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Wills topics

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Execution of Wills Revocation of Wills Beneficiary dies during testator's lifetime Changes in Family After Will's Execution Problems Associated with Testamentary's Gifts References to Acts and Events Outside the Will Other Wills Doctrines Elective Share Statute -Right of Reuniciation Will Contests Powers of Appointment

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Execution of a will: general terms and vocab

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1) Probate: 2) Letters testamentary/of administration: 3) Testator: 4) Heirs: 5) Benficiaries: 6) Residuary estate

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Probate

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proceeding in which 1) it is judicially determined tha decedent left a validly executed will and 2) a personal representative (executor or administrator) is appointed to administer the decedent's estate

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Letters testamentary/of administration

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issued by the court, showing the personal represntative's authority to represnt the estate in dealing with third parties

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Testator:

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person who makes the will

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Heirs

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people who take by intestate succession

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Benficiaries:

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people who take under the will

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Residuary estate:

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estate of a testator that remains after all debts, taxes and administration expenses have been paid, and after all specific gifts and cash legacies made by the will have been satisfied

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Requirements for a validly executed will

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1) Testator must be 18 years old 2) Must be signed by the testator: any mark intended as T's mark is sufficient 3) There must be two attesting witnesses: do not need to sign in front of each other 4) Each witness must sign in the testator's presence CODICIL: must be executed with the same formalities IL: does NOT require testator sign at the food/end of the will, witnesses know they are witnessing a will, that witnesses sign in each other's presence

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"In the testator's presence"

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UPC/Majority: under the conscious presence test, it is not necessary that testator should actually see the witnesses when they sign. They are in his presence if he is so near to them that he is conscious of where they are and what they are doing IL: Witnessess must be in teestator's line of sight. Does not have to see witnesse sign, but witnesses must be within the uninterrupted scope of testator's vision wien they sign so that testator could have seen them sign if they had looked

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Attny's negligent preparation of the rule

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Minority: no liability, because there is no privity of contract. The client was the one who contracted for the services, therefore a beneficiary will not be able to bring this case against the attny IL and majority: yes liability because privity is rejected as a defense

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What happens when a will beneficiary is an attesting witness to the will?

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THIS IS OK. Interested witnesses never affect the validity of the will, but the beneficiary-witness loses legacy unless: 1) there were two disinterested attested witness OR 2) witness-beneficiary would take a share of the estate if this will were not admitted into probate, in which case she takes the lesser of a) bequest given by the will or b) intestate share -whichever is least rule 3) Majority: the interested witness statute applies only the beneficial gifts, NOT earned compensation 4)IL no-compensation rule applies ONLY to the executor who signs the will as an attesting witness. Does not apply if bank is named executor and employee is attesting witness, same with representing attny

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Execution: Holographic wills

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Holographic: handwritten, signed, NOT witnessessed In about 30 states, the UPC recognizes these wills IL: all wills still must be signed by two attesting witnesses EXAM tip: discuss majority rule as well

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Execution: Conditional Wills

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"If something happens to be on this trip, I give you my stereo" Must think it was a valid will when you drafted it Did it merely reflect the motive or inducement for making a will?

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Revocation of Wills

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What does it take to revoke a will? Presumptions regarding revocation Dependent relative revocation Effect of changes on the face of the will after it has been executed

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What does it take to revoke?

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The mere intent to revoke is not enough. A will can be revoked only by 1) later testamentary instrument, executed with proper formalities, or 2) a physical act of destruction -must be on the will!

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Lost wills statute

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You cannot claim that the will is lost. In order to collect, you must: 1) proof of due execution, 2) cause of will's non-production must be proved, 3) contents must be substantially proved

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Presumptions regarding revocation

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1) where a will last seen in testator's possession or control is not found after death, it is presumed that the testator revoked it by physical act 2) Where a will is last seen in testator's possession or control is found mutilated after testator's death, it is presumed that testator revoked it by physical act

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Two "last wills?"

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Read the two instruments together -the second "last will" is read as a codicil to the first will, and revokes the first will only to the extent of inconsistent provisions. BUT -if the second will is wholly inconsistent with the earlier will, the first will is revoked by implication

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Dependent Relative Revocation

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"Hereby revoking all earlier wills," but then wishing to revive an earlier will permits a revocation of an earlier will to be dependent upon a mistake of law or fact as to the validity of another disposition, under the guise that destroying a subsequent will revives the first one. Effect of this would be to disregard the revocation of a second will and permit its probate

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Dependent relative revocation steps

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1) First will was revoked when second will is executed. 2) Second will was revoked by physical act 3) Will was legally dead and could not be revived simply by destroying the later will UNLESS: a) the will was re-executed OR 2) doctrine of republication 4) Dependent relative revovation should be invoked

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Effect of changes on the face of the will after it is has been executed

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1) Partial revocation by physical act: IL does not recognize it; majority does 2) Words added to a will after it has bee signed and witnesses are disregarded, not part of the duly executed will If you want to change you will in IL, write a new one or codicil If you change the face of the will before it is signed and witnesses, it IS valid IF you can establish by proof that the words were part of the duly executed will

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Beneficiary dies during Testator's Lifetime

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Anti-Lapse Statutes Lapse in the residuary gift -the surviving beneficiaries rule Class gift rule of construction Deaths in quick succession -Uniform Simultaneous Death Act

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Anti-lapse statutes

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1) When a will beneficiary predeceases the testator, the gift lapses -you can't make a gift to a dead person, they can't hold title to the property 2) UPC: applies when the predeceasing beneficiary was a descendant of testator's grandparent; IL: anti-lapse statute applies only when the predeceasing beneficiary was a child or other descendant of the testator 3) "if he survives me" -conditional, no anti-lapse 4) falls into residuary if not this, this also applies to void gifts

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Elements of Anti-Lapse statute

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1) the predeceasing beneficiary must have been in the prescribed degree of relationship to the testator AND 2) predeceasing beneficiary must have been left descendants who survived he testator -NEED descendants

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Residue Lapse and Surviving Beneficiary

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1) If residuary estate is devised to two or more persons and gift to one of them lapses or fails, the surviving residuary beneficiaries take the entire residuary estate, in proportion to their interests in the residue 2) Anti lapse statute trumps the surviving residuary beneficiaries rule if the predeceasing residuary beieficiary 1) was within the scope of the statute and 2) left descendants who survived the testator

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Class gifts

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1) In a gift by will to a class of persons, if a member of the class predeceases the testator, class members who survive the testator take, absent contrary privison 2) Testator was group-minded in making the gift and wanted this group and only this group to share the property 3) Rule of convenience: rule of construction used to define takers of a class gift. Class is closed, meaning later-born class members do not share in the gift when SOME class member is entitled to a distribution 4) Class closes at testator's death

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Simultaneous Death Act

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1) Simultaneous deaths and deaths in quick succession are governed by the Uniform Simultaneous Death Act: When title to the property depends on order of deaths and there is NO sufficient evidence that the persons have died otherwise than simultaneously, the property of each passes as though he or she survived 2) UPC: 120 hr rule -a will beneficiary or heir who fails to survive decedent by 120 hours is treated as if she predeceased.

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Changes in Family After Will's Execution

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Testator marries after will is executed Testator is divorced after will is executed Testator has a child after the will is executed -the pretermitted child statute

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Changes: Testator marries

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UPC: if a testator writes a will and then marries, the omitted spouse takes an intestate share of the testator's estate IL: marriage following execution of the will has no effect on the will -elective stare statute is there to protect spouses

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Changes: Testator divorces after will

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IL: Final decree of divorce or annulment revokes all gifts and fiduciary appointments in favor of former spouse. Estate is distributed and fiduciaries are named as though the former spouse predeceased the testator -divorce must be final

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pretermitted child doctrine

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IL: a child born or adopted after the will executed takes an intestate share UNLESS testator knew baby was down the pike. ALSO UNLESS, it appears from the will that omission was intentional

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Problems with testatmentory gifts

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Abatement of legacies to pay claims Ademption -specifically bequeathed property is not in the state at death Bequeaths of stock or other securities -when is it a specific benefit? Specific bequests of encumbered property -is the lien "exonerated"?

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Gift terms

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1) Specific devise or bequest 2) Demonstrative legacy 3) General legacy 4) residuary gift 5) intestate property

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Specific Devise or bequest

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a gift of specifically described property

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Demonstrative legacy

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hybrid gift of general amount paid from a specific source

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General legacy

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general bequeathing of something to someone

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Residuary gift

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giving the rest/residue to someone

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Intestate Property

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If will does not make a complete disposition of the estate bc the will was poorly drafted and does not contain a residuary clause -partial intestacy

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Abatement of legacies to pay claims

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Absent a contrary will provision, debts and administration expenses are first paid out of 1) intestate property, 2) then residuary assets, 3) then general legacies and finally 4) specific bequests -no distinction is made between real and personal property

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Ademption

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When specifically bequeathed property is not in the estate at death, the beneficiary cannot take it -obviously Only applies to specific gifts, NOT general/demonstrative legacies IL: prevents application of equitable conversion doctrine when applied to contracts -you can take remaining payments from an estate if it was fully performed 3) IL: relief when testator did not have opportunity to change his will under circumstances that there would be no intent to work an ademption-devising a car, dying in a car crash

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Ademption and incapacity

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1) will executed before T became incapacitated: if specifically devised property is sold or condemned the specific devisee has a right to a general legacy equal to the net sale price, condemnation award or insurance proceeds 2) IL: have granted some relief in incapacity situations: specific devisee gets something to that degree, but only to the extent they can be traced AND haven't been expended for the ward's care

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Bequests of stock or other securities

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IL: specific bequest of stock includes additional stock produced by a stock split and also stock resulting from a merger, takeover, reorganization, etc after the will was executed BUT not stock dividends. Usually get the value of the stock on the day of death if it was a GENERAL LEGACY Specific request: you get the shares themselves

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specific bequest of encumbered property

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Common law: absent contrary provisions, liens on specifically devised property are exonerated from the residuary estate IL: a specific legatee of encumbered property is NOT entitled to have the lien exonerated unless the will expressly directs exoneration -can take property subject to a lien

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Reference to Acts and Events Outside the Will

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Incorporation by reference doctrine Acts of independent significance -nontestamentary

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Incorporation by reference

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An extrinsic document, not present when the will was executed and thus not part of the duly executed will, can be incorporated by reference into the will IF: 1) document must be in existence when will executed, 2) will must refer to document as being in existence, 3) Will must describe the document sufficiently to permit its identification -so there can be no mistake UPC: exception -will may refer to a written statement or list that disposes of tangible personal property, not specifically disposed of by the will. MUST be signed by the testator, may be written before after the will is executed

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Acts of independent significance -nontestamentary

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Considered a life time act, with a lifetime purpose of motive It is done for tangibles or cash only -if you devise a particular car, and you trade it for a nicer one, they get that car. This does not pertain to title documents

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Other Wills Doctrine

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Mistake or ambiguity in the will's terms Contracts relating to wills What is the effect of express words of disinheritance in a will? Unlawful covenants in a will Slayer Statutes Nonprobate Assets

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Mistake or ambiguity in will's terms

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IL: follows the plain meaning rule, stating that following no ambiguity, extrinsic evidence will be inadmissible to overturn the plaining meaning of the will. Absent supsicious circumstances, it is conclusively presumed that testator read the will and intended all consequences. UPC: Wills can be reformed to correct mistakes if mistake is shown by clear and convincing evidence Covers latent ambiguity and patent ambiguity

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Latent ambiguity

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a misdescription; extrinsic evidence IS admissible to show facts and circumstances surrounding it, and testator's statements to attorney wo signed the will, NOT the testator's declaration of intent

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Patent ambiguity

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mistake appears on the face of the will -same rules of extrinsic evidence applies

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Other wills: contracts relating to wills

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Can a will be contractual? UPC: no, unless will expressly states that a contract does exist. IL: execution of a will by a H&W may be found contractual EXAM: apply wills law, then apply contract law, then impose a constructive trust

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Husband and wife contract/wills

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IL: wills by H&W may be contractual if all or most of the following factors are present: a) will labeled "joint and mutual" b) will leaves entire estate to surviving spouse c) will disposes of all their property in a unified disposition d) there is a common dispositive scheme on the death of the survivor

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Reciprocal Wills

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separate wills containing reciprocal or mirror provisons are never presumed to be contractual unless clear and convincing evidence of a contract

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Effect of express words of disinheritance

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UPC: a will can prove how property shall NOT be disposed of, words of disinheritance are given effect IL, majority: words of disinheritance oare ineffective, when property passes by intestate succession, it passes pursuant to intestacy statute

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Unlawful conditions

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Anything that may seemingly be against public policy: 1) encouraging divorce, 2) total restraints of marriage However -you can put a partial restraint on marriage -no shiksas provision

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Slayer Statutes

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Killer forfeits interest in victim's estae if he intentionally and unjustifiably causes the death of another, considered to have predeceased the victim -negligence will not kick this in Applies to ALL transfers, and needs to be a criminal case

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Nonprobate assets

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Interests that are not subject to disposition by will or inheritance, and do not pass thru a person's probate estate for purposes of administration: 1) Property passing by right of survivorship 2) Property passing by contract 3) Property held in revocable trust

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Intestate Succession

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Occurs when 1) decedent left no will, 2) decedent's will is denied probate or 3) partial intestacy Intestate Share of Surviving Spouse Inheritance by descendants (issue) Other intestate distribution rules -parents/siblings or predeceased kids Inheritance by adopted, nonmarital children Lifetime Gift to an Heir or Will beneficiary Disclaiming an interest

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Share of surviving spoouse

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IL: surviving spouse's intestate share is: 1/2 if survived by descendants, ALL if not survived by descendents

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descendant distribution

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IL: Per Stirpes -one share for each line of living descendents, children of deceased children take by representation the share the parent would have taken had she survived the heir

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parents of predeceased kids

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IL: parents, brothers and sisters take equal shares

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Inheritance by adopted, nonmarital kids

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Under 18 at adoption: treated the same as regular kid Stepchild not been adopted: no inherit once adopted, kid cannot inherit from biological parents EXCEPTION: kid who is adopted by spouse of a natural parent can inherit from mom, new dad and old bio dad too Over 18: inherit from adopting parent, but NOT the adopting parent's kin nonmarital kids: need to prove either 1) Paternity suit, 2) Acknowledged paternity or 3) Probate proceedings thru clear and convincing evidence -PAP

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Lifetime gift to an heir or will beneficiary

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Will it be treated as an advance on any will division? Common law: lifetime gift was presumptively an advancement of the child's intestate share, to be taken into account in distributing the estate at death. IL, majority: lifetime gift to an heir is NOT an advancement UNLESS 1) declared as such in a writing by donor and 2) acknowledged as a writing by donee

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Disclaiming a gift

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Can disclaim in whole or in part; if a minor, only with court's approval 1) must be in writing, signed and delivered to decedent's personal represntative or trustee or person in possession of the property 2) IL has no time limit on when a disclaimer must be made, but for tax purposes, must be filed within 9 mo's

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Elective Share Statute

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When a spouse can renounce a decedent's will and collect their statutory elective share 1) IL: 1/2 if no kids; 1/3 if with kids 2) Spouse must file notice of election to renounce the will within a specified period 3) Election can be made on behalf of an incapacitated spouse with court approval, upon showing that an election is necessary to provide adeqate support for the spouse during his probable life expectancy. If spouse dies before election is ade, an election cannot be made by the deceased spouse's executor

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Will contests

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Only interested parties have standing to bring a will contest: someone with an economic interest that would be adversely affected by the will's probate -heirs, legatees, earlier devisees 1) Lack of testamentary capacity: 2) Undue Influence

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Powers of Appointment

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1) General testamentary power of appointment: one not limited in the class of beneficiarires to whom they can appoint, can appoint the property to anyone, including herself OR her creditors OR her estate 2) Special testamentary power: limited in the class of persons to whom they can appoint, can only appoint as the will states 3) no specific reference: general testamentary power of appointment

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lack of testamentary capacity

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Burden of proof is on will contestants. Did testator have sufficient capacity to: 1) understand the nature of the act he was doing? 2) Know the nature and approximate value of property? 3) know the natural objects of his bounty? 4) Understand the disposition he was making? Just being too old, frail or drunk does not mean that the jury couldn't find him lucid at the time: a) adjudication of incapacity involces a different legal test than teset for capacity to will b) jury could find that will was signed during a monent of lucidity

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Undue influence

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Existence of a testamentary capacity subjected to and controlled by a dominant influence or power. Contestants still have BOP: 1) existence and exertion of influence 2) effect of which was to overpower the mind and will of the testator 3) product is a will or a gift in the will that would not have been made but FOR the influence NOT sufficient: opportunity, susceptibility, unnatural disposition **Where a person in a confidential or fiduciary relationship was active in procuring the will and that party will receive a substantial benefit under the will there is a presumption of undue influence

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no contest clauses

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Are these legit? UPC: they are given effect unless the court finds that the contest was brought in good faith and with probable cause IL: given full effect REGARDLESS of probable cause

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