Wills I Final Study

Question 1

Testamentary capacity

Answer 1

1. 18 years old; and
2. Of sound mind:
   a. Relationship to decedent
   b. Nature of the testamentary act;
   c. Nature and extent of property

Question 2

Interested witness creates…(DUFIB)

Answer 2

DUFIB

1. Presumption of undue influence, duress, or fraud;
2. Burden of proof on interested witness ot overcome;
3. Otherwise they take according to intestacy.

Question 3

Valid will attestation requirements

Answer 3

1. A valid will requires at least two disinterested witnesses;
2. Present together for testator’s signature or at his direction in conscious presence OR Acknowledgement;
3. Understanding that testator is signing his will.
4. Witness signs before testator’s death.

WUPAD

Question 4

Spousal share intestacy

Answer 4

1. Gets 50% if one issue or any collateral;
2. 33% if two issue

Question 5

Extrinsic evidence is admissible to prove

Answer 5

VESA

1. Validity or show revocation;
2. Erroneous description correction;
3. Scrivner’s error; or
4. Ambiguity clarification.

Question 6

Presumption of undue influence

Answer 6

CURS-SMOC-90
1. Confidential relationship;
2. Unnatural disposition,
3. no Reasonable basis;
3. Suspicious circumstances;
4. Susceptible, Motive, Opportunity, Causation.
5. Person provided services in last 90 days.

Question 7

Fraud

Answer 7

CII
1. Invalid to extent procured by;
2. Intent of influencing disposition;
3. Causation

Question 8

Incorporation by reference

Answer 8

1. Writing in existence at time;
2. Will sufficiently identifies;
3. Will manifests intent to incorporate.

Question 9

Rebut presumption of undue influence by…

Answer 9

1. Genesis of gift arose with testator;
2. Devisee did not goad testator into making gift;

Question 10

Undue influence rebuttable presumption created when (5 circumstances) FDIGS

Answer 10

FDIGS

1. Fiducary;
2. Drafting or procuring;
3. Interested witness;
4. unnaturally Generous; or
5. unusually Susceptible.

Question 11

Ademption by extinction

Answer 11

1. IDENTITY (majority) theory - Specific gift adeems if no longer in estate (“my”); unless
2. Balance of proceeds owed, Eminent domain, or Casualty Insurance proceeds;
3. INTENT (minority) theory looks to T’s intent - if no evidence of intent to get replacement gift, B does NOT receive and goes to residue.

Question 12

Increases in property value

Answer 12

1. If T owned shares at time of will, B will receive any increase or change i form;
2. If T did not own when devised, B will only receive # of shares specified.

Question 13

Stock split or stock dividend (non-cash)

Answer 13

1. If T made specific gift of portion of stock and it splits;
2. B entitled only to proportionate share (e.g., T owns 500 shares but devises 100 to B, stock splits, B gets 100 shares, not 500).
3. Same rule with stock dividend.

Question 14

Facts of independent significance

Answer 14

1. Will provision that disposes of property by reference to acts and events; that have
2. Significance apart from their effect on the dispositions made in the will;
3. Are given effect.
4. (e.g., T devises to “my wife” and remarries is an act of independent significance).

Question 15

Valid W

Answer 15

1. Must either witness signature; or
2. Witness T’s acknowledgement of the signature (i.e., after-the-fact).
3. Watch out for interested W.

Question 16

Integration

Answer 16

1. Will consists of all papers actually present;
2. Testator intended to constitute will;
3. Physical connection or logic.