MEE Wills

Forfeiture Clauses

A no-contest clause is an express clause within a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so. No-contest clauses are generally not enforceable if the claimant had probable cause to contest the will.

Insane Delusion

A belief for which there is no factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. Test is that a belief is an insane delusion if a rational person in the testator's situation could not have reached the same conclusion. Once it is determined that a testator suffered from an insane delusion, it must be shown that this was the sole cause of the testamentary disposition. The majority test requires but-for causation.

Bequests of Securities

A bequest of stock owned by a testator when the will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares of a security that were owned by the testator a the time the will was executed is deemed to include any additional shares of that security or of another security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any cash dividends or distributions. Specific bequests carry with them all post-death income, such as interest, dividends, and rent. General bequests carry with them interest earned on the amount bequeathed beginning one year after the decedent's death at a rate set by statute. Residual requests are non-interest bearing.

Issue

A decedent's issue includes all lineal descendants, including children, grandchildren, great-grandchildren and the like, but excluding the descendants fo living lineal descendants. A child of a marriage is presumed to be the natural child of the parents to the marriage. A rebuttable presumption exists that a child conceived before but born after the death of his mother's husband is the natural child of the deceased husband if the child is born within 280 days (9 and 1/3 months) of the husband's death. A posthumously born child born more than 280 days after the husband's death has the burden of proving that he is the deceased husband's natural child.

Ademption by Satisfaction

A general, specific, or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to the devisee after the execution of the will, if it was the testator's intent to satisfy the devise by the transfer.

Homicide as a Bar to Succession

A party cannot take property from a decedent when the party was responsible for the decedent's death. The UPC and most jurisdictions treat the killer as if he had predeceased the decedent. The killing must have been intentional and felonious. If a criminal conviction fails, the court nonetheless may make a determination as to the lawfulness of the killing, using a preponderance of evidence standard. Killings that were not intentional and felonious may result in the court imposing a constructive trust. Jurisdictions are split as to whether the killer's issue should also be barred from taking.

Pour-Over Trust

A provision in a will that directs the distribution of property to a trust upon the happening of an event, even if the trust instrument was not executed in accordance with the Statute of Wills, as long as the trust is identified in the will and its terms are set forth in a written instrument. The pour-over bequest is valid even if the trust is unfunded, revocable, and amendable. Under the doctrine of incorporation by reference, if a will refers to an unattested document that is in existence at the time the will is signed, then the terms of that document could be given effect in the same manner as it if it had been properly executed.

Codicil

A supplement to a will that alters, amends, or modifies the will, rather than replacing it Must be executed with the same formalities as a will A holographic codicil to an attested will and an attested codicil to a holographic will are valid. Revocation of a will revokes all codicils thereto, whereas revocation of codicil does not revoke a will, but rather revives it.

Testamentary Intent

A testator must executed a will with testamentary intent. He must understand that he is executing a will and must intend that it have testamentary effect. The testator need not read the will, but must generally know and approve its contents.

Revocation of a Will

A testator with testamentary capacity retains the ability to revoke his will at any time prior to death, even if he has executed a valid contract not to revoke the will Subsequent Instrument: A will can be revoked by a subsequent writing, a later will, or a codicil. Under the UPC, a subsequent writing must qualify as a valid holographic or attested will to revoke. If there are inconsistencies between a codicil and an earlier will, the later document controls and revokes the prior inconsistencies. If a subsequent document has a residuary clause ("I leave all my remaining property to X"), then it revokes the first will by inconsistency. Destruction with Intent to Revoke: A will can be revoked by burning any portion thereof, or by canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and the intent to revoke must be proven. The majority rule is that the language of the will must be defaced. The UPC and the minority rule is that the descriptive act must merely affect some part of the will. There is a presumption that the destruction of a duplicate copy revokes the will, but not an unexecuted copy. A third party can revoke on behalf of a testator as long as the revocation is 1) at the testator's direction and 2) in the testator's conscious presence. Operation of Law: In most states, divorce revokes all will provisions in favor of the former spouse unless it can be shown that the testator intended for the will to survive. If a divorced couple remarries before the testator dies, then the will provisions are revived. Holographic Will: A holographic will can be altered or revoked by holographic changes and without a new signature. If a subsequent holographic will disposes of part of an estate already disposed of in a typewritten will, then the typewritten will is revoked only to the extent that it is inconsistent with the later holographic will.

Holographic Will

A will that is completely handwritten and signed by the testator. A holographic will cannot be signed by another person on behalf of the testator. Jurisdictions differ on whether the entire will must be in the testator's handwriting. A holographic will need not be witnessed. Some states require that a holographic will be dated. It must be clear that the document was intended by the testator to be a will. Interlineations after the will is complete are effective in most jurisdictions that recognize holographic wills.

Incorporation by Reference

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing: 1) Existed at the time the will was executed 2) Is intended to be incorporated and 3) Is described in the will with sufficient certainty so as to permit its identification. The UPC waives the requirement that the document have been in existence at the time the will was executed if the document disposes only of the testator's tangible personal property. The will, however, must expressly state the testator's intent.

Joint Bank Accounts

Amounts on deposit in a bank account may be transferred at death by means of a joint or multiple-party account designation. The surviving tenant or tenants have an absolute right to account proceeds unless extrinsic evidence is introduced that the decedent added the tenant or tenants for convenience purposes only.

Adoption and Equitable Adoption

An adopted child is treated as a biological child for purposes of inheritance. Adoption curtails all inheritance rights between the natural parents and the child. If an adopted child dies intestate, then his property is distributed among those individuals who would have been his heirs had he actually been born to his adoptive parents. When a stepparent adopts a child, a parent-child relationship still does exist with the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through that other genetic parent. Foster children and stepchildren have not right to inherit from their foster parents or stepparents. However, under the doctrine of equitable adoption, foster parents and stepparents are treated as adoptive parents for purposes of inheritance if: 1) The relationship began during the child's minority and continued throughout her life and 2) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the child but for a legal barrier. A foster chid who never legally adopted may also be treated as the child of a foster parent who dies intestate if the foster parent made an agreement with the natural parents to adopt her and proceeded to treat the child as his own. Under equitable adoption, a child can inherit from, but not through, the equitable adoptive parent. Also, the equitable adoptive parent cannot inherit from or through the child. Unlike a true adoption, the parent-child relationship and the inheritance rights between the child and the natural parents are not affected.

Powers of Attorney

An authorization to act on another's behalf in a legal or business matter, usually when the principal is unable to do so (ex: healthcare power of attorney becomes effective upon incapacitation of the principal) Must be written, signed, and dated The principal must be mentally competent at the time that they signed the document. An advance healthcare directive must be in writing, signed by the individual who is to receive care, and witnessed by at least two individual or notarized. In many states, the agent or healthcare provider cannot be a witness. Can be revoked at any time and revocation is effective when communicated to the testator's primary physician. Agent must be at least 18 and cannot be the healthcare provider unless also the spouse or close family member. Typically shields the agent from civil liability for healthcare decisions made in good faith (only held responsible for intentional misconduct)

Will Contests

An objection raised against the validity of a will based on the contestation that the will does not reflect the actual intent of the testator (i.e., testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud) Must be filed within 6 months after the will is admitted to probate. Proper notice should be given to all heirs and legatees under the will, as well as to creditors of the estate. Only direct interested parties who stand to benefit financially may contest a will, such as beneficiaries under the current or prior will. Creditors of beneficiaries, spouses of beneficiaries under prior wills, and pretermitted heirs cannot contest.

Revival

At common law, followed in just a few states, the revocation of a will or codicil that had revoked another will automatically revive the original will. Many states follow the no-revival approach, under which the second will functions as 1) a revoking instrument that is effective upon its execution and 2) a dispositive instrument effective upon the testator's death. Therefore, even if the second will is revoked before the testator's death, the revocation of the first will remains in effect. The modern approach adopted by the UPC focuses on the testator's intent and considers 1) where the second will is revoked by act or by another, later will and 2) if the second will is revoked by an act, whether the first will was wholly or partially revoked by the second will. If the second will is revoked by another new will, the previously revoke will is only revived if the rems of the new will show that the testator intended the previous will to take effect. The court will not consider any extrinsic evidence on this issue. If the second will is revoked by a physical act, the burden of establishing the testator's intent depends on whether the first will was wholly or partially revoked by the second will. If the second will wholly revoked the first, the court will presume that the testator did not intend to revive the first will and the burden will be on the proponent of the first will to prove the testator intended to revive that will. If the second will partially revoked the first will, the court will presume that the testator intended to revive the revoked parts of the first will and the burden is on the challenger to show the contrary. The court is permitted to consider extrinsic evidence of this issue.

Disclaimer of a Testamentary Gift

Because acceptance of a testamentary gift is presumed, a party must actively disclaim if she wishes not to accept it. The disclaiming party is treated as if she had predeceased the decedent, and the property is distributed to the next eligible taker. An interest cannot be disclaimed once an heir or beneficiary has accepted the property. Most jurisdictions require that the disclaimer be in writing, signed, and filed within nine months of the decedent's death.

Ambiguities or Mistakes in a Will

Courts interpret a will according to its plain meaning when possible. If there is an ambiguity in the will, it can be resolved by extrinsic evidence. If the ambiguity cannot be resolved, the gift in question becomes part of the residue. Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when the testator is unaware that she was signing a will. No extrinsic evidence is allowed and no relief will be granted if the mistake involves the reasons behind the testator making the will or a particular gift. For example, if a testator would normally make a will leaving his estate to his two siblings, but, under the mistaken belief that one has died, he instead leaves everything to one sibling, the court would not consider extrinsic evidence and would aware the whole estate to the one sibling. There is an exception, however, if the testator was fraudulently induced or the mistaken inducement appears on the fact of the will. Under the general rule of construction that a will "speaks" as of the time of death, a bequest of a generically described property applies to property that meets the generic description at the testator's death.

Powers of Appointment

Describes the ability of the decedent (donor) to select an individual (donee) to dispose of certain property under the will. Power is personal only to the donee (only donee can appoint) General Power of Appointment: No restrictions or conditions on the donee's exercise of the power. The donee's creditors can reach the appointive property. Failure to exercise causes the appointive property to revert back to the donor's estate. Special Power of Appointment: - Exclusive: Allows the donor to specify certain individuals or groups as the objects of the power, to the exclusion of others. A special power is presumed to be exclusive.. The donor can also make the donee's exercise of the power conditional on whatever factors he desires. Creditors are prevented from reaching the appointive property unless the transfer of property was intended to defraud the creditors. -Non-exclusive: Allows the donee to exercise the power to appoint among a class of individuals, like grandchildren. It is non-exclusive because the donee cannot exclude a member of the class, but must appoint an equitable share to all appointees to prevent favoring one or two appointees over all others. When the donee fails to exercise the power, the court will imply a gift to the objects of the special power and order a distribution.

Per Capita Without Representation

Divides the property equally among the first generation when at least one member of that generation survives the decedent, with the shares of each member of that generation who does not survive the decedent passing to the then-living issue of the nonliving member. If the non-living member has no then-living issue, then the nonliving member does not receive a share.

Per Capita at Each Generation

Divides the property into as many equal shares as there are members of the nearest generation of issue who survive the decedent and deceased members of that generation with issue who survive the decedent. Begin as per capita with representation, but then divide the remaining shares equally among the members of the next generation.

Creditor's Claims

Each state has nonclaim statutes that bar creditors from filing claims after a specified time period has elapsed. The personal representative must provide notice to creditors of the estate, advising them of when and where to file claims. Failure to give the proper notice to creditors extends the time period they have to file a claim against the estate. Order in which expenses and debts should be paid: 1) Administrative expenses of probate 2) Last medical expenses and funeral expenses 3) Family allowance 4) Tax claims 5) Secured claims 6) Judgments against the decedent 7) All other claims

Personal Representative

Either name in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent's affairs Any person with the capacity to contract can serve as a personal representative Priority for Appointment: 1) The person named in the probated will 2) The surviving spouse of the decedent who takes under the will or through intestacy 3) Other devisees of the decedent 4) The surviving spouse of the decent who is not name in the will 5) Other heirs of the decedent 6) 45 days after death of the decedent, any creditor Principal Duties: 1) Provide notice to legatees, heirs, and claimants 2) Inventory and collect the assets of the decedent 3) Manage the assets during administration 4) Receive and pay claims of creditors and tax collectors and 5) Distribute the remaining assets to those entitled therein The personal representative is a fiduciary and owes the highest duty of loyalty and care to those whose interests he represents, which means he cannot profit from the trust instilled in him. Judicial approval of the personal representative's actions is required to release the personal representative from potential liability.

Abatement

Gifts by will are abated when the assets of the state are insufficient to pay all debts and legacies. The testator may indicate his order of abatement, but if he fails to do so, the law prescribes an order. If not otherwise specified in the will, gifts are abated in the following order: 1) Intestate property 2) Residuary bequests 3) General bequests and 4) Specific bequests Demonstrative legacies (legacies that are to be paid from a particular source) are treated as specific legacies for abatement purposes to the extent that they can be satisfied and otherwise as general legacies.

Ancestors and Remote Collaterals

If no surviving spouse or issue exist to succeed to the decedent's estate, then the property may be distributed to the decedent's ancestors (parents, grandparents, great-grandparents) and more remote collateral relatives (those related to the decedent through a common ancestor, like siblings, cousins, aunts, and uncles). The parentelic approach follows collateral lines until a live taker is found, at which point the decedent's property is distributed within that taker's parentelic line. A decedent's estate would first pass to the decedent's parents and their issue (the decedent's siblings). If there are none, then the decedent's grandparents and their issue (aunts, uncles, and cousins) and so on. The degree-of-relationship approach results in those with closer degrees of relationship to the decedent taking to the exclusion of more remote relatives. The degree of relationship is calculated by counting the number of relatives between the living taker and the decedent using the closest common ancestor. Under the combined approach, the parentelic approach is used as a tiebreaker in the event that the degree-of-relationship approach results in a tie between multiple living takers share in the same lowest degree of relationship. Those in the closest collateral line take to the expulsion of those in the more remote collateral line. Under the UPC approach, if there is no surviving spouse or decedent, the estate passes in the following order to individuals that survive the decedent: 1) To the decedent's parents equally if both survive or the surviving parent 2) If there is no surviving descendant or parent, then the descendants of the decedent's parents 3) If there is no surviving descendant, parent, or descendant of a parent, then to the decedent's maternal and paternal grandparent, one-half to each, or to the descendants of the decedent's maternal or paternal grandparents if the grandparents are deceased 4) If none of those survive, to the decedent's nearest maternal and paternal relative and 5) If there are no surviving relatives, then the estate escheats to the state. Under the UPC, a parent cannot inherit through a child if her parental rights have been terminated or if the child dies before the age of 18 and there is clear and convincing evidence that the parental rights of the parent could have been terminated under state law.

Lost Wills

If the decedent had possession of her original will before death, but the will is not found among her personal effects after death, jurisdictions are split as to whether a rebuttable presumption arises that the decedent destroyed the will with the intent to revoke it. A duplicate original may be admitted to probate. While an unexecuted photocopy cannot be admitted to probate, it can be used as proof of testamentary intent in the case of a lost or missing will. If a will cannot be found, the burden is on the proponent of the existence of a will to prove the will's existence by clear and convincing evidence. As attorney's copy of an original will is sufficient, whereas testimony by an interested witness is not. If there is proof that a will has been destroyed but there is no evidence the testator intended to revoke the will, the will can still be probated if there is clear and convincing evidence of the lack of intent to revoke and of the contents of the will.

Deed as Will Substitute

If the grantor intends hat the grantee have the property interest only upon the grantor's death, the deed is not effective to transfer the property interest unless the deed complies with requirements for the execution of a will. A minority of jurisdictions allow for the transfer of real estate on death using a transfer on death deed, which merely requires the same formalities as an intervivos deed, as opposed to will formalities.

Acts of Independent Significance

If the testator, the beneficiary, or some third person has some control over an act or event upon which a provisions of the will is dependent, it may still have independent legal significance if it is unlikely that the testator or other person would perform such act solely for testamentary reasons. The execution or revocation of a will of a third person is an act of independent significance.

Elective Share and Forced Share

In common law states, the elective share gives the surviving spouse a fraction (often 1/3) of the decedent's estate if the surviving spouse elects to take the elective share rather than any gift contained in the will. The elective share applies to all property of the decedent, regardless of when it was acquired. The elective share does not exist in community property states. Instead, the surviving spouse is entitled to a forced share of one-half of the community property and quasi-community property, in addition to the half that is their own. The spouse must elect to take this share in lieu of all other interests she may have under the testator's will and must file a notice of election within a specified time period. Under the UPC, the surviving spouse can take an elective share amount equal to 50% of the value of the marital-property portion of the augmented estate, which includes property acquired before and during marriage, including gifts. The marital property portion is calculated by applying to the augmented estate a schedule of percentages that increase as the length of the marriage increases. The right of the surviving spouse to take her elective or forced share can be waived in writing if the writing is signed after fair disclosure of its contents. The surviving spouse must also be represented by independent Lola counsel at the time the waiver is made and had adequate knowledge of the property and financial obligations of the decedent at the time of the signing of the waiver.

Execution of a Will

In order for a will to be valid, it must be a writing that is signed by the testator with testamentary intent in the joint presence of two witnesses who both understand the significance of the testator's act. Some states require the signature to be at the end of the will, whereas others allow the signature on any part of the will (but only language appearing after the signature will be held invalid). The testator must be at least 18 years old and of sound mind. To meet the test for mental capacity, the testator must know 1) the nature and extent of her property, 2) the persons who are the natural objects of the testator's bounty, 3) the disposition the testator is attempting to make, and 4) the interrelationship of these items in connection with the testamentary plan formulated in the will. All persons are afforded the presumption that they have mental capacity, so the contestant of the will must prove a lack of mental capacity. The testator's complete formal name is not required, as long as the signature indicates his desire to sign. The will may also be signed by another person in the presence and at the express direction of the testator. The will consists of all pages that are present at the time of the execution and that are intended to form part of the will. At common law, strict compliance with the formal requirements of wills was required. A minority of jurisdictions and the UPC allow probate of a noncompliant will if there is clear and convincing evidence that the decedent intended fo the document to serve as a will and has substantially complied with the statutory formalities.

Per Stirpes

the method of dividing an estate where a class or group takes the share which the deceased would have been entitled to, and not as so many individuals, i.e., by right of representation

Dependent Relative Revocation

Many jurisdictions employ the equitable doctrine of dependent relative revocation, which allows a court to disregard a testator's revocation that was based on a mistake of law or fact and would not have been made but for that mistake. The testator's last effective will, prior to the set-aside revocation will once again control his estate.

Undue Influence

Mental or physical coercion exerted by a third party on the testator with the intent to influence the testator such that he loses control of his own judgment Must show susceptibly of the testator, motive and opportunity of the influencer, and causation The burden of proof rests on the contest to show 1) the existence and exertion of the influence and 2) that the effect of the influence was to overpower the mind and will of the testator. The will must not have been executed but for the influence. When there is a confidential relationship between the decedent and a defendant (as with an attorney or physician) and the defendant participated in executing the will, a presumption of undue influence arises if the gift to the beneficiary is unnatural or consists of the majority of the estate. The burden then shifts to the beneficiary to show by a preponderance of evidence that such influence was not exercised. A beneficiary who is shown to have exerted undue influence is treated as having predeceased the testator to the extent that the gift exceeds her intestate share of the testator's estate.

Transfers to Minors

Minors lack the legal capacity to hold property, so the law provide various ways in which others might manage property for minors. The court can appoint a guardian or conservator, wherein the conservator acts as a trustee to the minor with annual accounting to the court. The Uniform Transfers to Minors Acts appoints a custodian to use the property of a minor at the custodian's discretion on the minor's behalf without court approval and with no accounting requirement The custodian must turn any remaining property over to the minor upon the minor's attainment of age 21. A court can also establish a trust for a minor. With a trust, the court can postpone possession until a time when the donor thinks the child will be compete to manage the property.

Fraud

Must have been present when the will was executed The burden of proving fraud is on the contestant. The fraudulent misrepresentation must be made by the beneficiary with both the intent to decide the testator and the purpose of influencing the will. The result must be a will that would not have been executed but for the fraud Can be fraud in the inducement or the execution A constructive trust can be imposed upon the defendant to rectify any alleged fraud or undue influence perpetrated by the testator.

Nuncupative Will

Nuncupative (oral) wills are generally valid only for the disposition of personal property in contemplation of immediate death and are invalid under the UPC and most states. In jurisdictions where they are valid, they require at least two witnesses, can devise only a limited amount of personal property, and may require that testator dies within a prescribed period after making the oral will.

Omitted Children

Pretermitted heir statutes permit children of a testator to claim a share of the estate even though they were omitted from the deceased testator's will. If a testator dies without revising his will to include children born or adopted after the original will was executed, a presumption is created that the omission of the child was accidental. The omitted child statute does not apply if: 1) It appears that the omission of the child was intentional 2) The testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child or 3) The testator provided for the child outside of the will and intended this to be in lieu of a provision in the will. The republication of a will by codicil after the birth of the child will preclude that child from claiming as an omitted heir. The UPC omitted child doctrine does not expand the scope of evidence admissible to show the testator's intent to omit the child. However, extrinsic evidence is permitted to show the testator's lack of intent to omit the child and ambiguities are resolved in the child's favor. If the testator had no other children when the will was executed, then the child takes her intestate share. If the testator has at least one other child living at the time of the execution of the will, and the will devised property to at least one of those children, then the omitted child's share is taken from that portion of property already devised to the other child, and it must equal the share the other child receives. While the UPC does not extend the proportion of the omitted child statute to children of whom the testator was unaware, it does extend it to children whom the testator believed to be deceased.

Probate Procedure

Probate property passes under a will or through intestacy. Non-probate property passes through an instrument other than a will (life insurance, pension proceeds, joint tenancy property). The court in which the decedent was domiciled at the time of death has jurisdiction over the decedent's personal property and over any real property within that jurisdiction. Ancillary jurisdiction applies to real property located in another jurisdiction for the purpose of protecting local creditors and enduring adherence to the jurisdiction's recording system. Most jurisdictions provide that notice be given to interested parties before the administrator is appointed. After the court issues its "letters testamentary" or "letters of administration," the personal representative can start performing his duties. Bona fide purchasers from personal representatives or heirs are protected after the granting of letters of administration, even if the will present at the time the letters were granted is subsequently invalidated. Under common law, a will could be probated at any time, even decades after the testator's death. Now, probate proceedings must be brought within three years of death under the UPC. There are two types of probate: - Ex Parte Probate: informal and requires no notice for the representative to petition for appointment. The original will must accompany the petition and the executor must swear that, to the best of his knowledge, the will was validly executed. Within 30 days of appointment, the personal representative must give notice to all interested persons, including heirs apparently disinherited by the will. - Notice Probate: a formal judicial determination made after notice is given to interested parties. Any interested party can demand formal probate.

Contracts to Make or Revoke a Will

Proof of contract can be established if: 1) The will states the material provisions of the contract 2) The terms are contained in a written contract or 3) Express reference is made in the will to the contract and extrinsic evidence proves the terms The UPC requires that the contract be in writing and be within the will to be enforced through probate. Consideration must be go en for a will contract to be enforceable. Situations in which the beneficiary promises to care for the testator in exchange for a bequest provide sufficient consideration and make the contract enforceable. A contract relative to making or not making a will must be in writing and signed by the party sought to be charged. Otherwise, the plaintiff must recover only his consideration, including the fair market value of any services rendered. The mutual execution of a joint or mutual will does not create a presumption of a contract not to revoke the will. If a contract not to revoke is proved and the second party attempts to make an inter vivos transfer not in accordance with the contract, or attempts to revoke her will after accepting the benefits under the first party's will, then a constructive trust may be imposed for the benefit of the original beneficiaries.

Restraints on Marriage

Provisions in a will imposing a forfeiture of a gift if a beneficiary shovel ever marry are invalid as against public policy. Requirements that a beneficiary marry only with the consent of the executors or the trustees who would profit under the terms of the will by withholding consent have been held invalid as well. Conditions in partial restraint of marriage are not against public policy if they merely impose reasonably restrictions on marriage or attempt to prevent an ill-advised marriage, like to a specific individual. A provision conditioning a gift upon the beneficiary's not marrying a person outside his own religious group has been held to be valid.

Survival Requirements

The common law requirement was that an heir must be proved to have survived the decedent by a preponderance of evidence. Under the Uniform Simultaneous Death Act, when there is insufficient evidence of the other of death fo two individuals, the property of each individual passes as through the other individual predeceased him. The USDA is applicable to all types of transfers of property, whether through will, joint tenancy, contract, or intestacy. The USDA requires that an heir be proven by clear and convincing evidence to have survived the decedent by 120 hours (5 days) to take under his will or by intestacy, unless the testator has provided others in his will. The 120-hour rule does not apply if it would result in an escheat to the state. The UPC further requires that clear and convincing evidence that an individual in gestation at the decedent's death live for 120 hours after birth. The modern standard defines death as brain death.

Intestacy

The default statutory scheme that applies when an individual dies without having effectively disposed of all of his property through non probate instruments or a valid will The individuals who are entitled to his property are his "heirs." Community property considers all property acquired during a marriage as jointly owned by the parties unless it is a gift, inheritance, or devise given only to one spouse. In a community property jurisdiction, the community property of the decedent is divided equally, and 50% of the community property is given to the surviving spouse. If the decedent was intestate, then the surviving spouse receives the other 50% of the community property. The decedent's separate property is then distributed pursuant to the general intestacy scheme The general intestate distribution scheme presumes that the jurisdiction does not recognize community property. Under the Uniform Probate Code: 1) If all of the decedent's descendants are also descendants of the surviving spouse and the surviving spouse has no other descendants, the surviving spouse takes the entire estate. 2) The surviving spouse takes $300,000 and 75% of the remainder of the estate if no descendant of the decedent survives the decedent, but there is a surviving parent of the decedent. 3) The surviving spouse receives $225,000 and 50% of the remainder of the estate if all of the decedent's issue are also issue of the surviving spouse and the surviving spouse has other issue. 4) If the decedent has issue not related to the surviving spouse, then the surviving spouse receives $150,000 and 50% of the remainder of the estate. 5) If the decedent has a spouse but no descendants or parents, then the surviving spouse takes the entire estate.

Ademption by Extinction

The doctrine of ademption applies only to specific bequests. If the subject matter of a specific bequest is missing or destroyed, then the beneficiary takes nothing, not even the insurance proceeds or the equivalent in cash. This rule does not apply when the testator was incompetent, unless the will was executed prior to incompetency. A substantial change in the nature of the subject matter of a bequest will operate as an ademption, but a merely nominal or formal change will not. If a gift is deemed, then the beneficiary is entitled to: 1) Whatever is left of the specially devised property 2) The balance of the purchase price owing from the purchaser of the property 3) Any amount of condemnation award for the taking of the property, to the extent unpaid upon death or 4) Property acquired from the foreclosure of a security interest on a specifically devised note. Under the UPC, the the bequest to the beneficiary is deemed if the facts and circumstances establish the the ademption was intended. If it was not intended, the beneficiary can receive replacement property or the value of the property in money.

Advancements of Gifts

The doctrine of advancements usually applies only to intestate succession. At common law, any lifetime gift to a child was presumed to be an advancement of that child's intestate share and was binding on those who would have succeeded to the child's estate had the child predeceased the decedent. The child has the burden of demonstrating that the lifetime transfer was intended to be an absolute gift that was not to be counted against the child's share of the estate. If a gift is treated as an advancement, the donee must allow its value to be brought into the hotchpot. The advancement is added back into the estate and the resulting total estate is divided by the number of children taking. The advancement is then deduced from the total share of the child to whom it was given. If a child receives an inter vivos share that exceeds the hotchpot share to which each child is entitled, then that child does not take but is not required to pay back into the estate. The UPC approach and modern trend provides the a gift is an advancement only if: 1) The decedent declared in a contemporaneous writing (or the heir acknowledged in a writing) that the gift was an advancement or 2) The decedent's contemporaneous writing or the heir's written acknowledgement otherwise indicates that the gift was to be taken into account in computing the division and distribution of the decedent's intestate estate. Lifetime gifts to beneficiaries who take under a will are examined in a similar manner and follow the same rules as advancement of intestate shares. An inter vivos transfer will satisfy the gift if 1) the testator intends that the transfer satisfy a testamentary gift and 2) there is a written acknowledgement of such satisfaction by the testator or beneficiary.

Witnesses to the Execution of a Will

The majority view is that a will must be signed in the joint presence of, and attested to, by two witnesses. The witnesses need not sign at the end of the will. Witnesses also do not necessarily have to sign in each other's presence. Under the UPC, the witnesses, all of whom need not be present at the same time, must sign the will within a reasonable time after witnessing the testator sign or acknowledge the will. The witnesses need not sign the will in the presence of the testator. There are two other approaches used by some jurisdictions: Line of Sight Test - requires the joint presence of the witnesses and the testator, who must observe for have the opportunity to observe each other sign the will. Conscience Presence Test - requires only that the party observing the act, either testator or witness, be aware that the act is being performed (signing over the phone does not count). Witnesses must be of sufficient mental capacity and maturity to comprehend the value of the act of witnessing a will. Competency is determined at the time of signing. At common law, a witness with a direct pecuniary interest under a will was not competent to witness the will. Now, many states use a purge theory and invalidate the portion of the will providing an excess to the interested witness (amount received if valid - amount received if invalid). The purge rule does not apply if there are at least two disinterested witnesses. The UPC does not distinguish between interested and uninterested witnesses. The witnesses do not need to read the will, but must be aware that the instrument is a will. In most jurisdictions, the testator must sign or acknowledge the will in the presence of the witnesses and the witnesses must sign in the presence of the testator.

Exoneration of Liens

The specific devisee of encumbered real property was entitled to have the mortgage on the property paid from the estate as a debt of the decedent, unless there was evidence of a contrary intent on the part of the testator. However, in most states, the divisee of encumbered property takes subject to the mortgage, notwithstanding the fact that the will contained a clause directing the executor to pay the decedent's debts. The testator's intent to have the debt paid off must be clear from the will.

Surviving Spouse

The surviving spouse must have been legally married to the decedent. Even if a marriage is not valid, though, as long as one party believes in good faith in its validity, the spouses are termed putative and qualify as spouses for inheritance purposes. Spouses who are in the process of divorcing or are separated remain spouses until the issuance of a final decree of dissolution of the marriage. If one spouse abandoned the other for a prescribed period, then the martial relationship is terminated, and the two are no longer considered spouses.

Lapse

Under common law, if a beneficiary died before the testator, any gift left the beneficiary would fail and go to the residue unless the will provided for an alternate disposition. Now, most states have anti-lapse statutes that make it so that if the gift was made to a family member of the testator within a specific statutory degree and the family member predeceased the testator but left issue, then the issue succeeds to the gift, unless the all expressly states the contrary. Most statutes require that the family member be a grandparent, descendant of a grandparent, or a stepchild of the testator. Most states also apply the rule only to testamentary gifts, but under the UPC, it can also apply to nonprobate transfers. When a gift is to an entire class and one member of the class dies, only the surviving class members takes. However, if an anti-lapse statute applied, then the issue of the predeceased member will also take. Under the UPC, if the residue is left to two or more persons and one dies, and if anti-lapse does not apply, then the remaining beneficiaries take n their proportionate shares. A gift is void if, unbeknownst to the testator, the beneficiary is already deceased at the time the will is executed. Most states allow anti-lapse statutes to apply to void gifts.

Self-Proved Will

Under the UPC, a will that is executed with attesting witnesses may be made "self-proved" by the acknowledgement of the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form. This removes the necessity for testimony of the attesting witnesses in formal probate. Moreover, in many jurisdictions, the witnesses' signatures on an affidavit may be counted as signatures on the will if the witnesses failed to sign the actual will.

Children Born Out of Wedlock

Under the common law, a child born out of wedlock could not inherit from its father. Now, an out-of-wedlock child cannot inherit from its natural father unless: 1) The father subsequently married the natural mother 2) The father held the child out as his own and either received the child into his home or provided support 3) Paternity was proven by clear and convincing evidence after the father's death or 4) Paternity was adjudicated during the lifetime of the father by a preponderance of evidence The Uniform Parentage Act requires proof of paternity before a child can inherit from or through his natural father. The child can bring an action to establish paternity for inheritance purposes at any time of a presumption of paternity exists. A presumption of paternity arises when the father acknowledges the child as his own, either by holding the child out as his own or by stating so in writing and filing the writing with the appropriate court. A child must bring an action to establish paternity within three years of reaching the age of majority when there is no presumption of paternity or the action is barred. Most states do not recognize posthumously conceived children as natural children of a parent who dies before conception.

Negative Inheritance

Under the common law, the only way for an individual to disinherit an heir was to execute a will disposing of all of his property because any property not so disposed of could potentially pass to that heir through intestacy. The UPC allows an individual to disinherit an heir by properly executing a will expressing such intent, even if not all property is disposed of within the will. The barred heir is then treated as having predeceased the decedent.

Omitted Spouse

While a marriage after the execution of a will does not invalidate the will, a spouse who is not mentioned in a will is entitled to an intestate share of the testator's estate if the marriage began after the execution of the will unless: 1) A valid prenup exists: 2) The spouse was given property outside of the will in lieu of a disposition in the testator's will or 3) The spouse was specifically excluded from the will When a spouse is omitted from a will, a rebuttable presumption arises that the omission was a mistake. The traditional rule is that the presumption cannot be rebutted unless the intent to omit the spouse is apparent from the language of the will or the spouse was provided for outside of the will. Under the UPC, an omitted spouse has the right to receive no less than her intestate share of the deceased spouses's estate from that portion of the testator's estate that is not already devised to a child or descendant of the testator if 1) the child is not a child of the surviving spouse and 2) the child was born before the testator married the surviving spouse.