512, what should you look for?

Answer 197

Look for class of beneficiaries where T controls membership (my employees, my students, etc.)

Question 198

2-510: 1. Liberal application 2. Conserv. app.

Answer 198

1. Clark v. Greenhagle 2. Cyfers v. Cyfers

Question 199

What other doctrine should you consider when presented with 2-1510 / 2-513 fact pattern?

Answer 199

Doctrine of Integration: Papers present at time T executed will, which T intended to be part of will is integrated into the will.

Question 200

UPC 2-513?

Answer 200

a) Testator signed b) Items described with “reasonable certainty.” Case: Last will and testament of Moor, valid Sep. writing devising tangible PP.

Question 201

If the original will had a technical execution defect (e.g., it was not properly witnessed), a later, properly executed codicil can "cure" this defect by essentially re-executing the entire document with the correct formalities. Case?

Answer 201

Johnson v. Johnson, whereas an invalid will (no W, no sign) was later republished by valid holographic codicil on that same will.

Question 202

This case showed that mere existence of mutual wills is not sufficient evidence of irrevocable K.

Answer 202

Keith v. Lulof

Question 203

BL law for undue influence? 1. 2. Presumed when? 1. 2. 3.

Answer 203

BL: 1. UI overcame free will 2. Produced disposition Presumed: 1. Fiduciary relationship 2. Suspicious circumstances 3. Unnatural disposition

Question 204

Bequests to Attorneys?

Answer 204

Presume undue influence, unless related. To overcome, Attorney but must show by C&C evidence that T intended to bequest gift to him

Question 205

What if person is mentally incapacitated?

Answer 205

Look for Lucid interval. Simple to establish w/ simple questions.

Question 206

Insane delusion? How to prove? Burden on who? Case?

Answer 206

Legal, not a psychiatric concept. “A delusion (false conception of reality), to which T adheres against all evidence and reason to the contrary.” Must prove: 1) T had insane delusion (define it) and 2) Will or some part of it was influenced by that insane delusion. Burden of proof on opponents. Case: Stritmater's Estate

Question 207

Tortious Interference w/ Expectancy? Case?

Answer 207

1. Expectancy 2. TI 3. Causation & damages Case: Schilling

Question 208

Fraud: 1. 2. Case?

Answer 208

1. Misrepresentation of material fact 2. Induces T to transfer would not have made otherwise Case: Carson's estate, he was already married and she didn't know. Gave him estate.

Question 209

Duress? Case?

Answer 209

1. Wrongdoer threatened wrong act 2. Influenced disposition Case: Father divine

Question 210

Cases: 1. Fraud 2. Duress 3. Undue Influence

Answer 210

1. Carson's estate 2. Father Divine 3. Sharis / Moses

Question 211

Revocation of will can be done by another. Case?

Answer 211

Harrison

Question 212

EE is allowed for Holo wills, including evidence not in T handwriting. Case?

Answer 212

Kuralt (saved the Montana ranch)

Question 213

This case is notable for establishing an exception to the rule requiring probate court action first. It clarifies that when a potential beneficiary is prevented from contesting a will due to the defendant's fraudulent conduct, such as concealing a death to bypass the statute of limitations, a separate tort action for damages is permissible.

Answer 213

Schilling v. Herrera

Question 214

This case, codified at _____, permits will reformation to conform to Ts intent if C&C evidence of 1) Ts intent and the will 2) was mistake of fact/ law, thereby not aligning with Ts intent. Allows EE to establish.

Answer 214

In re estate of Duke, codified at 2-805

Question 215

Correcting wills & Ambiguities: 1. Traditional rule 2. UPC approach

Answer 215

1. Mahoney, can correct patent ambiguity only, allowing EE. 2. 2-502 (c), 2-503, and 2-805 / Duke allow EE for holo wills, curing defective wills, and correcting mistakes when C&C evidence of T intent.

Question 216

Mistake cases: 1. Closer to UPC standard, allowed EE to correct clear mistakes in will descriptive language. 2. Correct can reform (even if unambiguous) terms of will to conform to Ts intent by proved by C&C evidence what T’s intent was and the will was affected by mistake fact / law.

Answer 216

1. Gribbs 2. Duke

Question 217

UPC 2-805 is a rejection of what rules employed by older courts?

Answer 217

1. Plain meaning 2. Four corners UPC looks to T intent above all, allowing EE to prove.

Question 218

Ademption by Extinction applies to what gifts?

Answer 218

1. Specific 2. gifts NOT IN ESTATE at T death.

Question 219

ABE: Gift classification a) Specific b) General c) Demonstrative d) Residual

Answer 219

a) Specific = Disposition of specific item (house, ring) b) General = Gift of general benefit, not specific asset (money) c) Demonstrative = General devisee payable from source (Checking account) d) Residuary = Remainder

Question 220

Common law “no residue of residue rule”

Answer 220

Lapsed portions of residue passed through intestate succession.

Question 221

Modern UPC 2-604

Answer 221

Other members of residuary BFFs mays share the lapsed gift. “Other bros.” Essentially same outcome and rule procedure as class gifts.

Question 222

Class gifts?

Answer 222

Gift to one or more persons. If one member PDD T, that share is passed among other members of the class. IE: Right of survivorship is intrinsically a right of class gifts. “To my Brothers, sisters, cousins, etc.” This language = “group minded.”

Question 223

She wanted estate property to go back to husband’s side, but she allocated specific portions to specific persons so court said not class gift. Case?

Answer 223

Dawson v. Yucus

Question 224

Class gift case?

Answer 224

Dawson v. Yucus

Question 225

T/F) In the UPC, T express intent cannot override 2-603 as a default rule.

Answer 225

True, Majority of Js don’t use UPC, but for your exam it controls. Need much more to demonstrate T intent, UPC not persuaded by words like “if he survives me” which usually exist b/c T’s lawyer used such a will form with those words.

Question 226

Naming an alternate BFF does not defeat AL statute. AL shall apply unless the will shows CLEAR INTENT to exclude BFF descendants.

Answer 226

Ruotolo v. Tietjen

Question 227

1. Case showed that in UPC, AL not defeated by survivorship language.

Answer 227

Ruolo v. Tietjen

Question 228

Estate abatement arises when estate has insufficient assets to pay debts + devises. Abates in what order?

Answer 228

1. Residual 2. General 3. Demonstrative 4. Specific

Question 229

2-606 = 2-607 = 2-609 =

Answer 229

606 = Non-Ademption 607 = Non exoneration of liens 609 = Ademption by Satisfaction

Question 230

2-609 requirements? What if req. not met?

Answer 230

a) Will expressly acknowledged the gift and deduction; and b) Written declaration by T giving gift in satisfaction of will gift (contemporaneous); or c) Written acknowledgment by BFF If not met, BFF still gets full devisee from will.

Question 231

Identity theory = Intent theory =

Answer 231

Identity = If specifically devised gift cannot be “identified” at Ts death, it is adeemed. (Fails) Intent = If the specifically devised gift is not in T estate, then BFF may be entitled to cash value of that item, proceeds, replacements, etc. UPC 2-606 // In re estate of Anton

Question 232

INV gift req. + Case

Answer 232

1. Intent 2. Delivery 3. Acceptance Hebrew Ass'n v. Nye

Question 233

Elements of trust, per § 402?

Answer 233

1. Valid / lawful purpose 2. Intent (no specific words needed, Lux v. Lux) 3. Capacity (Cunningham if will trust) 4. Trustee (Fiduciary duties) 5. Ascertainable BFF 6. Funded (move assets into trust)

Question 234

For trust intent, do we need exact trust language? Case?

Answer 234

No, Lux v. Lux, demonstrates that testamentary language, even without express “trust” language, can create trust. Courts focus on intent, not magic words. However, need more than pecuniary language like “I hope.”

Question 235

Trust Intent case?

Answer 235

Lux v. Lux

Question 236

T/F) When party transfers RES to another w/ intent to vest beneficial interest in 3rd party.

Answer 236

True b/c we look at overall intent, not specific words. (Lux v. Lux)

Question 237

Can same party wear all trust hats?

Answer 237

Yes so long as not the ONLY trustee or only BFF.

Question 238

T/F) If one party is both SOLE trustee & SOLE BFF = trust destroyed.

Answer 238

True, You can’t owe fiduciary duty to oneself.

Question 239

Settlor creates INV Trust, named himself Trustee and BFF, remainder to children. Valid trust?

Answer 239

Yes, he is not the ONLY BFF. Can wear multiple hats so long as not only BFF / TRUSTEE.

Question 240

Trust writings: 1. If trust is to hold RP 2. If trust is Testamentary

Answer 240

1. SOF requires writing 2. 2502 requires writing

Question 241

Are oral trusts okay?

Answer 241

If not 1) Testamentary or 2) RP transfer. If not, then must establish by C&C evidence.

Question 242

Testamentary trust requirements?

Answer 242

1. Writing 2. Signed 3. Witnessed

Question 243

Designated trustee duties and owner of what? paid how?

Answer 243

1. Fiduciary duties Loyalty + Care 2. Owner of RES 3. Paid commission based on value of property managed.

Question 244

This concept is not really a trust, instead the trust concept used to get RES to rightful person. IE: T intent to create trust but w/o details such as BFF or purpose. Trust fails for indefiniteness but ____ ____ created in favor of Ts heirs.

Answer 244

Resulting trust

Question 245

A gift in a will for the care of a specific animal is okay as long as the person getting the gift for the animal's benefit agrees to take care of the animal and follow the wishes of the person who made the will. The will also needs to set a time limit for when the gift should be used. Case?

Answer 245

In re Searight's Estate

Question 246

Gift / Trust for care of animal requirements? Case?

Answer 246

1. Created in settlor lifetime 2. Terminates upon death

Question 247

This case emphasizes that creating an oral trust requires clear and convincing evidence of the settlor's intent. The case also involves the principle that a power in a trustee to select a beneficiary from an indefinite class (which was the topic of the text in your previous image) is valid

Answer 247

In re estate of Fournier

Question 248

T/F) Trustee can select BFF from the indefinite class.

Answer 248

True, but If he does not, RES subject to persons who would have taken RES b4 class trust. In re estate of Fournier

Question 249

T/F) Unlike express trusts, charitable trusts do not require an ascertainable beneficiary.

Answer 249

True!

Question 250

T/F) A pet trust is a type of noncharitable trust without an ascertainable beneficiary, also called an honorary trust.

Answer 250

True!

Question 251

UTC requirements for pet trust?

Answer 251

The Uniform Trust Code imposes two requirements for a pet trust: (1) the animal must have been alive during the settlor’s lifetime and (2) the trust must terminate upon the death of the last animal specified in the trust.

Question 252

A ___________ provision is one way a settlor may protect trust assets from a beneficiary’s creditors.

Answer 252

Spendthrift, which places restraints on both voluntary and involuntary transfers of the beneficiary’s interest in the trust. Without it, a creditor may reach a beneficiary’s interest in the trust, and a beneficiary may transfer its interest to a creditor.

Question 253

T/F) a spendthrift provision is unenforceable against: (1) a claim by the government; (2) a claim for child support, spousal support, or alimony; and (3) a claim by anyone who provided services essential to protecting the beneficiary’s interest in the trust.

Answer 253

True!

Question 254

T/F) If the purpose of a charitable trust becomes unlawful, impracticable, or impossible to achieve, the cy près doctrine provides that the trust does not fail. Instead, a court may modify the terms of the charitable trust to distribute the property in a manner consistent with the settlor’s intended charitable purpose.

Answer 254

True, such as dog kennel that closes but another one opens.

Question 255

The primary difference is that a ________ trust is established for a purpose that benefits the general public and is legally enforceable by a governing body, while an __________trust is for a specific, non-charitable purpose (like caring for a pet)

Answer 255

1. Charitable 2. Honorable

Question 256

T/F) If there is only one beneficiary, that beneficiary may not also be the sole trustee.

Answer 256

True! can be saved by appointing one more BFF.

Question 257

Any trust beneficiaries must be ascertainable by being specifically named or otherwise objectively identifiable persons, either at the time the trust is created or in the future. (T/F)

Answer 257

True, except for class membership.

Question 258

What's one of the main advantages of a trust over a will?

Answer 258

That a trust can transfer property after a settlor’s death without a potentially lengthy and expensive probate process. Unless their terms are challenged in court, trusts tend to remain private, not public.

Question 259

T/F) In general, a trust may be created orally without requiring a writing, so long as there is clear and convincing evidence of the creation and terms of the trust.

Answer 259

True!

Question 260

A woman purported to create a trust, naming her niece and nephew as beneficiaries and her niece as the sole trustee. Is the trust valid?

Answer 260

Yes, because a beneficiary may also serve as a trustee as long as the sole beneficiary is not the sole trustee.

Question 261

T/F) class of trust beneficiaries may be subject to expansion or contraction without invalidating the trust. If true, why?

Answer 261

True, A group of beneficiaries is too indefinite only if it is not ascertainable.

Question 262

Establishing a presumption that someone exerted undue influence on a testator requires showing three elements. What are they?

Answer 262

1)a confidential relationship between the testator and the alleged influencer 2) suspicious will-creation circumstances 3) and an unnatural disposition of the testator’s property. **Must have all three under Moses**

Question 263

Testamentary capacity?

Answer 263

(1) the nature and extent of the individual’s own property (2) the natural objects of his bounty in terms of who is receiving his property (3) the nature of the testamentary act being performed, and (4) how the first three items relate together to create an orderly plan to dispose of the individual’s property. Breeden v. Stone, 992 P.2d 1167 (Co. 2000).

Question 264

Presumption of undue influence?

Answer 264

(1) the existence of a confidential relationship between the testator and the influencer; (2) suspicious circumstances surrounding the will’s execution; and (3) an unnatural disposition of the testator’s property, such that there is no reasonable basis for the disposition.

Question 265

A witnessed, attested will must be: (1) (2) (3)

Answer 265

(1) in writing; (2) signed by the testator, either personally or by another individual in the testator’s conscious presence and at his direction; and (3) signed by at least two people within a reasonable time after witnessing the testator’s signature.

Question 266

T/F) Under 2-502 (b), only the material portions of the will must be handwritten; surrounding boilerplate form language may be typed or preprinted.

Answer 266

True!

Question 267

A woman signed her will in front of two witnesses. The two witnesses also signed the will, approximately five minutes after the woman had signed. The controlling jurisdiction had adopted the Uniform Probate Code (UPC). Which of the following additional steps, if any, must the woman and the witnesses take to render the will self-proving?

Answer 267

The woman and the witnesses must sign affidavits that testamentary formalities were observed.

Question 268

T/F) Under the UPC, an interested witness may sign the will and loses no benefit under the will in so doing.

Answer 268

True!

Question 269

T/F) Under the Uniform Probate Code, there is no requirement that the witnesses sign before the testator’s death, as long as the reasonable-time requirement is met. I

Answer 269

True!

Question 270

There are two ways for a will to incorporate another document or writing... 1. 2.

Answer 270

1. By reference (2-510) Manifest intent reference docx Sufficient certainty Exist when referenced 2. By sep. writing / list (2-513) Tangible PP only Exist whenever Reasonable certainty SIgned `

Question 271

Does 2-510 or 2-513 require signature?

Answer 271

2-513, sep. writing or statement requires T to sign.

Question 272

A will may validly dispose of property by reference to acts and events that occur either before or after the execution of the will or before or after the testator’s death—as long as...

Answer 272

....as long as those acts and events have significance apart from their effect upon the dispositions made by the will. Unif. Probate Code § 2-512 (2010).

Question 273

Can will be revoked by someone other than T? If yes, how?

Answer 273

This act must be performed either: (1) by the testator personally or (2) by an individual in the testator's conscious presence and at his direction. Unif. Probate Code § 2-507(a)(2) (2010).

Question 274

When is there a "presumption of revocation?"

Answer 274

If a testator’s will was last in the testator’s possession and cannot be found after her death, then there is a presumption of revocation. // Harrison v. Bird

Question 275

T/F) Accidentally destroying the wrong document (Copy of will instead of will) is not valid revocation.

Answer 275

True, (“[M]ere intention alone, no matter how unequivocal, is not sufficient to effect the revocation of such a solemn instrument.”).

Question 276

Searight’s Estate = UTC § 408 =

Answer 276

Searight’s Estate = Common-law honorary trust (moral duty, no legal enforcement). UTC § 408 = Statutory pet trust (legally enforceable; recognized beneficiary substitute).

Question 277

UTC § 408?

Answer 277

1. Animal alive during settlor lifetime 2. Auto terminate upon death of animal **Court can reduce excess $$ **Court can appoint trustee if not named **"Leftover" property will revert to settlor successors.

Question 278

UTC 402 = UTC 408 = UTC 409 =

Answer 278

402 = Elements 408 = Pet trust A) Pet alive when T is B) Auto Term. pet dies 409 = NonCharitable Trust A) No ASC. BFF necessary B) 21 year cap or when T gives up

Question 279

UTC 409 requirements?

Answer 279

1. May be created for any non-charitable purpose 2. Doesn't require ascertainable BFF 3. Valid NLT 21 years. Ex: Hunting land care, care for cemetary plot, care for garden. Note: "Honorary trust continues as long as trustee is willing to honor the terms of the trust."

Question 280

T/F) "Honorary trust continues as long as trustee is willing to honor the terms of the trust" applies to UTC § 409.

Answer 280

True

Question 281

T/F) For trust validity, a writing is not typically required.

Answer 281

True, unless RP or Testamentary (Will) trust.

Question 282

To be a valid inter vivos (lifetime) gift, there generally must be: 1. Donative Intent: The donor must have a present intent to transfer ownership. 2. Delivery: There must be an actual or constructive delivery of the gift to the donee. 3. Acceptance: The donee must accept the gift. Case?

Answer 282

Hebrew Univ. Ass'n v. Nye. Need all elements. Otherwise, any promise to give a gift in the future is just a contract without consideration and thus unenforceable.

Question 283

This case illustrates that courts will not uphold secret or precatory trusts that rely only on oral directions or moral obligations. It reinforces the Statute of Wills requirement that testamentary dispositions must be in writing to be valid.

Answer 283

Olliffe v. Wells

Question 284

UTC §815, Trustee Powers?

Answer 284

May exercise: 1. All powers over trust property which unmarried competent owner has over owned property; and 2. Any other powers appropriate to achieve proper management / distribution of trust property. Note: All subject to fiduciary duties of care, loyalty, GF.

Question 285

Trustee Fiduciary duties, §802?

Answer 285

1. Loyalty = Administer solely in interests of BFFs. (No self dealing, act reasonably and in GF) 2. Care = Act reasonably

Question 286

This case held that Trustee who has the power to sell trust property violates his duty of loyalty to the BFFs if he sells the property to himself without their consent, regardless of how reasonable the sale was. “GF and Reasonableness are NO defense to self-dealing.” Remedy = BFFs hold Trustee accountable for profits made, including repayment and/or return of property.

Answer 286

Hartman v. Hartle

Question 287

If the Trustee self-deals, it creates an irrebuttable presumption of the breach of loyalty. We do NOT inquire as to the Trustee’s good faith or reasonableness. Transaction is voidable be the BFFs.

Answer 287

No-Further-Inquiry Rule

Question 288

Defenses to breach of loyalty?

Answer 288

No defense except advanced judicial approval, authorization by settlor or BFFs. Even then, must be fair, reasonable, and in GF.

Question 289

This case held that Trustee liable for difference in FMV of property and sales price of property when breach fiduciary duties.

Answer 289

In re Rothko.

Question 290

T/F) Trustee resignation does NOT affect / discharge Trustee’s liability.

Answer 290

True

Question 291

Co-trustees?

Answer 291

1. Act by majority 2.. Co-trustees are jointly liable for breaches, unless; 3. Dissenting trustee who joins in action not liable if = Notified any other co-trustees of dissent at or before action.

Question 292

In Re Rothko?

Answer 292

Trustee who breeches responsible for FMV - Sale price.

Question 293

This rule says If the property was transferred to a bona fide purchaser without knowledge of breach, then trustee is personally liable.

Answer 293

Trust pursuit rule

Question 294

Exceptions to Trustee breach of loyalty?

Answer 294

1. W/ his lawyer / close relative, IF he proves it was a) fair and b) reasonable. 2. Bank Trustee depositing funds into his Bank or Institutional Trustee investing trust assets into trust fund.

Question 295

If the Trustee self-deals, it creates an irrebuttable presumption of the breach of loyalty. We do NOT inquire as to the Trustee’s good faith or reasonableness. Transaction is voidable be the BFFs. Rule?

Answer 295

No further inquiry rule

Question 296

UTC Codes: §402 = §407 = §408 = §409 = ______ § 802 = § 804 = § 815 =

Answer 296

§402 = Trust elements §407 = Oral trust §408 = Pet trusts §409 = Non C trusts ______ § 802 = T duty of loyalty § 804 = Duty of Prudence § 815 = T powers

Question 297

§815, T powers?

Answer 297

1. All powers over trust property which unmarried competent owner has over owned property; and 2. Any other powers appropriate to achieve proper management / distribution of trust property. Note: All subject to fiduciary duties of care, loyalty, GF.

Question 298

INV gifts?

Answer 298

1. Intent 2. Delivery 3. Acceptance Case: Hebrew Univ. Ass’n v. Nye

Question 299

Noncharitable Trust, UTC §409:

Answer 299

1. May be created for noncharitable purpose 2. Without Ascertainable BFF 3. May not be enforced more than 21 years 4. Property applied to this statute may be used only to its intended purpose.

Question 300

UTC § 408 = Statutory Pet trust

Answer 300

1. Created for animal alive during settlor lifetime 2. Terminates upon death of animal 3. May be enforced by person appointed in trust terms / or appointed by court