Wills Outline Bar Exam

MN Essay

Answer all questions as the Uniform Probate code, unless specified.

I. Making a will

A. Statutory formalities (T is testator)

1. AGE- must be 18 or over

2. INTENT- instrument must be executed with testamentary intent

3. SIG of T- T must have signed the will

a. Some jurisdictions; require signature at end of will

1) Means that anything after is not valid

b. UPC

1) Signature anywhere on will is ok

c. Anything added after T signed will is not valid

4. WITNESS- 2 attesting witness’ must

a. See T sign will or

1) Some jurisdictions require wit to be present at time T signs

a) Scope of vision (minority) must see T sign

b) Conscious presence test- if they each know where each other is and what each other is doing FINE

b. Have T acknowledge his/her signature/will to witness’

1) UPC says fine

2) SIG. TIME- witness’ must sign within reasonable time of T’s signature.

5. interested witnesses

a. older majority rule- will itself is valid, but witness can’t get benefit.

1) Unless

a) 2 disinterested witnesses

b) Would be heir anyway (then given whichever is less).

b. Newer minority rule

1) OK (but can consider undue influence issue)

6. NO witnesses? Holographic

a. NO most

b. UPC- ok if material provisions in T’s handwriting and signed by T

1) Material provisions are;

a) Identity of beneficiaries

b) Property they are to receive.

7. notary/self proved witnesses

a. witness sign self-proving affidavits under oath before notary

b. creates presumption that formalities of execution fulfilled.

B. Inter-state requirements?

1. vocab: jurisdiction is where live, ancillary jurisdiction is where T owns property/ vacations etc.

2. common law/minority; Must fulfill requirements of each state

3. UPC/majority says ok if fullfil requirements in any category

a. Place of execution

b. Place of residence when made will

c. Place of residence when die.

II. Revocation

A. Expressly (usually through next will)

B. By physical act

1. need

a. intent to revoke

b. physical act

1) burn, torn, canceled, obliterated, destroyed

2) even line though ok, VOID ok

3) ok if done on duplicate document

4) Not effective if done on copy

5) common law

a) mark must cross language of will

6) UPC

a) Anyway on will ok

2. Presumptions (rebuttable)

a. if T had will all time and it is found mutilated, presumed that T did it and had intent.

b. Last seen in T’s control and not found after death, presumed destroyed with intent to revoke.

C. By other (proxy)

1. need

a. at T’s direction and

b. in T’s conscious presence

D. lost wills statute

1. need

a. formal proceeding

b. copy and witness or some such

c. clear and convincing evidence.

E. Multiple wills/codicils

1. codicil

a. amendment to will

b. need same formalities as will

c. revocation on codicil revokes codicil

d. revocation on will revokes codicil and will

2. conflict with two valid wills/codicils

a. try to read together

b. if inconsistent the last doc controls

3. second will has residuary clause

a. revokes first will in entirety

III. Divorce

A. Divorce following will revokes all provisions in favor of ex-spouse

1. OUT construe as if s/he died

B. remarriage to ex-spouse

1. IN back in

C. separation

1. IN, mere separation not enough

2. BUT, complete property settlement enough (OUT)

D. Intervios trust

1. (OUT) UPC and most code says revokes

IV. Amendment to will Not codicil

A. Must follow same formalities as will or invalid

1. reexecutes will

2. republishes will be codicil

B. DRR- Dependent Relative Revocation

a. Ct can disregard revocation based on mistake of law/fact

b. Use ‘but for” test.

c. Ct uses legal fiction “lacks intent to make revocation, because new change based on fact not in existence)

d. Not apply if change makes portion smaller

C. Revival

1. If later will revokes earlier wills and that one is destroyed is earlier will still valid?

a. Maybe, yes if

1) Will 1 still exists

2) Show T wanted to use first will

3) Will 2 was revoked by physical act

V. Incorporation by reference

A. Extrinsic writings ok if

1. in existence at time of will making

2. will express intent to incorporate

3. will describes writing sufficiently to ID

4. OTHERWISE invalid and becomes part of residue

B. Extrinsic writing for Holographic wills

1. OK can incorporate non handwritten material by above method

C. Statutory exception UPC-

1. handwritten list

2. tangible personal property

3. not disposed of in will

4. OK if made after will and modified at any time.

D. Defacto modification ok

1. actions that in essence change will, without changing language.

2. OK as long as not done just to change will

VI. Lapse

A. When beneficiary named in will dies before or within 120 hours (5 days) of testator gift lapses

B. Means no good, goes to residue

C. EXCEPTION- anti-lapse statute

1. when predeceasing beneficiary is

a. grandparent

b. lineal descendent of grandparent

c. stepchild AND

d. leaves issue

e. NOT spouse or distant relative or friend.

2. applies to

a. will

b. power of appointment in will

c. life insurance policy

d. payable on death, transferable on death bank

e. irrevocable intervivos trust

D. class gift rule-

1. goes to survivors, unless lapse statute applies.

VII. Gifts

A. Order of priority (when debts)

1. Specific gifts- identified

a. Ademption

1) When the gift is gone, the beneficiary gets nothing

2) Exceptions

a) T’s intent material

b) Will before T incompetent (sold by conservator)-unless competent for a year

c) Unpaid stuff if contract signed to sell

d) Right to any payments for condemnation

e) Right to T”s replacement if real/tangible property

f) Property gotten from note if note specifies gift

b. Increase

1) When gift sets number of shares of stock and it increases?

a) Common law

(i) Splits- OK

(ii) Dividends NO

b) UCC

(i) All ok

c. Merger

1) Shares merged from one stock to another

2) Common law;

a) NO

3) UCC

a) OK

d. Stock language

1) “my stock”=Specific gift

2) “stock” descriptive legacy= must buy share to give if not exist

e. Mortgage

1) Common law;

a) Pay off from estate

2) UCC

a) Not pay off from estate (unless will says)

2. demonstrative legacy- $ but instructions on where to get it

a. when the gift is gone, beneficiary still gets

3. general legacy $

4. residuary bequest- residuary and remander

5. intestate property- something not covered by will or lapsed

B. abatement

1. partially insolvent, use priority above

VIII. ambiguities or mistakes in will

A. latent ambiguity= ok on face, ≠ on facts

1. goes to residue, but

2. extrinsic evidence admissible to clear up

B. plain meaning= (mistakes)

1. extrinsic evidence not admissible to contradict plain meaning

C. what about _________.

1. ct will NOT use extrinsic evidence to fill in the blanks

IX. inhereitance/upc

A. spouse?

spouse	parent	children	grandchildren	≠ = not alive All or % or $ is how much they get
ALL	≠	≠	≠
200,000	Rest	≠	≠
All	Alive	alive	?	If spouse has no other issue and T left all to spouse
150,000 + ½	?	Rest		If there is Spouse’ other issue, but it is all T”s
100,000 + ½		rest		If not all T’s kids are spouses
≠	2nd	1st
≠	≠ 1st parent’s issue	≠
≠	≠ ½ to paternal grandparent ½ to fraternal grandparent	≠		* this is where most states stop

B. NO spouse?

1. All to issue if any

2. How split?

a. Majority rule,

1) evenly split between sibilings –strict per stirpes rule

b. UPC/modern rule

1) Evenly split among generations

C. Above Only applies to probate estate

1. probate does not include

a. insurance proceeds

b. property payable/transferable on death

c. property held in trust

d. property with right of survivorship

e. property T didn’t own

2. can T stop this by disinheriting?

a. Common law: NO

b. UCC yes

D. Illegitimate

1. Ok if later marries or

2. show paternity

a. before dies

b. after dies – clear and convincing evidence

3. no adoption?

a. Step parent or foster parent not inherit

b. Except when adoption by estoppel (promised to adopt and never did)

4. adoption

a. cut off from biological family except

1) when adoption by

a) UPC step parent adoption (not severed with previous family)

b) Orphan adoption (not severed from old family members

E. Simultaneous death act

1. when priority of death matters and don’t know

a. how much longer need to live

1) common law = 1/10,00) sec

2) UPC 120 hours/ 5 days

2. each person distributed as if they survived

3. applies to nonprobate too

4. yields to instrument with contrary intent

X. gift to kid- doctrine of advancement

A. applies to intestate- without will

B. common law/minority:

1. any lifetime gift to child is presumed advanced payment of estate

a. if advancement put into “pot” at end (value at time gift made)

C. UPC/majority

1. NOT presumed advanced payment of estate unless contemporaneous writing by T or acknowledged as such by heir.

D. Testate

1. satisfaction

2. lifetime gift ≠ prepayment interest unless written evidence

XI. rights of surviving spouse

A. right to surviving allowance in lieu of homestead,

1. 18,000 even if there is no house

B. right to exempt property and

1. car and personal effects up to 7,000

C. right to family allowance

1. by clerk 18,000 or 1,500/mon can apply for more

D. pretermitted spouse

1. spouse that gets nothing in will

2. if will written before marriage

a. right to pick intestate share unless

1) omission intentional

2) or T made other provision (and intended it to be sole provision)

3) intestate share

a) probate estate minus exempt (family allowance, funeral expenses)

b) includes the following donative transfers

(i) if power retained

(ii) if rights retained

(iii) if survivorship

(iv) within two years of death and over 10,000

c) AND add back any property T gave to spouse

(i) Life insurance

(ii) By trust (50%)

(iii) Power of appointment etc.

(iv) This is credited to T when share is calculated.

4) NOT automatic, must file within 6 monts

5) Can be waived.

6) Amount?

a) Common law usually 1/3

b) UPC function of how long married 15 years max, at ½.

XII. Pretermitted children and children thought to be dead.

A. Out of will

1. before kids born or adopted?

1) Gets intestate share if no children,

2) Otherwise share = with other children

3) If codicil after born or adopted NOT apply

4) Assume not intentional

a) If intentional then don’t get

(i) Express in will

(ii) Gives all to spouse (parent of child)

(iii) Other provision for child

B. Thought to be dead

1. common law/minority

a. no relief unless mistake

1) need but for and in will HIGH standard

2. UPC/most

a. Treated as pretermitted

b. Need but for

XIII. Homicide

A. If beneficiary/heir kills T, doesn’t get anything

1. need intentional

2. acquittal at criminal law is not controlling

3. jointly held bank accounts, killer gets ½, victim’s estate gets ½

XIV. renunciation/disclaimer

A. before acceptance of benefits, beneficiary waives

1. OK-unless will says otherwise

2. within 9 months

3. insolvent?

a. Common law NO

b. Majority/upc

1) OK

XV. Will contests

A. Lack of testamentary capacity

1. elements

a. T understand nature of act

b. T understand character and nature of property

c. T understand natural objects of their bounty (issue)

d. T understand deposition he wished to make

2. Ok if mere age physically disabled, sick, failing memory, vacillitating judgement

3. judged incompetent by court not conclusive

B. insane delusion

1. even if otherwise sane

C. undue influence

1. (need all) elements

a. existence and exertion of the influence

b. effect to overpower mind and will

c. but for

2. not enough

a. opportunity to influence

b. mere susceptibility

3. only if free agency of T is destroyed and will is really the interests of bad guy

4. unnatural disposition w/o any reasonable explanation

5. can taint all or some of will

6. presumption of undue influence if confidential relationship

a. attorney-client

b. priest-parishioner

c. doctor patient

d. unless family member is taker

7. suspicious circumstances help

D. Contest clause “if contest get nothing”

1. ok if wins contest because then will invalid

2. Ok if loses contest and probable cause

3. NO if loses contest and nuisance suit