Wills PA bar – Flashcards

A will is a written will, codicil or other testamentary writing and requires capacity, writing, signed by testator at the end, with witnesses and intent. Handwriting above sig is ok. Need not sign each piece of paper. If he can't sign name but jsut makes a line and his name is subscribed in his presence if fine, or verbal order to subscribe in his presence is ok.

At the time of execution To execute a valid will a person must be 18 years or older with a sound mind; the ability to understand the nature, condition, extent of property, natural obejts of bounty and nature of disposition. Being eccentric does not make you incapable of making a will.

Attestation consits of the subscription of the names of the witnesses to the attestation clause of a will as a declaration that the testator's signature was made and acnowledge in their presence. PA DOES NOT REQUIRE THIS.

necessity of proof of the will by two witnesses. Proved by oath or affirmations of two competent witnesses.

No not necessary that the subscribing witnesses see testator sign if he acknowledged to them that the sig was his.

No, witness need not know its a will he is signing.But if another is executing it on bhelaf of testaor he has to make it known.

writing, signed by decedent at end, legal declaration of his intention which he wills to perform after death, Paper intended to be complete and final disposition. Takes effect on testator's death.

1. Able to observe testaor signing. 2. Able to comprehend nature of act. 3. May testify as to any issue of genuineness. Subsequent incompetence does not invalidate.

written by testator, in his handwriting, signed at the end. a form will does not count.

will made to take effect only upon the occurence or nonoccurence of some condition and thus not entitled to probate unless the condition or contingency has or has not occured. PA DOES NOT FAVOR THESE.

A codicil is an instrument that is executed subsequent to a will by which the will is altered, explained, added to, subtracted from. It must be executed with same formalities as a will. So when it is executed, the will an all prior codicils are said to be republished as of the date of the codicil and treated as re-executeed.

No issue--no parent then all to spouse. Surviving parent--30k plus 1.2 balance to spouse parents. Surviving Issue--spouse gets 30k and 1/2 then rest to issue

issue takes per stirpes no issue then parents take in equal shares no parents-then brother sis and their issue take by representation no siblings or issue of sibs--surviving grandparents

when made to persons who take as issue, in equal portions, the share that their deceased ancestor would have taken if living.

When an original will in the testator's custody cannot be found at his death, it is presumed that the testator destroyed the will with the intention of revoking it. To overcome this presumption and get a copy of the lost will admitted to probate, two independently competent witnesses must prove that the will was executed and that the contents of the executed will were substantially the same as those appearing in the copy of the will. Thus, in this case, because the testatrix's will could not be found among her possessions, the presumption would be that the testatrix destroyed the will with the intention of revoking it. The decedent's daughter and granddaughter would, nevertheless, be able to overcome this presumption and get the copy of the will admitted to probate, since they are competent witnesses who can prove the contents and execution of the will by the testatrix. As such, this answer is correct.

A mistake may, under certain circumstances, constitute valid grounds for contesting a properly executed will. There are two types of mistake: mistake in the inducement and mistake in the factum. Here, because the testator's apparent mistake related to the proper name of the intended beneficiary, the mistake was in the factum rather than in the inducement. Pennsylvania probate courts will not reform a will for mistake in the factum. More specifically, under Pennsylvania law, where a name is used in a will and someone fits that name exactly, parol evidence is not admissible to show that the testator meant for the legacy to go to someone else. In this case, because the boy's father exactly fits the name stated in the testator's will, the boy will not be permitted to introduce parol evidence to show that he, rather than his father, was the testator's intended legatee. As such, this answer is correct.

In Pennsylvania, there is a presumption of no undue influence. Therefore, in a will contest alleging undue influence, the burden of proof is on the party alleging that there was undue influence. In this case, since the nonagenarian's children are alleging undue influence, the burden of proof is on them to show that: 1) some influence or power subverted the intent of the testator at the time of execution of the will; and that 2) except for such influence, the testator would not have executed this will. As such, this answer is correct.

Under Pennsylvania law, wills may be revoked in a number of ways: 1) by a physical act; 2) by the execution of a subsequent instrument; 3) by some other will or codicil; or 4) by operation of law. A will is revoked by physical act if it is burnt, torn, canceled, obliterated, or otherwise destroyed with the intent and for the purpose of revocation by the testator or by another person at his direction and in his presence. If the act is done by another person, the direction of the testator must be proved by the oaths or affirmations of two competent witnesses. Thus, in order to effect a revocation by a physical act, there must be both an intention to revoke and the intention must be carried into execution by acts done to the paper. In this case, the woman's will was indeed destroyed by tearing it up, which under certain circumstances would be sufficient to revoke the will in its entirety. However, because it was the stepdaughter, not the woman herself, who tore up the will, and because the stepdaughter did not act at the direction of the testatrix, there was no intention on the part of the testatrix to revoke the will. For this reason, the stepdaughter's physical destruction of the will was not sufficient to revoke the will, and the woman's subsequent act of taping the torn pieces of the will back together was thus unnecessary to reinstate the will. In fact, the woman's act of taping the will back together only serves to indicate her lack of intent to revoke the will by physical act. As such, this answer is correct.

The words "some other writing" are taken to mean any sort of writing; no special form or language is necessary. A separate piece of paper is not required; a revocation may be effected by a writing on the face of the will itself, if signed by the testator with intent to revoke. However, no matter what form the instrument takes, it must be executed by the testator and it must be witnessed by two witnesses. A prior will may also be revoked by the execution of a later will, by implication, to the extent that it disposes of all or part of the testator's estate in a manner inconsistent with that prescribed in the earlier will. Here, the testator's later will disposed of his estate in a manner inconsistent with that prescribed in the prior will. Therefore, the testator's first will was revoked by the second will by implication.

In Pennsylvania, a will may be wholly or partially revoked by a physical act. Physical acts sufficient to revoke a will or a portion of the will including burning, tearing, cancellation, obliteration, or destruction of the will with the intent and for the purpose of revocation by the testator or by another person at the testator's direction and in the testator's presence. "Cancellation" means any act done to the paper that, in common understanding, would be regarded as cancellation when done to any instrument. Thus, a line drawn through the entire will or signature, or tearing off the signature is effective as a full revocation of the will. By the same token, a line drawn simply through a portion of the will would be sufficient to revoke that portion of the will. Here, by crossing out that portion of the will naming his youngest son as a beneficiary, with the intent of revoking that portion of the will, the testator validly revoked the portion of the will devising a share of his estate to his youngest son. As such, this answer is correct.

Pennsylvania law restricts a decedent's ability to reduce his spouse's share in his estate. By statute, a surviving spouse has the right to decline to take under the decedent's will and instead may choose to claim his or her elective share. The elective share consists of one-third of property passing from the decedent by will or intestacy, as well as one-third of other property specified by Pennsylvania statute. As such, this answer is correct.

The elective share consists of one-third of property passing from the decedent by will or intestacy, as well as one-third of other property specified by Pennsylvania statute. In order to claim an elective share, a surviving spouse must file a signed writing with the clerk of the orphan's court division of the county in which the decedent died domiciled. The election must be filed with the clerk of the court within the later of six months after the decedent's death or six months after probate. For the elective share statute to apply, the decedent spouse must have been domiciled in Pennsylvania at the time of his death, unless his will specifies that Pennsylvania law applies to the disposition of any property owned by him in Pennsylvania. Here, the facts indicate that the wife of the decedent lived in Rhode Island, while the decedent lived in Pennsylvania. Since the decedent's will did not specify that Pennsylvania law applied to the disposition of any property owned by him in Pennsylvania, the wife cannot claim the elective share.

the right of a surviving spouse to an elective share of the decedent's estate is not affected or negated by the fact that the spouse is also a subscribing witness to the decedent's will. As such, here, the wife's claim to the statutory elective share would not be denied merely because she served as an attesting witness to her husband's will.

In Pennsylvania, in order to claim an elective share, a surviving spouse must file a signed writing with the clerk of the orphan's court division of the county in which the decedent died domiciled. This election must be filed within the later of six months after the decedent's death or six months after probate. In this case, the wife filed her election within four months after probate and is, therefore, within the six-month required time period. As such, untimeliness will not be the basis for the court's denial of the wife's election.

Pennsylvania law, a surviving spouse has the right to claim his or her elective share regardless of the specific provisions of the decedent's will. Moreover, the right to the statutory elective share is not negated or diminished where the decedent's will contains a charitable devise or bequest. As such, here, the court would not deny the wife the right to an elective share merely because the decedent's will provided that his entire estate was to go to charity.

a testator can disinherit a child intentionally; there is no forced or elective share, as there is for a spouse. Disinheritance may be by an express statement in the will, or by necessary implication. It is possible for a testator to exclude a child from participating in the distribution of his estate merely by omitting that child's name from the will. Here, the deceased mother's will disposed fully of her estate, and her younger daughter was alive at the time of the execution of the will. Thus, the omission of the younger daughter from the will constitutes disinheritance by necessary implication of the will, and the younger daughter is therefore not entitled to inherit under the will.

However, Pennsylvania statute provides for a "family exemption," similar to the homestead exemption in other states. The family exemption provides specific members of the decedent's family with $3,500 from the decedent's estate. The family exemption is available only if the decedent was domiciled in Pennsylvania at the time of her death, and only to those family members living with the decedent at the time of death. Here, because the younger daughter was living with her mother at the time of the daughter's death, she is entitled to claim the family exemption in the amount of $3,500. As such, this answer is correct.

Pennsylvania law also provides certain protections for "after-born" children - that is, children born to the testator after the testator's execution of the will. Generally, unless it appears from a will that the testator intentionally failed to provide in his will for a child born or adopted after making his will, an after-born child is entitled to receive, out of the testator's property not passing to the surviving spouse, such share as he would have received if the testator had died unmarried and intestate owning only that portion of his estate not passing to a surviving spousethe testator's will makes a general gift to a class composed of the testator's children and makes no distinction between children born prior to and after the execution of the will, the after-born child stands on the same footing as other members of the class and cannot declare partial intestacy as to the after-born child's share

When a married person domiciled in Pennsylvania dies, the surviving spouse has a right to an elective share of one-third of certain property. This answer is correct in noting that the doctor's home, his cars, his ownership interest in the Pennsylvania cabin, the $12 million in cash and other personal property would be subject to his wife's elective share. In addition, property conveyed by the decedent during the marriage and within one year of his death, to the extent that the aggregate amount conveyed exceeds $3,000, is subject to the spouse's elective share. As such, it is also true that the $75,000 conveyed to by the doctor to his three children nine months before the doctor's death would be subject to the wife's elective share to the extent that the total amount conveyed exceeds $3,000. However, this answer neglects to note that given that the doctor's wife was also unaware of the conveyances and therefore could not have consented to the doctor's total conveyance of $15,000 to his grandchildren nine months before his death, this amount will likewise be subject to the wife's elective share. As such, this answer is correct.

ennsylvania law provides that a spouse who, for one year or more prior to the death of the other spouse, willfully neglected or refused to perform the duty of supporting the other spouse, or who for one year or more willfully and maliciously deserted the other spouse, will have no right or interest in the intestate estate of the other spouse. Here, the facts indicate that the husband initially deserted the decedent and, hence, could potentially lose all right to inherit any portion of the intestate estate. However, separation by mutual consent does not constitute a desertion, and even a separation that was initially unilateral may become mutual by the conduct of the parties. In this case, given that the wife told her husband that he was no longer welcome home and that she did not wish to resume their marriage, it is likely that the separation will be considered to have become "by mutual consent." As such, the surviving husband is still entitled to inherit from the decedent's estate. Under Pennsylvania's laws of descent and distribution, if an intestate decedent is survived by a spouse and by children, all of whom are also issue of the surviving spouse, the first $30,000 plus one-half of the balance of the intestate estate goes to the surviving spouse, and the remainder of the estate is distributed among the children and the issue of any deceased children. Thus, the decedent's husband will take the first $30,000 plus one-half of the remaining intestate estate, and the other half of the remaining intestate estate will be distributed among the decedent's two surviving children and the children of the decedent's deceased daughter (pursuant to Pennsylvania's anti-lapse statute). Of the other half of the remaining intestate estate, the decedent's two surviving children will each take a one-third share, and the remaining one-third share will be distributed in equal portions to the two children of the decedent's deceased daughter, who will each take a one-sixth share. As such, this answer is correct.

In order for a settlor to create a valid trust, the res of the trust (the property to be placed in the trust) must be identifiable and alienable. Property held in joint tenancy is not alienable and, therefore, cannot be the res of a trust. Thus, the sister did not create a valid trust for her daughter.

A trust that does not satisfy the Statute of Frauds because there is no writing is voidable by the trustee. However, this question clearly states that the sister, the settlor, signed a writing evidencing the trust. Thus, the writing in this fact pattern does satisfy the Statute of Frauds because it sets out all material terms of the trust. However, the trust is still not valid, and this answer is incorrect because the res of a trust must be alienable, and the sister does not have an equitable interest in Purpleacre.

A trust that transfers title to realty must be evidenced by a writing in order to satisfy the statute of frauds. Otherwise, the trust is voidable at the option of the trustee, who may use the lack of a writing as a defense in a suit to transfer title to the beneficiary. In this case, there is a writing, because the landowner wrote the trustee a letter a few weeks after the transfer. However, this writing is insufficient because at the time the landowner wrote the letter, the landowner had already transferred legal title to the trustee. The witnesses are irrelevant because parol evidence is not admissible when it appears from the face of the deed that the property was properly transferred. Therefore, there is no writing sufficient to satisfy the statute of frauds and the son will be unsuccessful in his suit because the trust is voidable at the trustee's option.

Pennsylvania law, a trust must have specific and identifiable property and the beneficiaries must be definite and ascertainable. This answer is correct because both of those requirements are met in this fact pattern. Words such as "half my property," "half my estate," or "the leftover of my estate" have been found to be sufficient to satisfy the requirement of identifiable property. Further, a class gift (such as a gift to "my children" or "my cousins") is proper so long as the class is definite. In this case, the class of "my children" is definite because at death, when the transfer of property will occur, the beneficiaries of the trust will be ascertainable. Therefore, the mother created a proper trust.

A savings account trust, known as a Totten trust, is recognized in Pennsylvania and may be created by a settlor by depositing money in a bank account in the name of the settlor "in trust for" a named beneficiary. In this case, a Totten trust was created when the woman opened the savings account in her name in trust for her granddaughter Josephine and deposited $5,000 in the account. A Totten trust is revocable at any time until the settlor dies, at which time the balance remaining in the account vests in the named beneficiary. To revoke the trust, the settlor may make a decisive act or declaration of disaffirmance during his or her life, such as by a letter to the bank. Thus, the woman may revoke the savings account trust by sending a letter to the bank expressing that desire.

The essence of a charitable trust is that it is established to accomplish one or more purposes that are recognized in the law as charitable, including the furtherance of health, religion, education, governmental establishments (such as parks or museums), and the relief of poverty or discrimination. Charitable trusts are favored by the law because of their benefit to society. For this reason, charitable trusts are liberally construed to achieve the charitable purpose of the settlor. If at some point the charitable purpose intended by the settlor has been accomplished, can no longer be accomplished, or some other change in circumstances renders it impracticable to administer the trust in the precise manner provided by the settlor, the court under the cy pres doctrine may apply the gift as nearly as possible to the settlor's particular charitable intent, unless the court determines that the settlor intended that the trust fail if his express purpose could no longer be carried out. Here, given the testator's general language in favor of the development of sustainable organic farming methods, it is unlikely that the court will find that the testator intended the trust to fail if the environmentally friendly tractor was developed. It is more likely that the court will apply the funds toward the testator's general goal of furthering the development of environmentally responsible farming equipment.

After a settlor has died, courts are reluctant to terminate an active trust when termination would interfere with the settlor's intent. The majority rule is that when the settlor has fixed the period for the termination of a trust and its purposes have not yet been accomplished (such as holding the corpus until the beneficiary reaches a certain age), the trust cannot be terminated, even if all of the beneficiaries approve of such termination. A court does have the power to terminate a trust when its purposes have been accomplished and all of the beneficiaries approve of termination. Here, although the beneficiaries of the trusts, the wife and the son, approve of the termination of both trusts, the testator's purpose of holding the trust corpuses until his son reached the age of 25 would be thwarted by the trusts' early termination. Thus, the court will refuse to terminate the trust, despite the beneficiaries' consent.

once a trust has been created, it may be revoked or terminated by the settlor unless the trust instrument expressly designates the trust as irrevocable. If the trust instrument does not forbid amendment or revocation, a settlor may revoke or amend the trust by a later writing signed by the settlor that refers to the trust or reconveys the trust property. In this case, the trust instrument did not designate the trust as irrevocable. Thus, the settlor may revoke the trust with a writing signed by him that refers to the trust.

Pennsylvania does not recognize nuncupative, or oral, wills. A change to a will must be executed with the same formalities as a will.

A will is revoked when an act is done to the paper on which the will is written that, in common understanding, would be regarded as the cancellation of an instrument. Pennsylvania applies the doctrine of dependent relative revocation where a testator revokes an old will with the intent that a new will shall replace the prior will, and the new will is defective. In this case, the revoked will should be admitted as if it had never been revoked, inasmuch as the court will assume the testator preferred the old will to intestacy.

The issue is how Roger's estate will be distributed upon his death. In PA, stepchildren have no inheritance rights as "children" unless they have been adopted officially or by estoppel. Adoption by estoppel occurs only when there is an attempted adoption that fails to occur due to a technical defect or where a stepparent contracted with the natural parents to adopt the child but did not do so. Under the Simultaneous Death Act, when a testator and a beneficiary die under circumstances where it cannot be determined who died first, the testator's estate will be distributed as if the testator survived the beneficiary. When a beneficiary predeceases the testator, the disposition to that beneficiary lapses unless the antilapse statute applies. Under the anti-lapse statute, a testator's gift of property to a child who predeceases the testator will pass to the surviving issue of that testator's predeceased child, and so will not lapse.

A third party can contest a will on the grounds of undue influence over the testator. The person challenging the will must show by clear and convincing evidence that there was a person who would substantially benefit under the will, who was in a confidential relationship with the testator, and that the testator had a weakened intellect. The influencer must have coerced the testator to such a degree that the testator could no longer exercise his free will.

A clause in a will that disqualifies anyone from taking under the will if they challenge it is commonly known as an "in terrorem" or "no contest" clause. In Pennsylvania, such clauses are unenforceable if there is probable cause to challenge the will.