WILLS PROFESSOR ZACHARY A. KRAMER ARIZONA STATE UNIVERSITY SANDRA DAY O CONNOR COLLEGE OF LAW

Transcription

1 WILLS PROFESSOR ZACHARY A. KRAMER ARIZONA STATE UNIVERSITY SANDRA DAY O CONNOR COLLEGE OF LAW CHAPTER 1: TERMINOLOGY; INTESTACY SPOUSES A. Key Terminlgy Decedent: Smene wh has Will: Legal dcument used t dispse f decedent s prperty. Testate Decedent dies Intestate Decedent dies Cdicil: A that either a decedent s will in whle r in part. Prbate: Judicial prcess fr administering and settling a decedent s estate. Intestate Successin: A estate plan, develped by the legislature, fr distributing prperty when the decedent dies intestate. Heirs: Individuals entitled t receive prperty by. ( d nt have heirs) Spuse: Decedent s Issue/Descendants: Decedent s, i.e. decedent s kids, their kids, etc. Ancestrs: Decedent s, i.e. parents, grandparents, etc. Cllaterals: Decedent s relatives thrugh an ancestr, i.e. siblings, cusins, aunts, uncles B. Intestacy A default estate plan develped by the legislature. The decedent s actual intent is. Individuals entitled t take an intestate share are called the decedent s. We are particularly interested in the decedent s and. T take frm a decedent, an individual must the decedent.

2 Special Case: Simultaneus Death The Unifrm Prbate Cde ( UPC ) fllws the Unifrm Simultaneus Death Act t cntrl the situatin where the decedent and heir die at the same time. If there is insufficient evidence t determine wh survived whm, the prperty will pass as thugh each had predeceased the ther. Under USDA, an heir must be prven by t have survived the decedent by C. Spuse s Share 1. Wh qualifies as a spuse? A, Excludes: 2. Hw d we calculate the surviving spuse s share? Case 1: Decedent is survived by descendants wh are als descendants f surviving spuse, and surviving spuse has n ther descendants [Spuse + shared descendants] Surviving spuse takes Case 2: I Decedent is survived by a parent but n descendant [Spuse + parent] Surviving spuse takes $300,000 and f the remainder f the estate Case 3: Decedent is survived by descendants wh are als descendants f the surviving spuse, and the spuse has ther issue [Spuse + shared descendants +spuse s kids] Surviving spuse takes $225,000 and f the remaining prperty Example 1: Decedent dies wning $375,000 in prperty. He is survived by his Wife and their daughter, as well as his Wife s sn by an earlier marriage. What is Wife s intestate share? Answer: Case 4: Decedent is survived by issue nt related t the surviving spuse [Spuse + nn-spusal kids] Surviving spuse takes $150,000 and f the remaining prperty Themis Bar Review, LLC Wills

3 Case 5: Decedent is nt survived by descendants r parents [Just spuse] Surviving spuse takes 3. Withut Heirs If Decedent dies withut heirs, the prperty t the state. Example 2: Decedent dies wning $100,000 in prperty. A miserable persn, Decedent has n family r friends, save fr a cat that pities him and steals his fd. Decedent s estate will escheat t the state. CHAPTER 2: INTESTACY ISSUE A. Wh Qualifies as Issue? Decedent s lineal line, i.e. children, grandchildren, great-grandchildren and s n. There must be a Adptive children inherit frm decedent. The adptin wrks t the child s relatinship with his/her natural parents. Stepparent Adptin: Creates a parent/child relatinship between the child and stepparent fr purpses f inheritance Adptin prevent the adptee frm inheriting frm the ther genetic parent Psthumusly Brn Children: Child is befre, but is brn after, the death f the mther s husband If child is brn within f husband s death, there is a that the child is the husband s and the child will inherit frm husband as if child was brn befre husband died. Nte 1: If child is brn mre than 280 days after death, child will have t prve parentage in rder t inherit frm Husband. Nte 2: The Unifrm Parentage Act ( UPA ) increases the rebuttable presumptin perid t. Wills 2016 Themis Bar Review, LLC 3

4 B. Calculating the Issue s Share 1. Per stirpes Divides shares accrding t a decedent s lineal line Divide shares int the ttal number f children r leave issue wh survive, and then divide by representatin Allws surviving child t stand in place f his deceased parent Nte 3: Issue take in equal shares regardless f whether anyne in that generatin survived. Example 3: A B C D E F G H I J K L Step 1: Because A had three children wh left surviving issue (B, C, and D), we divide the estate int three shares. Each line takes 1/3. Step 2: Divide by representatin. B s 1/3 is passed t J. C s 1/3 is passed t F. D s 1/3 is split between G and H (I desn t take because I is nt survived by issue). K and L split G s 1/6 equally. Summary f Distributin t A s Issue: J = 1/3 F = 1/3 H = 1/6 K and L = 1/12 each Themis Bar Review, LLC Wills

5 Example 4: A C B D E F G H I J Step 1: All f A s children wh surviving issue. Even thugh B and D have predeceased, we must accunt fr their shares. Thus, we divide the estate int equal shares. C will take a share. What abut E? E takes. Step 2: We then drp B s and D s shares t their issue. Since B is survived by G, G will stand in B s shes and take a share. Since F has n kids, F takes. Since D is survived by three children, they will divide D s share in equal parts, taking each. Step 3: Since each line is survived by living issue, each share is accunted fr. Summary f Distributin t A s Issue C = G = H, I, J = each 2. Per capita with representatin Divide the prperty equally at first generatin where a the decedent. If there are deceased members at that first generatin, their shares drp dwn t their surviving issue at the next generatin. If a deceased member f a generatin is nt survived by living issue, then that member des nt take a share. Wills 2016 Themis Bar Review, LLC 5

6 Example 5: A B C D E F G H I J K L Step 1: The first level with surviving members is E s generatin (A s grandchildren). Althugh there are nly tw surviving members at that generatin (F and H), we must als accunt fr E s and G s shares, because they are survived by living issue. Thus, we divide the estate int fur shares (I desn t get a share because I is nt survived by issue). F and H take 1/4 each. Step 2: E s 1/4 drps dwn t J. G s 1/4 drps dwn and is split equally between K and L, giving them 1/8 each. Step 3: As discussed abve, I des nt take a share because I is nt survived by issue. Summary f Distributin t A s Issue J = 1/4 F = 1/4 H = 1/4 K and L =1/8 each Per capita at each generatin (UPC!) Divide prperty int equal shares at the first generatin where there is a Instead f passing a deceased member s share by representatin, hwever, this methd pls the remaining shares Themis Bar Review, LLC Wills

7 Pled shares are divided equally at the next generatin Example 6: A B C D E F G H I J K L Step 1: We start at E s generatin, dividing the estate int fur shares (E, F, G, and H). F and H take 1/4 each (we disregard I because I was nt survived by issue). Step 2: The remaining shares (2/4 r 1/2) are then pled tgether and divided equally amng the next generatin (J, K, and L), giving them 1/6 each. Summary f Distributin t A s Issue F = 1/4 H = 1/4 J, K, and L = 1/6 each Illustratin Decedent dies intestate, leaving an estate wrth $525,000. Decedent is survived by Spuse. Decedent and spuse have 2 children, A and B. B predeceases Decedent, leaving tw surviving children, X and Y. Spuse als has anther child, Z, frm a prir marriage. Hw is the estate divided amng Decedent s family members? Spuse takes A takes Wills 2016 Themis Bar Review, LLC 7

8 X and Y each take Disinheriting Children The UPC allws an individual t disinherit an heir Must be dne by a Disinherited heir is treated as having the decedent CHAPTER 3: EXECUTION OF WILLS A. Frmal Wills Exam Tip 1: This is a highly tested area f Wills law! Three frmal executin requirements: ; ; and 1. Writing Signed by Testatr Entire will must be written (r typed) and signed by the testatr. Nte 4: The UPC permit ral wills. This includes audi and vide recrdings. Lcatin f Signature: In sme states, the signature must be at In ther states (and the UPC), the signature can be lcated. What is imprtant is whether the testatr her name t be her signature. Nte 5: Under the secnd rule, if the signature is nt at the bttm f the dcument, any wrds after the signature will nt be given effect. Editr's Nte 1: The prfessr stated that the wrds may nt be given effect. Hwever, the general rule is that any wrds after the testatr s signature will nt be given effect. Example 7: Instead f signing yur will at the bttm, yu sign halfway t the tp. Under the first rule, yur signature is n gd and yur will is invalid. Under the secnd rule, the will is valid, but any wrds after yur signature are invalid. Capacity: Testatr must be at least 18 years f age and f sund mind Themis Bar Review, LLC Wills

9 Frm f Signature A frmal signature is nt required Signature must indicate testatr s desire t sign Example 7: Terrance Taylr signs his will T-Bne, his usual nickname. This shuld suffice, prvided he intends fr it t serve as his signature. 2. Witnesses (Attestatin) Mst states require that the will be signed f at least witnesses. Exam Tip 2: Presence is a highly tested tpic! Witnesses must als sign dcument, thugh nt necessarily at the same time Mst jurisdictins: Testatr must sign r acknwledge the will in the presence f the witnesses; and Witnesses must sign in the presence f the testatr. UPC: Witnesses must sign f the riginal signature by the testatr. Tw views f in the presence : : (Traditinal apprach) Witness and testatr must bserve r have the pprtunity t bserve the signing f the will I.e., they are bth in the same rm : (Mdern Apprach) Witness r testatr must be act is being perfrmed, even if cannt see Editr's Nte 2: Disregard the example the lecturer uses abut a party signing the will when the witness is n the phne. Curts have held that this example des nt satisfy the cnscius-presence test. Nte 6: The UPC adpts Cnscius Presence nly fr the situatin where the will is signed by anther n behalf f the testatr. Interest Witness has a direct financial interest in the will Example 8: T-Bne Taylr executes a will that is witnessed by Amy and Bethany. The will gives Amy $10,000 and nthing t Bethany. Amy is an interested witness. Wills 2016 Themis Bar Review, LLC 9

10 Cmmn Law: Interested witness was t witness the will Purge Thery: Many states have adpted this thery If a witness (r witness s spuse) has a direct financial interest under the will, it des nt affect the f the will BUT, prbate curt will any gain in excess f what the witness wuld take under intestate successin Exceptins: D nt purge gain if: There were tw ther disinterested witnesses, OR Interested witness wuld take a share under intestate successin AND interested witness takes the lesser f intestate share r bequest Example 9: T-Bne Taylr executes a will that is witnessed by Amy and Bethany. The will gives Amy $10,000 and nthing t Bethany. If the will is nt admitted t prbate, Amy, as T-Bne s heir, wuld take $100,000. Can Amy take under T-Bne s will?. Amy is nt really an interested witness, because her share under intestate successin wuld be much higher. UPC: Ablished interested witness dctrine Exam Tip 3: Purging statute is ripe fr the exam. Make sure yu are aware f the different rules, especially that the UPC n lnger purges interested gifts. 3. Present Testamentary Intent Testatr must have the intent t make a testamentary transfer. Example 10: As he is signing his will, T-Bne says t his attrney that he wuld like t have a week t g ver the will t make sure I am happy with it. Is there present testamentary intent?. Example 11: Althugh the dcument says Last Will and Testament at the tp if it, T-Bne thinks he is signing a real estate cntract. He vluntarily signs. A curt may refuse t admit T-Bne s will fr lack f testamentary intent because he did nt knw he was executing a will. 4. Cmpetency A testatr must be at least years ld and f sund mind. Nte 7: Cmpetency is measured. Subsequent incmpetence will NOT invalidate a will. 5. Failure t Satisfy Frmalities Cmmn Law (majrity rule): abut the frmalities Themis Bar Review, LLC Wills

11 Example 12: T-Bne s will was typed in full, prperly signed at the bttm, and signed by witness Amy. Bethany was suppsed t sign the will as a secnd witness, but accidentally frgt t sign her name. Under the cmmn-law view, this will is invalid. Mdern View (UPC and minrity rule): with statutry frmalities Even if frmality is nt met, a curt will nevertheless admit t prbate if there is evidence that the decedent intended the dcument t serve as his will Example 13: T-Bne Taylr neglected t sign his will. He s easily distracted. The will was therwise witnessed by tw witnesses and it was typed in full, with T-Bne Taylr s Last Will and Testament typed at the tp. He had als revised the will several times with the help f his lawyer. A curt, fllwing the substantial cmpliance dctrine, may recgnize this dcument as T-Bne s will. B. Other Dcuments 6. Hlgraphic Wills An infrmal, handwritten will. Need nt be Example 14: On a napkin, T-Bne Taylr writes, I leave everything t my wife, Charlene Taylr, and signs it Terrance Taylr. This is a hlgraphic will. T be valid, must be Hw much writing? Sme jurisdictins: markings nt in testatr s handwriting the will UPC: Only requires that be in testatr s handwriting Intent Lk fr wrds r phrases that suggest intent Example 15: On a piece f statinery, T-Bne Taylr writes ut hw we wants his prperty t be divided upn his death. He uses wrds like bequeath and inherit, which are evidence f testamentary intent. UPC expressly authrizes lking t extrinsic evidence t establish intent. Exam Tip 4: If yu see a persn handwriting smething abut their prperty, g int a hlgraphic analysis. Intent is very imprtant. Wills 2016 Themis Bar Review, LLC 11

12 7. Cdicils a will; des nt replace the underlying will Example 16: T-Bne Taylr s will gave everything t his wife, Charlene. Later, T-Bne executes a cdicil t give half his estate t his best friend, Hank Marducas. Thus, Charlene and Hank will each take half f T-Bne s estate. The prir will is nt REVOKED; it is just AMENDED r SUPPLEMENTED. Exam Tip 5: A cdicil must be executed with the same frmalities as a will. Frmal wills must be signed, witnessed, etc. Hlgraphic cdicils must be in writing. Exam Tip 6: A frmal will can be amended by hlgraphic cdicil, just as a hlgraphic will can be amended by an attested cdicil. Editr's Nte 3: The prfessr misspke. An attested cdicil wuld amend a hlgraphic will. An attested will wuld nt amend a hlgraphic will, but wuld revke it. C. Will Substitutes (Nn-Prbate Transfers) A decedent can avid prbate by transferring prperty via a will substitute, including: Jint Tenancy: Avids prbate because it has Revcable Trust: Avids prbate because it is an Pur-Over Will: Avids prbate because it distributes POD Cntract: Avids prbate because it distributes by an. Example 17: T-Bne Taylr takes ut a life insurance plicy, naming his wife Charlene as the beneficiary. On T-Bne s death, the prceeds f the plicy are nt part f T-Bne s prbate estate, because they were payable n death (POD). Deed: Avids prbate because it is an. CHAPTER 4: REVOCATION OF A WILL Wills are ambulatry; they can be altered r revked at any time up until. Example 18: Yu make a will. Life happens, things change, and yu want a new will. We fllw the later will, because it is a better indicatin f yur intent. A will can be revked r Themis Bar Review, LLC Wills

13 Three ways t revke a will: 1. Subsequent Instrument a. Express Revcatin: Later writing expressly revkes a prir will Example 19: T-Bne Taylr validly executes Will 1. Later, T-Bne executes Will 2, which includes the fllwing clause: Will 1 is hereby revked. Will 2 is nw the perative dcument. Example 20: T-Bne Taylr validly executes Will 1. A year later, T-Bne calls his lawyer and requests that that the lawyer revke the first will; it s garbage. Is this valid revcatin?. Oral revcatin is nt enugh t revke. b. Incnsistency Later writing is incnsistent with prir will(s). S lng as validly executed, a dcument cntrls 2. Physical Act Example 21: In his will, T-Bne Taylr gives his estate t his wife Charlene. Later, T-Bne executes a will giving his wife Charlene $50,000, and the residue f his estate t his best friend, Hank Marducas. Because the later writing has a residuary gift (the gift t Hank M.), it revkes the first will by incnsistency. Exam Tip 7: Yu must be able t distinguish between a cdicil and a new will. A helpful way t d this is t lk fr a residuary gift: Original will has a residuary gift and later writing des nt = later writing is prbably a Original will des nt have a residuary gift and later writing des = later writing prbably A testatr may als revke a will in part r in its entirety by engaging in a physical act f destructin, such as,, r Exam Tip 8: T revke a will, the testatr must fr the physical act t revke the will. Example 22: Clumsy T-Bne Taylr accidentally set fire t his will as he was trying t light a cigar. This is nt a valid revcatin because T-Bne did nt intend t revke. Wills 2016 Themis Bar Review, LLC 13

14 Destrying specific language: Majrity: The particular language in questin must be destryed UPC: Only requires that destructive act affect sme part f the will Lst Wills Knw a will exists, but cannt find it at testatr s death Creates a that testatr revked will by physical act Burden is n t shw will s existence by 3. Operatin f Law Exam Tip 9: Duplicate riginals ; cpies. A duplicate riginal is anther versin f the riginal (signed and attested). Example 23: After executing his will at his lawyer s ffice, T-Bne Taylr wanted t keep the riginal under his bed at hme. The lawyer kept a phtcpy n file. At T-Bne s death, the will cannt be lcated. This creates a rebuttable presumptin that T-Bne revked the will by physical act. Althugh T-Bne s estate can try t rebut the presumptin, the phtcpy may nt be admitted t prbate in place f the riginal will. revkes all will prvisins in favr f the frmer spuse Exceptin: There is evidence that testatr wanted will t survive Example 24: A statement in the will suggesting that the testatr still wanted the divrced spuse t take a share. Nte 8: The UPC ges even further, invalidating gifts t the ex-spuse s relatives. By cntrast, a subsequent des nt revke a will because a surviving spuse is entitled t take an elective share. 4. Revking Cdicils By revking a will, the testatr als revkes any attached t the will. Example 25: T-Bne Taylr executed a will giving his estate t his wife Charlene. Later, T-Bne executed a cdicil that gave his best friend Hank Marducas half f his estate. If at sme later pint T-Bne revkes the riginal will, this als revkes the gift t Hank Marducas Themis Bar Review, LLC Wills

15 5. Revival The ppsite is nt true. If a testatr revkes a cdicil, the underlying will is in its riginal frm. a. Republicatin UPC (and majrity) recgnize autmatic revival f a revked will Example 26: T-Bne Taylr executes a will giving his estate t his wife, Charlene. Later, T-Bne executes a new will, which nt nly splits his estate between Charlene and his best friend Hank Marducas, but als expressly revkes the first will. T-Bne and Hank have a falling ut and T-Bne revkes the secnd will. Revcatin f the secnd will des NOT autmatically revive the first will. Fr the testamentary gift t Charlene t be admitted t prbate, T- Bne will need t the first will. If T-Bne desn t re-execute, he will die withut a will, and his estate will be distributed thrugh the rules f. b. Dependent Relative Revcatin (DRR) Prvides a safety valve fr testatrs wh revke a will n the basis f a Mistake can be grunded DRR invalidates the mistaken revcatin and revives the earlier revked will. Example 27: T-Bne Taylr executes a will giving his entire estate t his best friend, Hank Marducas. After T-Bne gets wrd that Hank has died, he executes a new will giving his entire estate t his wife Charlene. If it turns ut that Hank is in fact alive and well, Hank can seek t have DRR applied t und the revcatin f the first will, n the thery that the revcatin f the first will was cnditined n a mistake f fact (i.e. Hank s death). Example 28: T-Bne Taylr executes a will giving his entire estate t his best friend, Hank Marducas. T-Bne attempts t create a secnd will and writes n the first will that this will is revked because I have made a new will, /s T-Bne Taylr. If it turns ut that the secnd will is nt valid, Hank can seek t have DRR applied t und the revcatin f the first will, n the thery that the revcatin f the first will was cnditined n a mistake f law (i.e. valid executin f the secnd will). Exam Tip 10: If yu see revcatin based n a mistake, d a DRR analysis. Fcus n the idea that but fr the mistake, the testatr wuld nt have revked the first will. Buzzwrds: revcatin, mistake, causatin, and safety valve. Wills 2016 Themis Bar Review, LLC 15

16 CHAPTER 5: CONSTRUCTION OF WILLS A. CONSTRUCTION (Interpretatin) 1. Plain Meaning Dctrine Curts tend t give the wrds in wills their. We assume the testatr meant the plain meaning f what he said, even if he meant smething else Exceptin: Will states therwise 2. Incrpratin by Reference A dcument utside the will itself A will may incrprate an extrinsic dcument that is nt testamentary in nature, if: The dcument is at the time f executin; Nte 9: Nte: The UPC will waive this rule if the dcument dispses nly f persnal prperty The testatr the dcument t be incrprated int the will; and The dcument is in the will with sufficient certainty t permit its identificatin. Example 29: A clause in T-Bne Taylr s will prvides, This will makes bequests in accrdance with the list prvided in my sketchbk, which I keep in the bttm drawer f my desk. This dcument is incrprated int the will. 3. Acts f Independent Significance A testatr can dispse f prperty based n sme act r event that is t the executin f the will. Example 30: T-Bne s will prvides, I devise my stamp cllectin t my daughter-in-law at the time f my death. T-Bne may r may nt have a daughter-in-law at the time he writes the will. The stamp cllectin ges t his daughter-in-law at the time he dies. Nte 10: This dctrine applies t acts that ccur in the future, i.e. after the executin f the will. That makes it different frm bth incrpratin by reference and republicatin by cdicil. 4. Lapses and the Anti-Lapse Statute Cmmn Law: A testamentary gift wuld (i.e. fail) if an intended beneficiary did nt survive the testatr. Failed gifts wuld be dumped int the Themis Bar Review, LLC Wills

17 Example 31: T-Bne devises my car t my best friend Hank Marducas. Hank dies befre T-Bne. Thus, the gift t Hank lapsed at cmmn law and wuld g t the residue. Anti-lapse statutes: Prvide an fr lapsed gifts. Statute certain gifts frm lapsing Requirements: Lapsed gift was intended fr a relatin f testatr Example 32: The testatr s child, grandchild, great-grandchild Survived by Example 33: T-Bne Taylr s will prvides, $10,000 t my sn, Alex. Alex predeceases T-Bne and is survived by a sn, Antn. Step 1: The gift t Alex is a cvered relatinship (T s sn). Step 2: Althugh Alex predeceased T-Bne, Alex is survived by issue, Antn. Because Alex and T-Bne are in a prtected relatinship, and because Alex is survived by Antn, the statute prevents the gift frm lapsing. Thus, Antn takes the gift. If these requirements are nt met, the cmmn law rule applies and the gift ges t the residuary Special Rules fr Class Gifts: Cmmn Law: Exceptin t the lapsed gifts rule If a member lapsed, the shared that member s gift Nte 11: Keep this in mind if yu get a questin with a class gift and the lapsed recipient is nt prtected by the anti-lapse statute. If lapsed member is cvered by anti-lapse, that rule cntrls If lapsed members is NOT cvered by anti-lapse, the rest f the class members share the lapsed member s gift 5. Abatement If the estate des nt have sufficient funds t pay debts r make gifts, the gifts will be abated, r, in a specific rder. Types f testamentary gifts: Wills 2016 Themis Bar Review, LLC 17

18 Specific gift: A gift f. Example 34: T-Bne devises my stamp cllectin t Hank Marducas. General gift: A gift f f estate Example 35: T-Bne devises $10,000 t my nephew Alex. Demnstrative gift: A general gift frm. Example 36: T-Bne devises $10,000 t my daughter Bnnie frm my Bank USA accunt, but if the funds are insufficient, then frm the estate s general assets. Residuary gift: Example 37: T-Bne devises the rest f my prperty t X. Abatement hierarchy: Prperty nt dispsed f by a will (first t be reduced) gift General bequests General bequests f cash, stcks, and bnds Specific bequests t ther takers Specific bequests t T s issue Specific bequests t T s spuse mst prtected (last thing t be reduced) 6. Ademptin Exam Tip 11: If they can be satisfied, demnstrative legacies are treated as gifts. Otherwise, they are treated as gifts. a. Ademptin by Extinctin A will makes a specific devise f prperty, but the specific piece f prperty is at the testatr s death. Traditinal Rule: Devise is and the devisee takes nthing Often called the UPC: Fllws the Lk t the testatr s intent at time she f the prperty. Lking fr facts that suggest the testatr intended the ademptin Themis Bar Review, LLC Wills

19 Exam Tip 12: UPC tries t avid ademptin. The UPC prvides fr beneficiary take replacement prperty n a specific gift. Example 38: T-Bne Taylr devises his cherished stamp cllectin t his sn, Harvey. When he made the will, T-Bne wned the stamp cllectin. Later, hwever, T-Bne sld the stamps. With the mney he made n the stamps, T- Bne bught a rare picture f Elvis playing racquetball, which he wned at his death. Under the UPC, Harvey wuld receive the pht as replacement prperty. b. Ademptin by Satisfactin Applies when a testatr satisfies a, either in whle r in part, by an. Requirements: B. Ambiguities and Mistakes Ambiguities: Testatr must fr the gift t adeem; and Intent must be supprted by. Types: Example 39: T-Bne s will devises my stamp cllectin t my brther. T-Bne has tw brthers, Arnld and Bernie. This is a ambiguity. We cannt see it n the face f the will Example 40: T-Bne s will devises sme real estate t his brther. At ne pint in the dcument, it lists the address as 1122 Bgie Bgie Avenue, while in anther spt in the dcument it lists the address as 2211 Bgie Bgie Avenue. This is a ambiguity. It appears n the face f the dcument. Traditinal Rule: ambiguities had t be reslved withut lking t extrinsic evidence Extrinsic evidence was admissible t reslve ambiguities. Mdern Rule: Mst curts allw bth ambiguities t be reslved with extrinsic evidence Example 41: The brthers culd intrduce evidence shwing which brther preferred stamps. They culd als intrduce evidence f the real address. Mistakes: Curts tend t be less frgiving when it cmes t mistakes. Wills 2016 Themis Bar Review, LLC 19

20 Example 42: In drafting his will, T-Bne accidentally gave his stamp cllectin t Arnld instead f giving it t Bernie, an avid stamp cllectr. Even if Bernie can prve the mistake, curts are likely t leave the prvisin as executed. CHAPTER 6: POWER TO TRANSFER This sectin cncerns n the testatr s pwer t transfer. Three situatins: Rights f testatr s Gift t testatr s Bars t successin: and disclaimer A. Rights f the Surviving Spuse A surviving spuse is entitled t a number f means f supprt: Scial security and pensin plans Hmestead exemptin Persnal prperty set asides Family allwance fr reasnable living expenses during prbate 1. Elective Share A surviving spuse can elect t take a Spuse s elective share will change gifts t ther beneficiaries Amunt: UPC: Frced share is f the decedent s augmented estate. Nte 12: Augmented Estate: The UPC subjects prperty acquired befre the marriage, as well as prperty acquired during the marriage, t the elective share. The elective share under the UPC is brader than a cmmunity prperty share. Purpse: The law des nt want the decedent t disinherit the surviving spuse, particularly when the surviving spuse is the nn-earner. 2. Waiver Surviving spuse can waive the right t an elective share, if: Waiver is, after a fair disclsure f its cntents; and Spuse is Themis Bar Review, LLC Wills

21 C. Gifts t Testatr s Children 3. Advancements Lifetime gift t a child that is treated as satisfying all r part f the child s share. Exam Tip 13: Operates like ademptin by satisfactin (testate), except advancements deal with intestate successin. Tw views n advancements: Cmmn Law: Any lifetime gift t be an advancement f that child s intestate share Child had burden t shw that item was an utright gift UPC: A gift is an advancement nly if: Decedent declared in a that gift was an advancement (r heir acknwledged as such in writing); r Writing indicates that gift shuld be taken int accunt in cmputing the divisin f prperty f the decedent s estate Calculating effect f advancement: Htchpt analysis Add the value f the advancements back int the intestate estate. Divide the resulting estate by the number f children taking. Deduct the child s advancement frm the child s intestate share. Example 43: The decedent dies intestate, leaving three children A, B, and C and an intestate estate wrth $50,000. A received an advancement wrth $8,000 and B received an advancement wrth $2,000. C did nt receive an advancement. Step 1: Add the advancements back int the estate ($50k + $10k = $60,000) Step 2: Divide int equal shares ($60k / 3 = $20,000 ea.) Step 3: Deduct the advancement frm the child s share A $20,000 - $8,000 = $12,000 B $20,000 - $2,000 = $18,000 C n deductins = $20,000 Ttal $50,000 Wills 2016 Themis Bar Review, LLC 21

22 4. Omitted Children a. Intentinal Disinheritance A parent can intentinally disinherit his children Example 44: T-Bne s will prvides, I have intentinally nt made any gifts t my child, Bernard, fr he is a rtten child and unwrthy f my lve r mney. b. Unintentinal Disinheritance Testatr has a child after executing a will and dies withut amending the will If Testatr had n ther children when the will was executed, then mitted child takes her. If Testatr had at least ne child at the executin f the will, and the will devised prperty t at least ne f thse children, then the mitted child takes an frm the prtin f the prperty already devised t the ther child. D. Bars t Successin 5. Slayer Rule A beneficiary wh murders the decedent is barred frm taking under the decedent s will. A beneficiary wh murders the testatr is treated as if he the testatr. Exam Tip 14: Curts have nt applied The Slayer Rule in invluntary manslaughter and self-defense cases. Thus, murder must be intentinal and felnius, i.e. we re talking. UPC: Allws the killer s issue t take, when relevant (i.e., anti-lapse statute r intestate successin distributin) 6. Disclaimer A persn may disclaim a testamentary gift. Requirements: Disclaimer must be:,, and filed with curt; OR t the persn in charge f distributing estate; AND the decedent, the interest being disclaimed, and the extent f the disclaimer. Timing: Must disclaim within mnths f the decedent s death Themis Bar Review, LLC Wills

23 7. Elder Abuse Smene wh is cnvicted f financial explitatin, abuse, r neglect f a persn under her care is prhibited frm inheriting frm that persn. CHAPTER 7: WILL CONTESTS Objectins t the validity f a will Only an party has standing t challenge a will. A financial benefit under the will; r Smene wh wuld take under intestate successin but des nt take under the will Interested party must file a cntest claim within after the will is admitted t prbate. A. Testamentary Capacity Basic Rule: T execute a will, testatr must be: Of age (at least years ld); and Of. 1. General Testamentary Capacity Persn challenging the will ( the cntestant ) bears the burden f prving that the testatr lacked the requisite mental capacity. ( The Questin ). Whether the testatr had the ability t knw: The nature f the act The Questin ; The nature and character f her prperty The Questin ; The natural bjects f his bunty The Questin ; and The plan f the attempted dispsitin The Questin. Exam Tip 15: The issue is NOT whether testatr actually knew these things; it is whether the testatr had the ability t knw them. Example 45: T-Bne has a bit f a drinking prblem, and ccasinally suffers frm memry lapses. This des nt by itself mean that T-Bne lacks capacity t make a will; it des nt mean that he lacked capacity at the time he executed the will. Example 46: T-Bne suffered frm intermittent buts f dementia. While he was meeting with his lawyer t execute his will, T-Bne became disrientated and culd nt remember the names and faces f his tw children, Bnnie and Clyde, wh were the sle beneficiaries f his will. At that pint in time, it is Wills 2016 Themis Bar Review, LLC 23

24 questinable whether T-Bne was able t knw the natural bjects f his bunty. Example 47: Same facts as abve, except T-Bne culd recgnize Bnnie and Clyde, but he culd nt remember where he was r wh his lawyer was, and culd nt remember hw much prperty he actually had. It is likely that T-Bne lacked general capacity, as he did nt knw what he was ding at the time. 2. Insane Delusin A belief t which the testatr adheres in spite f all reasn and evidence t the cntrary. Testatr has general capacity, but has an insane delusin as t sme belief. B. Undue Influence 1. In General Objective test: Measure testatr s insane delusin against that f a in the testatr s psitin. Belief is an insane delusin if the ratinal persn culd nt have reached the same cnclusin. Causatin: Cntestant must shw that the insane delusin was a f the testamentary dispsitin. Example 48: T-Bne Taylr was cnvinced that his wife Charlene was cheating n him. S cnvinced f this fact, T-Bne wuld sit n the cuple s stp and cnfrnt men wh walked by, accusing them f having sex with his wife. He wuld nt permit Charlene t be hme alne because he was wrried that her paramurs wuld visit her while he was away frm the huse. Charlene vehemently denied the allegatin. T-Bne s will prvides, I leave nthing t my wife because f her rampant pattern f adultery. In this case, Charlene wuld have a gd case t challenge n insane delusin grunds. Exam Tip 16: Causatin is the key here. Make sure t discuss whether the insane delusin caused the prperty distributin. A. Cntestant alleges that a effectively cntrlled the testatr s decisin-making prcess 2. Required Prf: Cntestant bears the initial burden f shwing: The beneficiary received a under the will; Themis Bar Review, LLC Wills

25 The beneficiary had a with the testatr; and Nte 13: The cnfidential relatinship is ften prfessinal (i.e., dctr, lawyer, therapist) r familial in nature. Testatr had a at the time f executin. 3. Burden Shift If cntestant meets the burden, creates a presumptin f undue influence Burden shifts t the prpnent (third party) t shw by a that there was n undue influence. 4. Cnsequences Beneficiary is treated as if he the testatr t the extent that the gift is in excess f the beneficiary s intestate share Exam Tip 17: Like with an insane delusin, causatin matters a great deal. The idea is that the suspect beneficiary exerted influence that caused the strange prperty divisin. C. Fraud Cntestant bears the burden f shwing that the beneficiary engaged in an unlawful at the time f the cnveyance. 1. Elements: Beneficiary made misrepresentatin with: The t deceive the testatr; and The f influencing the testamentary dispsitin. 2. Kinds f Fraud Fraud in the Inducement: Misrepresentatin causes the testatr t make a different will than testatr wuld have therwise made. Example 49: T-Bne s sle heir, Bnnie, cnvinces T-Bne nt t execute a will in favr f his best friend Hank Marducas by prmising that she will cnvey the prperty t Hank after T-Bne is dead. At the time, Bnnie has n intentin f cnveying t Hank. This is fraud in the inducement. Fraud in the Executin: Misrepresentatin as t the f the will. Example 50: Knwing that T-Bne has pr eyesight and cannt read his will, Bnnie prmises T-Bne that his will transfers all his prperty t his best friend Hank Marducas. The dcument actually transfers the prperty t Bnnie and Wills 2016 Themis Bar Review, LLC 25

26 3. Remedy her brther Clyde, in equal shares. T-Bne signs the will. This is fraud in the executin. is the mst cmmn remedy fr fraud. D. Frfeiture Clauses Exam Tip 18: Undue influence and fraud require an act by sme third party, while insane delusin arises in the mind f the testatr In Terrrem: A designed t a beneficiary frm suing abut his share. Example 51: UPC (Majrity): Render unenfrceable if the beneficiary had prbable cause t challenge. CHAPTER 8: THE PROBATE PROCESS A. Prbate and Administratin 1. The Prbate Prcess The first thing yu shuld d in any given estate prblem is each piece f prperty as either prbate r nn-prbate. Prperty that passes by r. Nn-prbate prperty transfers by an instrument ther than a will, such as: Jint tenancy (with right f survivrship) POD Cntract 2. Why Prbate Exam Tip 19: Dn t frget abut intestate successin. If the decedent des nt have a will r if the testatr s will is invalid, prbate prperty will pass by intestate successin. If yu determine that a will is invalid in whle r in part, d nt frget t discuss intestate successin. Primary purpse: Orderly administratin f a decedent s estate Includes: Prtecting and satisfying creditrs Quieting cntested titles, and transferring titles t rightful hlder Themis Bar Review, LLC Wills

27 3. Checklist Prtect testatr s interest (e.g. against fraud and undue influence) Efficiently handling will cntests. Nte 14: Only thse wh stand t benefit financially under a will have standing t cntest a will (intended beneficiaries r heirs) Identify prperty as prbate r nn-prbate Nn-prbate prperty: Figure ut wh takes it Everything else is prbate prperty; it will pass either by testate r intestate successin Is there a will? If s, is it valid? Wh are the intended beneficiaries? Remember: Any prperty nt specifically devised will pass under intestate successin. N will: All prperty will pass as intestate successin. B. Filing UPC: Prbate prceedings must be brught within, after which there is a presumptin f intestacy Party requesting can chse t have it ccur thrugh infrmal (ex parte) r frmal prbate (ntice) C. Creditrs Nn-claim statute Bars a creditr frm making a claim n the decedent s estate after a certain time perid has elapsed If a claim is nt brught within that windw, the claim is. The exact timeline is based n the statute The persnal representative must prvide ntice t the creditrs f the estate Seven classes f creditrs (frm mst imprtant t least imprtant): Administrative expenses Medical and Funeral Expenses Family Allwances Taxes Secured Claims Judgments against the Decedent All ther claims D. Persnal Representative Persn wh acts n behalf f estate during prbate prcess. Wills 2016 Themis Bar Review, LLC 27

28 What d we call this persn? If appinted by curt: If named in will: Duties f Persnal Representative Inventry and appraise the estate Lcate and cntact interested parties, including, Satisfy debts, including,, and Clse the estate Duties wed by Persnal Representative Persnal representative is a fiduciary, wing duties f and. Persnal representative cannt engage in self-dealing Example 52: Decedent is an art cllectr. She appints her best friend, als an art cllectr, t serve as the administratr. The best friend wants t buy a piece f art frm the estate. This is nt apprpriate, as this is self-dealing. The persnal representative gets paid. CHAPTER 9: POWERS OF APPOINTMENT AND POWERS OF ATTORNEY A. Pwer f Appintment Describes the ability f the decedent ( ) t select an individual ( ) t dispse f certain prperty under the will Pwer is t the dnee (nly dnee can appint) Tw Types: and 1. General N cnditins r restrictins n the dnee s pwer Dnee can appint herself r ne f her creditrs as wner f the prperty If dnee fails t exercise the pwer, prperty reverts back t the dnr s estate. 2. Special Dnr can specify certain individuals r grups as the bjects f the pwer Limits the dnee s pwer Example 53: T-Bne gives pwer f appintment t his best friend, Hank. The pwer f appintment is exclusive t the extent that neither Hank nr his family Themis Bar Review, LLC Wills

29 can be appinted t the prperty. What type f pwer is this? Example 54: T-Bne gives a pwer f appintment t his best friend, Hank, t give the prperty t his nieces and nephews. This is a nn-exclusive pwer f appintment, because Hank is nt able t exclude particular nieces and nephews. B. Pwers f Attrney An authrity t act n anther s behalf in a legal r business matter Principal/agent relatinship T be valid, must be: 1) 2) ; and 3) Three Types: General, Special, Advance Health Care Directives 1. General Cvers all affairs during a persn s perid f. 2. Special Limits authrity t specific subject matters (i.e., reslving a particular business deal). 3. Advance Health Care Directives Living Will Dictates the care the individual wants in the event the individual is nt able t make thse wishes knwn. The agent s jb is t see that the directive is Durable Pwer f Attrney fr Health Care Appints an agent in the event the principal becmes incapacitated and is unable t make medical decisins. Allws agent t stand in the principal s shes and. C. General Advice Study yur way dn t wrry abut thers Stress is nt a bad thing let it mtivate yu Dn t be verwhelmed eat, rest, take a break! [END OF HANDOUT] Wills 2016 Themis Bar Review, LLC 29

30 Themis Bar Review, LLC Wills