Wills (bar exam)
duplicate wills
-2 original wills are made -RULE: a revocation of ONE properly executed will revokes ALL duplicate wills
Partial Revocations
-RULE: the entire will or part of the will can be revoked by physical act -an interlineation (substitute bequest) cannot be given effect UNLESS: 1) T re-executes the will OR 2) T republishes the will by codicil
Presence Requirements
-Scope of Vision/Line of Sight -Conscious Presence Test
Dependent Relative Revocation
-allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation -but for test: court compares consequences of undoing revocation with consequences of doing nothing
codicils
-an amendment to the will, requiring the same formalities -where the codicil makes no reference to the will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together -to the extent of an inconsistent provision, the later document controls and thereby revokes by inconsistency the prior will
a specific devisee has the right to the remaining specifically devised property and:
-any balance of the purchase price owing from purchaser when contract is still executory at T's death -any amount of condemnation award for taking of the property, to the extent unpaid at T's death -any amount of fire or casualty insurance proceeds unpaid at death -any real or tangible personal property acquired as a replacement for other similar property -property acquired as a result of a foreclosure of a security interest on specifically devised note
Jurisdictional/Domicile Issues (execution of wills)
-common law (minority): to control real estate in a certain state, the will must comply with that state's requirements -UPC/majority: when property to be distributed under a will is located in various states, the will is valid provided it meets one or more of these states' requirements: place of execution domicile at death domicile at execution
Capacity - evidence
-evidence of capacity must relate to the circumstances at the time the will was executed, or shortly before or shortly thereafter → the more distant in time the evidence is from the execution, the less significant it is -NOTE: mere old age, physical frailty, failing memory, or vacillating judgment do NOT alone prove lack of testamentary capacity -NOTE: if T had been adjudicated incompetent, this is evidence of lack of capacity but does not reaise a conclusive presumption
Revival
-in most states: to get a previous will back after revocation, you have to re-execute it or execute a codicil -UPC and some other states: a previous will is revived if 3 tests are met: 1) previous will exists 2) T wanted to revive previous will 3) subsequent will was revoked by physical act
typical DRR fact pattern:
-lined-through gift; new gift written above; amount of new gift larger -if the new gift is LARGER → apply DRR -if the new gift is SMALLER → discuss DRR, but don't apply it
Holographic Wills
-no witnesses -half the states: not allowed → NOT entitled to probate unless two attesting witnesses sign -UPC and some other states → valid if the material provisions are in T's own handwriting and it is signed by her
Evidence that, alone, is NOT enough to prove undue influence:
-opportunity to exert influence -susceptibility to influence -mere fact of unnatural disposition (that some children take less than others or are excluded entirely)
ademption
-property that was in T's possession at the time will was executed is no longer there -limited to SPECIFIC gifts; common law rule applied ademption to any case where the property specifically devised was not in the estate for any reason → T's intent is deemed to be immaterial -a gift is specific if it says "my" -Under UPC, T's intent is immaterial
majority rules for codicils and revocation
-revocation of a will revokes all codicils thereto -BUT revocation of a codicil to a will does not revoke the will
Will Formalities
1) T must be 18 or over 2) Instrument must be executed with testamentary intent (so sham instruments will not be given effect) 3) T must sign will (any mark → initials, "X" will serve as signature; also, signature may be another person at T's direction, in T's presence) 4) 2 attesting witnesses who witness T's signing (OR, T;s acknowledgement of previous signature or will)
Share not going to Spouse (or whole estate if no spouse)
1) all to issue, if any 2) if no issue, to parents or survivor 3) if no issue or parents, to parents' issue (brothers, sisters and their issue)
revocation by another person - requirements
1) must be done at T's direction AND 2) in T's conscious presence
Revocation Presumptions
1) will in T's possession from time of execution until death and found in mutilated condition after T's death → PRESUMPTION that T did mutilating with intent to revoke 2) lost wills that were last seen in T's possession → PRESUMPTION that the reason it can't be found is that T destroyed it with the intent to revoke
To incorporate an extrinsic document by reference:
1) writing must be in existence at time will was executed 2) will must manifest an intent to incorporate the document 3) will must "describe the writing sufficiently to permit its identification." -NOTE: where they are recognized, holographs CAN incorporate non-handwritten material by reference -NOTE: a memo is probably a sufficient writing
Lapses and the Residuary Clause
UPC (majority rule): 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 devisees take the entire residuary estate in proportion to their interests in the residue
rules concerning divorce
UPC and most states: divorce following a will revokes ALL provisions in favor of the ex-spouse → construe the will as if the ex-spouse were dead
specific devise or bequest
a gift of a specific asset, and that asset only
general legacy
a gift of a specified, pecuniary amount
demonstrative legacy
a hybrid; a gift of specified, pecuniary amount with funding instructions
living will
a statement of an adult individual's desires with respect to life-sustaining procedures, artificial nutrition, or hydration, and pain alleviating treatment when the individual becomes terminally ill or is in a persistent vegetative state
standing for will contests
any person who would take more as heir IF there were no will or as beneficiary under a prior will
presumption of undue influence
arises upon a showing that a principal beneficiary under the will who stands in a confidential relationship to the T draws or procures the execution of the will
Lack of Testamentary Capacity Requirements:
burden of proof on contestants 1) did T understand the nature of the act he was doing? 2) did T know the nature and character of his property? 3) did T know the natural objects of his bounty? 4) did T understand the disposition he wished to make?
revocation
by any manifestation of intent to revoke (including physical act) at any time before death w/o regard to the principal's mental or physical condition
Per Capita w/ Representation (MOST states)
divide shares at each line of descent
Per Capita at each Generation Level (UPC and Modern Trend)
divide shares, one share for each line of descent; divide next generation by dropping all the rest in one pot
Strict Per Stirpes
divide, one share for each line of descent
latent ambiguities
extrinsic evidence is admissible to clear up a latent ambiguity
Conscious Presence Test
have to be conscious of where each other is and what each other is doing (UPC/majority rule)
execution of a living will
in writing, signed by an adult T or by another at his direction, and by two adult witnesses
Interested Witnesses - older (majority) rule:
interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless: 1) there were two disinterested attesting witnesses (supernumerary rule); OR 2) witness-beneficiary would be an heir if there were no will, in which case she takes lesser of (i) amount given in will, or (ii) intestate share
intestacy rules (majority rule)
issue take per capita (equally) if all are of same degree of relationship; otherwise they take by representation → "equally near, equally dear"
What happens when "VOID" is written on the back of the will?
most states: no revocation → cancellation must touch the words of the will UPC: an act of cancellation can appear anywhere on the will
advancements (UPC - majority)
no advancement UNLESS: (i) declared as such in a contemporaneous writing by the decedent, or (ii) acknowledged as such in writing by the heir
What happens if a portion of the will (e.g., clause naming personal representative) follows the testator's signature? - clause present at time of execution:
some states → wills MUST be signed at the end --everything above the signature is good; everything below the signature is bad UPC and majority → the will is valid, but the addition is not
When T is Partially Insolvent (order of preference for payment):
start at the bottom and work up, paying expenses out of these funds, in this order → intestate property, residuary bequest, general legacy, demonstrative legacy, specific devise or bequest
antilapse statute
the UPC statute applies when the predeceasing beneficiary is T's grandparent or a descendent of a grandparent who leaves issue who survive T
if T and the ex-spouse re-marry?
the ex-spouse is back in the will
Scope of Vision/Line of Sight
the will is valid only if they could see each other sign if they were to look → there can't be impediments to vision (minority rule)
Incorporating an extrinsic document by reference, EXCEPTION:
the will may refer to a written statement or list that disposes of tangible personal property (other than money) not specifically disposed of by the will the written list must: 1) be signed by T AND 2) describe the property with reasonable certainty
120 hour rule
when a beneficiary named in the will dies before (or within 120 hours of) the T, the gift lapses
material provisions
words that identify the property and the beneficiaries that are to receive it
Plain Meaning Rule
you cannot disturb the plain meaning of a will with extrinsic evidence
insane delusion
-a distinctive form of testamentary capacity -where T is otherwise sane, but the will (or a gift in the will) is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, and where the will (or a gift in the will) is the product of the insane delusion
lapse
-the gift fails, falls to the residue, and passes to the residuary estate -UNLESS it is saved by the state's antilapse statute
Lost Wills Statute
-this is how to save a will that has been destroyed but not revoked -it requires formal proceeding where proponents have burden of proving the contents of the lost will -you need a copy of the will and one witness or other "clear and convincing proof"
undue influence - requirements
1) existence and exertion of the influence 2) effect is to overpower the mind and will of the T 3) the result is a will that would not have been executed but for the influence NOTE: influence is NOT undue UNLESS the free agency of the T was destroyed and a will was produced that expresses the intentions of the one exerting influence (and not the T)
Intestacy Rules - Decedent Survived by Spouse
1) if survived by spouse but not by issue or parent → most states give spouse ENTIRE estate 2) if survived by spouse and issue, all of whom are also issue of spouse → ENTIRE estate to spouse 3) if survived by spouse and issue, at least one of whom is not issue of spouse → the spouse is commonly given a fixed amount off the top and a fraction of any excess (ex: under UPC, the spouse takes the first $100,000 and one half of any excess)
Revocation by Physical Act - Requirements
1) intent to revoke AND 2) physical act
