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WILLS

PROFESSOR ZACHARY A. KRAMER

ARIZONA STATE UNIVERSITY – SANDRA DAY O’CONNOR COLLEGE OF LAW

CHAPTER 1: TERMINOLOGY; INTESTACY—SPOUSES

A. What’s What?

• Decedent: Someone who has ______________________________.

• Will: Legal document used to dispose of the decedent’s property.

o Testate—decedent dies ______________________________ a will

o Intestate—decedent dies ______________________________ a will

• Codicil: A ______________________________ that either amends or revokes a decedent’s will

in whole or in part.

• Probate: Judicial process for administering and settling a decedent’s estate.

• Intestate Succession: A ______________________________ estate plan, developed by the

legislature, for distributing property when the decedent dies intestate.

B. Who’s Who?

• Heirs: Individuals entitled to receive property by ______________________________

succession.

• (______________________________ people do not have heirs.)

• Spouse: Decedent’s ______________________________ partner

• Issue/Descendants: Decedent’s ______________________________ line (i.e., decedent’s kids,

their kids, etc.)

• Ancestors: Decedent’s ______________________________ line (i.e., parents, grandparents,

etc.)

• Collaterals: Decedent’s relatives through an ______________________________ (i.e., siblings,

cousins, aunts, uncles)

C. First Substantive Topic: Intestacy!

• A default estate plan developed by the legislature. The decedent’s actual intent is

______________________________.

• Individuals entitled to take an intestate share are called the decedent’s

______________________________.

• We are particularly interested in the decedent’s ______________________________ and

______________________________.

• To take from a decedent, an individual must ______________________________ the decedent.

o Special Case: Simultaneous Death

The Uniform Probate Code (“UPC”) follows the Uniform Simultaneous Death Act (“USDA”) to

control the situation where the decedent and heir die at the same time. If there is

insufficient evidence to determine who survived whom, the property will pass as though

each had predeceased the other. Under the USDA, an heir must be proven by

_____________________________________________ evidence to have survived the

decedent by ______________________________ hours.

D. Spouse’s Share

1. Who qualifies as a spouse?

o A legally-married ______________________________

o Excludes: Unmarried ______________________________

2. How do we calculate the surviving spouse’s share?

o Case 1:

 Decedent is survived by descendants who are also descendants of surviving spouse, and

surviving spouse has no other descendants [Spouse + shared descendants]

 Surviving spouse takes the ______________________________ estate

o Case 2:

 Decedent is survived by a parent but no descendant [Spouse + parent]

 Surviving spouse takes $300,000 and ______________________________% of the

remainder of the estate

o Case 3:

 Decedent is survived by descendants who are also descendants of the surviving spouse,

and the spouse has other issue [Spouse + shared descendants +spouse’s kids]

 Surviving spouse takes $225,000 and ______________________________ of the

remaining property

Example 1: Decedent dies owning $375,000 in property. She is survived by

her Wife and their daughter, as well as her Wife’s son by an earlier marriage.

What is Wife’s intestate share?

Answer: $________________________________________________________.

o Case 4:

 Decedent is survived by issue not related to the surviving spouse [Spouse + non-spousal

kids]

 Surviving spouse takes $150,000 and ______________________________ of the

remaining property

o Case 5:

 Decedent is not survived by descendants or parents [Just spouse]

 Surviving spouse takes the ______________________________ estate

3. Without Heirs

If the decedent dies without heirs, the property will ______________________________ to the

state.

Example 2: Decedent dies owning $100,000 in property. A miserable person,

Decedent has no family or friends, save for a cat that pities him and steals his

food. Decedent’s estate will escheat to the state.

CHAPTER 2: INTESTACY—ISSUE

A. Who Qualifies as Issue?

• Decedent’s lineal line (i.e., children, grandchildren, great-grandchildren, etc.)

• There must be a ______________________________ relationship.

• Adoptive children inherit from decedent just like biological children. The adoption works to

sever the child’s relationship with his/her natural parents.

o Stepparent Adoption:

 Creates a parent/child relationship between the child and stepparent for purposes of

inheritance

 Adoption ______________________________ prevent the adoptee from inheriting

from the other genetic parent

o Posthumously Born Children:

 Child is ______________________________ before, but is born after, the death of the

mother’s husband

 If the child is born within ______________________________ days of the husband’s

death, there is a ______________________________ presumption that the child is the

husband’s and the child will inherit from husband as if child was born before the

husband died.

Note 1: If child is born more than 280 days after death, the child will have to

prove parentage in order to inherit from the husband.

Note 2: The Uniform Parentage Act (“UPA”) increases the rebuttable

presumption period to ______________________________ days.

B. Calculating the Issue’s Share

1. Per Stirpes

o Divides shares ______________________________ according to a decedent’s lineal line

o Divide shares into the total number of children who ______________________________ or

leave issue who survive, and then divide by representation

o Allows a surviving child to stand in the place of his deceased parent

Note 3: Issue take in equal shares regardless of whether anyone in that

generation survived.

Example 3:

Step 1: Because A had three children who left surviving issue (B, C, and D), we

divide the estate into three shares. Each line takes 1/3.

Step 2: Divide by representation. B’s 1/3 is passed to J. C’s 1/3 is passed to F.

D’s 1/3 is split between G and H (I doesn’t take because I is not survived by

issue). K and L split G’s 1/6 equally.

Summary of Distribution to A’s Issue:

J = 1/3

F = 1/3

H = 1/6

K and L = 1/12 each

K L

Example 4:

Step 1: All of A’s children who surviving issue. Even though B and D have

predeceased, we must account for their shares. Thus, we divide the estate into

equal 1/3 shares. C will take a 1/3 share. What about E? E takes nothing.

Step 2: We then drop B’s and D’s shares to their issue. Since B is survived by G,

G will stand in B’s shoes and take a 1/3 share. Since F has no kids, F takes

nothing. Since D is survived by three children, they will divide D’s share in equal

parts, taking 1/9 each.

Step 3: Since each line is survived by living issue, each share is accounted for.

Summary of Distribution to A’s Issue

C = 1/3

G = 1/3

H, I, J = 1/9 each

2. Per Capita with Representation

o Divide the property equally at first generation where a member

______________________________ the decedent.

o If there are deceased members at that first generation, their shares drop down to their

surviving issue at the next generation.

o If a deceased member of a generation is not survived by living issue, then that member does

not take a share.

F G

H I

Example 5:

Step 1: The first level with surviving members is E’s generation (A’s

grandchildren). Although there are only two surviving members at that

generation (F and H), we must also account for E’s and G’s shares, because they

are survived by living issue. Thus, we divide the estate into four shares (I

doesn’t get a share because I is not survived by issue). F and H take 1/4 each.

Step 2: E’s 1/4 drops down to J. G’s 1/4 drops down and is split equally between

K and L, giving them 1/8 each.

Step 3: As discussed above, I does not take a share because I is not survived by

issue.

Summary of Distribution to A’s Issue

J = 1/4

F = 1/4

H = 1/4

K and L =1/8 each

3. Per Capita at each Generation (UPC!)

o Divide property into equal shares at the first generation where there is a

______________________________ member.

o Instead of passing a deceased member’s share by representation, however, this method

______________________________ the remaining shares after each generation.

o Pooled shares are divided equally at the next generation.

K L

Example 6:

Step 1: We start at E’s generation, dividing the estate into four shares (E, F, G,

and H). F and H take 1/4 each (we disregard I because I was not survived by

issue).

Step 2: The remaining shares (2/4 or 1/2) are then pooled together and divided

equally among the next generation (J, K, and L), giving them 1/6 each.

Summary of Distribution to A’s Issue

F = 1/4

H = 1/4

J, K, and L = 1/6 each

o Illustration:

Decedent dies intestate, leaving an estate worth $525,000. Decedent is

survived by Spouse. Decedent and spouse have two children, A and B. B

predeceases Decedent, leaving two surviving children, X and Y. Spouse also has

another child, Z, from a prior marriage. How is the estate divided among

Decedent’s family members?

Spouse takes $______________________________ [Note: This is case 3 above.]

A takes $______________________________.

K L

CHAPTER 3: EXECUTION OF WILLS

A. Formal Wills

Exam Tip 1: Bar examiners love this topic. Highly tested.

Three formal execution requirements:

• Signed ______________________________;

• ______________________________; and

• Testamentary ______________________________.

1. Writing Signed by Testator

o Entire will must be written (or typed) and signed by the testator.

Note 4: The UPC does not permit ______________________________ wills.

This includes audio and video recordings.

o Location of Signature

 In some states, the signature must be at the ______________________________ of the

document.

 In other states (and the UPC), the signature can be located on

______________________________ of the will. What is important is whether the

testator ______________________________ her name to be her signature.

Note 5: Under the second rule, if the signature is not at the bottom of the

document, any words after the signature ______________________________

be given effect.

Example 7: Instead of signing your will at the bottom, you sign halfway to the

top. Under the first rule, your signature is no good and your will is invalid.

Under the second rule, the will is valid, but any words after your signature are

invalid.

o Capacity: Testator must be at least 18 years of age and of sound mind.

o Form of Signature

 A ______________________________ signature is not required.

 The signature must indicate testator’s desire to sign.

Example 8: Terrance Taylor signs his will “T-Bone,” his usual nickname. This

should suffice, provided he intends for it to serve as his signature.

2. Witnesses (Attestation)

a. Presence

 Most states require that the will be signed in the ______________________________ of

at least ______________________________ witnesses.

Exam Tip 2: The bar examiners love “presence.” It is a highly tested topic.

 Witnesses must also sign document, though not necessarily at the same time.

• Most jurisdictions:

o Testator must sign or acknowledge the will in the presence of the witnesses; and

o Witnesses must sign in the presence of the testator.

• UPC: Witnesses must sign within a ______________________________ time of the

original signature by the testator.

Exam Tip 3: This means that the signatures do not have to be in the presence

of witnesses or testator. Great example of how UPC makes it easier to execute

a will.

 Two views of “in the presence”:

• _____________________________________________ (Traditional approach)

o Witness and testator must observe or have the opportunity to observe the

signing of the will.

o I.e., they are both in the same room.

• _____________________________________________ (Modern Approach)

o Witness or testator must be ______________________________ the act is

being performed, even if she cannot see it.

Note 6: The UPC adopts Conscious Presence only for the situation where the

will is signed by another on behalf of the testator.

b. Interested witnesses

 Interested witness has a direct financial interest in the will.

Example 9: T-Bone Taylor executes a will that is witnessed by Amy and

Bethany. The will gives Amy $10,000 and nothing to Bethany. Amy is an

interested witness.

 Common Law: Interested witness was not ______________________________ to

witness the will

 Purge Theory: Many states have adopted this theory.

• If a witness (or witness’s spouse) has a direct financial interest under the will, it does

not affect the ______________________________ of the will.

• BUT, probate court will ______________________________ any gain in excess of

what the witness would take under intestate succession.

• Exceptions: Do not purge gain if:

o There were two other disinterested witnesses; OR

o Interested witness would take a share under intestate succession AND

interested witness takes the lesser of intestate share or bequest.

Example 10: T-Bone Taylor executes a will that is witnessed by Amy and

Bethany. The will gives Amy $10,000 and nothing to Bethany. If the will is not

admitted to probate, Amy, as T-Bone’s heir, would take $100,000. Can Amy take

under T-Bone’s will? ______________________________. Amy is not really an

interested witness, because her share under intestate succession would be much

higher.

 UPC: Abolished the interested witness doctrine

• What does this mean? UPC reasons that this purge business is too difficult and it

risks trapping innocent interested witnesses.

• So what do you do if there is funny business? There are other ways of going after a

problematic witness (e.g., undue influence or fraud).

3. Present Testamentary Intent

Testator must have the ______________________________ intent to make a testamentary

transfer.

Example 11: As he is signing his will, T-Bone says to his attorney that he would

“like to have a week to go over the will to make sure I am happy with it.” Is

there present testamentary intent? ______________________________.

Example 12: Although the document says “Last Will and Testament” at the top

if it, T-Bone thinks he is signing a real estate contract. He voluntarily signs. A

court may refuse to admit T-Bone’s will for lack of testamentary intent because

he did not know he was executing a will.

4. Competency

A testator must be at least ______________________________ years old and of sound mind.

Note 7: Competency is measured at the time of the

______________________________. Subsequent incompetence will NOT

invalidate a will.

5. Failure to Satisfy Formalities

o Common Law (majority rule): ______________________________ compliance with will

formation formalities

Example 13: T-Bone’s will was typed in full, properly signed at the bottom, and

signed by witness Amy. Bethany was supposed to sign the will as a second

witness, but accidentally forgot to sign her name. Under the common-law view,

this will is invalid.

o Modern View (UPC and minority rule):

 ______________________________ compliance with statutory formalities

 Even if formality is not met, a court will nevertheless admit a will to probate if there is

_______________________________________________ evidence that the decedent

intended the document to serve as his will.

Example 14: T-Bone Taylor neglected to sign his will. He’s easily distracted.

The will was otherwise witnessed by two witnesses and it was typed in full, with

“T-Bone Taylor’s Last Will and Testament” typed at the top. He had also revised

the will several times with the help of his lawyer. A court, following the

substantial compliance doctrine, may recognize this document as T-Bone’s will.

B. Other Documents

1. Holographic Wills

o An informal, handwritten will;

o Need not be ______________________________;

Example 15: On a napkin, T-Bone Taylor writes, “I leave everything to my wife,

Charlene Taylor,” and signs it “Terrance Taylor.” This is a holographic will.

o To be valid, must be ______________________________;

o How much writing?

 Some jurisdictions: ______________________________ markings not in the testator’s

handwriting invalidate the will

 UPC: Only requires that ______________________________ provisions be in the

testator’s handwriting

o Intent:

 Look for words or phrases that suggest intent.

Example 16: On a piece of stationery, T-Bone Taylor writes out how he wants

his property to be divided upon his death. He uses words like “bequeath” and

“inherit,” which are evidence of testamentary intent.

 UPC expressly authorizes looking to extrinsic evidence to establish intent.

Exam Tip 4: If you see a person handwriting something about their property,

go into a holographic analysis. Intent is very important.

2. Codicils

______________________________ a will; does not replace the underlying will

Example 17: T-Bone Taylor’s will gave everything to his wife, Charlene. Later,

T-Bone executes a codicil to give half his estate to his best friend, Hank

Mardukas. Thus, Charlene and Hank will each take half of T-Bone’s estate. The

prior will is not REVOKED; it is just AMENDED or SUPPLEMENTED.

Exam Tip 5: A codicil must be executed with the same formalities as a will.

Formal codicils must be signed, witnessed, etc. Holographic codicils must be in

writing.

Exam Tip 6: A formal will can be amended by holographic codicil, just as a

holographic will can be amended by an attested codicil.

C. Will Substitutes (Non-Probate Transfers)

A decedent can avoid probate by transferring property via a will substitute, including:

• Joint Tenancy: Avoids probate because it has a right of ______________________________;

• Revocable Trust: Avoids probate because it is an inter vivos transfer;

• Pour-Over Will: Avoids probate because it distributes property under a trust;

• POD Contract: Avoids probate because it distributes by an ______________________________

transfer;

Example 18: T-Bone Taylor takes out a life insurance policy, naming his wife

Charlene as the beneficiary. On T-Bone’s death, the proceeds of the policy are

not part of T-Bone’s probate estate, because they were payable on death (POD).

• Deed: Avoids probate because it is an ______________________________ transfer.

CHAPTER 4: REVOCATION OF A WILL

A. Nature of Wills

1. Ambulatory

Wills can be altered or revoked at any time up until the testator’s

______________________________.

Example 19: You make a will. Life happens, things change, and you want a

new will. We follow the later will, because it is a better indication of your intent.

2. A will can be revoked in ______________________________ or in

______________________________.

B. Three Ways to Revoke a Will:

o Subsequent ______________________________;

o Physical ______________________________;

o Operation of ______________________________.

1. Subsequent Instrument

a. Express revocation: A later writing expressly revokes a prior will.

Example 20: T-Bone Taylor validly executes Will 1. Later, T-Bone executes Will

2, which includes the following clause: “Will 1 is hereby revoked.” Will 2 is now

the operative document.

Example 21: T-Bone Taylor validly executes Will 1. A year later, T-Bone calls his

lawyer and requests that that the lawyer “revoke the first will; it’s garbage.” Is

this valid revocation? ______________________________. Oral revocation is

not enough to revoke.

b. Implied revocation (i.e., inconsistency)

 Later writing is inconsistent with prior will(s).

 So long as it is validly executed, a ______________________________ document

controls.

Example 22: In his will, T-Bone Taylor gives his estate to his wife Charlene.

Later, T-Bone executes a will giving his wife Charlene $50,000, and the residue of

his estate to his best friend, Hank Mardukas. Because the later writing has a

residuary gift (the gift to Hank M.), it revokes the first will by inconsistency.

Exam Tip 7: You must be able to distinguish between a codicil and a new will.

A helpful way to do this is to look for a residuary gift:

Original will has a residuary gift and later writing does not = later writing is

probably a ______________________________.

Original will does not have a residuary gift and later writing does = later writing

probably a ______________________________.

2. Physical Act

A testator may also revoke a will in part or in its entirety by engaging in a physical act of

destruction, such as tearing, ______________________________, or crossing stuff out.

Exam Tip 8: To revoke a will, the testator must

______________________________ for the physical act to revoke the will.

Example 23: Clumsy T-Bone Taylor accidentally set fire to his will as he was

trying to light a cigar. This is not a valid revocation because T-Bone did not

intend to revoke.

a. Destroying specific language

 Majority: The particular language in question must be destroyed.

 UPC: Only requires that destructive act affect some part of the will.

b. Lost wills

 We know a will exists, but cannot find it at the testator’s death

 Creates a ______________________________ presumption that the testator revoked

the will by physical act

 Burden is on the ______________________________ to show will’s existence by

________________________________________________________ evidence

Exam Tip 9: Duplicate originals can be admitted; copies cannot be admitted. A

duplicate original is another version of the original (signed and attested).

Example 24: After executing his will at his lawyer’s office, T-Bone Taylor

wanted to keep the original under his bed at home. The lawyer kept a

photocopy on file. At T-Bone’s death, the will cannot be located. This creates a

rebuttable presumption that T-Bone revoked the will by physical act. Although

T-Bone’s estate can try to rebut the presumption, the photocopy may not be

admitted to probate in place of the original will.

3. Operation of Law

o In most jurisdictions, ______________________________ revokes all will provisions in favor

of the former spouse.

o Exception: There is evidence that testator wanted the will to survive

Example 25: A statement in the will suggesting that the testator still wanted

the divorced spouse to take a share.

Note 8: The UPC goes a step further, invalidating gifts not just to the ex-

spouse, but to the ex-spouse’s relatives as well.

Note 9: Separation does not affect the rights of a spouse.

o By contrast, a subsequent ______________________________ does not revoke a will

because a surviving spouse is entitled to take an elective share.

C. Special Issue 1: Third-Party Revocation

A third party can revoke on behalf of a testator if:

• At the testator’s ______________________________; and

• In the testator’s conscious ______________________________.

Example 26: T-Bone calls his lawyer, asking her to “rip up my will.” The lawyer

shreds the will. Is this valid revocation? ______________________________.

Not in conscious presence.

D. Special Issue 2: Revoking Codicils

• By revoking a will, the testator also revokes any ______________________________ attached

to the will.

Example 27: T-Bone Taylor executed a will giving his estate to his wife

Charlene. Later, T-Bone executed a codicil that gave his best friend Hank

Mardukas half of his estate. If at some later point T-Bone revokes the original

will, this also revokes the gift to Hank Mardukas.

• But! The opposite is not true. If a testator revokes a codicil, the underlying will is

______________________________ in its original form.

E. Special Issue 3: Revival

1. Republication

UPC (majority rule) does not recognize automatic revival of a revoked will.

Example 28: T-Bone Taylor executes a will giving his estate to his wife,

Charlene. Later, T-Bone executes a new will, which not only splits his estate

between Charlene and his best friend Hank Mardukas, but also expressly

revokes the first will. T-Bone and Hank have a falling out and T-Bone revokes

the second will. Revocation of the second will does NOT automatically revive

the first will. For the testamentary gift to Charlene to be admitted to probate, T-

Bone will need to ______________________________ the first will.

If T-Bone does not re-execute, he will die without a will, and his estate will be

distributed through the rules of ______________________________

succession.

Note 10: Full disclosure: This rule can get a little picky. Refer to the Wills outline

if you want the itty, bitty, picky details.

2. Dependent Relative Revocation (DRR)

o DRR provides a safety valve for testators who revoke a will on the basis of a

______________________________.

o The mistake can be grounded in law or in fact.

o DRR invalidates the mistaken revocation and revives the earlier revoked will.

Example 29: T-Bone Taylor executes a will giving his entire estate to his best

friend, Hank Mardukas. After T-Bone gets word that Hank has died, he executes

a new will giving his entire estate to his wife Charlene. If it turns out that Hank

is in fact alive and well, Hank can seek to have DRR applied to undo the

revocation of the first will, on the theory that the revocation of the first will was

conditioned on a mistake of fact (i.e., Hank’s death).

Example 30: T-Bone Taylor executes a will giving his entire estate to his best

friend, Hank Mardukas. T-Bone attempts to create a second will and writes on

the first will that “this will is revoked because I have made a new will, /s T-Bone

Taylor.” If it turns out that the second will is not valid, Hank can seek to have

DRR applied to undo the revocation of the first will, on the theory that the

revocation of the first will was conditioned on a mistake of law (i.e., valid

execution of the second will).

Exam Tip 10: If you see revocation based on a mistake, do a DRR analysis. Focus

on the idea that but for the mistake, the testator would not have revoked the

first will. Buzzwords: “revocation,” “mistake,” “causation,” and “safety valve.”

CHAPTER 5: CONSTRUCTION OF WILLS

A. Construction (Interpretation)

1. Plain Meaning Doctrine

o Courts tend to give the words in wills their plain meaning.

o We assume the testator meant the plain meaning of what he said, even if the testator

meant something else.

o Exception: The will states otherwise (e.g., by defining terms).

2. Incorporation by Reference

o Will refers to a document outside the will itself.

o A will may incorporate an extrinsic document that is not testamentary in nature, if:

 The document is in ______________________________ at the time of execution;

Note 11: The UPC will waive this rule if the document disposes only of personal

property.

 The testator ______________________________ the document to be incorporated into

the will; and

 The document is ______________________________ in the will with sufficient certainty

to permit its identification.

Example 31: A clause in T-Bone Taylor’s will provides, “This will makes

bequests in accordance with the list provided in my sketchbook, which I keep in

the bottom drawer of my desk.” This document is incorporated into the will.

3. Acts of Independent Significance

A testator can dispose of property based on some act or event that is

______________________________ to the execution of the will.

Example 32: T-Bone’s will provides, “I devise my stamp collection to my

daughter-in-law at the time of my death.” T-Bone may or may not have a

daughter-in-law at the time he writes the will. The stamp collection goes to his

daughter-in-law at the time he dies.

Note 12: This doctrine applies to acts that occur in the future (i.e., after the

execution of the will). That makes it different from both incorporation by

reference and republication by codicil.

4. Lapses and the Anti-Lapse Statute

o Common Law: A testamentary gift would ______________________________ (i.e., fail) if an

intended beneficiary did not survive the testator.

o Failed gifts would be dumped into the ______________________________ gift.

Example 33: T-Bone devises “my car to my best friend Hank Mardukas.” Hank

dies before T-Bone. Thus, the gift to Hank lapsed at common law and would go

to the residue.

o Anti-lapse statutes: Provide an alternative disposition for lapsed gifts.

 The statute prevents certain gifts from lapsing.

 Requirements:

• Protected relationship

o Lapsed gift was intended for a relative of the testator

Example 34: The testator’s child, grandchild, great-grandchild

• Survived by ______________________________

Example 35: T-Bone Taylor’s will provides, “$10,000 to my son, Alex.” Alex

predeceases T-Bone and is survived by a son, Anton.

Step 1: The gift to Alex is a covered relationship (T’s son).

Step 2: Although Alex predeceased T-Bone, Alex is survived by issue, Anton.

Because Alex and T-Bone are in a protected relationship, and because Alex is

survived by Anton, the statute prevents the gift from lapsing. Thus, Anton takes

the gift.

 If these requirements are not met, the common law rule applies and the gift goes to the

residuary.

o Special rules for class gifts:

 Common Law: Exception to the lapsed gifts rule

• If a member's gift lapses, the rest of the class share that member’s gift.

Note 13: Keep this in mind if you get a question with a class gift and the lapsed

recipient is not protected by the anti-lapse statute.

 If the lapsed member is covered by an anti-lapse statute, that rule controls.

 If the lapsed members is NOT covered by an anti-lapse statute, the rest of the class

members share the lapsed member’s gift.

5. Abatement

o If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be

abated, or reduced, in a specific order.

o Types of testamentary gifts:

 Specific gift: A gift of a ______________________________ piece of property

Example 36: T-Bone devises “my stamp collection to Hank Mardukas.”

 General gift: A gift of property satisfied from general

______________________________ of estate

Example 37: T-Bone devises “$10,000 to my nephew Alex.”

 Demonstrative gift: A general gift from a particular ______________________________

Example 38: T-Bone devises “$10,000 to my daughter Bonnie from my Bank

USA account, but if the funds are insufficient, then from the estate’s general

assets.”

 Residuary gift: Left over

Example 39: T-Bone devises “the rest of my property to X.”

o Abatement hierarchy:

 ______________________________ property (first to be reduced);

 Residuary gift;

 ______________________________ gifts;

 Specific gifts (last thing to be reduced, most protected).

Exam Tip 11: If they can be satisfied, demonstrative legacies are treated as

______________________________ gifts. Otherwise, they are treated as

______________________________ gifts.

6. Ademption

a. Ademption by extinction

 A will makes a specific devise of property, but the specific piece of property is no longer

in the estate at the testator’s death.

 Traditional Rule: The devise is ______________________________ and the devisee

takes nothing.

• Often called the ______________________________ theory

 UPC: Takes a different approach, the ______________________________ theory

• Look to the testator’s intent at time she disposed of the property.

• Look for facts that suggest the testator intended the ademption.

Exam Tip 12: UPC tries to avoid ademption. The UPC provides for the

beneficiary to take replacement property on a specific gift.

Example 40: T-Bone Taylor devises his cherished stamp collection to his son,

Harvey. When he made the will, T-Bone owned the stamp collection. Later,

however, T-Bone sold the stamps. With the money he made on the stamps, T-

Bone bought a rare picture of Elvis playing racquetball, which he owned at his

death. Under the UPC, Harvey could receive the photo as replacement property.

b. Ademption by satisfaction

 Applies when a testator satisfies a specific or demonstrative gift, either in whole or in

part, by an ______________________________ transfer.

 Requirements:

• The testator must ______________________________ for the gift to adeem; and

• Intent must be supported by a ______________________________.

B. Ambiguities and Mistakes

1. Ambiguities

o Types: Latent and patent

Example 41: T-Bone’s will devises “my stamp collection to my brother.” T-Bone

has two brothers, Arnold and Bernie.

 This is a ______________________________ ambiguity. We cannot see it on the face

of the will.

Example 42: T-Bone’s will devises some real estate to his brother. At one point

in the document, it lists the address as “1122 Boogie Boogie Avenue,” while in

another spot in the document, it lists the address as 2211 Boogie Boogie

Avenue.

 This is a ______________________________ ambiguity. It appears on the face of the

document.

o Traditional Rule:

 ______________________________ ambiguities had to be resolved without looking to

extrinsic evidence;

 Extrinsic evidence was admissible to resolve ______________________________

ambiguities.

o Modern Rule: Most courts allow both ambiguities to be resolved with extrinsic evidence.

Example 43: The brothers could introduce evidence showing which brother

preferred stamps. They could also introduce evidence of the real address.

2. Mistakes: Courts tend to be less forgiving when it comes to mistakes.

Example 44: In drafting his will, T-Bone accidentally gave his stamp collection

to Arnold instead of giving it to Bernie, an avid stamp collector. Even if Bernie

can prove the mistake, courts are likely to leave the provision as executed.

CHAPTER 6: POWER TO TRANSFER

• This section concerns limits on the testator’s power to transfer property.

• Three situations:

o Rights of the testator’s ______________________________;

o Gifts to the testator’s ______________________________;

o Bars to succession: ______________________________ statutes and disclaimer.

A. Rights of the Surviving Spouse

A surviving spouse is entitled to a number of means of support:

• Social security and pension plans;

• Homestead exemption;

• Personal property set asides;

• Family ______________________________ for reasonable living expenses during probate; and

• ______________________________ share.

1. Elective Share

o A surviving spouse can elect to take a ______________________________ share.

o The spouse’s elective share will change the gifts to other beneficiaries.

o Amount:

 UPC: Forced share is ______________________________% of the decedent’s

augmented estate.

Note 14: Augmented Estate: The UPC subjects property acquired before the

marriage, as well as property acquired during the marriage, to the elective

share. The elective share under the UPC is broader than a community property

share.

o Purpose: The law does not want the decedent to disinherit the surviving spouse, particularly

when the surviving spouse is the “non-earner.”

2. Waiver

Surviving spouse can waive the right to an elective share, if:

o The waiver is in ______________________________ after a fair disclosure of its contents;

and

o The spouse is represented by ______________________________ legal counsel.

B. Gifts to Testator’s Children

1. Advancements

o A lifetime gift to a child that is treated as satisfying all or part of the child’s

______________________________ share.

Exam Tip 13: Operates like ademption by satisfaction (testate), except

advancements deal with intestate succession.

o Two views on advancements:

 Common Law:

• Any lifetime gift is ______________________________ to be an advancement of

that child’s intestate share.

• The child had the burden to show that an item was an outright gift.

 UPC: A gift is an advancement only if:

• The decedent declared in a ______________________________ writing that the gift

was an advancement (or the heir acknowledged as such in writing); or

• A writing indicates that the gift should be taken into account in computing the

division of property of the decedent’s estate.

o Calculating effect of advancement: “Hotchpot” analysis

 Add the value of the advancements back into the intestate estate.

 Divide the resulting estate by the number of children taking.

 Deduct the child’s advancement from the child’s intestate share.

Example 45: The decedent dies intestate, leaving three children—A, B, and C—

and an intestate estate worth $50,000. A received an advancement worth

$8,000 and B received an advancement worth $2,000. C did not receive an

advancement.

Step 1: Add the advancements back into the estate

($50,000 + $8,000 + $2,000 = $60,000)

Step 2: Divide into equal shares ($60,000 ÷ 3 = $20,000 each)

Step 3: Deduct the advancement from the child’s share

A: $20,000 – $8,000 = $12,000

B: $20,000 – $2,000 = $18,000

C: $20,000 – $0 = $20,000

Total $50,000

2. Omitted Children

a. Intentional disinheritance

A parent can intentionally disinherit his children.

Example 46: T-Bone’s will provides, “I have intentionally not made any gifts to

my child, Bernard, for he is a rotten child and unworthy of my love or money.”

b. Unintentional disinheritance

The testator has a child after executing a will and dies without amending the will.

 If the testator had no other children when the will was executed, then omitted child

takes her ______________________________ share.

 If the testator had at least one child at the execution of the will, and the will devised

property to at least one of those children, then the omitted child takes an

______________________________ share from the portion of the property already

devised to the other child.

C. Bars to Succession

1. Slayer Rule

o A beneficiary who murders the decedent is barred from taking under the decedent’s will.

o A beneficiary who murders the testator is treated as if he

______________________________ the testator.

Exam Tip 14: Courts have not applied the Slayer Rule in involuntary

manslaughter and self-defense cases. Thus, murder must be intentional and

felonious (i.e., we’re talking murder).

o UPC: Allows the killer’s issue to take, when relevant (i.e., anti-lapse statute or intestate

succession distribution)

2. Disclaimer

o A person may disclaim a testamentary gift.

o Requirements: The disclaimer must:

 Be:

• In writing, ______________________________, and filed with court; OR

• ______________________________ to the person in charge of distributing the

estate; AND

 Identify the decedent, describe the interest being disclaimed, and define the

______________________________ of the disclaimer.

o Timing: Must disclaim within ______________________________ months of the decedent’s

death

3. Elder Abuse

Someone who is convicted of financial exploitation, abuse, or neglect of a person under her care

is prohibited from inheriting from that person.

CHAPTER 7: WILL CONTESTS

• Objections to the validity of a will

• Only an ______________________________ party has standing to challenge a will.

• Interested party is someone who would:

o Receive a financial benefit under the will; or

o Take under intestate succession but does not take under the will.

• Interested party must file a contest claim within ______________________________ months

after the will is admitted to probate.

A. Testamentary Capacity

Basic Rule: To execute a will, a testator must be:

• Of age (at least 18 years old); and

• Of sound ______________________________.

1. General Testamentary Capacity

o The person challenging the will (“the contestant”) bears the burden of proving that the

testator lacked the requisite mental capacity at the time of the

______________________________ of the will — “The When Question”.

o Whether the testator had the ability to know:

 The nature of the act — “The Why Question;”

 The nature and character of her property — “The ______________________________

Question;”

 The natural objects of his bounty — “The Who Question;” and

 The plan of the attempted disposition — “The ______________________________

Question.”

Exam Tip 15: The issue is NOT whether testator actually knew these things; it is

whether the testator had the ability to know them.

Example 47: T-Bone has a bit of a drinking problem, and occasionally suffers

from memory lapses. This does not by itself mean that T-Bone lacks capacity to

make a will; it does not mean that he lacked capacity at the time he executed

the will.

Example 48: T-Bone suffered from intermittent bouts of dementia. While he

was meeting with his lawyer to execute his will, T-Bone became disorientated

and could not remember the names and faces of his two children, Bonnie and

Clyde, who were the sole beneficiaries of his will. At that point in time, it is

questionable whether T-Bone was able to know the natural objects of his

bounty.

Example 49: Same facts as above, except T-Bone could recognize Bonnie and

Clyde, but he could not remember where he was or who his lawyer was, and

could not remember how much property he actually had. It is likely that T-Bone

lacked general capacity, as he did not know what he was doing at the time.

2. Insane Delusion

o A ______________________________ belief to which the testator adheres in spite of all

reason and evidence to the contrary.

o The testator has general capacity, but has an insane delusion as to some belief.

 Objective test:

• Measure the testator’s insane delusion against the actions of a

______________________________ person in the testator’s position.

• A belief is an insane delusion if the rational person could not have reached the same

conclusion.

 Causation: The contestant must show that the insane delusion was a

______________________________ cause of the testamentary disposition.

Example 50: T-Bone Taylor was convinced that his wife Charlene was cheating

on him. So convinced of this fact, T-Bone would sit on the couple’s stoop and

confront men who walked by, accusing them of having sex with his wife. He

would not permit Charlene to be home alone because he was worried that her

paramours would visit her while he was away from the house. Charlene

vehemently denied the allegation. T-Bone’s will provides, “I leave nothing to my

wife because of her rampant pattern of adultery.” In this case, Charlene would

have a good case to challenge on insane delusion grounds.

Exam Tip 16: Causation is the key here. Make sure to discuss whether the

insane delusion caused the property distribution.

B. Undue Influence

1. In General

o A ______________________________ relationship

o The contestant alleges that a ______________________________ effectively controlled the

testator’s decision-making process.

2. Required Proof: The contestant bears the initial burden of showing:

o The beneficiary received a ___________________________________ benefit under the will;

o The beneficiary had a ____________________________________ relationship with the

testator; and

Note 15: The confidential relationship is often professional (i.e., doctor, lawyer,

therapist) or familial in nature.

o The testator had a weakened ______________________________ at the time of execution.

3. Burden Shift

o If the contestant meets the burden, it creates a presumption of undue influence.

o The burden shifts to the proponent (i.e., the third party) to show by a

______________________________ of the evidence that there was no undue influence.

4. Consequences

o The beneficiary is treated as if he predeceased the testator to the extent that the gift is in

excess of the beneficiary’s intestate share.

Exam Tip 17: Like with an insane delusion, causation matters a great deal. The

idea is that the suspect beneficiary exerted influence that caused the strange

property division.

C. Fraud

The contestant bears the burden of showing that the beneficiary engaged in an unlawful

_______________________________________ at the time of the conveyance.

1. Elements: Beneficiary made misrepresentation with:

o The ______________________________ to deceive the testator; and

o The ______________________________ of influencing the testamentary disposition.

2. Kinds of Fraud

o Fraud in the Inducement: The misrepresentation causes the testator to make a different will

than the testator would have otherwise made.

Example 51: T-Bone’s sole heir, Bonnie, convinces T-Bone not to execute a will

in favor of his best friend Hank Mardukas by promising that she will convey the

property to Hank after T-Bone is dead. At the time, Bonnie has no intention of

conveying to Hank. This is fraud in the inducement.

o Fraud in the Execution: A misrepresentation as to the character or

______________________________ of the will.

Example 52: Knowing that T-Bone has poor eyesight and cannot read his will,

Bonnie promises T-Bone that his will transfers all his property to his best friend

Hank Mardukas. The document actually transfers the property to Bonnie and

her brother Clyde, in equal shares. T-Bone signs the will. This is fraud in the

execution.

3. Remedy

A _____________________________________________ is the most common remedy for fraud.

Exam Tip 18: Undue influence and fraud require an act by some third party,

while insane delusion arises in the mind of the testator.

D. Forfeiture Clauses

• In Terrorem: A ______________________________ clause designed to dissuade a beneficiary

from suing about his share.

• Rule: Under the UPC, the clause is ______________________________ if the beneficiary had

probable cause to challenge.

• So…if the beneficiary did not have probable cause (i.e., the claim is groundless) the forfeiture

clause is enforceable.

CHAPTER 8: THE PROBATE PROCESS; POWERS OF APPOINTMENT

A. Probate and Administration

1. The Probate Process

o The first thing you should do in any given estate problem is

______________________________ each piece of property as either probate or non-

probate.

o Probate property passes by will or intestate succession.

o Non-probate property transfers by an instrument other than a will, such as:

 ______________________________;

 Trust;

 Joint tenancy (with right of survivorship);

 POD Contract.

Exam Tip 19: Don’t forget about intestate succession. If the decedent does not

have a will or if the testator’s will is invalid, probate property will pass by

intestate succession.

If you determine that a will is invalid in whole or in part, do not forget to discuss

intestate succession.

2. Why Probate

o Primary purpose: Orderly administration of a decedent’s estate

o Includes:

 Protecting and satisfying ______________________________;

 Quieting contested titles, and transferring titles to rightful holder;

 Protect testator’s interest (e.g., against fraud and undue influence);

 Efficiently handling will contests.

Note 16: Only those who stand to benefit financially under a will have standing

to contest a will (intended beneficiaries or heirs).

3. Checklist

o Identify property as probate or non-probate.

 Non-probate property: Figure out who takes it.

 Everything else is probate property; it will pass either by testate or intestate succession.

o Is there a will? If so, is it valid? Who are the intended beneficiaries?

 Remember: Any property not specifically ______________________________ will pass

by intestate succession.

o No will: All property will pass by intestate succession.

B. Filing under UPC

• Probate proceedings must be brought within ______________________________ years of

death, after which there is a presumption of intestacy.

• A party requesting probate can choose to have it occur through informal (ex parte) or formal

probate (notice).

C. Creditors

• Non-claim statute

o Bars a creditor from making a claim on the decedent’s estate after a certain time period has

elapsed

o If a claim is not brought within that window, the claim is

______________________________.

o The exact timeline is based on the statute.

• The personal representative must provide ______________________________ to the creditors

of the estate.

• Seven classes of creditors (from most important to least important):

o Administrative expenses;

o Medical and ______________________________ expenses;

o Family allowances;

o ______________________________;

o Secured claims;

o Judgments against the decedent;

o All other claims.

D. Personal Representative

• The person who acts on behalf of estate during probate process

• What do we call this person?

o If appointed by the court: ________________________________________;

o If named in the will: ________________________________________.

• Duties of Personal Representative

o Inventory and appraise the estate;

o Locate and contact interested parties, including ______________________________;

o Satisfy debts, including taxes, burial expenses, and support;

o Close the estate.

• Duties owed by Personal Representative

o The personal representative is a fiduciary, owing duties of

______________________________ and ______________________________.

o The personal representative cannot engage in self-dealing.

Example 53: Decedent is an art collector. She appoints her best friend, also an

art collector, to serve as the administrator. The best friend wants to buy a piece

of art from the estate. This is not appropriate, as this is self-dealing.

• The personal representative gets paid from the estate.

E. Choosing a Personal Representative

If the will does not name a personal representative. Who can serve? The following priority applies:

• A surviving spouse who is a devisee;

• Other surviving devisee;

• Surviving spouse (if not a devisee);

• Other heirs of the decedent;

• ______________________________ days after decedent’s death, any creditor.

F. Power of Appointment

• Describes the ability of the decedent (______________________________) to select an

individual (______________________________) to dispose of certain property under the will

• Power is ______________________________ to the donee (only the donee can appoint)

• Two Types: General and special

1. General

o No conditions or restrictions on the donee’s power

o The donee can appoint herself or one of her creditors as the owner of the property.

o If the donee fails to exercise the power, the property reverts back to the donor’s estate.

2. Special

o The donor can specify certain individuals or groups as the objects of the power.

o In doing so, the donor limits the donee’s power.

Example 54: T-Bone gives power of appointment to his best friend, Hank. The

power of appointment is exclusive to the extent that neither Hank nor his family

can be appointed to the property. What type of power is this? A

______________________________ power.

Example 55: T-Bone gives a power of appointment to his best friend, Hank, to

give the property to his nieces and nephews. This is a non-exclusive power of

appointment, because Hank is not able to exclude particular nieces and

nephews.

G. Powers of Attorney

• An authority to act on another’s behalf in a legal or business matter

• Principal/agent relationship

• To be valid, it must be:

o In ______________________________;

o ______________________________; and

o ______________________________.

• Three Types: General, Special, Advance Health Care Directives

1. General

Covers all affairs during a person’s period of ______________________________.

2. Special

Limits the authority to specific subject matters (i.e., resolving a particular business deal).

3. Advance Health Care Directives

a. Living will

 Dictates the care the individual wants in the event the individual is not able to make

those wishes known.

 The agent’s job is to see that the directive is ______________________________.

b. Durable power of attorney for health care

 Appoints an agent in the event the principal becomes incapacitated and is unable to

make medical decisions.

 Allows the agent to stand in the principal’s shoes and

______________________________ for her.

General Advice:

• Study your way—don’t worry about others

• Stress is not a bad thing—let it motivate you

• Be a human—eat, rest, take a break!

[END OF HANDOUT]

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