„  Don’t give effect to oral wills, generally

o   initials or any mark made with a present intent to authenticate

o   can be made by another person at T’s direction, in T’s presence

o   NC doesn’t require a certain location for the signature

o   If a clause is located after the signature, clause and will are valid

o   re-published

„  Presence

o   Line of sight test/scope of vision test - people are in each other’s presence only if they could have seen each other sign the document if they looked

ž  Can be no impediment between them

o   Exception: T may sign before Ws arrive and then acknowledge his previous signature in the presence of 2 witnesses

o   If interested witness is used, will is still valid

o   But without 2 other witnesses who are disinterested, a gift made to the interested witness is void

ž  not applicable to holographic wills – Ws can be interested because W is supernumerary

ž  statute doesn’t require any Ws for holographic will

o   Will is effective unless court determines that a condition in the will

ž  was intended to be a condition precedent to the will’s effectiveness

ž  and not a mere statement for the reasons why T made a will [“fearing I might die”]

o   Courts seldom construe a will as being conditional, unless it is unambiguously conditional

o   If a clause is added after execution, the will is valid but the additional clause is not; unless the will was re-executed or

Holographic Will

Majority:

and NC

„  Majority: not entitled to probate unless there are two attesting Ws

„  NC: a holographic will is valid if:

1)    entirely in T’s handwriting;

2)    either signed by T or name appears in will in her handwriting

3)    found in a “safe place”

„  Testamentary intent is still required

o   Ex: letter to attorney suggesting changes is not a holographic will

„  Safe Place – subjective standard

o   Ex: among valuable papers in a safety-deposit box

o   Ex: disinterested person’s possession because T deposited it for safe keeping

1)    words appearing in T’s handwriting are sufficient to constitute a valid holographic will; and

2)    extraneous words do not affect the meaning of the words that are in T’s handwriting

„  non-handwritten material can be ignored if it’s not critical to ascertain what the will means; valid if handwritten material can be understood without extrinsic evidence to determine what will means.

Nuncupative (Oral) Will

DODDI: 

„  Will is valid to dispose of personal property of unlimited value, if:

1)    it is spoken in the T’s last illness;

2)    before 2 disinterested Ws

ž  must be expressly requested by T to bear witness

3)    T dies from the illness; AND

a)    it is offered for probate within 6 mo. of when T spoke it OR

b)    one of the Ws reduces the statement to writing within 10 days of when T spoke it

„  Nuncupative will cannot be used to modify a valid written will

Proof Of Wills:

Typewritten Wills:

„  to be admitted to probate, a typewritten will must be proved by the testimony of the two attesting Ws, who testify to:

1)    T’s sound mind,

2)    T’s signature, AND

3)    witnesses’ attestation in T’s presence

o   Absent Witness: where an attesting W is dead, insane, or cannot be found, proof of the missing W’s signature will suffice

Holographs:

In order to be admitted to probate

1)    Three Ws must testify that the will is in T’s handwriting

2)    One W must testify that will was found in safe place

o   Not necessary that the Ws be disinterested

„  at the time will is signed by T and attesting witnesses or sometime in T’s lifetime, T and witnesses sign self-proving affidavit under oath before notary public

o   affidavit must recite all elements of due execution

o   Will is then admissible without testimony of any witness

„  Any state’s valid will is effective to dispose of personal property located in NC

„  But will must comply with NC law to dispose of real property in NC

„  Any state’s valid will is effective to dispose of personal property located in NC

„  But will must comply with NC law to dispose of real property in NC

„  document that modifies the original will

o   may add, subtract, qualify, revoke privileges

o   or make other substantive changes to the original will

„  must be executed with same will formalities

„  does not revoke a prior will

Revocation: [Intent + Act]:

Duplicate Copies

„  If more than one copy exists, an act of revocation on one revokes all executed copies

„  one revoked, all revoked

„  Requirements

1)    T’s present intent to revoke; AND

2)    physical act (burned, torn, obliterated, or destroyed) done by T

„  Must touch some of the words/material parts of the will to be effective

„  NC Presumption: Missing After Death

o   if a will last seen in T’s possession/control can’t be found after T’s death, presumed the reason that it can’t be found is T destroyed it with the intent to revoke

Revocation by Another Person

(Proxy)

„  Requirements – revocation must be:

o   (1) at T’s direction, AND

o   (2) in T’s presence 

„  When a codicil makes no reference to a previous will but contains slightly inconsistent provisions (i.e. giving a ring to two people), will & codicil are read together/combined to the extent possible

„  For inconsistent provisions, the later document controls and revokes by inconsistency the prior will (implied revocation)

„  same rule applies if second document is a will

„  Divorce after a will revokes all provisions in favor of the ex-spouse

o   Construe will as if the ex-spouse had predeceased T

„  If they remarry, treat as if divorce never happened -- assuming will had not been revoked between divorce and second marriage

„  Other rights:

o   Doesn’t affect life insurance policy benefits

o   Terminates rights under revocable inter vivos trust

„  Striking through a provision serves as a revocation by physical act as to that provision

„  Handwritten, substituted provision is ineffective unless after making the change:

1)    T re-executes the will on same sheet of paper, or

2)    T republishes the will by codicil on separate sheet of paper

„  Holographic changes to holographic wills are effective

o   Don’t even require a new signature

„  Striking through a provision serves as a revocation by physical act as to that provision

„  Handwritten, substituted provision is ineffective unless after making the change:

1)    T re-executes the will on same sheet of paper, or

2)    T republishes the will by codicil on separate sheet of paper

„  Holographic changes to holographic wills are effective

o   Don’t even require a new signature

„  Revocation may be disregarded if it was dependent upon a mistake of law or fact as to the validity of another disposition

o   And but-for the mistake, T would not have made the revocation -- look to T’s intent

„  Intended new gift must be larger!

o   Not applicable where the new amount is less than the original disposition

o   Ex: T strikes out a gift, writes in a new larger gift but ineffective; court will give the beneficiary the older gift/amount

„  Revocation may be disregarded if it was dependent upon a mistake of law or fact as to the validity of another disposition

o   And but-for the mistake, T would not have made the revocation -- look to T’s intent

„  Intended new gift must be larger!

o   Not applicable where the new amount is less than the original disposition,  If get is smaller they get nothing.

o   Ex: T strikes out a gift, writes in a new larger gift but ineffective; court will give the beneficiary the older gift/amount

„  Once 1st will is revoked by language of revocation in a 2nd will, 1^st will is “legally dead” and cannot be revived merely by destroying the 2nd will and its language of revocation

„  Revocation of 2nd will does not revive 1st will or any of its provisions

o   To revive 1^st will, T must re-execute or re-publish by codicil.

o   If 1st will is not revived, then try to apply DRR to save

–      NC: No Revival of Revoked Wills 

„  Once 1st will is revoked by language of revocation in a 2nd will, 1^st will is “legally dead” and cannot be revived merely by destroying the 2nd will and its language of revocation

„  Revocation of 2nd will does not revive 1st will or any of its provisions

o   To revive 1^st will, T must re-execute or re-publish by codicil.

o   If 1st will is not revived, then try to apply DRR to save

–      To incorporate an extrinsic document by reference:

1)    document must be in existence at time will was executed

2)    will must manifest an intent to incorporate the document; AND

3)    will must describe the writing sufficiently to be identifiable

–      Holographic will can incorporate non-handwritten material by reference

–      Oral instructions cannot be incorporated by reference

–      Facts of Independent Significance

„  Acts having an independent life time motive may impact the will

„  ex: ”I devise the automobile that I own at my death to my nephew”

o   T owned an old VW when he executed the will, but 3 months later trades it in for a new Cadillac

o   Cadillac likely passes because T probably bought it for his own enjoyment, not just to change the will

„  Interpreted very broadly/liberally

„  Blanks that can be filed include those related to identification of

a)    beneficiaries [my employees at time of death] OR

b)    property that is subject to the will [furniture in my home]

1)       Doctrine of Independent Significance – Acts having an independent lifetime motive may impact on the will as well.

(a)      My car to Ned → If T buys a new Cadillac the day before he dies, Ned gets it.

(b)      $1K to every employee → Employees get $1K even if T fired all his old employees & hired new ones.

(c)      Courts have liberal with this and have upheld “gifts of the contents of my living room”. 

„  If a named beneficiary dies before (or within 120 hours of) T, the gift lapses

„  “lapse” is a term of art: gift fails, falls to residuary estate

o   if residuary lapses, gift passes by intestate succession

„  Unless gift is saved by the state’s anti-lapse statute

o   Applies when predeceasing beneficiary is T’s grandparent or lineal descendant of a grandparent who leaves issue (kids)

o   Includes nieces, nephews, aunts, uncles

o   Doesn’t allow predeceased beneficiary to specify where the gift goes (i.e. can’t leave it to spouse)

o   when the will provides a gift to a class (group of persons – i.e. “children,” “nephews,” “nieces”) and some class members predecease T…

o   … the lapse statute doesn’t apply and surviving class members take

o   if people are individually named, the gift is not to a class but to those individuals

ž  Class Gift: X to the kids of my good friend, Bates

ž  Individual Gift: X to A, B and C, the kids of my friend Bates

(a)      Class gift rule – When there is a gift by a group of persons generically described as a class, and some class member predeceases the testator and the lapse statute does NOT apply, the surviving members take equally.

(1)    When designate members of the class that is NOT a class gift and any member not designated does not take anything.  

(b)      If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue.  

(a)      Start at the bottom and work up (intestacy or residuary property first, then general legacy’s, then demonstrative legacy’s and finally specific bequests). 

o   Specific Bequests - can only be satisfied by specific property

ž  “my set of golf clubs”

o   General Bequests - can be satisfied by transfer of any property meeting the description

ž  “a set of golf clubs”

o   Demonstrative Bequests - to be satisfied from a specific fund first, then from general assets to extent specific fund is insufficient

ž  “$50,000 to be paid first from my RJR stock”

ž  treated as specific bequest the extent it’s satisfied from the designated source – balance is treated as general bequest

o   Residuary Bequests – what’s left after all other bequests are satisfied

Order of Abatement:

Gifts are sacrificed to satisfy funeral expenses and creditors claims in the following order:

1)    property not disposed of by the will [partial intestacy];

2)    residuary bequests and devises;

3)    general bequests and devises;

4)    demonstrative legacy;

5)    specific bequests and devises

–      Ademption (Adeem)

„  When will makes a specific bequest of a particular item and it does not exist as a part of the estate at T’s death, the bequest is adeemed

o   Specific gift fails completely

„  Does not apply to demonstrative gifts or general gifts

„  Exceptions

o   if T dies after executing a K to sell the specifically devised item, beneficiary takes gift subject to the K à gets remaining $ due on K

o   if the gift was sold by T’s guardian after T was judicially declared incompetent, beneficiary gets cash legacy equal to the net sales price

o   if the item has been involuntary converted, the beneficiary gets the insurance proceeds

„  NC doesn’t care how the stock increases (either by split or dividend)

„  Prior to Death: beneficiary only gets the # of shares mentioned in the will, despite any increases

„  After Death: stock increases are given to the beneficiary

„  “MY” 100 shares: specific gift, adeemed if sold after will’s execution

„  100 share: general gift and cannot be adeemed; shares must be purchased because it is a general gift of that value

„  Mergers: stock is treated as if the shares in the new corporation are those provided for in the will [same substance, different form]

„  beneficiary takes exactly what T owned: title subject to a mortgage lien

„  specific devise of encumbered property is not entitled to have the encumbrance paid out of the residuary estate

o   unless the will shows such an intent

o   general direction “pay my debts” doesn’t show this intent

Ambiguities and Mistakes:

Plain Meaning Rule:

„  bars attempts to change the meaning of T’s words

„  NO extrinsic evidence to correct mistake in the absence of an ambiguity 

„  Looks fine on the surface but courts can’t apply

„  Two types:

o   Equivocation: 2 things match perfectly

ž  “my niece, Alicia” and T has 2 nieces named Alicia

o   Nothing matches perfectly, but 2+ things match imperfectly

ž  “my nephew Chase, the son of my brother, Curley” (Chase is the son of T’s brother Moe and Chuck is the son of Curley)

„  Extrinsic evidence is admissible to resolve T’s intent

o    gives meaning to the words T intended to use

„  Looks fine on the surface but courts can’t apply

„  Two types:

o   Equivocation: 2 things match perfectly

ž  “my niece, Alicia” and T has 2 nieces named Alicia

o   Nothing matches perfectly, but 2+ things match imperfectly

ž  “my nephew Chase, the son of my brother, Curley” (Chase is the son of T’s brother Moe and Chuck is the son of Curley)

„  Extrinsic evidence is admissible to resolve T’s intent

o    gives meaning to the words T intended to use

„  Obviously ambiguous on the will’s face

„  No extrinsic evidence allowed; courts must use the 4 corners of the document

„  Ex: T has 2 pieces of property, but leaves Blackacre to 2 people 

„  Court will not fill in any blanks present on the face of will

„  Can’t write T’s will for him!

–      Mistakes

„  No remedy for T’s mistake as to term’s meaning or legal effect

„  No relief for a mistake in the reasons that induce T to make/not make will provision

o   unless both the mistake and what would’ve been done but for the mistake appear in the terms of the will itself

o   can get relief under Dependent Relevant Revocation if T executes a 2^nd will explaining reason behind new will

o   ex: 2^nd will says “Because my brother died…” but he’s alive

„  If mistake was induced due to fraud à remedy is constructive trust

Intestate Share

Share of Surviving Spouse:

(b)      If parent, but no issue, spouse takes 50% interest in real prop & first $50K + 50% interest in personal prop.

(c)      If one lineal descendent (one child or offspring of only 1 child), spouse gets 50% interest in real prop & first $30K + 50% interest in personal prop.

(d)      If more than one lineal, spouse gets 1/3 interest in real prop & $30K + 1/3 interest in personal prop. 

„  1) all to issue if any [descendants];

„  (2) if no issue, to parents or survivor;

„  (3) if no issue or parents, to siblings or their issue [to issue, use per capita at each generation]

Inheritance by Descendants:

Modern Per Stirpes with Per Capita at each generation

i.      Initial division at first generational level with living takers.

ii.     Shares of deceased persons are pooled, then divided equally at next generational level

„  not used unless specified in the instrument

i.      Divide at first generational level.

ii.    One share for each family line

if there is a partial intestacy for some reason, your heir takes even though you have expressed a desire in your will that the heir not share in your estate

„  may inherit from mother

„  Putative Father: may not inherit from a putative father unless he has:

a)    legitimated the child by marrying the mother,

b)    father formally acknowledged paternity of the child, or

c)     father has been adjudicated as such prior to death

„  Step Father: may not inherit from step father unless the he adopts by estoppel [promised to adopt but never did legally]

„  Adoptive Parents: adopted child may inherit from adoptive parents & vice versa

o   adoption cuts off rights to adopt from natural parents

„  Step Parent Adoption: adopted child’s rights to inherit from mother are not affected by being adopted by a step parent à child may inherit from both

„  No distinction: adopted kids are considered children for class gifts and determination of relationship for intestate succession 

General Lapse Rule:

When B dies before T

Generally, it will go in to the residuary estate. 

Unless its is saved by the anti-lapse statute.

When predeceasing beneficary is T's grandparent of lineal descendant of a grandparents who leaves issue.

Includes neices, nephews, aunts, and uncles, but NOT spouse.

ž  Class Gift: X to the kids of my good friend, Bates

ž  Individual Gift: X to A, B and C, the kids of my friend Bates

„  if the residuary estate is devised to two or more people & the gift to one of them fails, the surviving residuary devisees share the residuary estate

o   T leaves residue to A, B, sister C.

o   If A predeceases T, leaving kid; B and C split the residuary in ½.

o   If C predeceases, leaving kid, A, B, and C’s kid split into 3 (anti lapse applies)

o   Specific Bequests - can only be satisfied by specific property

ž  “my set of golf clubs”

o   General Bequests - can be satisfied by transfer of any property meeting the description

ž  “a set of golf clubs”

o   Demonstrative Bequests - to be satisfied from a specific fund first, then from general assets to extent specific fund is insufficient

ž  “$50,000 to be paid first from my RJR stock”

ž  treated as specific bequest the extent it’s satisfied from the designated source – balance is treated as general bequest

o   Residuary Bequests – what’s left after all other bequests are satisfied

„  Order of Abatement

1. Funeral expenses and creditor beneficiaries

2.  Property not disposed of by W (partial intestacy)

Residuary

General bequests

Demonstrative bequests

Specific Bequests

Under ademption, what kind of gifts fail completely?

What does it not apply to?

Specific Gifts.

Does not apply to demonstrative gifts of general gifts.

o   if T dies after executing a K to sell the specifically devised item, beneficiary takes gift subject to the K à gets remaining $ due on K

o   if the gift was sold by T’s guardian after T was judicially declared incompetent, beneficiary gets cash legacy equal to the net sales price

o   if the item has been involuntary converted, the beneficiary gets the insurance proceeds