Wills
I.
Execution of Wills:
a. 5 Requirements:
i. Must be 18 or over
ii. Will must be written
iii. With testamentary intent (the point: sham instruments will not be given
effect)
iv. T (testator) must sign will (any mark-initials will serve as signature if so
intended. Signature may be another person at T’s direction, in T’s
presence).
v. Two attesting witnesses who witness T’s signing (or T’s
acknowledgement of previous signature or will)…
b. Special Uniform Probate Code (UPC) Provisions: Under UPC, a court can
validate a defectively executed will (e.g., there is only one attesting witness) if the
will proponent establishes by clear and convincing evidence that the testator
intended the document to be his will. In addition, under the UPC, a will that is
signed by the T and notary is valid without the need for any witnesses (notorial
will).
c. If Portion of Will Follows T’s Signature:
i. Clause present at time of execution:
1. Some States (wills must be signed at the end): Everything above
good, everything below bad.
2. UPC and Majority; No problem, will include, clause is valid.
ii. Clause added after execution: Rule is uniform through USA, Will valid,
but addition is not.
d. Holographic Wills (T writes document in her own handwriting):
i. About half of sates: Not allowed. Not entitled to probate unless two
attesting witnesses.
ii. UPC and some other states: Valid if material provisions are in testators
own handwriting and signed by him/her.
1. Material provisions= words that identify property and the
beneficiaries who are to receive it.
e. Presence Requirement:
i. Minority Scope of Vision Test: Must be no impediment to visual contact.
ii. UPC and Majority better rule: Conscious of where each other is and
conscious of what each other is doing.
f. Ancillary Proceeding (An "ancillary probate" is a proceeding when a person dies
with property in more than one state or dies in one state with property in another):
i. Common law and few remaining states: Will has to comply with law of
state where property located.
ii. UPC and Majority: Does will comply with one or more of the following?:
1. Place of execution?
2. Domicile at death?
3. Domicile at execution?
g. Interested Witnesses:
II.
i. Older (Majority) Rule: Interested witness situation does not result in
denial of probate of will, but beneficiary-witness loses legacy (purged
from will) unless:
1. There were two disinterested witnesses (supernumerary rule), or
2. Witness-beneficiary would be an heir if there were no will, in
which case she takes lesser of (1) amount given in will, or (2)
intestate share.
ii. UPC and Modern Trend: Interested witness rule abolished. A will or nay
provision thereof is not invalid because will is signed by interested
witness.
iii. Note: Interested witness situation frequently raises undue influence issue.
h. Self-Proved Wills: At time Will is signed by T and attesting witnesses (or some
time thereafter in T’s lifetime), T and witnesses sign self-proving affidavit under
oath before notary public. Affidavit recites all elements of due execution.
Formalities of execution (but not mental capacity, fraud, undue influence, etc…)
conclusively presumed.
Revocation:
a. Revocation by physical act requires:
i. Intent to revoke, and
ii. Physical act: Typical statute refers to burned, torn, cancelled, obliterated,
or destroyed.
b. Duplicate Wills:
i. Sufficiency of Act: An act of revocation on one executed copy revokes all
executed will copies.
c. Writing VOID:
i. Most States: No revocation. Cancellation must cross some language of the
will.
ii. UPC: Will cancelled. Act of cancellation can act anywhere on will as long
as it’s there.
iii. Xerox copies: No good in any state! Can’t appear on a photocopy or
picture of will, must be a validly executed will or will copy itself (meaning
a copy that was executed with same will formalities).
d. Presumptions:
i. Will in T’s possession from time of execution until death and found in
mutilated condition after T’s death. Presumption: T did mutilating with
intent to revoke.
ii. Will last seen in T’s possession and control not found after T’s death.
Reason it can’t be found is that T destroyed it with intent to revoke.
iii. These presumptions are rebuttable: must show court someone else had
these (had access) or had control and did these acts, presumption is then
gone.
e. Revocation by Proxy: Others Revoking on T’s Behalf (attorney for example):
i. If order to destroy is never carried out, will is not revoked.
ii. Revocation by another must be at T’s direction and in T’s presence.
iii. If revocation by another does not meet the above standard, but is
destroyed anyway, will is still not revoked. See lost wills statute.
f. Lost Wills Statute:
i. If will was not revoked, how can it be probated given the fact that it has
been destroyed? By satisfying lost wills statute. In most states, lost will
requires formal proceeding where proponents have burden of proving the
contents of the lost will. Copy and one witness or other clear and
convincing proof.
ii. Additional issue raised by case where attorney messes up revocation of
will or where attorney messes up execution of a will: Lucas v. Hamm:
Attorneys can be/may be sued for negligence (tort). Mention that it is a
possibility and move on.
g. Codicil: Codicil is an amendment/supplement to a will and requires the same
formalities as executing a will.
i. Where a codicil makes no reference to will but contains slightly
inconsistent provision, to the extent possible the will and codicil are read
together. But to the extent of any inconsistent provision, the later
document controls and thereby revokes by inconsistency the prior will.
ii. The same rule can apply when there are two wills and the second does not
in terms revoke the first.
1. If second will has no residuary clause, it is presumptively a codicil
to the first. There is an implied revocation only to the extent of the
inconsistency.
2. If second will has a residuary clause: That clause revokes the first
will in its entirety by inconsistency (Only terms of second will
considered!)
iii. Majority Rules: Revocation of a will revokes all codicils thereto. BUT
revocation of a codicil to a will does not revoke the will!
h. Spouses and Divorce:
i. UPC and Most States: Rule: Divorce following a will revokes all
provisions in favor of ex-spouse; continue as if spouse dead.
ii. If remarry same spouse, comes back in!
iii. Mere separation doesn’t affect wife’s interest, only divorce!
1. Exception: Separation with complete property settlement:
Agreement treated as a waiver. Treat as if spouse dead again.
iv. Related Issue: Will divorce revoke a provision for spouse in T’s revocable
trust?
1. UPC and Most States: Yes! Written out of both will and any
provision for her revocable trust.
i. Dependent Relative Revocation:
i. If a bequest is destroyed by physical act, that bequest/gift is revoked.
ii. A new gift (interlineation) will not be given effect unless:
1. T re-executes the will (make change, and sing with witnesses
again), or
2. T-republishes with codicil (make change on will, then on separate
sheet write out intent and sign with witnesses).
iii. Should DRR be applied to reinstate the original?: DRR allows us to
disregard a revocation which is based on, induced by, premised on a
III.
IV.
mistake of law or fact if the court is satisfied that, but for the mistake, T
never would have made the revocation (mistake remedy doctrine):
1. Disregard a revocation (cancellation of original gift)
2. Because it was based on a mistake of law (that new gift would be
effective),
3. Provided the court thinks T would not have revoked the original
gift but for the mistake.
4. Note: But for test is key here. Compares undoing revocation and
not doing revocation. Looks at T’s intent.
5. Note: If amount is smaller (instead of giving 10k, new gift is let’s
say 5K, court will leave gift receiver with nothing).
j. Revival: Destroying second will (W2) with intent to revive first will (W1):
i. Generally: W1 is revoked at execution of W2 (devises residuary estate).
W2 not given legal effect until admitted to probate at T’s death. But
exception if W2 expresses revocation of earlier wills.
ii. Situation where W1 revoked by execution of W2, and W2 revoked by
physical act with intent to revive W1.
1. Some States (Half): Only way to get W1 is re-execute or republish
by codicil.
2. UPC and some other States (Half): More nuanced, not
automatically. W1 revived if three tests are met:
a. W1 still exists,
b. Must show T wanted revival, and
c. W2 must have been revoked by physical act.
3. In some states where W1 not revived, other issue raised is can we
get W2 back using DRR? W2 revoked in mistake belief that W1
would be reinstated. Apply but for test.
Incorporation by Reference: Facts of Independent Significance:
a. To Incorporate an Extrinsic Document by Reference (used when the extrinsic
document is not executed with will formalities):
i. Writing must be in existence at time will was executed,
ii. Will must manifest an intent to incorporate the document, and
iii. Will must describe the writing sufficiently to permit its identification.
1. Note; where recognized, holographs can incorporate nonhandwritten material by reference.
2. Statutory Exception Found in UPC and Many Other States: Will
may refer to written statement or list that disposes of tangible
personal property (other than money) not specifically disposed of
by the will. The written list must be signed by T and describe the
property with reasonable certainty. Must be written before or after
will executed; may be altered at any time. No money, no real
estate, and no stocks/bonds. Must be tangible personal property.
b. Doctrine of Independent Significance: Acts having an independent lifetime
motive may impact on Will as well (such as getting new car, or new employees,
etc…)
Lapse, Ademption, Exoneration of Liens: (Most Tested):
a. Lapse:
i. When a beneficiary named in a will dies before (or in UPC states, within
120 hours/5 days of) the testator, the gift lapses. Lapse means the gift fails,
drops to the residue, and passes as part of the residuary estate, unless
saved by state’s anti-lapse statute.
ii. The UPC statute applies when the predeceasing beneficiary is T’s
grandparent, or a lineal descendant of a grandparent who leaves issue
(lineal descendants) who survives T.
iii. Lapse statute tells us who takes, not common law! So under will of
predeceased beneficiary, beneficiaries will get other things from the
predeceased, but will not get items from T’s will.
iv. These statutes basically substitutes the beneficiary with descendants.
v. Class Gift Rule: When there is a gift by will to a group of persons
generically described as class (children, nephews, nieces, etc…) and some
class member predeceases the T and the lapse statute does not apply, the
surviving class members take.
1. If gift is to friend’s children, then only those children alive at time
of T’s death take.
2. If gift is to brother’s children, then anti-lapse statute or UPC statute
applies so that all children alive, and descendants of dead children
take.
vi. Residuary Estate:
1. UPC (Majority) Rule: If 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, no lapse statutes here.
b. Hypothetical Will Categories:
i. Specific Devise or Bequest: Blackacre, 2007 Cadillac, to my son John.
ii. Demonstrative Legacy (hybrid of general legacy. It is general legacy with
funding specifications): Sum of 5K to be paid out of proceeds of sale of
my acme stock, to my sister Sarah.
iii. General Legacy: Sum of 10K to my daughter Donna.
iv. Residuary Bequest: I give the rest, residue, and remainder of my property
to my wife Agnes.
v. Intestate Property (rare, but could happen): When there is a partial
intestacy for some reason (all residuary beneficiaries predecease T, and
case is not covered by anti-lapse statute).
c. Ademption (Refers to failure of a gift because property is no longer in testator’s
estate at time of death).
i. Application: Only applies to specific devises and bequests.
ii. Partial Ademption: May be partially adeemed where testator devises a
large tract of land and then conveys a portion of the tract during life.
Beneficiary takes remaining portion.
iii. Does not apply to General or Demonstrative legacies: They will instead be
satisfied by selling or directly giving other assets. To avoid ademption a
court will attempt to construe a gift of securities as general legacy, unless
T specifically stated, e.g., MY 200 shares of acme stock.
iv. Issue of Abatement (Where T’s estate is partially insolvent): What order
are gifts sacrificed to satisfy funeral expenses, expenses of administration,
creditor’s claims?: We start at bottom of list above, v, and work our way
up.
v. Every one of the following provisions reverses the common law rule,
which applied the doctrine of ademption to any case where the property
specifically devised was not in the estate for any reason. At common law
and in most states even today, T’s intent is deemed to be immaterial.
Under the UPC, however, not only is T’s intent material, but several
statutory provisions apply to avoid ademption in the following commonly
recurring situations:
1. Will executed before T declared incompetent: If specifically
devised property is sold by conservator, or if condemnation award
or insurance proceeds relating to the property are paid to the
conservator, the specific devisee has a right to a general legacy
equal to the net sale price, condemnation award, or insurance
proceeds unless testator’s disability has been adjudicated to have
ceased and testator survives the adjudication by one year (was
competent when wrote, but not anymore). If not incompetent, then
go here:
2. Specific devisee has the right to the remaining specifically devised
property and:
a. Any balance of purchase price owing from purchaser when
contract is still executory at T’s death. (At common law,
equitable conversion would apply, and T would no longer
own real property, but merely a claim to the remaining
purchase price).
b. Any amount of condemnation award for taking of property,
to extent unpaid at death.
c. Any amount of fire or casualty insurance proceeds unpaid
at death.
d. Any real or tangible personal property acquired as a
replacement for their similar property.
e. Property acquired as a result of a foreclosure of a security
interest on specifically devised note.
f. Note: Remember to ask if T is incompetent and died within
1 year from that adjudication of incompetency. Then look
at whether T himself lived long enough to claim insurance
proceeds, etc…
3. Additional Stock (BAR facts will tell you where they came from):
a. Common Law:
i. If Stock Splits: Get the additional stock.
ii. If Stock Dividends: Only get the stocks left in the
will.
V.
b. UPC: Doesn’t matter. A specific devisee takes any
additional or other securities of same entity owned by T
because of action initiated by entity, excluding any
acquired by exercise of purchase option. (If T gave
consideration for the extra shares, then those shares don’t
count!)
c. Merger of Companies:
i. Common Law: Only get the stocks from original
will company.
ii. UPC: Specific devisee is entitled to securities of
another entity owned by T as a result of merger,
consolidation, reorganization, or other similar
action initiated by entity.
d. Where the word “my X shares” is used, it is specific devise
and adeemed, even under UPC. If just X shares, then
technically considered a gift for X amount of shares or
value of X amount of shares, to be paid in kind by
distributing. (Executor buys 200 shares with cash and gives
to beneficiary).
d. Exoneration of Liens:
i. Basically a demand by beneficiary that executor pay off indebtedness
(exonerate the lien) so title will pass to him free and clear of encumbrance.
Is beneficiary entitled?:
1. Common Law (Minority): Yes
2. UPC (Majority): No. A specific devisee of encumbered property is
not entitled to have the encumbrance paid out of the residuary
estate unless the will shows such intent. Moreover, a general
direction in the will to pay debts does not show such an intent!
Ambiguities and Mistakes:
a. Latent Ambiguity: Case where at time T executed will to nephew John Paul
Jones, but he had two nephews James Peter Jones, and Paul Frederick Jones. T
had never met nor corresponded with either nephew, and no nephew named John
Paul Jones existed. Extrinsic evidence is admissible to clear up ambiguity.
b. Suppose T had nephew John Paul Jones as above, but Paul Frederick Jones says
there’s been a terrible mistake, T told me numerous times that he intended to and
that he had left a legacy for me in will. Stenographer also says, I goofed. I have
T’s note, etc… which clearly show legacy was supposed to go to Paul Frederick
Jones. Admissible?
i. Most States: No, evidence violates plain meaning rule! (Rule says can’t
disturb plain meaning of will with extrinsic evidence).
ii. UPC States: Yes. A court may reform terms of a will, even if
unambiguous, to conform the terms to the testator’s intent if it is proved
by C and C evidence that both the accomplishment of the T’s intent and
the terms of the will were affected by a mistake of fact or law. In
determining T’s original intent, court may consider relevant evidence even
though evidence contradicts an apparent plain meaning of the will.
VI.
Inheritance (Common Intestacy Rules):
a. Decedent Survived by Spouse:
i. (Majority) If survived by spouse, but not by issue or parent, spouse gets
everything.
ii. (Majority) If survived by spouse and issue all of whom are also issue of
spouse, spouse gets everything.
iii. If survived by spouse and issue at least one of whom is not issue of other
spouse, the spouse is commonly given a fixed amount off the top and a
fraction of any excess. For ex: Under UPC, spouse takes first 100K and
one half of any excess. (Ex: Have 3 kids, 2 kids with wife, 1 kid with
another person).
b. Share Not Going to Spouse (or all of estate if no spouse):
i. All to issue, if any
ii. If no issue, to parents or survivor (one parent)
iii. If no issue or parents, to parents’ issue (bro/sis)
c. Majority Rule: Issue Take Per Capita (equally) if all are of the same degree of
relationship: Example: Widower has 4 kids=all 4 kids get ¼. Widower has 4 kids,
and 2 of the kids have children (grandchildren). Then kids still get ¼ if children
all alive. However, if only 2 children are alive, and the rest of the grandchildren
are alive, then 2 children get ¼ still, but grandchildren get ¼ divided among each
other down the line (so 2 grandchildren under dead child’s ¼ share would each
get half, so 1/8, or if three grandchildren, then each ¼ share is divided amongst
the 3 so 1/12).
i. Most States: Per Capita with representation: We divide estate into shares.
One for each line of descent as described above!
ii. UPC and Modern Trend (Per Capita at each Generational Level): Begin
same way as above, each line of descent gets shares. However, instead of
giving ¼ between dead child 1’s children, and ¼ between dead child 2’s
children, the shares of both dead children are combined, so 2/4 and
divided among total grandchildren whose parent is dead (given as a pot).
So 2 children, total of 5 grandchildren means that each grandchild will get
1/5 of 2/4.
iii. If all children dead leaving only grandchildren, then:
1. UPC (Majority) Rule: Start at the grandchildren’s generation
(number of grandchildren= number of shares. So 6 grandchildren,
divided 1/6. Treated like new children, or new “lines.”
2. A Few States (Strict Per Stirpes): Make division at child level
instead. However, no line for any children who don’t have kids! It
is then split equally at each line of children who have kids
themselves. So if 4 children, but only 3 of them have kids, the split
is 1/3 to the children, and then it is further split evenly for
grandchildren.
d. Meaning of Probate Estate:
i. The intestacy statute applies only to the probate estate. This is the estate
that could have been controlled by a will had T executed one. It does not
include life insurance, property held in trust, right of survivorship,
securities or bank accounts registered in payable on death (POD) or
transfer on death (TOD) form or property T did not own at death.
e. Adoption, Remarriage, etc…
i. In order to inherit from parent, must either be mother (always can inherit
from her), or “father” marries mother, or adjudication of paternity before
or after “father’s” death.
ii. However, if “father” dies intestate, “child” cannot inherit unless adoption
by estoppel (unperformed agreement to adopt).
iii. Must be a legal or biological relationship to inherit.
iv. If child is place for adoption, can inherit from adoptive parents and
adoptive parents can inherit from adopted child. Here, child cannot inherit
from biological mother since adoption severs relationship (some states still
allow).
v. Qualifications found in UPC and some other States:
1. Stepparent Adoption: Can still inherit from other parent, doesn’t
terminate biological relationships.
2. Orphan Adoption: Both natural parents die and child is adopted by
close family member, child continues to inherit from other family
members.
vi. Related Issue: Adopted persons are included in class gift terminology and
terms of relationship in accordance with rules for determining
relationships for purposes of intestate succession.
f. Simultaneous Death Act (Enacted in Most States): When passage of title to
property depends on priority of death and there is insufficient evidence that the
persons have died otherwise than simultaneously, absent a will provision to the
contrary, the property of each passes as though he survived (T and beneficiary die
together):
i. Wills: As though T survived, as though beneficiary predeceased.
ii. Intestacy: As though intestate survived and heir predeceased.
iii. Insurance: As though insured survived, as though beneficiary predeceased.
iv. Joint Tenancy with Right of Survivorship: One half as though tenant A
survived, one half as though tenant B survived. The point: simultaneous
death prevents operation of right of survivorship, so one half passes
through each tenant’s estate (treat like tenancy in common).
v. Common Law: If there is any evidence that shows beneficiary survived,
even for a second, then beneficiary will be counted as an heir.
vi. UPC and some other states: 120 Hour Rule: When passage to property
depends on priority of death, absent a provision in the governing
instrument to the contrary, a person is deemed to have predeceased the
decedent unless the person survives the decedent by 120 hours/5days.
vii. If will says “if she survives me by 2 days” for example, that is
enforceable! This also applies to nonprobate assets like life insurance and
right of survivorship, etc…
g. Lifetime Gifts:
i. Common Law (Minority) Rule: Any lifetime gift to a child or descendants
(including adopted) is presumed to be an advancement (that is, advance
VII.
payment) of his intestate share, to be taken into account in distribution of
the intestate’s estate.
ii. UPC (Majority) Rule: No advancement unless:
1. Declared as such in contemporaneous writing by decedent, or
2. Acknowledged as such in writing by the heir.
iii. If it were an advancement, the advancement is brought/counted
(hypothetically) into the hotchpot (current value doesn’t matter, just what
it was worth when gifted), it is divided equally among heirs. So if 3 heirs,
and one of the heirs gifted 12K, and total estate is 78K, then add so total is
actually 90K, divide by 3, so each gets 30K, however, deduct gift from
amount for the gifted person and she will get 18K because already have
12K, and the others get 30K.
iv. Doctrine of advancement applies to intestate estates. A companion
doctrine called Satisfaction applies to testate estates (when there actually
was a will:
1. UPC (Majority) Rule: A lifetime gift is not prepayment of any
interest under a will unless:
a. The will provides for this treatment,
b. The testator declares in contemporaneous writing that gift
is to be deducted from the devise or in satisfaction of the
devise, or
c. The devisee acknowledges in writing that the gift is in
satisfaction.
Rights of Surviving Spouse: If facts of question involve husband and wife situation
and you are asked to discuss the rights of the surviving spouse to share in the
decedent’s estate, you will want to consider discussing:
a. A surviving spouse’s right to homestead, exempt property and family allowance:
In most states, statues give a surviving spouse, one or more of the following:
i. Homestead: The right live in the home for as long as the spouse chooses.
(Under UPC, spouse gets 15K cash allowance in lieu of homestead).
ii. Exempt Property: Household furniture, automobile, furnishings,
appliances, personal effects (and other property to extent preceding does
not equal allowance) in a fixed amount (e.g., 10K)
iii. Family Allowance: Reasonable allowance in money out of estate for
maintenance of family during administration.
iv. Typically these benefits are available in both testate and intestate estates.
They are in addition to intestate shares but are chargeable against share
passing under will unless will provides otherwise. They may be waived by
written agreement after full disclosure.
b. Was will written before marriage? (Pretermitted Spouse: Case of the Premarital
Will): In most states, marriage after a will has no effect on the will. But under the
UPC and in a few other states, the effect of marriage following execution of will
is that the Pretermitted Spouse: may claim an intestate share that is what spouse
would’ve been entitled had there been no will. Unless:
i. It appears from the will that omission was intentional
VIII.
ii. T made other provision for spouse by transfer outside will and intent that
the transfer be in lieu of provision in will is shown by statements of
testator, the amount of the transfer, or other evidence.
c. Should the spouse claim an elective share of the “Elective Estate?”:
i. In all states, the elective estate includes the net testamentary estate and
spouse can choose to take in place of will. This is the probate less exempt
property, family allowance, funeral expenses, expenses of administration
and allowable creditors’ claims. In UPC and some other states, the elective
estate also includes:
1. Transfers with retained power to revoke, consume, invade, or
dispose of principal for his own benefit (revocable trust)
2. Transfers with retained right to possess or enjoy the income from
the property (transfer with retained life estate)
3. Transfers held by decedent and another in right of survivorship
form (JTWROS, joint bank accounts)
4. Transfers within 2 years of death to extent aggregate transfers to
any one done in either year exceeded the gift tax annual exclusion
(currently 14K).
ii. Elective share is a fraction (commonly 1/3) of the elective estate but
interests received by spouse which are included (in the case will leaves
something for wife) in the elective estate are treated as if in satisfaction of
elective share.
1. UPC: Maximum elective share is increased to ½ but the share a
spouse actually gets depends on the duration of marriage. In effect,
the elective share vests at a rate of about 3% a year until it reaches
a maximum of 50% (after 15 years).
iii. Other Important Points:
1. Elective share is in addition to exempt property, family allowance,
and homestead (or allowance in lieu of homestead).
2. It may be waived by written contract after full disclosure.
3. To claim, surviving spouse must file election within a set period
(e.g., 6 months) of decedent’s death.
Pretermitted Children and Children Thought to be Dead:
a. A pretermitted child is a child born or adopted after will executed, and in UPC
and some other states is entitled to take intestate share unless:
i. It appears from will that omission was intentional,
ii. T left substantially all of his estate to the parent of the pretermitted child
(if non-T parent dies before child, disregard this part, child will most
likely get something in that case if the other requirements are met), or
iii. T provided for child by transfer outside will and intended transfer be in
lieu of provision in will. Amount of outside transfer irrelevant; extrinsic
evidence including T’s oral statements admissible to show intent.
iv. Note: If there is a codicil or new will after birth of child and child is not
mentioned, then child will likely get nothing!
b. Child Thought Dead:
IX.
X.
XI.
i. Common Law: No relief for mistake in inducement to make or not make
provision in will unless both mistake and what would have been done but
for mistake appear in terms of the will (“I leave nothing for Doughboy,
because he’s dead, but in case he’s not dead, I would’ve left him X”).
ii. Statute found in UPC and Many States: If at time of execution of will, T
fails to provide in her will for a living child solely because she believes
child dead, child is treated as pretermitted (may claim intestate share).
Conduct Barring Party From Sharing in the Estate—Homicide:
a. In UPC and most states, a person who feloniously and intentionally kills the
decedent is not entitled to any benefit from decedent’s estate by will, by intestacy
(including family allowance, exempt property, and homestead), under life
insurance contract or otherwise. Property passes as if killer predeceased decedent
(half to victim’s estate). Jointly held property with right of survivorship passes
half to killer and half as if killer predeceased decedent (lapse issue possibly). Not
triggered by involuntary, negligent, etc… Acquittal of criminal charge is not
controlling (civil law so preponderance of the evidence).
Renunciation:
a. Before acceptance, an heir, devisee, or appointee of power of appointment may
renounce his interest in writing in whole or in party within nine months after the
death of decedent. Renunciation results in property passing as if renouncing party
predeceased decedent, unless will provides otherwise.
Advance Healthcare Directives:
a. Living Will:
i. A living will is 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.
ii. Execution: In writing, signed by an adult T or by another at his direction.
Although the Uniform Healthcare Decisions Act does not require
witnesses, most states do. The usual requirement is that there be two adult
witnesses.
iii. Revocation: By any manifestation of intent to revoke (including by
physical act) at any time before death without regard to principal’s mental
or physical condition.
b. Durable Healthcare Power:
i. Durable healthcare power is used by one person (principal) to appoint an
agent to make healthcare decisions for the principal such as giving consent
to medical treatment, accessing principal’s medical records, and admitting
or discharging principal from a healthcare facility. The instrument does
not become operative until the principal loses capacity.
ii. Eligibility to Serve as an Agent: Any person except an unrelated person
who is associated with the principal’s healthcare facility.
iii. Execution: Same as for living will. That is, in writing, signed by and adult
principal or by another at his discretion, and by two adult witnesses. In
most states the agent may not serve as a witness.
XII.
iv. Revocation: Unless otherwise stated in the power, by written or oral notice
of revocation to either the agent or principal’s healthcare provider. Also, a
durable healthcare power is automatically revoked by the execution of a
later durable healthcare power.
v. Liability: An agent under a durable healthcare power is not civilly or
criminally liable or subject to discipline for unprofessional conduct for
healthcare decisions made in good faith.
Administration of Estate (Rarely appear in Wills questions but show up on Trusts
questions (administration of trusts)): Few points to keep in mind:
a. Probate of Will:
i. A will is not effective unless it is admitted to probate. Statutes in most
states impose civil liability on anyone who fails to deliver a decedent’s
will to the court.
b. Appointment of Personal Representative:
i. The person who administers the estate is called a personal representative
(PR). Some states refer to this person as an executor if the decedent
nominated the person in his or her will and an administrator if the
decedent died intestate. (Can never go wrong using PR if can’t remember
others).
ii. PR entitled to compensation for services, rate may be governed by statute
otherwise court has discretion to award reasonably. Also T may provide
compensation for PR by means of gift in will.
c. Priority of Appointment:
i. If there is a will, priority goes first to the person nominated in the will,
then typically to the surviving spouse unless disinherited in the will, then
to other will beneficiaries (or heirs if there is no will).
d. Bond Requirement:
i. Unless waived in decedent’s will, a PR (other than a bank) must post a
bond.
e. Power to Sell Property:
i. In absence of an explicit authority in the will, PR must usually get a court
order to sell real property (usually done in cases of abatement to pay
creditors).
f. Inventory Requirement:
i. The PR must file an inventory of all assets of estate. The inventory must
include the value of the property.
g. Publication of Notice to Creditors:
i. PR must publish notice of administration in the legal notices section of the
newspaper (must send notice of admin to hospital even if died there.
Stupid rule, but have to nonetheless). In addition, the PR must send actual
notice of administration to all known or reasonably discoverable creditors.
This starts a short (typically 3 or 4 months) SOL. Exception for secured
creditors.
ii. Claims generally paid in following order:
1. Administration expenses
2. Funeral expenses and expenses of last illness
XIII.
3. Family allowance
4. Debts given preference under federal law
5. Secured claims
6. Judgments entered against decedent during his lifetime, and
7. All other claims.
h. Abatement:
i. Process of reducing testamentary gifts in cases where the estate assets not
sufficient to pay all claims against the estate and satisfy all bequests and
devises. T can set out order of abatement in will, but if not present, then
follow abatement order mentioned earlier in outline.
Will Contests:
a. Standing: Any person who would take more as heir if there were no will or as
beneficiary under a prior will.
b. Lack of Testamentary Capacity: Burden of Proof on Contestants:
i. Must be 18 as of date of execution (any will executed before 18 invalid!
Don’t fall for old guy who made will when under 18=no will).
c. Mental Capacity: The Test:
i. Did T understand the nature of the act he was doing?,
ii. Did T know the nature and character/extent of his property?,
iii. Did T know who are the natural objects of his bounty?, And
iv. Did T understand the disposition he wished to make?
1. Capacity is determined at time of wills execution.
2. Fact that T was old, ill, possessed a failing memory, or was a
drinker/drug addict does not mean lacked testamentary capacity.
3. Even adjudication of insanity or appointment of guardian or
conservator is evidence of T’s lack of capacity but is not
conclusive.
d. Insane Delusion: Distinctive form of testamentary incapacity: Where T is
otherwise sane, but the will (or 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 gift in will) is product of the insane delusion.
(Basically, did delusion cause gift in will?)
e. Undue Influence: Burden of Proof on Contestants, who must show:
i. Existence and exertion of influence
ii. Effect is to overpower the mind and will of testator
iii. The result is a will that would not have been executed but for the
influence.
iv. Note: Influence is not undue unless the free agency of the testator was
destroyed and a will produced that expresses the will, not of the testator
but of the one exerting the influence.
v. Note: While evidence of undue influence is usually circumstantial, these
alone are not enough:
1. Mere opportunity to exert influence
2. Mere susceptibility to influence due to illness, age. Such evidence
does not (by itself) establish that T’s mind was in fact subverted
and overpowered.
3. Mere fact of unnatural disposition—that some children take less
than others or are excluded entirely. It is only where all reasonable
explanation for devise is lacking that the trier of facts may take this
circumstance as a badge of under influence.
vi. Undue influence may be shown as to entire will or as to one gift.
vii. In most states, a presumption arises upon a showing that a principal
beneficiary under the will who stands in a confidential relationship to the
T (attorney-client, priest-parishioner, doctor-patient) draws or procures the
execution of the will.
viii. Suspicious circumstances may also tend to show under influence.
(Random stranger insinuates himself with T, when t, because of mental or
physical condition or age is susceptible to influence, and T then writes will
that disinherits children).
f. No Contest Clauses:
i. Under UPC and most states, a clause in a will providing that beneficiary
forfeits her interest in the estate if she contests the will is valid and will be
enforced unless the beneficiary had probable cause for brining contest.
Suits objecting to court’s jurisdiction, challenging the appointment of
executor, and asking court to construe will are not will contests for
purpose of these clauses.
g. Fraud:
i. A successful grounds of fraud requires that testator have been willfully
deceived as to:
1. Character or content of the instrument
2. Extrinsic facts that would indicate the will or a particular
disposition, or
3. Facts material to disposition.
4. Note: If T is fraudulently prevented from making a will, some
courts will impose constructive trust against intestate beneficiaries
in favor of those who could have taken had the will been made.
h. Mistake:
i. Mistake in execution:
1. Extrinsic evidence admissible to show T did not know that
instrument he was signing was a will, because the existence of
testamentary intent is at issue.
ii. Mistake in Inducement—No Relief:
1. If mistake involves the reasons a T made his will a particular way
and the mistake was not fraudulently induced, the court will not
normally grant relief. Relief might be granted, however, if
mistaken inducement appears on face of will.
iii. Mistake as to Contents of Will—Extrinsic Evidence Not Admissible:
1. Extrinsic evidence not admissible to show that provision was
omitted or is incorrect.
iv. Ambiguity—Extrinsic Evidence Admissible:
1. Latent ambiguity arises if a will’s language is clear on its face but
results in a mis-description as applied, a patent ambiguity exists if
uncertainty appears on face of will. Extrinsic evidence is
admissible to cure latent ambiguities because it does not have
effect of rewriting will. Under traditional and majority view,
extrinsic evidence not admissible to cure patent ambiguities, but
modern, better view would admit it.
v. Reformation for Mistake Under UPC:
1. Under UPC, court may reform a will, even if will is unambiguous,
to conform to T’s intent if it is proven by C and C evidence that
T’s intent and terms of will were affected by mistake of fact or
law. This includes mistakes involving both the expression of terms
and inducement to make the will or any of its provision.
i. Remember: Defective Execution of Will (missing one or more requirements,
etc…), and Valid Revocation are also will contests!