What are the statutory requirements for a will?

1. Will must be written with testamentary intent

2. T must be 18 or over

3. T must sign will (another person can sign if under T's direction and T was present)

4. Two attesting witnesses who witness T's signing, or T's acknowledgement of previous signature or will

Can you have a holographic will?

Majority: No allowed unless there are 2 witnesses

UPC- a holographic will is valid if it is signed by T and the material provisions are in T's handwriting

Is a fill in the blank will valid?

Yes, if the identity of the beneficiary is known, then the testimentary intent can be inferred from the form itself.

How can you tell if a will is valid if the person moves states and the will is only valid in one of the states he lived?

Will be valid if:

1. It's valid in place of execution

2. It's valid in place of domicile at death

3. It's valid at domicile at execution

Can a witness to the signing of the will be given an interest in the will?

Yes, just because one of the people witnessing is getting an interest, it does not invalidate the will.

Who bears the burden of proof if a will is contested?

The burden is on the proponents of teh will, but if the will has an attestation clause, the burden shifts to the party that is contesting the will.

Attestation Clause

Paragraph at the end of a will reciting that all requirements of due execution were met.

Self Proved Will

When a T signs the will and the attesting witnesses sign, and then they all sign oaths before a notary that recites all elements of due execution.  It allows formalities of execution to be conclusively presumed.

No one can contest for execution, but can for fraud, etc.

How can you revoke a will?

Revocation by Physical Act

Revocation by Codicil

What are the requirements for revocation by physical act?

1. Intent to revoke

2. Physical Act- requires an act by the T, or if done by another it must be in the T's presence

Is a wil revoked if Void is written on it or on a copy of it?

Void written on back of will: Split authority. Majority say it's not good b/c cancellation must touch some words. The UPC says it is good.

If Void is written on face of Xerox copy: No good, Can't appear on a picture of a will.

What are the presumptions if will can't be found when T dies?

1. If the will has always been in T's possession from execution till death and it's found mutilated after death, presumed T did mutilating with intent to revoke.

2. Will last seen in t's possession and control not found after T's death. Presumed to not be found b/c T intended to destroy it with intent to revoke.

How can there be revocation by another person?

Revocation must be done at T's discretion, and in T's conscious presence

What is the lost wills statute?

What happens if an attorney messes up a client's will?

The attorney can be sued for negligence

What happens when there is a codicil to a will?

They are read together if you can, but if there are inconsistencies you use the codicil because it was the last document.

Can a second will be a codicil?

Yes, if the second will has no residuary clause, it's presumed to be a codicil to the first, and there's only a revocation as to the inconsistencies in the first.

How can a second will be treated as a codicil?

If there is no residuary clause it's a codicil, however, if there is a residuary clause, then it's treated as a second will and the original will is revoked.

If you revoke a will, does it revoke the codicils to it?

What happens when a spouse is written into a will and there is a divorce?

Can a divorced spouse still be part of a trust she was assigned to in a will, or be a beneficiary of a life insurance policy?

The spouse is revoked as to the trust from the divorce, but can still have teh life insurance policy.

What happens if a couple merely separates? What should be obtained to end the rights under a will?

Separation does not alter the rights of parties under the will, but if there is a property settlement after the separation it acts as a waiver to be in the will.

Can you change a holographic will by handwriting?

Yes, holographic wills can be changed by hand. There does not even have to be a signature by the party as to the change.

Can you have a holographic change, on a properly executed typewritten will?

DDR

What is the tip for applying DDR?

Can you revive an earlier will by revoking the new will?

Can only revive if 3 tests are met:

1. The first will is still in existence

2. T wanted the first will revived

3. Will 2 must have been revoked by physical act (b/c if will 3 did it, then will 3 would be the authority)

How can you incorporate extrinsic documents by reference?

Four requirements:

1. Writing must be in existence at time will was executed

2. Will must refer to the writing as being in existence

3. Will must manifest an intent to incorporate the document

4. Will must "describe the writing sufficiently to permit its identification."

Can a holographic will add type written material into it?

Can incorporate an extrinsic document by reference if it meets the four req's.

When can you write a document after the execution of a will and still have it incorporated into the will?

What is the Intestate share of the surviving spouse, if the deceased also has a surviving parent?

The spouse takes the first $200,000, plus 3/4 of any excess.

What is the intestate share of the surviving spouse if there are dececendants?

If the spouse has no other descendant, the spouse takes the entire estate.

If the spouse has other descendants, the spouse takes the first $150,000, plus 1/2 of any excess.

What is the per stirpes method?

UPC provides for a per capita at each generation level pattern of distribution, under which the shares are initially divided at the first generational level at which there are living takers, then the chares of deceased persons at that level are combined and then divided equally among takers at the next level.

Can you have an oral will?

No, the UPC does not allow for it.

What happens if the beneficiary dies before the testator?

When does the anti lapse statute apply?

It applies when the beneficiary who died is:

T's grandparent, a lineal descendent of T's grandparents, or T's stepchild who leaves issue who survive T.

Does the anti lapse statute apply when the will expressly states: " To x if they survive me."

Most States: The gift would lapse, this language is enough.

UPC- applies anti-lapse so result remains the same and their kids get it.

Don't apply it if there is specific language otherwise, but survivor clauses aren't enough language.

What does the anti-lapse statute apply to?

What are the rules if a T leaves a wife out of the will?

What if T makes a will, and then has a child and then he dies never changing the will to include the child?

What is the homestead and personal property exemption?

I devise Blackacre to the children of my good friend John.  At that time, John has three kids: A, B, and C.  A dies, and later John has D. Then T dies. Who gets blackacre? 

Since this is a good friend, the anti lapse statute doesn't apply so:

A: nothing

B,C,D: Each get 1/3

If Anti lapse applied, A's heirs would get A's 1/4, and the others would get 1/4.

What is the list used tp give away the estate for abatement purposes?

First give away:

1. Intestate property

2. Residuary Bequests: "all the residue to A"

3. General Legacy: gives $ but no instruction

4. Demonstrative legacy: gives $ and where it should be taken from.

5. Specific devise or bequest

When does ademption apply?

It applies only to specific gifts, doesn't apply to money.

Ex: I devise my 200 shares of stock: can be adeemed.

I devise 200 shares of stock: not adeemed b/c not specific.

Do they look at T's intent during ademption?

YES, under the UPC T's intent is material, and several statutes apply to avoid admemption when the testator was incompetent when a will was executed before T was declared incompetent, and later the specific gift is sold off.

If you are given property in a will that is subject to a lien, do you have to pay off that lien?

UPC: Yes, unless the will specifically says the proceeds from the estate have to pay it off.

Common law- made the estate pay off the Creditors.

When can you bring in extrinsic evidence to help decide the T's intent in a will?

If there was a latent ambiguity that makes it so unclear as to who the beneficiary is, then extrinsic evidence can be used to prove the intent.  If the evidence isn't enough, the gift fails.

If there is a mistake in the will as to the beneficiary, can evidence be used to show the mistake was made?

Per Capita method on generational

UPC