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Four Requirements for Will Execution 1) T must be 18 or over, 2) Instr must be executed w/ testamentary intent, 3) T must sign will, 4) Two attesting Ws
UPC in re Will Execution Ct can validate a defectively executed will, if will proponent establishes by clr and convincing evid that the T intended the doc to be his will. (also, notary can replace Ws)
Material Provisions Words that identify property and beneficiaries who are to receive it.
Tests for Witnesses Scope of Vision: could have seen T sign if had looked. Conscious Presence Test: conscious of where T was and what T was doing.
Ancillary Administration in different St. CL: will must comply w/ st in which real estate is located. UPC: 1) place of execution, 2) domicile at death, 3) domicile at execution
Interested Witness Majority Rule: Will valid, but W loses legacy, UNLESS 1) two other dis-interested Ws (supernumerary rule), OR 2) W would be heir if no will (takes lesser of amt in will or intestate share) UPC: Will and provisions not invalid.
Self-Proving Affidavit Affidavit recites all elements of due execution. Formalities of execution CONCLUSIVELY presumed.
Revocation by physical act requires 1) intent to revoke AND 2) physical act (burn, tear, cancel, obliterate, destroy)
Presumptions of Revocation 1) Will in T's possession fr time of execution til death and found in mutilated condition a/f T's death. 2) Will last seen in T's possession and control not found a/f T's death.
Revocation by another person At T's direction AND in T's presence
Revocation by Inconsistency Where codicil makes no ref to will but contains slightly inconsistent provisions, to extent possible, will and codicil are read together. But to extent of any inconsistent provisions, later doc controls and revokes by inconsistency prior will.
Dependent Relative Revocation (DRR) Disregard revocation based on, induced by, premised on a mistake of law or fact, if ct is satisfied that, but for mistake, T never would have made the revocation.
When does later will's revocation revive older will? UPC: 1) older will still exists, 2) T wanted older will revived, and 3) later will MUST have been revoked by physical act. (apply DRR if UPC does not apply; however, will revive later will)
Doctrine of Incorporation by Reference. To incorporate an extrinsic doc by reference: 1) writing must be in existence at time will executed, 2) will must manifest an intent to incorporate the doc, AND 3) will must describe the writing sufficiently to permit its identification.
Doctrine of Independent Significance Acts having an Independent LIFETIME MOTIVE may have impact on will.
Lapse When beneficiary named in the will dies before (or w/in 120 hrs of) T, the gift lapses. (KNOW)
Exception to Lapse Rule Anti-Lapse Statute. UPC: predeceasing benef is T's GP or a lineal descendent of a GP who leaves issue.
Class Gift Rule When there is a gift by will to a group of persons generically described as a class and some class member predeceases T (and the lapse statute does NOT apply) the surviving class members take.
Residuary Rule (UPC) If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devisees take the entire residuary estate in proportion to their interests in the residue.
Order of Abatement Intestate Property, Residuary, General Legacy, Demonstrative Legacy, Specific Devise
When does Ademption apply? Only to Specific Gifts.
Exceptions to Ademption in re Specific Gifts If specifically devised property is sold by conservator, or if condemnation award or insur proceeds relating to property are paid to conservator, the specific devisee has a rt to a general legacy equal to the net sale price, award, or insur proceeds.
A specific devisee has rt to remaining specifically devised property, a/f Ademption, and… Balance of purchase price when K is still executory at T's death, Amt of condemnation award for take of property, Amt of fire/casualty insur proceeds, Tangible personal property as a replacement, property as a result of a foreclosure of sec int on note.
Stocks (CL) Stock splits, benef gets increase. Stock dividends, benef does NOT get increase. (UPC: benef gets both).
Latent Ambiguity Extrinsic evidence admissible to clr up a latent ambiguity.
Mistake Most States: extrinsic evid violates Plain Meaning Rule. UPC: clr and convincing evid T's intent and terms of will affected by mistake of fact/law.
Simultaneous Death Act When passage of title to property depends on priority of death and there is insufficient evid that persons have died otherwise than simultaneously, absent a will provision to contrary, property of ech passes as though he survived.
120 Hour Rule Absent a provision in the gvn'ing instr to contrary, person is deemed to have predeceased decedent UNLESS person survives decedent by 120 hrs (5 days).
Advancements CL: (minority) Any lifetime gift to child presumed advancement of intestate share. UPC: (majority) No advancement, UNLESS 1) declared such in contemporaneous writing by decedent, OR 2) acknowledged as such in writing by heir.
Doctrine of Satisfaction UPC: A lifetime gift is not a prepayment of any interest under a will UNLESS 1) will provides for this treatment, 2) T declares in contemporaneous writing gift is to be deducted fr devise, OR 3) devisee acknowledges in writing gift is in satisfaction.
Surviving spouse has right to… Homestead, Exempt Property, and Family Allowance.
Pretermitted Spouse Marriage a/f will has no effect on will. But under UPC, marriage following execution of will is that pretermitted spouse is entitled to an intestate share.
Exception of Pretermitted spouse under UPC. 1) it appears from will that omission was intentional, 2) T made other provision for spouse by transfer outside will and the intent that transfer be in lieu of provision in will is shown by statements of T, the amt of transfer, or other evid.
Elective Share Net Testamentary Estate: probate estate less exempt property, family allowance, funeral expenses, expenses of administration and allowable creditors' claims.
Added to Elective Share (UPC) Also includes: 1) transfers w/ retained power to revoke, 2) transfers w/ retained rt to possess/enjoy, 3) transfers in right of survivorship form, 4) transfers w/in 2 yrs of death to extent aggregate transfers to any one donee in either yr exceeded $14k.
Elective Share (UPC) Max elective share is increased to 1/2 but the share a spouse actually gets depends on duration of marriage. In effect, the elective share vests at a rate of about 3%/yr until reaches max of 50% (a/f 15 yrs).
Pretermitted Child Child born a/f will executed entitled to take intestate share, UNLESS 1) omission intentional, 2) parent left substantially all estate to parent of child, OR 3) parent provided for child by transfer outside will AND intended in lieu of provision in will.
Statute of Remedial Impact (UPC) If at time of execution of will, T fails to provide for living child solely b/c believes child dead, child is treated as pretermitted. (diff fr CL).
Three points in re killing of T. 1) Unintentional killings do not count, 2) acquittal at crim law is NOT controlling, 3) lapse occurs.
Disclaimer B/f Acceptance, an heir/devisee may renounce interest in writing in whole or in part w/in 9 months a/f death of decedent. Results in property passing as if renouncing party predeceased decedent, UNLESS will provides otherwise. (i.e. lapse occurs)
Living Will statement of an adult individual's desire w/ respect to life-sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment when individual becomes terminally ill or is in persistent vegetative st.
Execution of Living Will In writing, signed by adult T. Usually require at least two adult Ws.
Revocation of Living Will By any manifestation of intent to revoke at any time b/f death w/o regard to principal's mental/physical condition.
Durable Healthcare Power Appoint an agent to make healthcare decisions for principal such as giving consent to med treatment, accessing principal's med records, and admitting or discharging principal fr a healthcare facility.
Revocation of Durable Healthcare Power Unless stated otherwise in power, by written/oral notice to agent or principal's healthcare provider. OR execution of later power.
Test of Testamentary Capacity 1) Did T understand nature of act he was doing, 2) did T know nature and character of his property, 3) did T know natural objects of his bounty, 4) did T understand the disposition he wished to make?
Undue Influence (elements) 1) Existence and exertion of influence, 2) Effect is to overpower mind and will of T, 3) Result is will that would not have been executed but for influence.
Presumption of Undue Influence Principal benef under will stands in ai confidential relationship to T and draws or procures the execution of the will.
Result of No-Contest Clause If contester wins, will, including clause, is invalid. If contester loses, (majority) clause will not be enforced if PC for contest.
Created by: Sarah_Shore
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