Requirements of a valid will?

(1) Signed

(2) writing

(3) that is presently intended to create a will

(4) the testator is of the statutory age and has the capacity to create a will (age / able to understand)

When may a document be incorporated by reference into a will?

(1) the document exists before the will

(2) the will sufficiently identifies the document to be incorporated

(3) the will shows intent to incorporate the document that is identified

When can a destroyed will be probated?

When the proponent can show in court . . .

(1) The will was valid

(2) the reason the will cannot be produced to show that destruction was not intended to revoke

(3) the contents of the will

When is there undue influence in the creation of a will?

(1) a party exerted influence of the testator

(2) the influence was sufficient to overpower the mind, intentions, free will of the testator

(3) the will would not exist in its current form BUT FOR the influence

Is it permissible to influence someone when making a will?

Yes. Even repeated nagging is acceptable as long as the influence is not "undue"

What is testamentary capacity?

Simply the ability to understand (1) that they are creating a will, (2) to understand the property at issue, and (3) to understand the nature and relationship of the people that will receive the property.

This standard is lower than the capacity needed to create contracts.

How is property disposed of if 2 people die, how property is to be disposed depends on the order in which they died, and it cannot be determined in what order they died?

Property will be disposed as though each person survived the other.

What is the 120 hour rule?

State specific rule.

A person must survive the decedent by 120 hours or more, otherwise they will not take any property.

What is it called when a property is devised, but later sold or does not exist before the time of distribution?

Ademption

What is the UPC replacement rule?

If property is devised to a devisee in a will, but the same property was sold, devisees have the right to any property that was acquired as a replacement.

Explain what Slayer Statutes are?

If someone intentionally and illegally causes the death of a decedent, any right to the decedent's property is forfeited.

If a slayer statute applies and the person forfeits their rights, how is the property distributed?

The property is distributed as though the "slayer" predeceased the murdered decedent.

Under the common law, does a bequest of stock include shares created by a stock split? Does it include shares created by a dividend?

Split: Yes

Dividend: No.

Under the UPC, does a bequest of stock include dividends?

Yes.

What are the three distribution schemes and how do they work?

(1) Per Capita with right of representation (the majority view)

Property is divided equally at first generation with living representatives.

(2) Per Capita at each generation (growing minority)

Equal shares are divided at firs generation with living heirs AND if a member of the first generation is deceased, their shares will be combined and divided equally to the next generation with representatives.

(3) Strict Per Stirpes

Equal shares are created for living children and for the offspring of deceased children who have living offspring.

What happens when a will is the result of undue influence?

The will is void.

Undue influence occurs when . . .

(1) influence is exerted

(2) that is sufficient to overcome the mind / intention / free will of the testator

(3) the will would not exist BUT FOR the undue influence

Who has the burden to show undue influence?

The person that wants the will to be voided (the contestant)

When is there a presumption of undue influence?

When . . .

(1) there is a confidential relationship between testator and influencer

(2) the influencer / beneficiary was involved with the creation of the will

(3) the terms of the will benefit the beneficiary / influencer to a surprising and unnatural extent.

How is property distributed if a decedent's will is denied probate, and has no surviving spouse?

If denied probate, property in the will passes through intestacy. I.e., the property goes the decedent's children and their heirs.

What happens if an estate cannot cover all the claims and satisfy bequests, gifts etc.?

Abatement happens.

What happens to a bequest if the recipient dies before the testator?

The gift fails.

What is an anti-lapse statute? What does it do?

(1) prevents any lapse when a specified beneficiary dies

(2) deceased beneficiary's heirs will take the property

(3) anti-lapse statutes are used in all states.

What happens if there is no anti-laps statute?

The property passes intestate.

May a will change a life insurance policy beneficiary?

No. A life insurance policy is a contractual obligation outside the estate.

What is a truly HOLOGRAPHIC will?

(1) unattested (proven)

AND

(2) 100% hand-written