Term
| What are the 5 formality requirements (for forming a will)? |
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Definition
T must be over 18
The instrument must be executed with testamentary intent (no joke wills)
T must sign the will
TWO attesting witnesses who witness T’s signing (or acknowledgement of signature)
T and witnesses sign within a reasonable time of one another (see statutes) |
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Term
| T completes his will and has it properly signed and witnessed. On final look, T realizes that he forgot to name a personal representative – so he jots the provision down on the bottom of the will. What is the effect on the will/added clause? |
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Definition
If T made the change at the time he was executing the will, some states will hold that portion above the signature as valid and the clause added after the signature as invalid. The UPC and majority rule is that the clause is valid – regardless of where T’s signature lies.
If T made the change after he had executed the will, all states will hold the original will as valid and the additional clause as invalid. |
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Term
| T completes his will and has it properly signed and witnessed. On final look, T realizes that he forgot to name a personal representative – so he jots the provision down on the bottom of the will. What is the effect on the will/added clause? |
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Definition
If T made the change at the time he was executing the will, some states will hold that portion above the signature as valid and the clause added after the signature as invalid. The UPC and majority rule is that the clause is valid – regardless of where T’s signature lies.
If T made the change after he had executed the will, all states will hold the original will as valid and the additional clause as invalid. |
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Term
| How do different jurisdictions approach holographic wills? |
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Definition
Most states (including Minn.) do not accept holographic wills as valid – as they lack the attesting witnesses.
Still, the UPC will allow holographic wills provided: 1) material provisions, in the will are in T’s handwriting and 2) the will is signed by T.
Material means those portions identifying 1) property to be devised and/or 2) beneficiaries to receive property. |
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Term
| What are the two theories that govern the requirements for attesting witness to a will. |
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Definition
Scope of vision test (minority rule)
Conscious presence test (majority, better) test |
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Term
| What is the “scope of vision” test? |
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Definition
| This is the minority rule. The T must sign the will in the presence of the W to the extent that, at least were they to look, the T & W would see one another |
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Term
| What is the “conscience presence” test? |
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Definition
| This is the majority rule. The T must sign the will in the presence of the W to the extent that each party was conscious of where the other party(ies) was/were and what they were doing, and the act of signing took place nearby within the general awareness and cognizance of the pother parties. |
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Term
| What is ancillary jurisdiction? |
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Definition
| When, due to alternative domiciliary, the estate must probate components of T’s estate in a jurisdiction other than that in which is will/estate is being handled. The typical example is when T is having his estate probated in Minnesota (his domiciliary at the time of his death), but he also has real property in Wisconsin (WI is the ancillary jurisdiction) . Prof. Powell refers to this as the “sideshow” |
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Term
| What is the traditional domiciliary for the T’s estate? Why does this matter? |
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Definition
With respect to personal property, the validity and effect of the will is determined by the law of the state where T is domiciled at the time of her death.
With respect to real property, the will’s validity and effect are determined by the law of the state where the property is located. The state law governs on the effect of the will to achieve its purpose. |
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Term
| To avert the disadvantages of ancillary jurisdiction, how does the UPC (and majority of states) address? |
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Definition
Under UPC, states wil accord FFC to wills from another jurisdiction (“foreign” wills). Therefore the will may be probated in:
Law of the state where will was executed
Law of the state where T was domiciled at the time the will was executed
Law of the state where T was domiciled at the time he died. |
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Term
| Under the common law and majority rule, when will an attesting witness be able to take under a will in which she is a beneficiary |
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Definition
| If there were supernumerary (3 or more) attesting witnesses or 2) when she is eligible for the lesser of a) the amount given in the will or b) her intestate share. These are commonly referred to as the “purging statutes” |
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Term
| The will reads, “I give to my faithful nurse, Nell, the sum of $3,000”. Nell is one of two attesting witnesses to the will. Under the majority rule, how much will Nell receive from the estate |
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Definition
$0
Since she is one of only two attesting witnesses, she must take the lesser of the $3,000 or what she wold have received as her intestate share. Since she would not be eligible for an intestate share (she is not an ancestor, descendant, or relative) she would lose out. |
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Term
| Under the UPC, when will an attesting witness be able to take under a will in which she is a beneficiary |
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Definition
| As expressed in the will. The UPC has abolished the interested witness rule – however, this holds out the prospect for examining under the doctrine of undue influence. |
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Term
| True or False: A self-proving will provides conclusive presumption that a will was properly formed. |
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Definition
Watch out here. Formalities of execution ARE conclusively presumed. The purpose of the self-proving affidavit is to prevent the cumbersome business of searching for witnesses to confirm proper execution.
However, the affidavit will not, of its own, preclude a challenge for incapacity, fraud, or undue influence. |
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Term
| What are the requirements for a self-proving affidavit? |
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Definition
At time the will is signed by T and attesting witnesses,
An affidavit is sworn under oath
Before notary
Which recites all the elements undertaken to duly execute the will |
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Term
| What two requirements must exist for revocation of a will? |
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Definition
Intent to revoke
Physical act – rendered by the T – to burn, tear, cancel, obliterate or destroy the will |
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Term
| T executes a will and places it in a drawer in his desk in his den. T’s house burns down and the will is destroyed within. When T is asked about his will, he replies “that’s OK, I was going to revoke this month anyway” Has the will been revoked? |
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Definition
| No. T had to have had the intent to revoke the will when it was incinerated. |
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Term
| T’s will has a cover page marked “My Will (Attached)”. T write over the cover page “This will is voided effective immediately and is no longer valid expression of my testamentary intent” T signs it and dates it. Has the will been revoked. |
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Definition
Not according to most states (the common law rule). Any indicia of cancellation (“VOID”) must touch the language of the will (written words).
The UPC and the modern trend is that an act of cancellation can appear anywhere on the will |
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Term
| T executes two copies of his will. Deciding to revoke his will, T takes his copy, announces to witnesses, “I hereby revoke my will” and shreds it. After T’s death, the other executed copy is discovered. Is it still a valid will? |
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Definition
| No. Revocation upon either copy revokes the will |
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Term
| T executes a will and keeps a photocopy copy of the will for his records. Deciding to revoke his will, T takes his copy, announces to witnesses, “I hereby revoke my will” and shreds it. After T’s death, the executed copy is discovered. Is it still a valid will? |
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Definition
| Yes. Revocation of an unexecuted copy is not valid. It lacks the physical act of destroying/cancelling the will. |
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Term
| What are the three ways in which a will can be revoked |
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Definition
A will may be revoked by:
Operation of law
Subsequent, written instrument
Physical Act |
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Term
| T is 93 years old and in an advanced state of poor health that has rendered him barely capable of holding a pen. He asks Stella his nurse to sign his will for him and Stella also signs the will and signs for herself as a witness. Is this a valid will? |
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Definition
Yes.
The T’s signature may be made by another person at T’s direction and in T’s presence. The other person may also sign her name and attest as a witness.
Watch here for 1) incapacity and 2) undue influence. |
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Term
| What are two presumptions of revocation by physical act? |
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Definition
When the will, despite being known to have been last seen in the T’s presence (possession and control) , cannot be located after the T’s death.
Then the will is located at (after) the time of T’s death, and it has been mutilated. |
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Term
| T executes a will and places it in a drawer in his desk in his den. T’s house burns down and the will is destroyed within. After T dies, it is successfully argued that he did not intend to revoke the will. How can the will be probated? |
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Definition
Under most states, the will can be probated under the lost wills statutes. To succeed the proponents must prove:
The will was validly executed
That the will was not revoked (see facts)
The contents of the will can be validated (by witnesses or by an unexecuted copy – otherwise “clear and convincing evidence”). |
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Term
| Lucas calls up his Attorney Hamm and orders Hamm to destroy his will. Since it was so expertly drafted, Hamm tells Lucas he will but instead, places it in a file with a note stating the will had been revoked by Lucas. Is the will revoked? |
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Definition
No A will may be revoked by a third person but it must be done:
By one of the means for physical act
At T’s direction
In T’s presence
Per Prof. Powell, mention that harmed parties may sue Hamm for negligence (then move on) |
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Term
| T executes a will devising Bl’acre to Niece. Six months later, T properly executes a codicil by which he devises all his personal property to Nephew. Unhappy with Niece, he revokes the main will (and replaces it with a new one devising Bl’acre to someone else). All DRR issues aside, will the Nephew receive the personal effects under the codicil? |
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Definition
No.
Revocation of a will revokes all codicils.
Note however, that had T revoked his gift to nephew by revoking the codicil, Niece would still receive Bl’acre – revoking a codicil does not revoke a will unless it expressly directed to do so. |
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Term
| In 2001, T’s will leaves Bl’acre to X, her diamond ring to Y and residue to Z. In 2004, T properly executes a new instrument leaving $5,000 to Y and her diamond ring to M. The second instrument makes no mention that it intends to revoke the will. Who takes what under these instruments? |
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Definition
Where the writing makes no reference to a will it is treated as a codicil to the will. When the codicil contains slightly inconsistent provisions, to the extent possible the will and the codicil are read together.
But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior inconsistent will provision.
M – inconsistent, the codicil controls, M gets the ring
Y – inconsistent, the codicil control, Y loses the rng but gets $5k
X & Z: No inconsistency get what was devised in the will. |
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Term
| T executes a will in 2001, T’s will leaves Bl’acre to X, her stocks to Y, her wine collection to M, and personal property to Z. In 2004, T properly executes another will and it makes no mention that it expressly revokes the earlier will. In that will , T’s will leaves Bl’acre to A, her stocks to Y and the residue of her estate to Z. |
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Definition
According to Prof. Powell’s notes, if the second will has no residuary clause, it is presumptively a codicil to the first and the , the later document controls and thereby revokes by inconsistency the prior inconsistent will provision.
HOWEVER, if the second will has a residuary clause, it revokes the first will in its entirety.
(Essentially, M does not receive the wine collection) |
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Term
| What effect does divorce have on revocation of a will |
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Definition
The rule is that divorce following execution of will revokes all provisions in favor of the ex-spouse. Furthermore, it revokes administrative appointments in favor of the former spouse (i.e. executor).
It is construed that the spouse pre-deceased the T.
The same rules apply to an inter vivos trust
Watch for remarriage – per Prof. Powell, spouse is back in the will
Watch for separation – has no similar effect as divorce.
Watch for someone else divorce: A devise to your sister-in-law (by name) is not revoked if your brother divorces her. However, under UPC, it is revoked, if she is your ex-spouse’s sister. |
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Term
Very popular bar exam question:
T’s will makes a bequest of $10,000 to his friend, X. Subsequent to the will’s execution, T drew a line through the figure $10,000 and write “ in above it “15,000”. T then signed his name in the margin opposite the change. Has the $10,000 gift been revoked? Can the interlineations of the $15,000 be given effect? |
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Definition
The $10,000 gift has been revoked by physical act (partial revocation OK).
The $15,000 bequest may not be given effect UNLESS:
After the change, T re-executes his will or
T republishes the will by codicil. Basically, on a separate sheet T reaffirms, “My will as changed” and executes the codicil.
WATCH FOR DRR HERE!!!!! |
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Term
| What is the doctrine of dependent relative revocation (DRR) |
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Definition
| Watch for it. It’s an equity-type doctrine under which a court may disregard a revocation if it determines that 1) the act of revocation was premised on a mistake of law or fact and 2) would not have occurred but for the testators mistaken belief that another disposition of her property was valid. SEE EXAMPLES on pages 22 – 23 in outline |
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Term
| What are the three elements necessary to incorporate an extrinsic document by reference? |
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Definition
Writing must be in existence at the time the will was executed
The will must manifest an intent to incorporate the document
The will must describe the writing sufficiently to permit its identification |
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Term
Would either is these (provided within T’s will) qualify under the UPC doctrine of incorporation by reference?
A: I devise Bl’acre as designated in a memorandum I plan to write and leave in my safe”
B: I devise my stock and bond portfolio as designated in a memorandum I plan to write and leave in my safe”
C: I devise my furniture and collector automobiles as designated in a memorandum I plan to write and leave in my safe” |
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Definition
Of these, only C.
There is a statutory exception to the requirements of the doctrine of incorporation by reference found in he UPC and adopted by many states, permits a will to refer to written statement or list that disposes of tangible personal property by incorporation. The written list must 1) be signed by T and 2) must describe the property with reasonable certainty. The writing may be prepared before or after execution of the will and may be altered throughout that time.
B – stocks and bonds would not be considered tangible property. A – is real property. |
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Term
| What is the “acts of independent significance” doctrine? What are the two types of conveyances made under this principal? What are we looking for within these acts? |
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Definition
A will my dispose of property by reference to acts and events that have significance apart from their effect on the disposition made by the will.
This permits a will to leave some detail of the bequest undetermined but, nonetheless, valid. |
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Term
| What are the two types of undetermined conveyances made under acts of independent significance” doctrine? What are we looking for within these acts? |
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Definition
Identification of Beneficiaries
Identification of Property
We are looking for an independent lifetime motive
The two classic examples are where:
T leaves “the car I own at my death” to my nephew, Phil. When the will is executed, T is driving a 1991 Nissan; but soon after trade it in for a 2008 Cadillac. The presumption is that T would have wanted a more comfortable car
T leaves $1,000 to each of his employees who are working for T upon his death. After executing the will, T fires 2 employees and hires 3. |
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Term
| What phrase MUST be included in any answer involving a lapsed gift or anti-lapse statute essay question: |
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Definition
| When a beneficiary named in the will dies before (or within 120 hours) of the testator, the gift lapses UNLESS it is saved by the state’s anti-lapse statute” A will cannot make a gift to a dead person. |
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Term
| What does an anti-lapse statute specifically do? |
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Definition
| If the pre-deceased beneficiary 1) was in a specified degree of relationship to the testator and 2) left descendants who survived the testator, the beveficiary’s descendants take by substitution. |
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Term
| For which beneficiaries will a state’s anti-lapse statute ordinarily save from lapse under the UPC? |
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Definition
Predeceasing beneficiary is T’s
Grandparent
Descendant of T’s grandparent
T’s stepchildren who leave issue.
(Other states simply use descendants of the T; e.g. T’ sister/nieces& nephews would not be a qualifying beneficiary under these rules BUT would under UPC). |
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Term
| Under a state that recognizes the UPC anti-lapse statute, T executes a wills which holds that he bequeaths $25,000 for his sister, M, if M survives him. M dies before T. Will the $25,000 go to M’s descendants at T’s death |
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Definition
| The outline says “No” because the will contains a provision with contrary intent to the AL statute and whose terms take precedence. |
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Term
| What other conveyances, do anti-lapse statutes apply to? |
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Definition
There seems to be some contradiction here. The outline emphasizes that the AL statutes only apply to gifts by will.
However the outline recognizes (and the lecture ntes emphasize) that the UPC anti-lapse statute applies to
Power of appointment
POD and TOD bank accounts
Insurance policies
And a gift to a beneficiary in a revocable inter vivos trust. |
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Term
| What is the class gift rule – particularly with respect to class members who pre-decease the T? What effect to the antilapse statute? |
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Definition
Class gift rule: When there is a gift by will to a group of two or more persons generically described as a class (“children”, nephews, etc.) and some class member predeceases the testator, the surviving class members take.
The class gift rule gives way to the anti-lapse statute – if the predeceased class member was within the scope of the statute. |
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Term
| What is the common-law “no residue of a residue” rule. What is the UPC/majority rule version? |
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Definition
A common law rule which held that when a testator left a residual estate to two or more beneficiaries and one of the beneficiaries predeceases the T, the share devised to the beneficiary did not pass to the remaining beneficiaries. This share of the residuary gift “fell out of the will” and passed through intestacy.
Under the UPC (majority rule) the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue.
Note if the state has an anti-lapse statute, that will have an effect. (T leaves residuary estate to Friend, Business Partner, Sister with child). If no AL statute, under CL if Friend dies, Partner and Sister get 1/3 and other 1/3rd goes thru intestacy; under UPC, ½ go to Partner and Sister. If AL statute applies and Sister predeceases, 1/3rd to each Friend, Partner, Sister’s child. |
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Term
| Under abatement, if T’s estate was insolvent, in what order are gifts sacrificed |
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Definition
Creditor’s claims
Administrator of estate
Funeral expenses
(This came from the lecture) |
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Term
| What is the doctrine of ademption? |
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Definition
| When specifically bequeathed property is not in the T’s estate at death (i.e. it was sold or destroyed), the bequest is addeemed – that is it fails |
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Term
| What is meant when it is said that ademption applies to specific devises and bequests? |
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Definition
A specific legacy that is particularly designated and can only be satisfied by receipt of that particular property can be addeemed. This makes for tricky exam questions. Keep in mind these types of bequests:
Specific devise/bequest: Self-explanatory – I leave my 1991 limited edition Star Wars action figures to my nephew. It can be broadly described and be specific “Star Wars figures” “my car” provided it is uniquely specific at death
General legacy: I leave my niece Betty $5,000 (No ademption)
Demonstrative legacy: I leave my niece Betty $5,000 to paid from my IBM stock. (No ademption, If T sells his IBM stock, the $5,000 must come from elsewhere in the estate) |
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Term
| When might bequests of securities qualify as general devises and when might they qualify as specific devises? |
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Definition
From the outline. (In examples, T sold the shres)
If the will devises my 200 shares in Acme stock would be read as a specific devise (because of the possessive pronoun “my”)
If the will devises 200 shares of Acme stock, the court will read a general legacy approximately valued at 200 shares of Acme stock (note Prof. Powell states there is a split of authority here – but this is the prevailing approach). The outline states the courts will always try to construe a bequest of securities as a general legacy to avoid ademption |
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Term
| What role has “testator intent” played in determining whether or not property disposed of was intended, nonetheless, to be in the estate (defeating ademption). |
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Definition
At common law: Testator intent was irrelevant. If the property had been disposed of it was addeemed – no inquiry as to what the T intended the consequences to be. The lectures state the majority of states continue to adhere to this approach.
Under the UPC, testator intent is considered relevant in the following circumstances:
Any casualty insurance proceeds unpaid at death
Any amount of condemnation award unpaid at death
Balance of a purchase price or installment payments when an executory contract is still in effect.
Replacement property – tangible or intangible – common example is D was gifted X stock by T. T’s estate holds Y stock as a result of a merger or consolidation. |
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Term
| What approaches are taken regarding appreciation on property since the will was executed? |
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Definition
| Increases to specific gifts occurring after T’s death passes to the specific beneficiary. Increases to specific gifts occurring during T’s lifetime include income (rents which go to the general estate and improvements attributed to the property which goes to the devisee. |
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Term
T executes a will that reads, I bequeath 100 shares of Acme stock to my son Simon”
What’s the effect of a stock split of 100 shares?
What’s the effect of a stock dividend of 100 shares? |
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Definition
| The 100 shares from stock split goes to Simon, the devisee. The stock dividend of 100 shares goes to the general estate. |
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Term
| What is exoneration and what are the general approaches? |
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Definition
Exoneration describes the consequences when a bequest is encumbered – say by a mortgage. The question is whether or not the devisee will be exonerated, meaning the estate will pay off the encumbrance
Common Law: Yes
UPC and the majority rule: No |
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Term
| Give an example of a latent ambiguity in a will. How does the courts handle latent ambiguities. |
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Definition
A latent ambiguity is one which exists when the language, though clear on the face of the will becomes ambiguous when it is applied to the facts for which it refers: T devises Bl’acre to “my niece Nellie” T has a cousin named Nellie and a niece named Nora
Extrinsic evidence is admissible to resolve the ambiguity. |
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Term
How would the plain meaning rule apply in this situation:
T bequeaths 200 shares of Acme stock to B. B knows that T wanted her to have all the Acme stock and T actually owned 300 shares of Acme. |
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Definition
| Under the plain meaning rule, if the language of the will is unambiguous, the court will refuse to consider any evidence that contradicts the plain meaning. B only gets 200 shares |
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Term
| Review the UPC intestacy rules with regard to a surviving spouse (what does spouse get?) |
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Definition
Decedent survived by spouse but no parents or issue: Spouse receives 100% of the estate
Decedent survived by spouse and 1 - 2 parents but no issue: Spouse receives $200k + 75% of the estate (parents take the rest)
Decedent survived by spouse no parents but issue (all of whom are issue of Spouse): a) Spouse has no other issue, Spouse receives 100% of the estate; b) Spouse has other issue, Spouse receives $150k + 50% of estate
Decedent survived by spouse, issue (at least one of whom are not issue of Spouse), Spouse receives $100k + 50% of the estate. |
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Term
| What are the two methods used to distribute to descendants for intestate distributions |
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Definition
Per capita by representation (majority rule) – also called per stirpes the shares are distributed at the generational level at which there are ANY living takers. The shares are divided evenly for each living descendant or by representation by a deceased descendants
Per capita at each generational level (UPC) – Begins again at at the generational level at which there are ANY living takers. The shares are divided evenly for each living descendant. For descendant of deceased takers, the total shares available at the level are also evenly distributed.
Also strict per stirpes: Where shares are distributed based on shares to the first generation – even if there are no living takers in the prior generation. |
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Term
| If asked to discuss intestacy, what do you need to know is included and excluded? |
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Definition
- The intestacy statute applies only to the “probate estate”/ This is the estate that would have been controlled by the testator’s will if he had executed one.
- It does not include: life insurance, property held in trust, property held under JTwROS, POD or TOD accounts and that property which is properly distributed through a will (For example, under the CL “residue of a residue” rules, any residual estate that could not go to the named devisee “fell out of the will” and that portion was handled under the intestacy
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Term
Frank and Jane are married and one child, Barry. Frank and Jane divorce. Jane remarries Steve and Steve adopts Barry as his son. Answer the following questions assuming there is no will in the picture (intestacy) and include a brief explanation:
1.If Jane dies, can Barry inherit from here estate?
2. If Steve has adopted Barry, can Barry inherit from here estate? If Steve made claim that he had adopted Barry but it turns out after administering probate that he had, in fact, not done so, can Barry inherit from here estate?
3. Frank’s father dies intestate, if Frank had predeceased his father, could Barry take from that estate under an anti-lapse statute. |
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Definition
1. Don’t forget the spousal intestate inheritance rules, but there is no preclusion from Jane’s natural child from
2. Yes – adopted children are treated no differently than natural children. Non-adopted stepchildren have no rights of inheritance; however, the second part of the question suggests adoption by estoppel.
3. Generally no. The child has severed those rights through his natural parent when the new parent adopted him. The UPC has liberalized this rule by allowing the child to inherit through either natural parent as well as his adopted parent. Under no circumstances will Frank or his family be able to inherit through Barry. |
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Term
| Discuss the Simultaneous Death Act as it pertains to wills. |
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Definition
| The purpose of the SDA is to resolve any difficulty in determining priority for how the estate(s) descend if both spouses die simultaneously (IOW which spouse inherits from the other?). The rule in the SDA resolves this difficulty by tidily assuming that in the case of each person, his/her spouse predeceased her/him. |
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Term
| When will the SDA not apply in an instance of simultaneous death? |
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Definition
When there is sufficient evidence that one spouse did outlive the other.
When the devise provides for an alternate arrangement. |
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Term
| For the purpose of establishing a condition of simultaneous death, what are the rules |
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Definition
First, there must be insufficient evidence that otherwise the persons died than simultaneously.
Under the revised USDA* and the UPC, if a spouse does not survive the other decedent by more than 120 hours (this can be modified by statute)
*SDA simply refers to insufficient evidence – so the 120 hour rule would appear not to apply |
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Term
| Does the SDA apply to wills as well as intestacy? |
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Definition
| Yes. The USDA applies to all distributions of property including life insurance contracts. |
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Term
| For JTwROS, if the SDA presumes the decedent had no survivor, how is the property disposed? |
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Definition
| As if a tenancy-in-common existed (at least for the two spouses). |
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Term
| Describe the different approaches taken by the common-law and the UPC with regard to advancement of intestate shares (as well as any other state approaches) |
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Definition
An advancement is a gift made to a next-of0kin with the intent that the gift be applied against any share which that next of kin inherits fim the donor’s estate. Since inter vivos gifts are common place, it’s usually unclear whether such a gift was intended to be an advancement, therefore the law has designed some presumptive rules:
CL: It is presumed that when an intestate made a substantial gift to one child and not to others during his lifetime, the gift was held to be an advancement.
Most states: Reverses the CL approach and presumes that the inter vivos gift was not an advancement. Unless shown to be otherwise
MPC: No lifetime gift is an advancement UNLESS 1) it is declared as such in a contemporaneous writing by the donor and 2) acknowledged as such in writing by the donee |
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Term
| H has three children, A, B, C. During his lifetime, H gives A land worth $12,000 to A. At his death, H, intestate, leaves an estate of $78,000 and the land that A now holds is worth $15,000. If the CL approach to advancement applies, what will each child receive from the estate? |
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Definition
The CL will presume the gift to A will be an advancement. Therefore, it must be taken into consideration in divvying up the estate.
The method is to bring the gift back into valuing the estate (the “hotchpot”). The gift is added on the basis of its value at the time of the gift ($12k not $15k). The hotchpot is then divided evenly – with P getting her share net the gift. So in this case, B and C get $30k each, and A gets $18k |
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Term
| Do advancements apply only to intestate – and not testate – estates? |
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Definition
| There is a counterpart in testate estates – called a satisfaction. The rules for presuming a satisfaction are similar to that of the MPC’s rule on advancements. 1) the will must provide for such treatment, 2) the testator must designate such gift as a satisfaction in a contemporaneous writing, and 3) the devisee must acknowledge in writing. |
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Term
| T devises Bl’acre to his daughter, D in his will. While alive, T properly gifts Bl’acre to D and orally states here is Bl’acre in satisfaction of your interest under my will? When T dies, what will D take? |
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Definition
This is a tricky question worth examining.
Your inclination is to say “there is no satisfaction here because of the lack of formality” BUT you can’t forget the doctrine of ademption. If Bl’acre is the only thing D is expressly devised she should receive nothing. Argue that this is not advancement, per se, since there is a will. For example, if there was a residuary clause – or D was actually T’s business partner, she would take nothing |
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Term
| What is the portion of the decedent’s estate that is preserved for the surviving beneficiaries from decedent’s creditors |
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Definition
| Most states have statutes that protect the decedent’s homestead ( or a certain portion of) from creditors. The lecture notes state that there is a $50,000 allowance in-lieu-of-homestead (even if there was no house in the estate) |
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Term
| Do the surviving beneficiaries (surviving spouse in the outline) have the rights to exempt any property of he estate |
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Definition
| The surviving spouse is usually entitled to petition to set aside certain tangible personal property as provided for in the statute (family car, household furniture and appliances, personal effects – or, per lecture notes a fixed dollar amount in value). Important added note. These effects are in addition to any amount or property that is already passing to the family by will or intestacy. |
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Term
| Discuss the “family allowance” provisions under statutes regarding wills and intestacy |
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Definition
| Most states authorize payment of family allowance to provide proper support while the decedent’s assets are being tied up in probate. Usually this is a fixed amount. Important added note. These proceeds, paid from the estate, are in addition to any amount or property that is already passing to the family by will or intestacy. |
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Term
| What are the rules regarding a spouse who joins the family after the execution of the will. |
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Definition
| The effect of marrying one after the execution of the will is to create “pretermitted spouse” status for the new spouse. The general rule is that the spouse gets his/her intestate share under statute regardless of the wills (Note as well, a divorce terminates the old spouse’s interest in the estate). Pretermitted spouse statutes will provide two exceptions: 1) When it clearly appears that the omission of the spoue was intentional (I recall some tricky cases where the court was particular in interpreting the will) and 2) where T has made some alternate provision for the spouse through a transfer outside of the will and the intent of such transfer was made in lieu of him/her taking under the will. |
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Term
| What is the “net estate” and what is the “augmented estate” |
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Definition
| Per lecture notes, this is the probate estate less exempt property, family allowances, funeral expenses, administrator expenses, and creditors’ claims. |
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Term
| What constitutes the estate for the purpose of calculating the elective share. (I’m not sure if this is all elective shares or only those under rights to the augmented estate.)?? |
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Definition
In most state, it is calculated from the decedent’s net estate. The outline states that in other states, it would include the augmented estate. The lecture notes state certain kinds of donative (lifetime) transfers will be included:
Lifetime transfers by the decedent are subject to the elective share if the grantor retained the power to revoke or consume the principal: think revocable trust, retained life estates JTwROS, joint tenant bank accounts). This is remarkable because ordinarily such donative gifts (say a revocable trust) would be used to defeat the spouse’s elective share. Finally any transfer to anyone within 2 years of death to the extent that any transfer in either year exceeds $10k. |
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Term
| What is an “elective share” statute |
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Definition
| Pretty universally adopted, these statutes are designed to protect a surviving spouse from disinheritance. They give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the will. |
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Term
| What is the amount of the elective share |
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Definition
It varies from state to state:
A stated percentage ½ to 1/3
UPC: A maximum of ½ but is staggered based on duration of marriage – vesting 3% per year (maximum of 15 years). |
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Term
| If the spouse elects to take a family allowance or allowance in lieu of homestead, is she barred from claiming an elective share? |
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Definition
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Term
| What are the notice requirements under the elective share statutes? |
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Definition
| Notice is required. Ordinaruly, the surviving spouse must make a written election within a specified period (usually 6 months) |
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Term
| Can a will provide for waiver of elective share |
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Definition
| Yes – after full disclosure |
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Term
| What are the pretermitted child statutes? |
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Definition
| Most states enact such a statute to protect children born or adopted after the execution of the will. By operation, the child takes an intestate share under the decedent’s estate. |
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Term
| What is a pretermitted child entitled to take under pretermitted child statutes? |
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Definition
(per lecture notes) Either:
An intestate share if the testator/parent had no other children who took under the will
Equal share as other children if testator /parent had other children taking under the will. |
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Term
| Can pretermitted children be excepted under the statute? |
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Definition
Yes. The pretermitted child wil not take under the statute if:
It appears from the will that the omission was intentional
The testator/parent leave substantially all his estate to the parent of the pretermitted child
Where testator/parent has made some alternate provision for the child through a transfer outside of the will and the intent of such transfer was made in lieu of him/her taking under the |
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Term
| T executes a will providing shares of his estate to his children A,B, & C. After executing his will, a 4th child, D, is born. Sometime after D’s birth, T properly executes a codicil to his will which simply names Smith instead of B as his executor. No other changes are made. What share of the estate will D receive at T’s death. |
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Definition
A common trick question (based on case-law), the codicil republishes T’s will and means that it has been re-executed as of the date of the codicil. The result is that D is no longer considered a pretermitted child.
DRR? |
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Term
| What are the different approaches taken by the common law and the UPC (many states) with respect to a will that omits a child on the mistaken belief that the child, C, is dead. |
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Definition
CL: The harsh unambiguous mistake rules apply. The mistake would need to be patent meaning the will states that C was intentionally omitted because he was dead but would have received a share were living.
UPC: Treats the child as pretermitted. (This does not apply for any other mistakes concerning a living child – i.e. believed C had won the lottery) |
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Term
| May a beneficiary or heir reject a gift under a will or intestacy |
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Definition
| Yes – this power of renunciation is referred to as “disclaimer”. The effect of a disclaimer is to treat the disclaimant as predeceasing he testator/decedent |
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Term
| What procedures must take place for a disclaimer to take effect? |
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Definition
To be effective for federal estate and gift tax purposes, the disclaimer must be:
In writing
Irrevocable
Filed within 9 months of the decedent’s death. (Excption: if beneficiary is under 21 – within 9 months of 21st birthday) |
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Term
| Why would a beneficiary want to disclaim a testamentary gift or intestate share? |
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Definition
To avoid taxes – federal estate and gift taxes.
To avoid the estate from being absorbed by his creditors (disclaimer predeceased and never had the property – lecture notes state not true under UPC??)
To provide for a greater share based on per capita ate each generational level. (See notes in outline) |
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Term
| What four questions are asked to determine whether the testator lacked testamentary (mental) capacity to make a will (or will provision) |
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Definition
Does the T know the nature of his act (knows he I making a will)
Does the T know the character and nature of his property? (In general)
Is the T aware of the persons who are the natural objects of his bounty
Does the T understand the nature of the disposition he wishes to make |
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Term
| What is an insane delusion and how does it impact testamentary capacity |
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Definition
Insan delusion is a particularized inquiry with regard to a disposition. The disposition will be the product of an insane delusion if 1) it has no basis or in fact or reason but 2) the T ntl adheres to against all reason and evidence.
Note the T need not be insane so as to be incapable of making a will (the 4 inquiries) he just is deluded as to these dispositions (his wife is cheating on him) |
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Term
| What three elements must be shown to prove undue influence |
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Definition
Existence of an exertion of undue influence.
Such influence was exerted to overpower the mind and will of the T
The result is a will that would not have been exected but for the undue influence |
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Term
| How is existence of undue influence proven |
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Definition
| Generally by attempting circumstantial evidence – opportunity to exert influence, susceptibility to influence due to age/ health. The burden is on the challenger AND remember ALL 3 elements of undue influence must be proven |
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Term
| Are there any circumstances where the first element of undue influence, existence of undue influence”, might be presumed? |
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Definition
Yes
Existence of a confidential relationship (note that presumption excludes spouses)
The beneficiary participated in preparing the will
The provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence
(Look for combination of #1 and #2) |
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Term
| What are the two forms of fraud in wills and how do they operate to challenge a will |
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Definition
Fraud in Execution: A misrepresentation as to the nature of the instrument. A has T sign a power of attorney to assist in paying bills; in fact A has T sign a will bequeathing T’s entire estate to A
Fraud in Inducement: Misrepresentation as to the facts which influence T’s motivation. T wishes to bequeath her jewelry to cousin Tillie. A tells T that cousin Tillie is dead, so T bequeaths to A instead. |
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Term
| What is a “no-contest” clause and how does the law handle them? |
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Definition
A no-contest clause (also look for ad terrorem clause) essentially holds that a beneficiary who contests the will forfeit his interest under the will.
The UPC and majority rule holds that if the beneficiary has probable cause to bring the will contest then the clause will be given no effect. |
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Term
| Can one make a contract to make a gift in a will |
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Definition
A contract to make or make a gift within a will, is valid. They are governed entirely by the law of contracts and not the law of wills.
All the material implies that such contract must be supported by consideration |
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Term
| Must a contract to make a gift in a will be in writing |
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Definition
Contract law governs here – as well as the Statute of Frauds. If the gift is personal property, then it need not be in writing; however, if land is involved then a writing evidencing the contract is required.
NOTE HOWEVER: That other states have adopted the UPC as statute – requiring such contracts to be in writing (regardless of the character of the gift). Any such contract can be established only by:
Terms of the contracted agreement within the will itself
Express reference in the will referencing the contract and sufficient extrinsic evidence
A writing signed y the decedent evidencing the contract |
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Term
| A agrees to nanny B’s children until they leave B’s home. If so, then B will devise to A, his house. After the last child leaves the homestead and B informs A that he has changed his mind and will not include such gift in his will. Can A sue to enforce the contract? |
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Definition
| Not if B is still alive, because there is no way to tell if there will be a repudiation. B can bring action under quantum meruit. |
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Term
| A and B are tenants-in-common in Bl’acre. In “their will”, A agrees to a one provision leaving B a life estate in Bl’acre on the basis that B will leave his interest in Bl’acre to A. B informs A that he has changed his mind and will not include such gift in his will. Can A sue to enforce the contract? What if these reciprocating provisions appear in their separate wills. |
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Definition
| No – mutual or joint wills do not imply a contract not to revoke. The outline states that a mutual will refer to reciprocal wils and that reciprocal wills are not intended to be contractual. |
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Term
| What is a power of appointment? |
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Definition
| A power of appointment is an authority created in a person enabling that person (donee) to designate, within the limits prescribed by the creator of the power (donor), the persons who shall take certain property (objects) and the manner in which they shall take it. |
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Term
| T leaves a will the bequeaths Bl’acre in trust as follows: “to pay income to my daughter, D, for life; and on her death to distribute trust principal to such persons (including D’s estate, of the creditors of her estate) as she appoints in her last will” What type of devise is this? |
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Definition
A power of appointment – precisely a general (no limit and can be exercised to D, her estate, or creditors of either) testamentary ( D ca only appoint via will) power of appointment
T is the donor, D is the donee, such persons are the objects, |
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Term
| In a will that provides the power of appointment for property, are there any default takers? |
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Definition
| Yes, unless the donor exercises the appointment, her descendant will take (alternatively, the power of appointment may list a default taker – per Prof. Powell, every well drafted power of appointment will tell us who the default takers are) |
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Term
| What are the two different powers of appointment? Explain what each means |
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Definition
General power: One exercisable to anyone – not limited in th class of beneficiaries to whom donr can appoint – includes herself, her estate, and her creditors.
Special power: One exercisable in favor of a specified class of persons – and does NOT include the donee or her estate, and her creditors. |
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Term
| Must a power of appointment be effected only through the donee’s will? |
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Definition
| Apparently not. The outline refers to a “presently exercisable” power which is exercisable during the donee’s lifetime |
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Term
| If D is holding property under a general testamentary power of appointment, may his creditors reach the property? |
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Definition
No.
The donee is presumed only to be holding the property for someone else and does not own it.
HOWEVER, if D exercises her general power – whether for herself or another – then her creditors may reach as though D was the owner. |
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