MASSACHUSETTS WILLS PROFESSOR KENT SCHENKEL NEW ENGLAND SCHOOL OF LAW

Transcription

1 MASSACHUSETTS WILLS PROFESSOR KENT SCHENKEL NEW ENGLAND SCHOOL OF LAW CHAPTER 1: INTRODUCTION AND INTESTATE SUCCESSION A. Intrductin When yu encunter a wills and estates questin n the bar exam, yu first need t identify the types f prperty interests that are held. Yu shuld determine whether the prperty at issue is held in the decedent s, r held jintly with anther persn, r the type f prperty interest that might pass by designatin. When yu are ging t determine whether a prperty interest is ging t pass by a decedent s will r thrugh intestacy, yu need t knw whether it is subject t a nn-prbate device r if it is an interest that will pass with. Example 1: D dies wning a bank accunt in his wn name. D als has a variety f tangible persnal prperty and a huse that is titled with his spuse as tenants by the entirety. D als has a retirement accunt. In this case, nly the bank accunt, which is in his wn name, and the tangible persnal prperty are likely t be affected by a will r intestacy. The huse, held as a tenancy by the entirety, will becme the prperty f his spuse. The retirement accunt is likely t have a beneficiary designatin n it s it will nt be subject t a will r the intestacy statute. Wills and intestacy is nly cncerned with the effect n prperty that a decedent wns in his wn name that is nt ging t pass by r by sme device utside f the prbate prcess. B. Intestate Successin 1. In General Intestacy applies when: A decedent dies ; A will is fr sme reasn; The will des nt dispse f f the decedent s prperty; r A f the will is invalid, called. Example 2: The decedent dies with a will that is invalid because f imprper executin. If the will is set aside and the decedent has n prir will, the decedent s estate will pass thrugh the intestacy prcess.

2 Example 3: The decedent dies with a will that dispses f several f the decedent s assets by specific devises and has a residuary clause that dispses f his residuary estate t smene wh has predeceased the decedent. In this case, unless the Massachusetts anti-lapse statute applies r the will prvides fr smene else t receive the residuary prperty if the beneficiary predeceased, then the residuary estate will pass thrugh intestacy. 2. Analyzing an Intestate Estate Intestacy statutes are structured t prvide fr the share f: 1. ; 2. Any f the decedent; 3. If there are n descendants, then ther. Relatives and next f kin Massachusetts Intestate Statute Stage 1: The share that passes t the surviving spuse Editr's Nte 1: Prfessr Schenkel s statements regarding the Defense f Marriage Act (DOMA) are n lnger applicable as the prvisins f DOMA he discusses have been declared uncnstitutinal. Same-sex cuples have a fundamental right t marry. Stage 2: The share that passes t the descendants (if the decedent has any) If the decedent has descendants, yu will be finished at this stage. All f the rest f the prperty after the part that ges t the surviving spuse will pass t the descendants. Stage 3: The share f the ther relatives f the decedent (if the decedent des nt have descendants) 3. Stage 1: Share f the Surviving Spuse First, determine whether there is a. The share f the surviving spuse will usually depend n whether the decedent als has descendants ( r ther ). If there is a surviving spuse, ask tw questins: 1. Was the surviving spuse the ther parent f the decedent s nly descendants? 2. Des the surviving spuse have any descendants that are nt als the decedent s descendants? Themis Bar Review, LLC MA Wills

3 Rule: If all f the descendants f the decedent are als descendants f the surviving spuse, and the surviving spuse has n ther descendants, then the surviving spuse will receive f the decedent s intestate prperty. Example 4: Husband and Wife are in their first marriage and have children f that marriage. When Husband dies withut a will, because all f Husband s children are als Wife s children, then Wife will receive all f Husband s intestate estate. Rule: If, hwever, either the surviving spuse r the decedent has descendants wh are nt descendants f the ther, then instead f taking all f the intestate estate, the surviving spuse will take the first plus f the intestate estate. Example 5: Decedent passes away withut a will, leaving a surviving spuse and tw children f the marriage. Neither party has ther children. The surviving spuse will take f Decedent s intestate estate and n further analysis is necessary. Hwever, if the surviving spuse r Decedent had children ther than frm this marriage, then the surviving spuse will take plus ½ f the balance. Rule: If the decedent has n descendants but has ne r mre surviving, the surviving spuse takes the first plus f the intestate estate. Rule: If the decedent has n descendants r parents, then the surviving spuse will take all f the intestate estate. Editr's Nte 2: Prfessr Schenkel misspke. The surviving spuse will take all f the intestate estate if the decedent has n descendants r parents. 4. Stage 2: Share f Descendants If the decedent has descendants, all f the rest f the prperty, after prviding fr the surviving spuse, will be distributed t the decedent s descendants. Distributed by 5. Stage 3: Share f Other Intestate Heirs Only get t this stage if the decedent has n descendants. First, determine if the decedent has. N Descendants but there are Surviving Parents Rule: If the decedent has n descendants, but the decedent has parents, then the parents will receive f the decedent s estate after the surviving spuse s share is carved ut. N Descendants and N Parents, but there are Siblings MA Wills 2016 Themis Bar Review, LLC 3

4 Rule: If the decedent has n descendants and n parents, then if the decedent has, they will receive f the rest f the decedent s estate. If a sibling has predeceased the decedent and that sibling has children, then that sibling s children r ther descendants will take the sibling s share by. N Descendants, N Parents, and N Siblings Rule: If the decedent has n descendants, n parents, and n siblings, then the intestate estate will g t the decedent s nearest relatives. Editr's Nte 3: Prfessr Schenkel misspke. The nearest relative wuld nly receive an interest in the decedent's estate if the decedent des nt have a surviving spuse, descendants, parents, r siblings. The decedent's nearest relative's share will nt be carved ut f the surviving spuse's share. Generally, t determine wh the clsest relatives are, yu wuld need a table f cnsanguinity and yu prbably wn t encunter that situatin n the bar exam. 6. Massachusetts Scheme fr Distributin by Representatin In intestacy, prperty will pass by representatin when it passes t the decedent s: ; r. Example 6: D dies with n will and n spuse. D has ne child, A. D s child B predeceased D leaving her child, X. Since D s descendants will take D s estate by representatin, A will take f the estate and X will take. Massachusetts, under its versin f the Unifrm Prbate Cde, has a representatinal scheme called at each. Under this representatinal scheme, yu cunt all f the stcks r lines f descent that are under the decedent. Cunt ne line fr each child wh is either alive, r if the child is deceased, then if the child has descendants wh are alive. G t the first generatin that has at least and make distributins n the number f lines cunted. Each time yu g dwn t the next generatin, yu essentially start ver. Take whatever was nt distributed at the prir generatin and cunt the lines at the subsequent generatin Make sure yu always make yur distributins in t all takers at each generatinal level Themis Bar Review, LLC MA Wills

5 Gather up what is left and mve dwn t the next generatin each time until yu have distributed all f the prperty. 7. Other Intestacy Rules, unless they have been adpted, are NOT children fr purpses f the intestacy statute. are always cnsidered children fr purpses f the intestacy statute. Adpted children inherit frm and thrugh their. In mst cases, the adpted children will NOT inherit frm their. Exceptin: If the f a child dies, and then the new spuse f the remaining (surviving) natural parent adpts the child, then the child can still inherit thrugh the. Example 7: Dad and Mm have tw children. Mm passes away and Dad marries a new spuse, X. X subsequently adpts all f Dad s children. Later, the father f Mm passes away intestate. In this case, the tw children inherit thrugh their deceased natural parent. All relatives f the will always be cnsidered relatives f the. Example 8: D dies with n surviving spuse, n children, and n surviving parents. In this case, if D has siblings, D s siblings will receive her intestate estate. D has ne sister, A, and ne half-sister, B. Because relatives f the half-bld are cnsidered t be relatives f the whle bld, bth A and B will inherit a full share f D s estate. CHAPTER 2: EXECUTION OF WILLS A. Requirements fr a Valid Will Three requirements fr a valid will: 1. The persn wh is executing the will must have ; 2. Must be an that the dcument serve as the testatr s will; and 3. The Wills Act must be cmplied with. 1. Wills Act Frmalities Three basic Wills Act frmalities: 1. The will must be dne in a ; MA Wills 2016 Themis Bar Review, LLC 5

6 2. The will has t be ; and 3. It has t be witnessed by at least cmpetent witnesses wh must als the will. 2. Testamentary Capacity Level f capacity which a testatr must have in rder t execute a valid will The Massachusetts test fr testamentary capacity is standard: The testatr must knw the f his prperty; He must knw wh the f his bunty are; and The testatr must knw the being made. When it is said that the testatr must knw these things, it is imprtant t understand that what we really mean is that the testatr must have the fr this knwledge. Des nt matter whether the testatr knew at the time f the executin f the will s lng as the testatr had the capacity fr this knwledge Even testatrs that generally lack testamentary capacity can execute a valid will s lng as they d s in a. 3. Cnditinal Wills Example 9: Smebdy executes a will that says, I am ging away n a lng jurney and if I dn t return frm this jurney, then I want my prperty t be distributed as fllws. Is this a valid will? General rule that says cnditinal wills are Hwever, in mst cases, this type f language that, if I dn t return frm this trip r if I dn t survive this rdeal, is nt really seen t be cnditinal s much as it is seen t be saying that, If I die, this is what I want dne with my prperty. Mst f the time, the curts will determine that even if the persn survives the rdeal r the trip but if sme mnths r years later they die nt having executed anther will, s lng as that will was executed in cmpliance with the Wills Act frmalities, then the will. 4. Writing Requirement Wills be in writing in Massachusetts. Any writing is sufficient. It des nt have t be written n any type f paper, it desn t have t be typed, and it can be Themis Bar Review, LLC MA Wills

7 5. Incrpratin by Reference Example 10: Suppse that the testatr states in a will that her residuary estate is t be distributed as described in sme extraneus dcument, such as a mem that has been drafted. Is this valid? Can the will refer t sme utside dcument and state that this is hw the testatr s estate shuld be distributed? The answer is that s lng as: 1. That dcument is in existence the will is executed; and 2. The dcument is in the will, then it is ging t be valid. Make sure, hwever, that the dcument is clearly after the executin f the will. Called the dctrine f incrpratin by reference Any dcument can be incrprated by reference but the dcument must be in existence at the time the will is executed and it must be by the will. Cannt be mdified after the executin f the will Tw exceptins in Massachusetts t the dctrine f incrpratin by reference: 1. Pur-ver prvisin t a revcable trust A decedent wh has a revcable trust will use that dcument as a. The will typically has a that purs the residue f the prbate estate int the revcable trust. Under Massachusetts law, a revcable trust can be incrprated by reference int a will s that the decedent can the cntents f the prbate estate int the revcable trust by a prvisin in the will. The revcable trust need nt be at the time that the will is executed and it need nt be executed at the that the will is executed, and it can be after the executin f the will. 2. Exceptin fr tangible persnal prperty nly If a testatr wishes t dispse f tangible persnal prperty by a dcument utside the will, and the testatr makes reference t that dcument in the will, then that dcument can be after the executin f the will and it can be after the executin f the will, and it is still valid. Has t be by the testatr and reference has t be clearly made t the dcument in the will MA Wills 2016 Themis Bar Review, LLC 7

8 Cannt apply t, mney, r anything that is intangible 6. Witnesses t a Will Example 11: Suppse a testatr takes his will t a bank knwing that banks have peple wh culd witness his will fr him. Suppse the testatr signs the will while sitting in the bank lbby and then brings the will t smebdy wh is a bank emplyee and has that persn witness the will, then brings it t anther bank emplyee and has that persn witness the will. If yu see this in a fact situatin, is the will valid? It depends. The witness requirement is that the witnesses must either: 1. Witness the testatr the will; r 2. If they dn t witness the testatr signing the will, then the testatr must either his r her signature n the will t the witness r at least acknwledge the fact that the dcument is his r her will t the witness. Witnesses must sign the will in. Massachusetts uses the test t determine whether r nt the witnesses signed in the presence f the testatr. This des nt mean that the testatr had t actually the witness signing the will Means that had the testatr turned his r her head a certain way, then the testatr wuld have been able t see the witness signing the will Mst wills prepared by lawyers have attestatin clauses. These are fr the will t be valid. When attestatin clauses are present in a will, they d state that the will was prperly signed by the testatr and the witnesses, that the witnesses bserved the testatr sign the will, and that the witnesses signed the will in frnt f the testatr, in the testatr s presence. They are in curt that the will has been prperly executed. Clauses at the end f wills that are signed by the testatr and the witnesses What happens if a witness is interested in the estate? If the witness stands t gain smething frm the estate, he r she is cnsidered an interested witness. Can that type f witness witness the testatr s will? Exam Tip 1: This is an area f the Massachusetts Bar Exam that is fairly cmmnly tested. Massachusetts has in effect what is called a Themis Bar Review, LLC MA Wills

9 If a witness is interested in the testatr s estate, then they must their gift under the will. The will is nt s lng as it has tw witnesses. If it is a gift f a specific devise in the will, such as an item f real r persnal prperty, r if it is a general devise f mney, then the amunt the witness wuld have received will pass under the. If it is a residuary gift and there are ther residuary beneficiaries, then the ther residuary beneficiaries will share in the amunt that is purged. Under the new Massachusetts Unifrm Prbate Cde, the purging statute has been slightly mdified. If the witness can establish that there has been and, the witness can still receive the amunt that is given t the witness under the will. B. Other Testamentary Frms 1. Hlgraphic Wills Example 12: Suppse a persn writes their wn will with n witnesses. It des nt meet the Wills Act frmalities but it is entirely written in the testatr s hand. Massachusetts hlgraphic wills. All wills in Massachusetts must meet the frmal Wills Act requirements. BUT, there is a situatin when a hlgraphic will r a will that des nt technically meet Massachusetts wills frmalities might be valid in Massachusetts: If it is a will that was validly executed in a jurisdictin and the persn mved t Massachusetts and did nt execute a new will. S lng as the will was valid in the jurisdictin where it was executed, even if it is a hlgraphic will, then it is ging t be in Massachusetts. It des, hwever, have t be and by the testatr. Even if it was executed in Massachusetts but at the time f executin the testatr was in anther jurisdictin, it will still be valid fr purpses f Massachusetts law. 2. Cdicils r Amendments t Wills a. In General A cdicil is a dcument that is executed in cmpliance with that, rather than representing a new will, simply is an r f a prir will. MA Wills 2016 Themis Bar Review, LLC 9

10 Remember that if the dcument des nt cmpletely f the decedent s estate and the decedent already has a will in place, then it is ging t be interpreted as a t the will. Even if it des nt cmpletely dispse f the decedent s estate, if it the prir will, then it will nt be interpreted as a cdicil but as a new will that simply desn t dispse f all f the decedent s estate. b. Republicatin by Cdicil The date f becmes the date f. Example 13: If a decedent executes a will n Date 1 and then 2 r 3 years later executes a cdicil, then the will is deemed t be dated n the date f the cdicil. Example 14: Suppse that a decedent executes a will n Date 1 and in that will, the decedent attempts t incrprate anther dcument by reference but subsequently amends that dcument that has been incrprated by reference. The amendment is invalid because the dcument has t be in existence and cannt be changed after the date f executin f the will. Hwever, in cases when the decedent, after amendment f the extraneus dcument, executes a cdicil, that means that the incrpratin f the dcument by reference is ging t be valid. C. Cntracts Relating t Wills Married cuples might be cncerned that if ne f them dies, the ther ne might change his r her will and give prperty t a new spuse r smene else. Smetimes what yu see is married cuples entering int a cntract in which they wn t revke their will after the death f the first spuse. Cntracts t make a will r cntracts nt t revke a will are in Massachusetts s lng as they are. If yu have a jint will r mutual wills, thse d nt necessarily create a cntract nt t revke a will. A jint will is ne will that is the will f. In Massachusetts, if a married cuple executes a will that is intended t be the will f bth f them, the will is valid but the fact that it is a jint will des nt mean that it is by the surviving f the tw testatrs. Must actually be language in the dcument that states that the survivr has agreed nt t revke the will after the death f the first testatr Mutual wills are wills that are separate but cntain prvisins Themis Bar Review, LLC MA Wills

11 D nt create a f a cntract nt t revke What happens if there is a cntract and the surviving spuse had cntracted nt t revke his r her will, actually revkes that will and executes a new will? In this situatin, we are dealing with bth cntract law and the law f wills. The spuse that breaches the cntract by revking the will and executing a new will: the will f that testatr is ging t because wills law is nt implicated by the cntract. Hwever, since the persn did breach the cntract, cntract law cmes int play. If a suit is brught against the estate befre the assets f the estate are distributed, it is a breach f cntract actin and the estate wuld be liable fr fr the amunt the ptential devisee did nt receive that they wuld have received under the first will. Smetimes the prperty has already been distributed under the new will t the devisees listed under the new will. In this case, there is still a remedy available - equitable remedy called a. The persn wh received the prperty is nt entitled t the prperty and therefre that persn must turn it ver t the persn wh is entitled. CHAPTER 3: RESTRICTIONS ON TESTAMENTARY DISPOSITIONS Under what circumstances will the law prvide therwise than has been prvided under the testatr s will? A. The Elective Share Gives a a right t elect against a decedent s will and receive a f the estate in lieu f the amunt that wuld have been prvided t the surviving spuse under the will. Even thugh Massachusetts has nw adpted the Unifrm Prbate Cde, it has nt adpted the Unifrm Prbate Cde s elective share prvisins. Apply nt nly t the prbate estate but als apply t prperty that had been transferred during the decedent s life t a executed by the decedent. By curt rule, the estate, as described in the elective share statute, includes assets that the decedent transferred t a revcable trust that the decedent has the right t r up t the day f the decedent s death. The right f the elective share is said t be a f the surviving spuse. MA Wills 2016 Themis Bar Review, LLC 11

12 If a persn survives their spuse but then dies befre making the elective share, the elective share can n lnger be made. The surviving spuse s persnal representative will nt be able t make the elective share n behalf f a deceased surviving spuse. What happens if the surviving spuse is incapacitated? In this case, the guardian fr the surviving spuse t make the elective share n behalf f the surviving spuse. The elective share is an r prpsitin. The surviving spuse sme benefits frm the estate and then take the elective share in lieu f ther benefits. If the surviving spuse accepts any benefits frm the estate, any assets that the decedent distributes under the will, then he r she the elective share. The amunt f the elective share will vary with the size f the estate. Variables include things like whether r nt the decedent had issue r whether the decedent had ther relatives. In Massachusetts, there are n ther rights that are similar t the elective share, such as the ld rights f r. B. Prvisins fr Supprt f the Surviving Spuse and Children The surviving spuse des have the right t certain ther assets during the. 1. Family Allwance There is a in Massachusetts. The prbate curt can set aside a if the surviving spuse r any child f the decedent petitins the curt. An allwance fr supprt during the administratin f the estate A reasnable amunt determined by the curt and can be up t in a lump sum r peridic payments f per mnth fr a year. Nt subject t the claims f ther beneficiaries, devisees, r creditrs f the estate 2. Hmestead Massachusetts cntains anther prvisin in the prbate statutes fr the supprt f a surviving spuse and minr children called the prvisin. If the testatr devises the family residence t smene ther than the surviving spuse r the decedent s minr children, then the surviving spuse and minr children have a right t elect hmestead and t reside in the hmestead fr the perid f the children s minrity, if there are minr children, r permanently if it is the surviving spuse wh elects hmestead Themis Bar Review, LLC MA Wills

13 The amunt f the hmestead prvisin is up t a value f. 3. Exempt Prperty There is als certain prperty that the surviving spuse r children can take frm the estate that is a minimum amunt that wn t be subject t the claims f ther beneficiaries f the estate. Called the Up t f tangible persnal prperty C. Marriage After Executin f a Will What happens if a persn executes a will and then subsequently gets married and then dies nt having prepared a new will after the marriage? In this situatin, there is a right f the surviving spuse t an. Intended t further testamentary intent Exceptins t this rule: 1. If judging frm the terms f the will itself it appears that, at the time the decedent executed the will even thugh the decedent was nt yet married, the decedent made the will in, then the dctrine will nt apply; 2. If the will explicitly states that it will be effective ntwithstanding the subsequent marriage f the decedent, then the dctrine will nt apply; and 3. If the decedent prvided fr the spuse and there is evidence that the transfer utside f the will was intended t be in lieu f an amunt t be received under the will, then the dctrine will nt apply. D. The Omitted Child Prvisin Can ccur if a decedent has a child wh is r after the executin f the will and the will itself fr that child. The child is t receive an intestate share f the estate in the event the child is mitted. Exceptins t this rule: 1. If the decedent transferred all r almst all f the decedent s estate t f the mitted child, then the mitted child dctrine des nt apply because it is assumed that the decedent determined that the ther parent wuld prvide fr the child; 2. If the decedent had given prperty t ther children f the decedent wh were brn befre the will was executed, then the mitted child is nly entitled t a share that is t that which the decedent gave t ther children; and 3. If the decedent had ther children wh were brn befre the will was executed and the decedent left them, then the mitted child prvisin will nt apply because it is assumed that the decedent wuld have intended t leave that child nthing anyway. MA Wills 2016 Themis Bar Review, LLC 13

14 Remember, ther than these specific exceptins, there is n requirement that the decedent leave anything t. E. The Dctrine f Advancements Example 15: A substantial gift is made t a child f the decedent by the decedent, the decedent subsequently dies, and that child is an heir f the decedent and wuld receive a prtin f the decedent s estate. Under the cmmn law dctrine f advancement, ften times that gift wuld essentially be frm the amunt that the child wuld receive thrugh the intestate estate. The cmmn law dctrine has almst been eliminated under Massachusetts law. In Massachusetts, the nly time it applies is (i) if at the time the gift was made, it was indicated by the decedent that the gift is intended t be an against the intestate share, r (ii) it is acknwledged by the heir in writing, at the time it is received r thereafter, that the gift was intended t be an advancement against the estate. CHAPTER 4: CLASSIFICATION OF DEVISES AND RELATED DOCTRINES A. Types f Devises Histrically, a devise was a gift f under a will and a bequest was a gift f under a will. Under the Unifrm Prbate Cde, the term devise is used t describe bth and. If yu have a prvisin in a will that gives a specific asset t a beneficiary, then that is called a. Example 16: A devise f my 1967 Frd Mustang r a devise f Blackacre. A is any gift that can be satisfied ut f the general assets f the estate instead f being a gift f specific prperty. The mst cmmn general devise is a devise f mney. Example 17: A devise f $10,000 t my nephew, Mickey. A is a devise that can be satisfied ut f the general assets f the estate but where it is directed that it be satisfied ut f a specific surce. Example 18: I give my sn, X, $10,000 ut f my brkerage accunt. It is presumed that even thugh a surce is specified, if fr sme reasn that surce is nt available r nt sufficient t satisfy that devise, because it is a subset f a general devise, it can be satisfied ut f ther assets f the estate. A is a devise that gives away the rest f the estate Themis Bar Review, LLC MA Wills

15 Example 19: I give the rest, residue, and remainder f my estate t X, Y, and Z. B. Ademptin Example 20: Suppse that a testatr makes a specific devise in the will but when the testatr dies, that asset is n lnger part f the estate. What happens? If it is a specific devise, then the devise is said t. Means that since the asset is n lnger in the estate, then the beneficiary receives. Massachusetts fllws the f ademptin. All yu have t d t determine whether r nt prperty adeems in Massachusetts is see whether r nt it is an asset that is. If it was sld r fr whatever reasn it is n lnger in the estate at the time f the death f the decedent, then it is said t adeem and the beneficiary takes nthing. Minr exceptin t this: There have been a cuple f cases where prperty was sld frm a decedent s pssessin under circumstances where the testatr really had ver the sale f the prperty. In these cases, if there is an and the guardian sells specific prperty t raise mney fr the supprt f the testatr, it is assumed that the testatr wuld nt have sld that prperty r if the testatr had sld the prperty, they wuld have substituted smething else fr the prperty in their will. The prperty is nt cmpletely adeemed s lng as the prceeds f the sale are. C. Ademptin by Satisfactin Similar t the cncept f advancement The difference between advancement and ademptin by satisfactin is that advancement nly applies t, whereas ademptin by satisfactin nly applies under wills. Applies when the decedent devised a certain item f prperty t the beneficiary but then made an f that prperty, befre he r she died, t the beneficiary Applies in mst cases Hwever, if the gift was made executin f the will, then it wuld nt be an ademptin by satisfactin unless the will in the dcument itself. MA Wills 2016 Themis Bar Review, LLC 15

16 D. Anti-lapse Statute 1. In General At cmmn-law, if a beneficiary predeceased the testatr, then the gift that was made t that beneficiary is said t. If it is a lapse f a specific r general devise, then the assets that wuld have gne t the beneficiary will pass thrugh the f the decedent s will, if there is ne. If there was a lapse f a residuary devise, then that prperty wuld pass by. Mst jurisdictins nw have what are called. Prvide fr a substitute gift t the f the devisee wh predeceased the testatr Several questins yu have t answer t determine whether r nt the anti-lapse statute applies: 1. Did the devisee the testatr? 2. Did the will prvide? The anti-lapse rules nly apply if the testatr did nt prvide therwise in the will. 3. Was the predeceased beneficiary a r the f a grandparent f the testatr? 4. Did the predeceased beneficiary have? The anti-lapse statute prvides that any amunt that wuld have gne t the predeceased devisee is instead distributed t that devisee's descendants by representatin. What type f language in a will will serve as survivrship language? Often times yu will see language in a will that says, I give my prperty t X, if X survives me, r if X survives me, r if X des nt survive me, then t Y. The Unifrm Prbate Cde prvides that simple survivrship language, such as if X survives me, is t make the anti-lapse statute nt apply. Hwever, Massachusetts this prtin f the Unifrm Prbate Cde. It is likely in Massachusetts that simple survivrship language is sufficient t prevent the anti-lapse statute frm applying Themis Bar Review, LLC MA Wills

17 2. Class Gifts When the testatr intended all the members f the class in the gift The class can generally befre the death f the testatr. Whever is a member f the class at the testatr s death is t receive the assets prvided fr in that particular gift. Des anti-lapse apply t class gifts? In Massachusetts, anti-lapse t class gifts. Hwever, if the testatr clearly states that nly thse wh survive the testatr shuld receive the class gift, then that will verride the anti-lapse statute. Example 21: If the testatr says in his will, I give the remaining assets f my estate t thse f my nieces and nephews wh survive me, then this wuld be sufficient language t verride the anti-lapse statute. 3. Residuary Gifts Des the anti-lapse statute apply t residuary gifts? The anti-lapse statute t residuary gifts unless the decedent indicated therwise. Hwever, if a gift t a residuary beneficiary fails and the anti-lapse statute des nt apply, and there are ther residuary beneficiaries, rather than that gift passing t the intestate heirs f the decedent, it will g t the ther residuary beneficiaries. E. Acts f Independent Significance The acts f independent significance dctrine states that yu can refer t things utside f yur will that will have an effect n wh gets what s lng as the actins that are taken utside the will have a significance that is independent frm the. Example 22: If the testatr states in his will, I give the car that I wn at my death t X, maybe at the time that the decedent executed the will, he was driving a 2010 Hnda Accrd, and then later, at the time f his death, the decedent was driving a newer mdel Cadillac. That is still a valid dispsitin under the will because it is assumed that the reasn the decedent purchased the new car was independent f the effect n the will. F. Abatement After a decedent dies, the assets f the estate are available t pay all claims and then, after thse claims are satisfied, the prperty is distributed t thse t whm it is devised under the will. What happens if the estate is whlly r partially inslvent? When the cncept f cmes in MA Wills 2016 Themis Bar Review, LLC 17

18 A way f rdering which prperty is used t satisfy creditrs claims in the event that the estate is partially inslvent The rder f abatement ges frm the mst generally distributed prperty, which is used first, t the mst specifically distributed prperty, which is used last. Order is as fllws: 1. Any prperty that was t pass by ; 2. Then ; 3. Then, which abate pr rata; and 4. Finally,, which abate pr rata. CHAPTER 5: REVOCATION OF WILLS Three ways that a will can be revked: 1. By a which is executed in cmpliance with the Wills Act frmalities; 2. By ; r An act taken n the will itself with the 3. By. A. Revcatin by Subsequent Writing If a will is t be revked by a subsequent writing, mst ften that writing is anther will. But, a will can be revked by that is executed in cmpliance with Wills Act frmalities. What if a new dcument is created and it des nt specifically revke the will, but it cntains prvisins that are with the prir will? Generally, if this subsequent dcument that is incnsistent with the prir will des nt dispse f all f the assets f the estate, then it will be interpreted as a t the will. The prir will is nly revked t the extent that the cdicil is incnsistent. Hwever, if it dispses f all f the assets f the estate, then it will be deemed t be a f the prir will. B. Revcatin by Physical Act The Massachusetts statute that allws revcatin by physical act states that a will can be revked by,, cancelling, r bliterating it with the intentin f Themis Bar Review, LLC MA Wills

19 A physical act n the will withut the intent t revke is nt sufficient t revke the will. Example 23: If the testatr accidentally destrys the will, the will is nt revked because there is n intent that the will be revked. The burning f a will des nt have t cmpletely destry the will. It just needs t be an act that shws the intentin that the will be destryed. When a will is trn, it shuld be trn thrugh the f the will. If the will is t be cancelled, then the testatr must actually d smething t sme f the themselves. T cancel a will, the testatr thrugh the will with a pen r pencil. As lng as a line is drawn thrugh all r a prtin f the will, then at least as t that prtin, the will is cancelled s lng as it is dne with the intentin that the will be revked. Can a will be partially revked by physical act? In Massachusetts, a will partially revked by physical act. Example 24: A testatr wants t amend his r her will and decides t draw lines thrugh certain prvisins in the will. Since the testatr in ding this intends that thse prtins f the will be revked, that actin is cnsidered a cancelling with the intent t revke thse prtins f the will. A lt f times when testatrs d this, they will write in the prvisins that they wish t replace in the will. Remember in analyzing whether r nt thse new prvisins becme a cdicil r an amendment t the will, yu have t lk t see if the frmal requirements fr executin f a will have been met. There is a very imprtant presumptin that applies in Massachusetts if a will after the testatr s death. If the testatr was the last persn knwn t have f the riginal will and the will cannt be fund after the testatr s death, then the will is presumed t have been destryed by the testatr with the intentin f. This is a presumptin. C. Revcatin f a Cdicil What happens if a will is executed, and then subsequently a cdicil is executed, and then the cdicil is revked? The general rule is that if a cdicil is revked, the will is. Wuld essentially revive the will as it std befre the cdicil was made MA Wills 2016 Themis Bar Review, LLC 19

20 What happens if there is a will, and then a cdicil, but rather than revking the cdicil, the testatr subsequently revkes the will? In this case, the general rule is that the revcatin f the will and the will. D. Revcatin by Operatin f Law The mst cmmn ccasin where a prtin f a will can be revked by peratin f law is when the testatr after the executin f the will. Exam Tip 2: This is an area that is tested frequently by the Massachusetts Bar Examiners. Example 25: A testatr will execute a will and then, smetime later, get divrced withut changing the will befre the testatr dies. Hw is a will treated under these circumstances? Massachusetts law prvides that if a testatr executes a will with a prvisin fr the spuse and then subsequently dies after divrce frm that spuse, then any prvisin in the will fr the spuse is treated as thugh the spuse the decedent. If there is a divrce after the executin f a will, then the prvisins fr the spuse in the will are and the prvisins fr the spuse in a are als revked. In additin t prvisins fr the spuse, any prvisins fr the, wh is nt a bld relative f the decedent, are als revked. Anther way that a prvisin f a will can be revked is if a beneficiary under the will cmmits certain. Example 26: A beneficiary kills the testatr r kills a decedent wh is giving them smething under a nn-prbate device. Massachusetts law prvides that the beneficiary is treated as having the testatr r the persn wh has made the nn-prbate device. Cannt inherit frm the decedent E. Dependent Relative Revcatin Applies if a will is revked and the revcatin f the will is smehw cnnected t the creatin f a new will but the new will des nt becme effective because it is invalidly executed In this case, there is a presumptin that the testatr wuld nt have revked the ld will if the testatr that the new will wuld nt be effective. Rather than having the decedent die, the ld will that was revked will be revived Themis Bar Review, LLC MA Wills

21 If it is determined that intestacy is clser t what the decedent wanted (what the new will wuld have been), then the ld will will nt be revived. What happens if there is a partial revcatin with the attempted executin f a new will? Example 27: Suppse that a decedent crsses ut a prvisin in a will that creates a devise fr a persn and then writes in next t it a change, a devise t smene else. Can be seen as an attempted partial revcatin f the ld prvisin by physical act If it is determined that the writing in f the new prvisin was an attempt t create an amendment t the will, that amendment is because it has nt been executed in cnfrmance with the Wills Act frmalities. This is als a situatin where yu can apply dependent relative revcatin. If it is determined that the decedent wuld nt have made a partial revcatin if the decedent knew that the new prvisin was ging t be ineffective, the curt might apply the dctrine f dependent relative revcatin and hld that the revcatin is because it was cnditined n the amendment being valid. F. The Dctrine f Revival This ccurs when a decedent, wh has a will in place, replaces that will with anther will and then subsequently revkes the secnd will. If the decedent des this, is the first will revived? Massachusetts law prvides that the first will is if the decedent that the will be revived. There is a presumptin, hwever, revival. Only rebutted by evidence that the decedent intended fr the will t be revived CHAPTER 6: ESTATE ADMINISTRATION AND PROBATE A. In General The prbate prcess is the prcess by which a decedent s prbate assets are and t the beneficiaries. In the prbate prcess, the f the decedent will als be paid. B. Persnal Representative The persn wh is in charge f the administratin f a decedent s prbate estate is referred t generally as the under the Massachusetts UPC. A persnal representative includes an, which is a persn named in a will t be in charge f the prbate, but it als includes an, which is usually a term used with an intestate estate, and special representatives. If there is a questin as t wh will be entitled t serve as the persnal representative f the estate, there is a hierarchy that is set frth in the statute. That hierarchy prvides that: MA Wills 2016 Themis Bar Review, LLC 21

22 1. If a persn has been in smene s will t be the persnal representative, then they will have first pririty t be the persnal representative; 2. The persn having secnd pririty is a wh is als a devisee under the will; 3. Then any ther ; 4. Then a surviving spuse wh is nt a devisee; and 5. Finally,. If there is nbdy else t serve, then the curt has t appint a. C. Prbate Prcess If the decedent has a will, then that is filed. It can be admitted n the affidavit r testimny f. Many wills have what we call a. Language that is inserted at the that prvides that the will was executed in cmpliance with the Wills Act frmalities, that all f the prcedures were prperly fllwed, and the witnesses believe that the testatr has testamentary capacity. After the witnesses sign the self-prving affidavit, it is. Once ne f these affidavits is executed, the will is self-prving s there is n reasn fr t cme frward and prve the will in the prbate prceeding. If a will is, at least ne f the attesting witnesses must prvide testimny befre the curt. D. Duties f the Persnal Representative Within three mnths f being appinted, the persnal representative must file what is called the f the decedent s estate. The inventry can be filed either with the curt r by sending a cpy f that inventry t all persns wh are in the estate. The inventry is simply a list f the, an appraisal f what they are wrth, the amunt f any cash in the estate, any encumbrances n the assets f the estate. The persnal representative is required t make sure that any are paid. Smetimes, either t pay creditrs r make distributins that are required under the will, the persnal representatives will have t f the estate. The persnal representative is generally permitted t sell any that is in the estate. But as t, the persnal representative cannt sell that prperty unless the curt authrizes its sale Themis Bar Review, LLC MA Wills

23 An exceptin t this is if the will itself prvides that the persnal representative has the pwer t sell real prperty in the estate. E. Creditrs Decedents ften have creditrs and the prbate prcess is the nly pprtunity that thse creditrs have t be paid. The creditrs have frm the date f the death f the decedent t bring a claim against the estate. If the claim is nt brught within that time, it is. Permits the estate t be administered in a reasnable time F. After Debts f the Estate are Paid After the persnal representative receives all the claims f creditrs and pays the debts f the estate, then the persnal representative is entitled t f the estate. If the persnal representative is unsure f what amunts shuld be distributed t certain beneficiaries f the estate, the persnal representative can prtect himself by petitining the prbate curt fr a. A certificatin by the prbate curt f the exact amunt r share t be paid t any persn wh is an heir r beneficiary f the estate G. Ptential Liability f the Persnal Representative Persnal representatives have a fiduciary bligatin t the ptential distributees and creditrs f the estate. Persnal representatives are generally liable. Hwever, if a persnal representative is persnally at fault, thrugh an act f r sme srt f mishandling f the assets f the estate, there are ccasins where a persnal representative can be held persnally liable in its dealings n behalf f the estate. H. Clsing the Estate withut Judicial Prceeding The Massachusetts Unifrm Prbate Cde allws the persnal representative, in sme circumstances, t clse the estate withut a judicial prceeding. If the persnal representative des this, the persnal representative is t file an affidavit with the curt n earlier than after the date f appintment. Must state that the time fr creditrs claims have expired, the estate has been fully administered, a cpy f the statement has been sent t all distributees and creditrs, and a full accunting has been prvided t all the distributees f the estate Once this is dne, the estate can be clsed and the estate is cnsidered t be. MA Wills 2016 Themis Bar Review, LLC 23

24 CHAPTER 7: WILL CONTESTS A. Standing Lk fr smebdy wh will benefit in the event the will is set aside. Typically it will be an intestate heir f the decedent. In sme very limited cases, a creditr might have standing t challenge a will. If the will were set aside, prperty wuld be distributed t the which wuld allw the creditr t have access t that prperty. B. Prcedure In rder t initiate a will cntest in Massachusetts, yu have t file an. The affidavit has t state facts that are sufficient fr cntesting the will. Have t be f f the affiant C. In Terrrem Clauses Many wills have clauses that prvide that if smene challenges the will (and lses), then instead f receiving whatever they might have therwise received under the will, they will just get a. Are these clauses valid? Massachusetts is ne f the jurisdictins that these clauses. Hwever, the clauses are ging t be very narrwly cnstrued. Recent Massachusetts case: This was a case where there was a pur-ver will, meaning it had a devise in it that pured ver t a revcable trust. The in terrrem clause was in the revcable trust but there was n in terrrem clause in the will. The curt held that the persn culd challenge the will and nt be subject t the in terrrem clause because it was cntained in the revcable trust but nt the will. D. Grunds fr Challenging a Will 1. Imprper Executin One f the ways that wills are challenged is that they fail t meet the. The initial burden f bringing these facts frth in the affidavit is n the. Once sufficient facts are brught frth, then it becmes the will prpnent s burden t bring frth evidence that the will was. 2. Absence f Testamentary Capacity Anther grund fr challenge is lack f. Hw des smene wh is a prpnent f the will prve testamentary capacity nce the challenger brings frth sufficient facts f lack f capacity? Themis Bar Review, LLC MA Wills

25 As in the case f imprper executin, yu can use testimny frm the wh can recunt hw the will executin prcess went and hw the testatr seemed t them at the time. Yu can als have testimny f as t the capacity f the testatr fr the varius elements f testamentary capacity. Remember that the bar is set pretty lw fr testamentary capacity. 3. Insane Delusins Defined as a cnclusin drawn that the testatr adheres t under circumstances where there is an abundance f evidence that it is a. The delusin that the testatr suffered frm has t g t in a will. Has t have an effect n either the entire will r a specific prvisin in a will 4. Absence f Testamentary Intent There are tw parts t testamentary intent under Massachusetts law. In rder t have testamentary intent: 1. The testatr must knw ; and 2. The testatr needs t that the will be legally effective. If a will is prperly executed, it is ging t have a presumptin f testamentary intent. 5. Undue Influence Said t nly ccur where the wrngder exerted s much wrngful influence ver the testatr that the will, rather than representing the desires f, essentially nly represents the desires f the The will is nt a prduct f the testatr s. Lk fr sme srt f cercin and als smene wh is susceptible t that type f cercin. Massachusetts has a mre specific test that has been utlined in the case law. The elements are as fllws: 1. There is an. The dispsitin is ging t be either t smebdy wh is nt a natural bject f the decedent s bunty r a dispsitin that strngly favrs ne child ver the ther, r smething similar. 2. There is a persn wh is t the undue influence f smene else. The type f persn wh is susceptible is usually ging t be smene wh is, mentally r physically. MA Wills 2016 Themis Bar Review, LLC 25

26 Often, this is smebdy wh is weakened by age r disease and is very susceptible t smebdy else, particularly if that persn has a relatinship t them that is smetimes called a. 3. There is an by the wrngder t exert the undue influence. This will typically be in cases where the wrngder had ccasin t spend time alne with the testatr. 4. The wrngder has used the pprtunity t btain a. Under Massachusetts law, if the alleged wrngder had a with the testatr, then the will immediately shift t the alleged wrngder t prve that there was n undue influence exerted. 6. Fraud Yu see this ften where the wrngder was the agent under a general pwer f attrney. Fraud is distinguished frm undue influence in that fraud is always ging t invlve sme srt f by the wrngder and n that false representatin by the testatr. Tw kinds f fraud: 1. ; and Where the wrngder makes a representatin that the dcument that is being signed is smething different than what it actually is 2.. Where the wrngder represents a fact that is false and the testatr relies n that fact t make sme srt f gift in the will The burden f prf is n the persn wh is cntesting the will. 7. Mistake If a fiduciary is alleged t have engaged in fraud, then the burden is n the fiduciary t prve that there was n fraud. Massachusetts fllws the in interpreting wills, which means that if the language in a will has a certain accepted meaning, then the curts are nt ging t allw any evidence t be intrduced t prve that the testatr meant smething else. If there is an in the will, then the curts will allw extrinsic evidence t interpret the will Themis Bar Review, LLC MA Wills

27 There are tw types f ambiguities that can ccur in a will: 1. ambiguity Example 28: Suppse a will devises Blackacre t X in ne prvisin and then in anther prvisin, it devises Blackacre t Y. This situatin is a patent ambiguity. A patent ambiguity is an ambiguity that exists f the will. 2. ambiguity This is an ambiguity that des nt appear n the face f the will but nce the facts are determined after the death f the testatr, an ambiguity arises. Example 29: Suppse there is a devise, t my Uncle Jim. After the testatr dies, it is fund that she has tw uncles named Jim. It is nt clear which Uncle Jim the testatr intended t make the devise t. Extrinsic evidence will be admissible t determine what the testatr intended. There are sme cases where the curts have addressed the pssibility f refrming a will where the scrivener, the persn wh wrte the will, made a the will. Under Massachusetts law, the curts have indicated, at least in dicta, that in the event f a scrivener s errr that is prven, the curts will prbably allw extrinsic evidence t be admitted. This almst certainly is the case with respect t tax issues with the will. CHAPTER 8: RULES APPLICABLE TO INTESTATE AND TESTATE SUCCESSION A. Disclaimer 1. In General A disclaimer is a prcess whereby a disclaims r renunces the benefits frm prperty t which the persn is entitled. Under Massachusetts law, a beneficiary can disclaim an interest in just abut. It des nt matter whether the dnative transfer t the persn disclaiming is made by will, thrugh intestacy by inheritance, r thrugh sme srt f nn-prbate transfer. There are varius reasns why peple disclaim. The mst cmmn reasn is because f a that might cme frm the disclaimer. A disclaimer can be made nt nly by the beneficiary but als, if the beneficiary is, by the beneficiary s representative. MA Wills 2016 Themis Bar Review, LLC 27