Barbri Review
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| Terminology- When property passes intestate | 1. Decedent is "intestate",
2. Person entitled to property is "heir",
3. "Issue" and "Descendants" synonymous, refer to lineal descendants plus adopted offspring,
4. Personal representative is "administrator"
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| Terminology- When property possess by will | 1. Descendant= testator
2. Clause disposition land= devise
3. Person entitled to land= devisee
4. Clause disposition personal prop= "legacy" if money, "bequest" if personal prop
5. Person entitled personal prop= legatee
6. Fiduciary of will= personal
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| Intestate succession- In general | Intestate succession is statutory method distributing assets that not disposed by will
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| Intestate succession- In general; Property may pass by intestate where- | Decedent will
1. Denied probate,
2. Does not dispose of all property b/c gift or no residuary clause,
3. Specified property should pass according to law
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| Intestate succession- Intestate share of surviving spouse; Descendants also survive | In WY, if decedent is survived by spouse and issue, spouse takes one-half of estate
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| Intestate succession- Intestate share of surviving spouse; No descendants survive | If there are no surviving issue, spouse takes entire estate
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| Intestate succession- Intestate share of children and other descendants; Minority (WY- TEST QUESTION): Strict per stirpes | "Fosler";
Patter of distribution;
Shares are determined according to statute regardless of whether there are living takers at first level of relatives named in statute
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| Intestate succession- Shares of other heirs | Not survived by spouse/issue, estate pass equal share to parent/brother/sister or their descendents;
Equal even if different generation;
If no surviving parent/brother/sister or their descendant estate pass to grandparent/uncle/aunt and their descendant
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| Intestate succession- Special cases; Adopted children: As to adopted family | Adopted child treated same as natural child
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| Intestate succession- Special cases; Adopted children: As to natural parents | All inheritance right remain;
Adopted child continues to inherit from natural parents, but natural parents cannot inherit from adopted child
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| Intestate succession- Special cases; Step-children and foster children: G/R | No inheritance rights
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| Intestate succession- Special cases; Step-children and foster children: Exception- Adoption by estoppel | Permits stepchild/foster inherit from stepparents/foster;
Invoked where gain custody of child under agreement with natural parent that will adopt child;
Estopped from denying existence of valid adoption
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| Intestate succession- Special cases; Posthumous children | One cannot claim as an heir of another person unless was aline at other person's death, but an exception for posthumous child;
Child in gestation at decedent's death inherits as if born during descendant's lifetime
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| Intestate succession- Special cases; Non-marital children: Child can inherit from father only if- | 1. Paternity irrebuttable,
2. Acknowledge paternity,
3. Adopted child,
4. Consented to assist reproduction by wife, which resulted in birth of child
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| Intestate succession- Special cases; Non-marital children: Inheritance from non-marital child | 1. 1/2 surviving spouse, 1/2 surviving child,
2. No child, spouse,
3. No child/spouse, 1/2 mom, 1/2 mom's child/descendants,
4. No heirs, mom's next of kin
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| Intestate succession- Special cases; No distinction b/w half blood and whole bloods | Half blood brother/sister: only one common parent;
WY abolished distinction b/w half and whole blood
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| Subsidiary Problems Common to Intestacy and Wills- Simultaneous death; Uniform simultaneous death act | Property passes through owner survived
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| Subsidiary Problems Common to Intestacy and Wills- Simultaneous death; USDA applies to all types of transfers | USDA applies to distributions of proeprty by any means
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| Subsidiary Problems Common to Intestacy and Wills- Simultaneous death; USDA applies unless instrument provides otherwise | Presumption raised by USDA does not apply if decedent's will or other instrument makes different provision regarding survival
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| Subsidiary Problems Common to Intestacy and Wills- Simultaneous death; Evidence of simultaneous death | USDA applies only if there is "no sufficient evidence" of survival
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| Subsidiary Problems Common to Intestacy and Wills- Simultaneous death; Evidence of simultaneous death: 120-Hr rule not adopted | WY not adopted
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| Subsidiary Problems Common to Intestacy and Wills- Simultaneous death; Evidence of simultaneous death: Time-of-survival clause in will | Drafting will, technique most common used to cover contingency of simultaneous death, or death in quick succession, is to make all gifts contingent on serving testator by certain number of days
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Disclaimed interest passes as though disclaimant predeceased decedent | No one compelled to receive gift;
Beneficiary or heir may disclaim any interest with consequence interest passes as though disclaiming party predeceased decedent;
Made primarily for tax reasons
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Must be in writing, irrevocable, and filed within 9 mos | To be effective for federal estate and gift tax purposes, disclaimer of gift by will, intestate share, life insurance must be-
1. In writing,
2. Irrevocable,
3. Filed within 9 mos descendant's death
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Must be in writing, irrevocable, and filed within 9 mos: Beneficiary under 21 | Beneficiary under 21 has until 9 mos after 21 b-day to make disclaimer under federal statute
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Must be in writing, irrevocable, and filed within 9 mos: Joint tenants | Period in which surviving joint tenant may disclaim tenancy portion by right of survivorship is 9 mos from other joint tenant's death
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Must be in writing, irrevocable, and filed within 9 mos: Future interests | While some states allow disclaimer of future interest within 9 mos of it vesting in possession, to avoid federal gift tax, interest must be disclaimed within 9 mos of its creation
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Disclaimer may be made on behalf of infant, incompetent, decedent | Disclaimer made by guardian or personal representative, but ct w/jurisdiction of estate of incapacitated person or decedent must find it in best interest of those interested in estate of beneficiary and not detrimental to best interests of beneficiary
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Estoppel if any benefits accepted | An interest cannot be disclaimed if heir or beneficiary has accepted property or any of its benefits
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Creditor's claims | Disclaimer can be used to defeat creditors' claims
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| Subsidiary Problems Common to Intestacy and Wills- Disclaimers; Disclaimer of life estate accelerates remainder | B/c disclaimed interest passes as though disclaimant predeceased decedent, upon disclaimer of life estate, remainder is accelerated
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| Subsidiary Problems Common to Intestacy and Wills- Decedent's death caused by heir or beneficiary | Most cts hold one who feloniously and intentionally bring about death of decedent forfeites interest;
Property passes as though killer predeceased victim;
Statute or constructive trust
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| Subsidiary Problems Common to Intestacy and Wills- Decedent's death caused by heir or beneficiary; Rule applies | To all forms of transfer and benefits
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| Subsidiary Problems Common to Intestacy and Wills- Decedent's death caused by heir or beneficiary; Joint ownership | Right of survivorship severed
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| Subsidiary Problems Common to Intestacy and Wills- Decedent's death caused by heir or beneficiary; Prof of killing: Evidentiary standard | Final judgment of conviction of murder in any degree conclusive for purpose;
However, absence conviction, ct may determine preponderance of evidence whether kill unlawful/intentional
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| Subsidiary Problems Common to Intestacy and Wills- Advancement of intestate share | Advancement of lifetime gift made to heir with intent that gift applied against any share of inheritance from donor's estate
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| Subsidiary Problems Common to Intestacy and Wills- Advancement of intestate share; Common law: Lifetime gift to child presumptively an advancement | Presumed an intestate desire to treat all children equally;
When made substantial gift to one child and no other, gift held as advancement of child's intestate share upon parents death
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| Subsidiary Problems Common to Intestacy and Wills- Advancement of intestate share; Modern law: Common law presumption reversed | WY follows;
Requires written evidence of an intent to make an advancement
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| Subsidiary Problems Common to Intestacy and Wills- Advancement of intestate share; Procedure if advancement found | Amt advance compute with net value of estate;
Heir with advancement has share reduced by amt of advancement;
If advancement is greater than heir's intestate share, no responsible for returning excess
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| Subsidiary Problems Common to Intestacy and Wills- Advancement of intestate share; Advancee predeceases intestate | Generally, advancement is binding upon those who succeed to estate of advancee in event advancee predeceases intestate
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| Subsidiary Problems Common to Intestacy and Wills- Advancement of intestate share; Advancement value at time of gift | Value of advancement determined as of the time gift was made, and any fluctuations in value of advanced property will not affect position of next of kin
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| Subsidiary Problems Common to Intestacy and Wills- Satisfaction of legacies | Testamentary gift may be satisfied in whole or in part by inter vivos transfer form testator to beneficiary subsequent to execution of will, if testator intends the transfer to have that affect
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| Subsidiary Problems Common to Intestacy and Wills- Satisfaction of legacies; Value of gift in satisfaction | If gift is found to be in satisfaction of testamentary provision, the value of gift must be determined as of time gift was made
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| Subsidiary Problems Common to Intestacy and Wills- Satisfaction of legacies; Gift of specifically bequeathed property to beneficiary | One situation in which satisfaction of bequest can occur even if not proved to have been so intended;
If testator gives specifically described property to beneficiary, there is both satisfaction of legacy an an ademption
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| Execution of wills- What constitutes a will | Will an instrument, executed with certain formalities, usually directs disposition of person's property at death;
An instrument operative during testator's lifetime cannot be will
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| Execution of wills- What constitutes a will; Codicil | Supplement to will that alters, amends, or modifies will
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| Execution of wills- Testamentary intent | For will to be valid, testator must intend that particular instrument operate as his will
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| Execution of wills- Testamentary intent; Present intent required | Intention required is present testamentary intent
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| Execution of wills- Testamentary capacity; Must be 18 and of sound mind | Person who has attained 18 has right and power to make will
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| Execution of wills- Execution of attested will | Will to be valid and admissible to probate, testator must meet formal requirements of due execution imposed by statutes of appropriate state;
If statutory requirements not met, will is void, and cannot be admitted to probate even if no objection
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| Execution of wills- Execution of attested will; Formalities | 1. Signed by testator,
2. Two attesting witnesses,
3. In each of witnesses' presence,
4. Witness sign in testator's presence,
5. WY- not required testator sign at end, publish will, witnesses sign in each other presence
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| Execution of wills- Execution of attested will; Testator's signature: What constitutes a signature? | Any mark affixed by testator, with intent mark operate as testator's signature, satisfies signature requirement
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| Execution of wills- Execution of attested will; Testator's signature: Contemporaneous transaction doctrine | Order of signing not critical;
Exact order not material, as long as all signings occurred as part of single, contemporaneous transaction
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| Execution of wills- Execution of attested will; Witnesses | Most state require will be attested by two competent witnesses
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| Execution of wills- Execution of attested will; Witnesses: Competency | Require witness competent;
At time will executed, witness mature enough and sufficient mental capacity to understand and appreciate nature of act she is witnessing and her attestation, so she could testify in ct on these matters if necessary
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| Execution of wills- Execution of attested will; Witnesses: Interested witnesses | Majority- purge gift to subscribing witness unless witness is supernumerary or witness would have been an heir had there been no will;
Witness takes lesser of- 1) gift in will, 2) his intestate share
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| Execution of wills- Execution of attested will; Attestation clause | Well-drafted will contains attestation clause
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| Execution of wills- Execution of attested will; Self-proving affidavit | Permits will made self-proving at time executed;
Testator and attesting witness sign will, then sign sworn affidavit before notary public reciting testator declared instrument was her will, and testator/witnesses all signed in presence of each other
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| Execution of wills- Execution of attested will; Self-proving affidavit: Substitutes for ct testimony of attesting witnesses | Serves same function as disposition/interrogatory;
Method by which witnesses' sworn testimony secure at time will executed, eliminating need to track down witnesses and arrange for testimony in probate ct after testator's death;
Admitted to probate
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| Execution of wills- Holographic wills | One that is entirely in testator's handwriting and has no attesting witnesses;
Tape recorded statement not admitted to probate;
Third party notations, even if made with testator's knowledge and consent, render holographic will invalid
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| Execution of wills- Holographic wills; Interlineations | Most states recognize holographic wills give effect to handwritten changes, such as substituting beneficiaries, made by testator after holographic will completed;
Generally not given effect if made to attested will
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| Execution of wills- Oral wills | Oral wills are not recognized in WY
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| Execution of wills- Conflict of laws issues; Real property | To extent that will disposed of real property, its validity and effect are determined by law of state where property located
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| Execution of wills- Conflict of laws issues; Personal property | With respect to dispositions of personal property, law of testator's domicile at time of her death controls validity and effect of will
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| Execution of wills- Conflict of laws issues; Foreign will | Will is admissible to probate in jurisdiction it it has been executed in accordance with-
1. Law of jurisdiction,
2. Law of state where will executed,
3. Law of testator's domicile at time will executed,
4. Law of testator's domicile at death
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| Components of Will- Codicil | Later testamentary instrument that amends, alters, modifies previously executed will;
Must be executed with same testamentary formalities as will;
Important to establish date on which will deemed to have been executed
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| Components of Will- Codicil; Doctrine of republication of codicil | Will treated as having been executed (republished) on date of last valid executed codicil thereto
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| Components of Will- Incorporation by reference | Extrinsic docs may be incorporated into will by reference so that it is considered part of will
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| Components of Will- Incorporation by reference; Requirements | 1. Doc in existence at time will executed,
2. Language of will sufficiently describe writing to permit identification;
3. Will must manifest an intent to incorporate docs
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| Components of Will- Incorporation by reference; Document must be in existence at time of execution of will: Exception for list disposing of items of tangible personal property | Refer to if-
1. Dated,
2. In testator's handwriting or signed,
3. Include reasonably certain description of items;
Prepared before or after execution of will, and may be altered
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| Components of Will- Incorporation by reference; Identification of extrinsic document | Language of will must refer to extrinsic doc in such a way as it may be reasonably identified, and doc must correspond to description given in will
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| Components of Will- Acts of independent significance (Doctrine of non-testamentary acts) | Will may dispose property by reference to acts and events that have significance apart from effect on dispositions made by will;
Bequest nonetheless valid if act had some lifetime significant other than providing testamentary gift
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| Components of Will- Acts of independent significance (Doctrine of non-testamentary acts); Identification of beneficiaries | Future act may relate to identification of beneficiaries
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| Components of Will- Acts of independent significance (Doctrine of non-testamentary acts); Identification of property | Doctrine also permits identification of property that is to be subject matter of bequest
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| Components of Will- Acts of independent significance (Doctrine of non-testamentary acts); Acts of third persons | Use with acts of third persons and testators;
Testator directs property be distributed in accordance with will of another person;
If will executed and other requirements incorporated, other person's will incorporated by reference
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| Components of Will- Non-probate assets cannot be disposed of by will | Only property owned by decedent at death and not otherwise disposed of can be disposed of by will
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| Components of Will- Non-probate assets cannot be disposed of by will; Property passing by K | Life insurance proceeds and employee benefits
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| Components of Will- Non-probate assets cannot be disposed of by will; Joint tenancy property with right of survivorship | ...
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| Components of Will- Non-probate assets cannot be disposed of by will; Payable on death (POD) and Transfer on death (TOD) designations | ...
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| Components of Will- Non-probate assets cannot be disposed of by will; Assets distributed by trust | ...
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| Revocation of Wills- Revocation by operation of law | Divorce and annulment is only change of circumstances that revokes, and only as to provision in will that benefit former spouse;
Revived by testator's remarriage to former spouse
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| Revocation of Wills- Revocation by operation of law; Marriage following execution of will: Omitted spouse | In most states, marraige following execution of a will has no effect on earlier will, even though it makes no provision for new spouse, on theory that new spouse given adequate protection by state's elective share statute
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| Revocation of Wills- Revocation by operation of law; Divorce or annulment revokes all provision in favor of former spouse | 1. Statutes do not apply to life insurance policies,
2. Statutes apply only to divorce or annulment by testator or settlor
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| Revocation of Wills- Revocation by operation of law; Pretermitted children | Wyoming has no pretermitted heir statute
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| Revocation of Wills- Revocation by written instrument; Instrument of revocation must be executed with testamentary formalities | Will or part thereof may be revoked or altered by subsequently written will/codicil/other writing, as long as present intent to revoke and instrument executed with same formalities required for execution of will;
Valid holographic will revoke
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| Revocation of Wills- Revocation by written instrument; Revocation by implication: Inconsistent provisions | If second testamentary instrument not contain express language of revocation, read both together and treat second as codicil;
Revokes first when inconsistent provisions, but not pre-exisisting revocable trust
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| Revocation of Wills- Revocation by physical act; Revocation by proxy permitted | Will may be revoked by physical act by person other than testator, providing revocation is-
1. At testator's direction, and
2. In testator's presence
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| Revocation of Wills- Revocation by physical act; Partial revocation | WY recognizes partial, as well as total, revocation by physical act
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| Revocation of Wills- Revocation by physical act; Effect of revocation on other testamentary instruments: Revocation of will | Revocation of will revokes all codicils to will
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| Revocation of Wills- Revocation by physical act; Effect of revocation on other testamentary instruments: Destruction of duplicate will | An act of revocation performed by testator upon either copy revokes will;
Both signed copies of will are same legal structure;
Destruction of unexecuted copy of will, accompanied by an intent to revoke, does not revoke will, must be done on will itself
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| Revocation of Wills- Revocation by physical act; Effect of revocation on other testamentary instruments: Revocation of codicil Effect of revocation on other testamentary instruments: Revocation of codicil | Physical act or revocation performed on codicil revokes only codicil, not prior will;
Absence of evidence to contrary, presumed revoke codicil testator intended to reinstate will provision changed by codicil as though had never been executed
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| Revocation of Wills- Revocation by physical act; Lost or destroyed will: Contents must be clearly and distinctly provided | Permit probate of lost or destroyed will providing-
1. Valid execution,
2. Cause of non-production and,
3. Contents of will;
Contents usually provided by testimony of at lest two witness by production of copy
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| Revocation of Wills- Revival of revoked wills | Once revoked, not revived unless re-executed or republished by codicil;
WY- Uniform Probate Code (minority): testator's intent controls in revival issues
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| Revocation of Wills- Dependent relative revocation (DRR); Mistake of law or fact as to validity of another disposition | Equity type doctrine under which ct may disregard revocation if determines act of revocation was premised on mistake of law or fact and would not have occurred but for testator's mistaken belief another disposition of property valid
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| Revocation of Wills- Dependent relative revocation (DRR); Mistake of law or fact as to validity of another disposition: Other disposition ineffective | Revocation accompanying attempting disposition also fails and will remain in force;
Necessary to application of DRR is disposition that results from disregarding revocation close to effectuating testator tried to do than would intestate distribution
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| Contracts Relating to Wills, Joint Wills- K to make a gift by will; K law governs | Assuming usual requirements of valid K met, K to make, not to make, or not to revoke, a will is valid;
Controlled by K law
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| Contracts Relating to Wills, Joint Wills- K to make a gift by will; Consideration | Promisee does not have any enforceable K rights unless provided some consideration for testator's promise to name her as a will beneficiary
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| Contracts Relating to Wills, Joint Wills- K to make a gift by will; Formal requirements | K to make a will or gift by will need not be in writing unless land involved;
However, enacted statute requiring all such K to be in writing
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| Change In Beneficiaries and Property After Will's Execution- Lapsed gifts and anti-lapse statutes; Gift lapse if beneficiary predeceases testator | If will beneficiary dies during testator's lifetime, gift to him lapses (i.e., fails)
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| Change In Beneficiaries and Property After Will's Execution- Lapsed gifts and anti-lapse statutes; Anti-lapse statutes | WY applies when predeceasing beneficiary-
1. Was a grandparent or lineal descendant of grandparent of testator, and
2. Left issue who survived testator
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| Change In Beneficiaries and Property After Will's Execution- Lapsed gifts and anti-lapse statutes; Anti-lapse statute not applying | If contrary provision in will
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| Change In Beneficiaries and Property After Will's Execution- Lapsed gifts and anti-lapse statutes; Statue applies only to | Gifts by will
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| Change In Beneficiaries and Property After Will's Execution- Lapsed gifts and anti-lapse statutes; Lapse in the residuary gift: Majority, Surviving residuary beneficiaries take | WY- Surviving residuary beneficiaries take deceased residuary beneficiary's share
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| Change In Beneficiaries and Property After Will's Execution- Lapsed gifts and anti-lapse statutes; Class gifts: Class members who survive testator take gift | If will makes gift to class and class member dies during testator's lifetime, those class members who survive take gift (absent contrary will provision)
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| Change In Beneficiaries and Property After Will's Execution- Lapsed gifts and anti-lapse statutes; Class gifts: Exception if anti-lapse statute applies | Anti-lapse statute when predeceasing class member within scope of statute and left descendant's who survive testator;
Applies whether class member's death occurred before or after execution of will
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| Change In Beneficiaries and Property After Will's Execution- Ademption | When specifically bequeathed property is not in testator's estate at death, bequest is adeemed (fails);
Applies b/c property was to have satisfied bequest not owner by testator at death
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Applies | To specific devises and bequests
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Partial ademption | Applies when testator devises large tract of land, then sells portion of tract;
Applies to portion of property not in estate, but remaining portion in estate at death passes to beneficiary
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Ademption does not apply | To general or demonstrative legacies
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Testator's intent: Statutory modification | Wyoming has adopted following statutory modifications to ademption rule
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Testator's intent: Statutory modification, Beneficiary entitled to- 1. | General pecuniary devise equal to net sale price if property is sold by conservator, or equal to condemnation award or insurance proceed if paid to a conservator for loss of property
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Testator's intent: Statutory modification, Beneficiary entitled to- 2. | Any balance of purchase price together with any security interest owing from purchaser to testator at death by reason of sale of property
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Testator's intent: Statutory modification, Beneficiary entitled to- 3. | Any amount of condemnation award for taking of property unpaid at death
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Testator's intent: Statutory modification, Beneficiary entitled to- 4. | Any casualty insurance proceeds for loss of property unpaid at death
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| Change In Beneficiaries and Property After Will's Execution- Ademption; Testator's intent: Statutory modification, Beneficiary entitled to- 5. | Property owned by testator at his death as result of foreclosure, or obtained in lieu of foreclosure, of security for specifically devised obligation
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| Restrictions on Power of Testation- Protection of family; Protection of surviving spouse: Elective share statutes, Amount of elective share | Surviving spouse entitled to elective share of-
1. 1/4 net probate estate if surviving spouse not parent of surviving issue of decedent, or
2. 1/2 if no surviving issue of decedent or if surviving spouse also parent of issue of decedent
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| Restrictions on Power of Testation- Protection of family; Protection of surviving spouse: Elective share statutes, Property subject to election | Share calculated from decedent's net estate, which is probate estate minus payment of expenses and creditors' claims
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| Restrictions on Power of Testation- Protection of family; Protection of surviving spouse: Elective share statutes, Notice must be filed | Election must be in writing, acknowledged, and filed within later of-
1. 3 mos after admission of will to probate, or
2. 30 days after being advised by judge personally of right of election
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| Restrictions on Power of Testation- Protection of family; Protection of surviving spouse: Elective share statutes, Right to election is personal | To spouse
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| Restrictions on Power of Testation- Protection of family; Protection of surviving spouse: Elective share statutes, Effect of election on testamentary plan | Elective share is paid in manner causing least disruption to testator's testamentary plan
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| Restrictions on Power of Testation- Protection of family; Protection of surviving spouse: Elective share statutes, Lifetime transfers to defeat elective share | WY, revocable inter vivos may not be subject to spouse's right of election
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| Restrictions on Power of Testation- Protection of family; Protection of children: Pretermitted child statutes | WY does not have pretermitted child statute;
Child omitted from will have no right to inherit
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| Restrictions on Power of Testation- Protection of family; Homestead, family allowance, exempt personal property: Homestead | Surviving spouse/minor children right to possess family home until letters of administration granted and inventory returned;
Surviving spouse= $30 homestead exemption or value of money/property;
Minor child= Not spouses, spouse 1/2 homestead, child 1/2
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| Restrictions on Power of Testation- Protection of family; Homestead, family allowance, exempt personal property: Homestead, Exception | Surviving spouse is owner of homestead;
Surviving spouse may not be entitled to claim homestead exemption if already owns homestead
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|
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| Restrictions on Power of Testation- Protection of family; Homestead, family allowance, exempt personal property: Family allowance | Spouse/minor child seek support alliance for reasonable living expenses during period of administration;
Allowance and Amt in ct discretion
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| Restrictions on Power of Testation- Protection of family; Homestead, family allowance, exempt personal property: Exempt personal property | Spouse/minor child get set aside-
1. Wearing apparel up to $1,000,
2. Spouse's own wedding ring,
3. Family bible/pics/school books,
4. Cemetery lot,
5. Household articles up to $2,000,
6. Car up to $2,4K,
7. Tools of trade, prof. library up to $2K
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| Restrictions on Power of Testation- Protection of family; Testament gifts to charity | No restriction on charitable devises and bequests
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| Will Contests- Grounds for contest; In general | Contestant may raise any matter tending to show will not valid and should be denied probate
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| Will Contests- Grounds for contest; In general: Grounds | 1. Defective execution,
2. Will offered validly revoked,
3. Lacked testamentary capacity,
4. Lacked testamentary intent,
5. Undue influence,
6. Fraud,
7. Mistake
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| Will Contests- Testamentary capacity; Must be 18 to make will | WY, person must be 18 to make will
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| Will Contests- Testamentary capacity; Mental capacity | Capacity required: Testator must have sufficient capacity to be able to understand-
1. Nature of act,
2. Nature and extent of property,
3. Natural objects of bounty, and
4. Nature of disposition
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| Will Contests- Testamentary capacity; Mental capacity: Testator's capacity determined at time of will's execution | It is at making of will, not death, that mental capacity must exist
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|
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| Will Contests- Testamentary capacity; Mental capacity: Testator with physical aliments or drug addiction | Old, physically frail, ill, had failing memory, habitual drinker/drugs, does NOT necessarily mean lacked mental capacity and unable to comprehend nature of act
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| Will Contests- Testamentary capacity; Mental capacity: Testator adjudicated insane | Person who has been adjudicated insane or for whom guardian or conservator been appointed not necessarily lack testamentary capacity;
Not conclusive, overcome if still met
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| Will Contests- Testamentary capacity; Burden of proof as to mental capacity on contestant | Whether testamentary disposition is rational or irrational, many states recognize a presumption that testator was competent
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| Will Contests- Undue influence |
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