Wills

Bar Review 3 with Notsure at Southern Methodist University

About this deck

By: Sean Bellah
Created: 2011-06-01
Size: 67 flashcards
Views: 17

About StudyBlue

STUDYBLUE makes things that make you better at school. Things like online flashcards with photos and audio. Things like personalized quizzes and friendly reminders about when (and what) to study next. Think of it as a digital backpack™: access to all of your study materials online and on your phone. STUDYBLUE exists to make studying efficient and effective for every student, for free. Join us.

“Simply amazing. The flash cards are smooth, there are many different types of studying tools, and there is a great search engine. I praise you on the awesomeness.”
Dennis

Sign up (free) to study this.

Effective Purpose of Will

Will must be intended to take effect at death. If part of the will is to take place during life (i.e. pay this bill until me

Will Requirements

Signed by the testator

Does not matter where the signature occurs

Two attesting witnesses (over 14)

Witnesses do not need to know it is a will

Each witness must sign in the testator's presence.

Testator's Signature

Does not have to be placed prior to witnesses' signatures just need be in contemporaneous transaction
Does not need to be legible

Attestation Clause

Not necessary, but can provide prima facie evidence of the facts recited

Can be helpful if witness is 1) forgetful or 2) hostile

"In the testator's presence"

Texas only requires "conscious presence" test - T is conscious of the where they are and what the witnesses are doing and can see them by some slight physical exertion.

Venue for Probate

County where

Proving Wills

Have one of the attesting witnesses testify in open court or
If both witnesses are dead or cannot be located, have two witnesses testify to T's or either W's handwriting or
Self-proving affidavit

Safe Deposit Boxes

may be examined in the presence of a bank official by spouse, executor, child over 18.

Self-proving affidavit

Can be executed at any time (usually at time of will).

T and W's execute sworn affidavit before notary public. It contains and substitutes for what the W would testify (T was in sound mind, T is over 18, W signed in T's presence)

Self-proving affidavit signed but not will

1991 statute says the will is valid if it can be proved through some other manner (the signatures can only be used once).

Interested Witness(es)

Affects validity of a bequest to that witness unless:

Will can be proved w/o interested witness's testimony
Interested witness is corroborated by testimony of credible, disinterested person (lawyer, etc.)
Interested W would be heir (takes lesser share)

Holographic Wills

WHOLLY in T's hand - unless surplusage

Valid in TX even if made in state where they aren't valid.

Need to prove that it was done with testamentary intent (can use extrinsic evidence, formality, etc.)

Does not need to be dated, but good to mention

Holographic Wills: Proving

Prove using 2 W's testifying handwriting

Lapse

When B predeceases T his gift lapses back into the estate unless the anti-lapse statute applies B:

Was a descendant of T's parent AND
Left descendants who survive T by 120 hours

Surviving Residuary Bs Rule

Where residuary estate is devised to 2 or more, and one gift lapses, the remaining residuary Bs take the residuary estate in proportion of their interests (unless anti-lapse statute applies)

Class Gifts

Only class members who survive the T take unless the anti-lapse states applies.

Rule of convenience: class closes when any member of the class is entitled to a distribution

Bringing someone into a class may be impossible if against T's probable intent

Void Gifts

If B is dead when will is executed the gift is void and the Surviving Residuary Bs Rule and Anti-lapse Statute Apply

EXCEPTION: anti-lapse does not apply to class member if dead at time will is executed

Intestate Succession: Spouse & CP

Only shared children: all CP to W.

Any children not shared: 1/2 to W and 1/2 split among children

Intestate Succession: Spouse & SP with descendants

SP (real)

W: 1/3 L.E.
Children (or descendants): all to children subject to 1/3 L.E.

SP (personal)

W: 1/3
Children: 2/3

Intestate Succession: Spouse & SP w/o descendants

SP (real)

W: 1/2 f.s.
P (or P's descendants): 1/2 f.s.

SP (personal)

All to surviving spouse

HEF (part 1)

If the home in ... qualifies as a homestead, W is entitled to exclusive occupancy of the homestead for so long as she occupies it. Also, some of the "misc. personal property" assets may qualify for an exempt personal property set-aside in W's favor.

HEF (part 2)

Finally, if W owns little or no separate property, she can petition for a family allowance in an an amount needed for her support for a period of one year. The exempt personal property set-aside and family allowance come "off the top" of the estate before the intestate distribution is made.

Bad Daddy Rule

A parent cannot inherit from or through a child if there is C&C that P:

abandoned and failed to support C
knowingly abandoned and failed to support C's mother during pregnancy OR
criminally responsible for child's death or SBI.

Half-bloods

In inheritances by collateral kin, half-bloods only get half the inheritance of the others.

Degree of Kinship required to take

There is no limit on degree of kinship required to take.

Child born out of marriage:

Can only inherit from father if:

Fam. Code presumption*
decedent signed sworn statement acknowledging paternity
paternity was established in a paternity suit or

Family Code Presumption of Fatherhood

C was born during marriage or 300
married after birth & voluntarily assert pat.

record filed with bureau of vital stats
consent to be named father on birth cert. or
promising in a record to support C

reside w/ C 1st 2 yrs and represented that C was his

Adoption by estoppel

Unperformed agreement to adopt allows child to adopt from that person, but they cannot inherit from their own kin.

Inheritance Rights of Adopted Children

Can inherit from both adopted parents and natural parents unless:

decree terminating P-C relationship expressly terminates inheritance rights - no inheritance from natural parents
adopted as an adult - no inheritance from natural parents

Simultaneous Death

120 Hr rule - applies to both wills, intestacy, insurance, joint & survivor accounts, JT w/ RoS

Be careful: anti-lapse still applies to wills
Contrary will provision: "if he survives me" - this is read to only require some time after that

Disclaimer (will or intestacy)

Requirements:

Written, signed and acknowledged (notary public)
Filed w/i 9 mo. of decedent's death
Filed w/ probate court & w/ copy to personal rep (2 copies)

Treat disclaiming party as having predeceased decedent

Anti-lapse statute often applies

Disclaiming (cont.)

life insurance or death benefit - 9 mo.
B of irrevocable trust - 9 mo. of trust creation
Revocable trust - 9 mo. of trust becoming irrevocable
Child - 9 mo. of reaching 21
Charitable B - later of 1) 1 yr after notice or 2) 6 mo. after estate is filed

Lifetime gift to heir

Lifetime gift to descendant is not treated as an advancement unless:

declared as such in contemporaneous writing by the donor or
acknowledged as such in writing by the donee.

Unauthorized Commercial Use of Decedent's Name or Likeness

Half and half rule: if someone uses decedent's name, voice, or likeness then damages, profits, exemplary damages, and attorney's fees can be recovered by

1/2 to W and 1/2 to descendants
All to W
All to descendants

Change in marriage status after will

Marriage: no effect

Divorce: revokes gifts and fiduciary duties of ex-spouse and ex-spouse's relatives

Pretermitted child (no children at time of will)

Child takes intestate sare of all property not bequeathed to other parent of the child*

UNLESS C provided for by non-probate transfer taking effect at T's death

Pretermitted child (other children at time of will: not provided for)

Child takes intestate share of all property not bequeathed to other parent of the C

UNLESS C provided for by non-probate transfer taking effect at T's death

Pretermitted child (other children at time of will: provided for)

Child share is limited to the gifts of such other C.

UNLESS C provided for by non-probate transfer taking effect at T's death.

When pretermitted C statute does not apply

C is provided for or mentioned in the will
C is provided for by a non-probate transfer that takes effect on T's death

contingent gift is sufficient provision for a C (protecting against accidental omissions)

Pretermitted Spouse: Republication by Codicil

If you republish, you can then have the pretermitted spouse statute not apply

Revoking a will

Can be revoked by:

subsequent testamentary instrument

has to be clear that later instrument revokes the last will unless
wholly inconsistent then revoked by implication

physical act

Presumptions as to revocation

Where will is last seen in T's possession or control and not found after death - presumption that T intended to destroy by physical act.

If last seen in T's possession and later found torn - presumption that T destroyed it intentionally.

Proof of Lost Wills

due execution must be proved as in any other case
cause of will's non-production must be proved (overcome presumption)
content must be substantially proved by one who has read will, heard it read, or can identify copy of will.

Changes Made to Face of Will

Cannot just place words or changes on will to make effective.

Can write a holographic codicil on the will if there is meaning to the words outside the context of the will.

If will is entirely holographic, cross-outs and interlineations are valid.

Will Revival

Texas does not have will revival unless 1) re-executed with attesting Ws OR 2) republished by a duly executed codicil to the revoked will OR 3) Dependent Relative Revocation: mistake of law or fact as to the validity of a disposition.

Types of gifts

Specific devise or bequest
Demonstrative legacy (hybrid) - general amount from specific source
General legacy - $$$ to B
Residuary gift
Intestate property -

Abatement

Not enough assets to cover all the gifts

Abatement order

Intestate property
Residuary (personal --> real)
General legacies (personal --> real)
Specific bequests (personal --> real)

probably treat demonstrative gift as a specific bequest

Ademption

specifically devised property not in estate - does not apply to demonstrative or general legacies

Identity test (TX) - ademption is applied in an objective test - if T leaves Buick to B then the car is wrecked in T's death - B only gets salvage value

Bequesting Stock

I give my 100 shares ... - specific bequest: ademption applies

I give 100 shares of ... - general legacy: no ademption

(specific for this purpose) bequest of stock includes stock from stock split or dividend declared after will, but not cash dividends.

Specific gifts of encumbered property

Before 9/1/05 - absent will provision: residuary exonerates liens and

After or on 9/1/05 - absent will provision: exoneration of liens doctrine abolished and takes subject to liens

Incorporation by Reference

To incorporate a document by reference

writing must be in existence when will executed
Will must show an intent to incorporate the writing and
Document clearly identified in language of will

No: Attached document, typewritten addition to holographic will

Acts of independent significance (non-testamentary acts)

A lifetime act has to have a lifetime purpose - can give cedar chest and contents because there is lifetime purpose to protect contents.

EXCEPTION: cannot gift contents that are title documents - can only give contents that are tangible property or $$

Will Ambiguities and/or Mistakes

Absent suspicious circumstances, presumption that T intended contents. If not ambiguous on face, apply plain meaning rule.

Latent ambiguity - gift to unknown B - allow ex. evidence
Patent ambiguity - twenty five dollars ($25,000) - allow ex. evidence

Contracts Relating to Wills

K to make a will or not revoke a will reqs.

provisions in will state K exists & states material provisions OR
actual binding enforceable K

Analysis if K:

if new will revokes - admit to probate then
constructive trust for K party

Revoking a Contractual Will

Contractual will can be revoked by giving notice to other party to the K.

Non-probate Assets

Property passing by right of survivorship
Property passing by K - i.e. life insurance
Property held in trust - includes revocable trusts
Property over which the decedent held power of appointment.

Disinheritance (Negative bequest)

Merely treat as predeceasing the B. However, if part of estate passes intestate then B's descendants can still inherit.

Powers of Appointment (Purpose and execution)

Purpose: allow life beneficiary to designate the remaindermen often with takers in default of appointment

Execute: must be done expressly

unless exercise by implication: devising something by name
Blankets dont work unless specifying source of PoA

Types of Powers of Appointment

General - can appoint property to anyone including self, creditors, or estate.
Specific - can only appoint to a limited to class of persons. cannot appoint to self, creditors, or estate.

Will Contests

Burden: before probate the burden is on will proponents, after probate shifts to contestants.

SoL: must be challenged within 2 years of probate.

Will contests (standing)

Only interested parties with economic interest adversely affected by will's probate can challenge.

Person who has

Will contests: Incapacity

T must have capacity (at time of will including lucid intervals) to:

Understand the nature of the act
Know the nature and appx. value of property
Know the natural objects of his bounty
Understand the disposition he is making

Will contests: Undue influence

Reqs.

Existence and exertion of influence
Effect was to overpower the mind and will of the testator
Product was will that would not have been made BUT FOR the influence

Not enough alone:

Mere opportunity
Mere susceptibility
Fact of unnatural disposition

Will Contests: Undue influence (confidential relationship)

If will is procured by one in confidential relationship benefits from the will an inference of undue influence which can be strengthened by suspicious circumstances.

Will Contests: Undue Influence (gifts to L)

If L drafts the will that gives to L, L's parents or their descendants, employee, or spouses - gift is void unless

B was w/i third degree of consanguinity (birth or adoption) or
Affinity

Will Contests: Undue Influence (marriage annulment)

Can have a marriage annulled for lack of capacity if marriage was within 3 years of T's death and the action is filed within 1 year of death.

Will Contests: No-contest clause

Valid unless brought 1) in good faith and 2) with probable cause.

Strictly construed and not applied in will construction suit or acton against executor for improper administration.
Not applied: guardian sues or case voluntarily dismissed

About this deck

By: Sean Bellah
Created: 2011-06-01
Size: 67 flashcards
Views: 17

About StudyBlue

“Simply amazing. The flash cards are smooth, there are many different types of studying tools, and there is a great search engine. I praise you on the awesomeness.”
Dennis