8. The cancellation of a will by the writing of a new will or the adding of a codicil to the will

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1 CHAPTER 4: WILLS VALIDITY REQUIREMENTS, MODIFICATION, REVOCATION, AND CONTESTS MATCHING a. testamentary capacity b. testamentary intent c. publication d. interested witness e. operation of law f. standing g. in terrorem clause h. ambulatory i. attest a will j. revocation by subsequent writing 1. The requirement that only a person who stands to lose a pecuniary interest in a decedent s estate if a will is allowed may contest the will 2. To bear witness and to affirm or verify a will as genuine 3. The sound mind requirement for a person to make a valid will 4. A person who is a beneficiary and a witness of the same will 5. The automatic revocation or amendment of a will by state statute without the testator's knowledge of or agreement to the revocation 6. Revocable and subject to change 7. The requirement for a valid will that the testator must intend the instrument to operate as his or her last will 8. The cancellation of a will by the writing of a new will or the adding of a codicil to the will 9. A statement in a will that if a beneficiary of the will objects to probate or challenges the will's distributions, that contestant forfeits all benefits of the will 10. The formal declaration of a testator at the time of signing a will that it is his/her last will and testament ANS: I ANS: D 5. ANS: E 6. ANS: H ANS: J 9. ANS: G 10. TRUE/FALSE 1. For a will to be declared a legal document that can transfer a decedent s estate after death, the maker must have testamentary intent. ANS: T Correct. The testator must intend to make the will his/her final will. Incorrect. Without testamentary intent, the will is not valid. 2. The most common method of creating a will today is by videotape. Correct. Computer word-processing programs are the most common method used today.

2 Incorrect. The majority of states require a will to be a written document. 3. In states that allow nuncupative wills, the testator does not have to be legally capable of making a written will. Correct. The person must be legally capable and also have witnesses. Incorrect. A person must be legally capable to make any type of will. 4. Every page of a will should be numbered. ANS: T Correct. Also, no space on any page should be large enough for modifications. Incorrect. Numbering pages helps to ensure that there is no opportunity to alter the will. 5. Today, codicils are almost obsolete. ANS: T Correct. It is most common to make changes to an existing will in a word-processing file, thereby creating a new will. Incorrect. Codicils are rarely used today because of easy-to-use computer programs. 6. Once executed, a will can be revoked only by changing it or writing an entirely new will. Correct. A will can be revoked by certain operations of law. Incorrect. A will can be revoked by certain physical acts. 7. If a will is lost, it is automatically revoked. Correct. The will may be probated if it is proven to have been properly executed and the contents are known. Incorrect. Many states have statutes that allow a lost will to be probated. 8. Creditors can generally contest a will. Correct. However, creditors must be given notice of probate proceedings so that they may pursue their claims. Incorrect. Creditors can pursue their claims in a separate lawsuit. 9. Any will is open to a will contest, even if the maker of the will fulfills all requirements for a valid will. Correct. Only a person who has standing can contest a will. Incorrect. A person, other than a creditor, who stands to lose a pecuniary interest in a decedent s estate if a will is allowed can contest the will. 10. A testator may stipulate in his/her will that if a certain person contests the will, then he/she forfeits all benefits of the will. ANS: T Correct. This includes objecting to the probate of the will or challenging the dispositions.

3 Incorrect. Such a stipulation is an in terrorem clause. MULTIPLE CHOICE 1. Which is NOT a requirement for the creation of a valid will? a. The beneficiary must be legally and mentally capable. b. The testator must intend that a document be his/her last will. c. The will must be signed by witnesses. d. The testator or a person other than the testator must sign the will or make some other written mark. The beneficiary must be legally and mentally capable. Correct. The legal and mental capacity of the testator not the beneficiary is required. The testator must intend that a document be his/her last will. Incorrect. A valid will requires testamentary intent. The will must be signed by witnesses. Incorrect. Witnesses signatures are generally required to validate a will. The testator or a person other than the testator must sign the will or make some other written mark. Incorrect. Generally, a testator must sign his or her will, but a person other than the testator may sign the testator s name in his or her presence only at the express writer s direction of the testator. 2. Which of the following indicates that a testator lacks mental capacity? a. The testator suffers from insane delusions. b. The testator has a low level of intelligence or suffers from a mental illness or senility. c. The testator does not remember the persons who are the natural objects of his or her bounty. d. The testator is neglectful of his/her person and makes a will containing eccentricities. The testator does not remember the persons who are the natural objects of his or her bounty. Correct. To be of sound mind, a testator must be able to recognize family members and close friends. The testator suffers from insane delusions. Incorrect. The testator could have had a lucid interval when he/she executed the will. The testator has a low level of intelligence or suffers from a mental illness or senility. Incorrect. These do not necessarily mean that the testator lacks testamentary capacity. The testator is neglectful of his/her person and makes a will containing eccentricities. Incorrect. Case law has consistently held that neither of these constitutes an unsound mind. 3. Which witness to the execution of a will is LEAST likely to have a conflict of interest? a. Paralegal working with the attorney who drafts the will b. Beneficiary of the will c. Attorney who drafts the will d. Nonbeneficiary associate of the testator ANS: D Nonbeneficiary associate of the testator Correct. A nonbeneficiary will not gain or lose anything from the will. Paralegal working with the attorney who drafts the will Incorrect. The paralegal is subject to the same ethical standards as the attorney. Beneficiary of the will Incorrect. Good legal practice dictates that a beneficiary not act as a witness. Attorney who drafts the will Incorrect. If an attorney is called as a witness, he/she will not be able to represent the estate. 4. Witnesses to the execution of a will must do all of the following EXCEPT: a. Sign in the presence of one another b. Sign at the bottom of the will c. Sign in the presence of the testator d. Witness the testator s signature or witness the acknowledgment of the signature Sign at the bottom of the will Correct. The placement of witnesses signatures varies by state statutes. Sign in the presence of one another Incorrect. The witnesses must be able to verify that the other witness(es) signed the will.

4 Sign in the presence of the testator Incorrect. The witnesses must sign in the presence of the testator. Witness the testator s signature or witness the acknowledgment of the signature Incorrect. The witnesses must witness the testator s signature. 5. Which is NOT a way to accomplish revocation? a. By operation of law b. By physical act c. By intent d. By subsequent writing By intent Correct. Intent is generally necessary, but revocation also requires some action to invalidate the will. By operation of law Incorrect. If a testator marries after executing a will, the law invalidates the will. By physical act Incorrect. A testator can physically destroy the will, rendering it invalid. By subsequent writing Incorrect. A second will or codicil can invalidate all previous wills. 6. Which is NOT an example of revocation by a physical act? a. A person uses a pen to cross out all clauses of a will, despite the testator s objections. b. The testator burns the will. c. A person shreds a will upon the testator s instructions in the presence of witnesses. d. The testator tears the will in half. A person uses a pen to cross out all clauses of a will, despite the testator s objections. Correct. The testator s consent is required for the will to be legally revoked. The testator burns the will. Incorrect. In this case, the testator has completely destroyed the physical document. A person shreds a will upon the testator s instructions in the presence of witnesses. Incorrect. In this case, the testator has clearly directed the destruction of the will. The testator tears the will in half. Incorrect. Tearing the will revokes the will. 7. Which is NOT an example of revocation by subsequent writing? a. A single testator writes a new will. b. The testator crosses out all clauses of the will with a pen. c. The testator adds a codicil to the will. d. An engaged testator writes a new will prior to marriage. The testator crosses out all clauses of the will with a pen. Correct. This is an example of revocation by a physical act. A single testator writes a new will. Incorrect. Executing a new will generally revokes all previous wills. The testator adds a codicil to the will. Incorrect. A codicil is a written amendment to a will. An engaged testator writes a new will prior to marriage. Incorrect. A new will made prior to marriage is still a valid will. 8. Which constitutes grounds for contesting a will? a. The testator was uninfluenced by fraud to write or change the will. b. The will has been revoked. c. The will has been properly executed. d. The will is free of contradictions. The will has been revoked. Correct. If a will is revoked, it is not valid. The testator was uninfluenced by fraud to write or change the will. Incorrect. A testator s being influenced by fraud is grounds for contesting a will.

5 The will has been properly executed. Incorrect. If the will is not properly executed, it can be challenged. The will is free of contradictions. Incorrect. A will containing contradictions can be challenged. 9. If a client wants to leave a monetary gift for the attorney who drafts the will, to ensure ethical practice, the attorney should: a. Ensure that the gift is the major asset of the estate b. Draft the will as requested c. Fully disclose the code of conduct to the client d. Direct another attorney in the firm to draft the will Fully disclose the code of conduct to the client. Correct. The attorney should also be sure not to encourage the gift in any way. Ensure that the gift is the major asset of the estate Incorrect. Most courts would view this as highly suspect. Draft the will as requested Incorrect. It could later be assumed that the attorney pressured the client into making the gift. Direct another attorney in the firm to draft the will Incorrect. An attorney from a different firm should draft the will. 10. A presumption of undue influence may be raised if a contestant shows that: a. The alleged influencer actively participated in preparing the will. b. A confidential relationship did not allow the alleged influencer an opportunity to control the testamentary act. c. The alleged influencer will not unduly profit as a beneficiary. d. The testator was not in a sickened or weakened condition when the will was executed. The alleged influencer actively participated in preparing the will. Correct. If the contestant actually prepared the will, he/she could misrepresent the testator s wishes. A confidential relationship did not allow the alleged influencer an opportunity to control the testamentary act. Incorrect. Such a relationship might exist with a doctor, an attorney, a priest, etc. The alleged influencer will not unduly profit as a beneficiary. Incorrect. If the alleged influencer will not profit, it is unlikely that any influence was exercised. The testator was not in a sickened or weakened condition when the will was executed. Incorrect. If the testator was mentally weakened, he/she might be easily deceived.