LECTURE HANDOUT

WILLS

PROFESSOR DAVID F. POWELL

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 WILLS

WILLS
TEACHING HYPOTHETICALS
BY PROFESSOR DAVID F. POWELL
PROFESSOR EMERITUS FLORIDA STATE UNIVERSITY

I. EXECUTION OF WILLS
Statutory Formalities:

A. T must be _________ or over.

B. Will must be written …

C. . . . with testamentary intent.

The point: Sham instruments will not be given effect.

D. T must sign will . . .

(Any mark-initials, “X” will serve as signature if so intended. Signature may be
another person at T’s direction, in T’s presence.)

E. Two attesting witnesses who witness T’s signing . . .

(OR, T’s acknowledgment of previous signature or will.)

Special Uniform Probate Code (UPC) provisions: Under the UPC, a court can validate a
defectively executed will (e.g., there is only one attesting witness) if the will proponent
establishes by clear and convincing evidence that the testator intended the document to
be his will. In addition, under the UPC, a will that is signed by the Testator and a notary is
valid without the need for any witnesses.

1. What happens if a portion of the will (e.g., clause naming personal representative)
follows the testator’s signature?

a. Clause present at time of execution:

i. Some states: (wills must be signed “at the end”):

ii. UPC and majority:

b. Clause added after execution:

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2. T writes a document in her own handwriting that reads: “This is my last will. I
revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument.
Is it admissible to probate?

a. About half of states: Holographic will not allowed. Not entitled to probate
unless two attesting witnesses.

b. UPC and some other states:

3. T in hospital bed with contagious disease when will executed. Two witnesses in
doorway, standing in hall; screen by bed hides their view of T. T says from behind
screen, “This is my will. It looks OK; where do I sign?” After T signs, will brought
out to hall. Witnesses hear T from behind the screen request them to witness.
Witnesses sign in hall. Has will been validly executed?

• “Scope of vision” test (minority rule):

• “Conscious presence” test (UPC, majority, better rule):

4. T is a domiciliary of Pennsylvania and owns some real estate in state X. While on

vacation in Florida, T executes a will that meets the requirements for a valid will in
Pennsylvania but not in state X. Later T dies after having changed his domicile to
New York. Is the will valid for purposes of disposition of the state X real estate?

_____ Common law and a few remaining states:

_____ UPC and majority:

• Place of execution (Florida)?

• Domicile at death (New York)?
• Domicile at execution (Pennsylvania)?

5. “I give to my faithful nurse Nell the sum of $30,000.” Nell is one of two attesting
witnesses to the will. Is the will admissible to probate?

a. Older (majority) rule: Interested witness situation does not result in denial
of probate of will, but beneficiary-witness loses legacy unless:

1) There were two disinterested attesting witnesses (supernumerary

rule); OR

2) Witness-beneficiary would be an heir if there were no will, in which

case she takes lesser of (i) amount given in will, or (ii) intestate share.
Nell loses!

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b. UPC and modern trend: Interested witness rule abolished. “A will or any
provision thereof is not invalid because the will is signed by an interested
witness.” Nell wins!

Note: Interested witness situation frequently raises undue influence issue.

SELF-PROVED WILLS: At time will is signed by T and attesting witnesses (or some time
thereafter, in T’s lifetime), T and witnesses sign self-proving affidavit under oath before
notary public. Affidavit recites all elements of due execution. Formalities of execution
(but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed.

II. REVOCATION
6. In 2014, T properly executed a will in duplicate giving all property to her children.
In 2016 she wrote “VOID” on one of the copies of the 2014 will and drew many
vertical lines across front of the one-page document. Will revoked?

Revocation by physical act requires (i) intent to revoke; (ii) physical act:
Typical statute refers to “burned, torn, canceled, obliterated, or destroyed.”

Sufficiency of Act:

Our facts:

Compare: “VOID” written on back of will.

i. Most states: No revocation. Cancellations must:

ii. UPC:

Compare: “VOID” written on face of Xerox copy.

Presumptions: 1) Will in T’s possession from time of

execution until death and found in
mutilated condition after T’s death.
Presumption: T did mutilating with intent
to revoke.

2) Will last seen in T’s possession

and control not found after T’s death.
Reason it can’t be found is that T destroyed
it with intent to revoke.

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7. T calls her attorney, the place where the will is located, and orders her attorney to
destroy T’s will. The order is never carried out. Will revoked?

a. What if on the above facts the attorney had destroyed the will pursuant to
T’s order? Would the will have been effectively revoked?

Revocation by another person must be (i) __________________________

and (ii)_____________________________________________________

b. But if in this latter situation the will was not revoked, how could it be
probated given the fact that it has been destroyed? Answer: by satisfying
“lost wills” statute. In UPC and most states, lost will requires formal
proceeding where proponents have burden of proving the contents of the
lost will. Copy and one witness or other “clear and convincing proof.”

c. Additional issue raised by case where attorney bungs up revocation of will

or where attorney bungs up execution of will: Lucas v. Hamm:

8. T’s 2010 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T’s
2013 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not
expressly revoke earlier will. Who takes what?

a. Where codicil makes no reference to will but contains slightly inconsistent

provisions, to the extent possible the will and codicil are read together. But
to the extent of any inconsistent provisions, the later document controls
and thereby revokes by inconsistency the prior will. Result on above facts:

1) As to M:

2) As to Y:

3) As to X:

4) As to Z:

b. The same rule can apply when there are two wills and the second does not
in terms revoke the first:

1) If the second will has no residuary clause, it is presumptively a codicil to the

first. There is an implied revocation only to the extent of the inconsistency.

2) If the second will has a residuary clause:

c. Majority (UPC) Rules: Revocation of a will revokes all codicils thereto. BUT
revocation of a codicil to a will does not revoke the will.
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9. T’s will devises entire estate “to my wife, Sheila, if she survives me; if she does not
survive me, in trust for my children.” The will names Sheila as executor “if she is
able”; otherwise X is to serve as executor. Two years later Sheila divorces T; T
dies two years after that without having revoked or modified his will. T is survived
by Sheila, by two children and by X. Who takes what? Who serves as executor?

UPC and most states:

Compare: T and Sheila marry each other again?

Compare: T and Sheila separate without a divorce?

Exception: Separation with complete property settlement:

Related issue: Will divorce revoke a provision for Sheila in T’s revocable inter
vivos trust?

10. T’s typewritten will made a bequest of “$10,000 to my friend X.” Subsequent to
the will’s execution, T drew a line through the figure “$10,000” and wrote in above
it “$15,000.” T then signed his name in the margin opposite the change.

a. Has the $10,000 bequest to X been revoked?

b. Can the interlineation (i.e., the $15,000 bequest to X) be given effect? NO,
UNLESS:

(i)

(ii)

c. Should Dependent Relative Revocation [DRR] be applied to reinstate the

original $10,000 bequest?

DRR allows us to disregard a revocation which is based on, induced by,

premised on a mistake of law or fact if the court is satisfied that, but for the
mistake, T never would have made the revocation.

1) Disregard a revocation (the cancellation of the $10,000 bequest).

2) Because it was based on a mistake of law (that the interlineation

would be effective).

3) Provided the court thinks T would not have revoked the $10,000
bequest but for the mistake.
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11. In 2008, T executes WILL-1 which devises his residuary estate “in trust to pay the
income to my grandson G until he attains the age of thirty, at which time to
distribute the principal to G.” In 2013, T executes a new will, WILL-2, “hereby
revoking all wills heretofore made by me.” WILL-2 devises his residuary estate to
G outright. Important part of the story: T does not destroy WILL-1. In 2015 T has
yet another change of heart. He has his housekeeper bring both wills to him,
reads them both and tells the housekeeper, “You know, I think the property
should be held in trust for G after all.” With this he destroys WILL-2 with the intent
of reviving WILL-1. T dies in 2017. He is survived by G and by his daughter, S,
whom he detests. Who takes what?

a. Has WILL-1 been revoked?

b. Has WILL-2 been revoked?

c. Revival: Did revocation of WILL-2 “revive” WILL-1?

i. Some states:

ii. UPC and some other states:

d. In states where WILL-1 is not revived, what other issue is raised by these
facts?

III. INCORPORATION BY REFERENCE:

FACTS OF INDEPENDENT SIGNIFICANCE
12. T’s will, after making several specific bequests, devised Blackacre “as designated
in a memorandum, that I plan to write, and that will be found attached to this will.”
After T’s death, her will and a signed but unwitnessed typewritten note were
found in an envelope marked “My Will.” The accompanying note read: “I give
Blackacre to the American Cancer Society.” The note was dated two months after
the date on the will. T’s sole heir was a distant cousin, Henry, of whom she was
not fond and from whom she had not heard for many years. Who takes
Blackacre?

To incorporate an extrinsic document by reference:

(i) Writing must be in existence at time will was executed.

(ii) Will must manifest an intent to incorporate the document.
(iii) Will must “describe the writing sufficiently to permit its identification.”

NOTE: Where they are recognized, holographs can incorporate non-handwritten

material by reference.
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13. What if the facts were the same except that the reference was to a memorandum
“that I have written,” and the typewritten note was dated two months before the
will was executed?

14. What if the will made reference to “a memorandum that I plan to write that makes
disposition of various items in my home that are dear to me.” The accompanying
note, written two months after the will was executed, lists various items of
furniture and personal effects and names a beneficiary for each item.

Statutory exception found in UPC and many other states. Will

may refer to written statement or list that disposes of tangible
personal property (other than money) not specifically disposed
of by the will. The written list must be signed by T and must
describe the property with reasonable certainty. May be written
before or after will executed; may be altered at any time.

15. “I devise the automobile that I own at my death to my nephew, Ned. I give the
sum of $1,000 to each person who is in my employ at death.” Three months after
the will is executed T trades his Volkswagen in on a new Cadillac; the effect is to
increase the value of the gift to Ned from $1,000 to $9,000. Six months after that
T fires two longtime employees and hires three new ones. Then T dies. What is
the effect of these events on T’s will?

IV. LAPSE, ADEMPTION, EXONERATION OF LIENS

16. T executes will in 2009; it provides (inter alia) “I give the sum of $5,000 to my
sister, Paula.” Paula dies in 2010; she is survived by her husband H and two
children. Paula has a will which leaves all of her estate to H. T dies in 2015. Who
takes the $5,000?

a. When beneficiary named in the will dies before (or in UPC states, within 120
hours of) the testator, the gift ___________________________________

b. UNLESS it is saved by the state’s ________________________________

c. The UPC statute applies when the predeceasing beneficiary is T’s ______

________ or a ______________________________________________

who ______________________________________________________

d. Result on above facts: ________________________________________

e. But what of fact that Paula left a will devising all her property to H?

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17. “I devise Blueacre to the children of my good friend, John Bates; I leave the
residue of my estate to X.” At the time T executes his will, John Bates has three
children: A, B and C. Thereafter, during T’s lifetime, Bates has another child (D),
and his son A dies leaving a child A Jr. Then T dies; he is survived by John Bates;
by Bates’ three children, B, C and D; by Bates’ grandchild A Jr. and by X. Who
takes Blueacre?

Class gift rule: When there is a gift by will to a group of persons

generically described as a class (“children,” “nephews” and “nieces,” etc.)
and some class member predeceases the testator and the lapse statute
does not apply, the surviving class members take.

18. What if in the above example, the gift were to the children of my brother John
Bates?

19. “I devise all the rest, residue and remainder of my estate in equal shares to my
good friend Alan Andrews, my business partner Betty Bates and my sister Carla
Carter.” Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T,
widower, is also survived by Bates, by Carter and by an only child Stephen. Who
takes the residuary estate?

UPC (majority) rule: If the residuary estate is devised to two or more

persons and the gift to one of them fails for any reason, the surviving
residuary devises take the entire residuary estate in proportion to their
interests in the residue.

20. What if, in 19, it was T’s sister Carla who predeceased T leaving a child (Carla Jr.)
who survived T? Andrews and Bates also survived T.

Hypothetical Will

Specific devise or bequest: “I devise Blackacre [my 2010 Cadillac] to

my son John.”

How about “my car” or “all of my bank

accounts”?

Demonstrative legacy: “I give the sum of $5,000, to be paid out

of the proceeds of sale of my Acme
stock, to my sister Sarah.”

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General legacy: “I give the sum of $10,000 to my

daughter Donna.”

Residuary bequest: “I give all the rest, residue, and remainder

of my property to my wife, Agnes.”

Intestate property: When there is a partial intestacy for

some reason (e.g., all of the residuary
beneficiaries predecease the testator,
and the case is not covered by the anti-
lapse statute).

21. What if, in the above situation, T’s estate is partially insolvent? In what order are
the gifts sacrificed to satisfy funeral expenses, expenses of administration,
creditors’ claims?

22. Same will provisions. Some years before her death T sold Blackacre, which was
specifically devised to John. What is the effect on the devise to John?

Also, T had sold her Acme stock and did not own any such stock at her death.
Does ademption apply to the gift to Sarah?

Every one of the following provisions reverses the common law rule, which applied the
doctrine of ademption to any case where the property specifically devised was not in the
estate for any reason. At common law and in most states even today, T’s intent is deemed
to be immaterial. Under the UPC, however, not only is T’s intent material, but several
statutory provisions apply to avoid ademption in the following commonly recurring situations:

Will executed before T declared incompetent: If specifically devised property is

sold by conservator, or if condemnation award or insurance proceeds relating to
the property are paid to the conservator, the specific devisee has a right to a
general legacy equal to the net sale price, condemnation award, or insurance
proceeds unless testator’s disability has been adjudicated to have ceased and
testator survives the adjudication by one year.

A specific devisee has the right to the remaining specifically devised property and:

• Any balance of purchase price owing from purchaser when contract is still
executory at T’s death. (At common law, equitable conversion would apply,
and T would no longer own real property, but merely a claim to the remaining
purchase price.)

• Any amount of condemnation award for taking of the property, to the extent
unpaid at T’s death.

• Any amount of fire or casualty insurance proceeds unpaid at death.

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• Any real or tangible personal property acquired as a replacement for other

similar property.

• Property acquired as a result of a foreclosure of a security interest on

specifically devised note.

23. “I give and bequeath my Rembrandt painting to my daughter Dora.” The

Rembrandt painting was incinerated in 2017. The painting was insured, and the
insurance company duly paid its full value of $150,000 to T. Subsequently, T dies.
Is Dora entitled to the insurance proceeds?

24. T’s will leaves his “Buick automobile” to his son, James. Subsequently, T sells the
Buick for $5,000 and purchases a new BMW convertible for $40,000 cash. Is
James entitled to the BMW at T’s death?

25. “I bequeath my 100 shares of stock in Tax Shelters, Inc. to my son, Simon.” At his
death T owned 200 shares of stock in Tax Shelters, Inc., consisting of the 100
shares he owned when he executed the will, plus 100 shares distributed to T by
the corporation six months after the will was executed. How many shares does
Simon take?

Common law

a. Stock splits:

b. Stock dividends:

UPC: ____________________ A specific devisee takes “any additional or other

securities of the same entity owned by the testator because of action initiated by
the entity, excluding any acquired by exercise of purchase options.”

26. What if, instead, Tax Shelters was acquired by Ling-Temco-Vought, and as a part
of the merger each shareholder was given one share of LTV for every two shares
of Tax Shelters, Inc. At T’s death he owned 50 shares of LTV stock. Does Simon
get the LTV stock?

Common law: ________________

UPC: _____________ . A specific devisee is entitled to securities of another

entity owned by the testator as a result of merger, consolidation, reorganization,
or other similar action initiated by the entity.

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27. “I bequeath my 100 shares of Coronado common stock to A; I bequeath 200

shares of Baker Company stock to B.” Thereafter T sells all of her Coronado stock
and all of her Baker stock.

a. What are A’s rights?

b. What are B’s rights?

28. “I devise Gatoracre to my son, Sylvester. I devise my residuary estate to my wife,

Willette.” At T’s death Gatoracre is subject to a mortgage that is security for a
note on which T was personally liable. Sylvester demands that the executor pay
off the indebtedness (“exonerate the lien”) so that Gatoracre will pass to him free
and clear of the encumbrance. Is he so entitled?

Common law (minority):

UPC (majority): _______ A specific devisee of encumbered property is not entitled to

have the encumbrance paid out of the residuary estate unless the will shows such intent.
Moreover, a general direction in the will to pay debts does not show such an intent.

V. AMBIGUITIES & MISTAKES

29. “I give $5,000 to my nephew, John Paul Jones.” At the time T executed the will
he had two nephews whose names were James Peter Jones and Paul Frederick
Jones. T had never met nor corresponded with either nephew, and no nephew
named John Paul Jones ever existed. Who takes the $5,000?

30. Suppose T had a nephew named John Paul Jones, whom he hadn’t seen for ten
years. After T’s death, Paul Frederick Jones comes in and says, “There’s been a
terrible mistake! T told me on numerous occasions that he intended to, and that
he had, left a legacy for me in the will.” The stenographer who typed the will says
“I goofed. I have the notes T gave me, from which I typed the will, and they show
clearly that the legacy was supposed to have been given to Paul Frederick
Jones.” Is this evidence admissible?

a. Most states:

b. UPC states: _________. A court may reform the terms of a will, even if
unambiguous, to conform the terms to the testator’s intent if it is proved by
clear and convincing evidence that both the accomplishment of the
testator’s intent and the terms of the will were affected by a mistake of fact
or law. In determining the testator’s original intent, the court may consider
extrinsic evidence even though the evidence contradicts an apparent plain
meaning of the will.

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VI. INHERITANCE
Common Intestacy rules:

A. DECEDENT SURVIVED BY SPOUSE

1. If survived by spouse but not by issue or parent _____________________

2. If survived by spouse and issue all of whom are also issue of spouse _____

3. If survived by spouse and issue at least one of whom is not issue of

spouse, the spouse is commonly given a fixed amount off the top and a
fraction of any excess. For example, under the UPC, the spouse takes the
first $100,000 and one half of any excess.

B. SHARE NOT GOING TO SPOUSE (OR ALL OF ESTATE IF NO SPOUSE)

1. All to issue, if any.

2. If no issue, to parents or survivor.
3. If no issue or parents, to parents’ issue.

C. MAJORITY RULE: Issue take per capita (equally) if all are of same degree of
relationship; otherwise they take by representation.

Example 1:

H (Widower)

A B C D

Example 2:

H (Widower)

A B C D

A-1 C-1 C-2 D-1 D-2 D-3

a. Most states: (Per capita with representation):

b. UPC & modern trend (Per capita at each generation level):

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Example 3: Same as Example 2 except A and B also predeceased

a. UPC (majority) rule:

b. A few states (strict per stirpes):

D. MEANING OF PROBATE ESTATE

The intestacy statute applies only to the “probate estate.” This is the estate that
could have been controlled by a will had T executed one. It does not include life
insurance, property held in trust, right of survivorship property, securities or bank
accounts registered in payable on death (POD) or transfer on death (TOD) form or
property T did not own at death.

31. Frank gets Maude pregnant. After the child (Cliff) is born, Frank and Maude go
their separate ways. Thereafter, Maude marries Steve; Steve does not adopt Cliff.

a. If Maude dies intestate, can Cliff inherit from Maude?

b. Assume instead that Frank dies intestate. Can Cliff inherit from Frank?

No unless . . .

• Frank marries Maude; or

• adjudication of paternity before or after Frank’s death.

c. Assume, instead, that Steve dies intestate. Can Cliff inherit from Steve?

No unless __________________________________________________
(unperformed agreement to adopt)

32. Change the facts. Shortly after Cliff was born he was placed out for adoption and
was adopted by the Andersons.

a. If Mr. or Mrs. Anderson dies intestate, can Cliff inherit from them?

b. If Cliff dies intestate, can Mr. or Mrs. Anderson inherit from him?

c. If Maude dies intestate, can Cliff inherit from her?

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Qualifications found in UPC and some other states:

• Stepparent adoption (i.e., W marries H1 and has a child C. H1 dies and

W marries H2 who adopts C. C continues to inherit from H1’s family.)

• Orphan adoption (both natural parents die and C is adopted by close

family member. C continues to inherit from other family members.)

RELATED ISSUE: Adopted persons are included in class gift terminology and
terms of relationship in accordance with rules for determining relationships for
purposes of intestate succession.

33. Rancher and wife, Lulu, involved in auto accident in which Rancher killed instantly.
Lulu survived for three days, then died. Rancher died intestate. Is Lulu an heir for
purposes of intestate distribution?

a. Original Simultaneous Death Act: ____________. If Rancher and Lulu

die simultaneously, Rancher’s estate is distributed as if Lulu predeceased.
But if there is evidence Lulu survived Rancher (even for a few minutes) then
she takes as Rancher’s heir.

b. Revised Simultaneous Death Act (120 hour rule): ____________. When

passage of title to property depends on priority of death, absent a provision
in the governing instrument to the contrary, a person is deemed to have
predeceased the decedent unless the person survives the decedent by
120 hours (5 days). (UPC)

34. Same as above except Rancher had a will that left “all of my estate to Lulu.” If the
jurisdiction has the Revised Simultaneous Death Act, does Lulu take under the will?

a. What if will provided: “I leave all my estate to Lulu if she survives me by

two days?”

b. Suppose Lulu was the named beneficiary of Rancher’s life insurance policy.
Would Lulu be entitled to the insurance proceeds?

c. Suppose Lulu and Rancher owned Redacre as joint tenants.

35. H, a widower, gives his daughter A land worth $12,000 on A’s birthday and tells
his other two kids (B and C) that they will receive similar gifts when they reach
twenty-five. H dies before the other gifts are made. H dies intestate leaving an
estate worth $78,000. At H’s death A’s land is worth $15,000. How should H’s
estate be distributed?
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a. Common law (minority) rule: Any lifetime gift to a child or descendants (including
adopted) presumed to be an advancement (that is, an advance payment) of his
intestate share, to be taken into account in distribution of the intestate’s estate.

b. UPC (majority) rule: No advancement unless (i) declared as such in a

contemporaneous writing by the decedent, or (ii) acknowledged as such in
writing by the heir.

If it were an advancement: $78,000

H’s estate 12,000 “brought into hotchpot”
$90,000

The $90,000 would be divided equally three ways, of which A is deemed to have
already received $12,000 of her share. RESULT: A gets $18,000, B takes
$30,000 and C takes $30,000.

Doctrine of advancement applies to intestate estates. A companion doctrine

called _________________________ applies to testate estates. UPC (majority)
rule: A lifetime gift is not a prepayment of any interest under a will unless: (i) the
will provides for this treatment, (ii) the testator declares in contemporaneous
writing that the gift is to be deducted from the devise or is in satisfaction of the
devise or (iii) the devisee acknowledges in writing that the gift is in satisfaction.

VII. RIGHTS OF SURVIVING SPOUSE

If facts of question involve husband and wife situation and you are asked to discuss the rights
of the surviving spouse to share in the decedent's estate, you will want to consider discussing:

A. SURVIVING SPOUSE’S RIGHT TO HOMESTEAD, EXEMPT PROPERTY AND

FAMILY ALLOWANCE
In most states, statutes give a surviving spouse, one or more of the following:

1. Homestead: The right to live in the home for as long as the spouse chooses.
(Under UPC, spouse gets a cash allowance (e.g., $15,000) in lieu of homestead.)

2. Exempt property: Household furniture, automobile, furnishings, appliances,

personal effects (and other property to extent preceding does not equal
allowance) in a fixed amount (e.g., $10,000).

3. Family allowance: Reasonable allowance in money out of estate for

maintenance of family during administration.

Typically, these benefits are available in both testate and intestate estates. They
are in addition to intestate share but are chargeable against share passing under
will unless will provides otherwise. They may be waived by written agreement
after full disclosure.
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B. WAS WILL WRITTEN BEFORE MARRIAGE? (“PRETERMITTED SPOUSE”)

In most states, marriage after a will has no effect on the will. But under the UPC
and in a few other states, the effect of marriage following execution of will is that
the Pretermitted spouse:
_______________________________________________________________

UNLESS: 1) It appears from the will that omission was intentional.

2) T made other provision for spouse by transfer outside

will and the intent that the transfer be in lieu of
provision in the will is shown by statements of the
testator, the amount of the transfer or other evidence.

C. SHOULD SPOUSE CLAIM AN ELECTIVE SHARE OF THE “ELECTIVE ESTATE?”

1. In all states, the elective estate includes the net testamentary estate. This
is the probate estate less exempt property, family allowance, funeral
expenses, expenses of administration and allowable creditors’ claims. In
UPC and some other states, the elective estate also includes:

a. transfers with retained power to revoke, consume, invade, or

dispose of principal for his own benefit. (e.g., revocable trust)

b. transfers with retained right to possess or enjoy the income from the
property. (e.g., transfer with retained life estate)

c. transfers held by decedent and another in right of survivorship form.

(e.g., JTWROS, joint bank accounts)

d. transfers within two years of death to extent aggregate transfers to

any one donee in either year exceeded the gift tax annual exclusion
(currently $14,000.)

2. Elective share is a fraction (commonly one-third) of the elective estate but

interests received by spouse which are included in the elective estate are
treated as if in satisfaction of the elective share.

UPC: The maximum elective share is increased to one-half but the share a
spouse actually gets depends on the duration of the marriage. In effect,
the elective share vests at a rate of about 3 percent a year until it reaches a
maximum of 50 percent (after 15 years).

3. Other important points:

a. Elective share is in addition to exempt property, family allowance

and homestead (or allowance in lieu of homestead).

b. It may be waived by written contract after full disclosure.

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c. To claim, surviving spouse must file election within a set period (e.g.,
6 months) of decedent’s death.

VIII. PRETERMITTED CHILDREN AND CHILDREN

THOUGHT TO BE DEAD
36. H and W were married in 1998. Later that same year, H executed a will leaving all
of his property to W if she survived him, otherwise to M, his mother. In 2004, H
and W had a child, A. W died in childbirth. In 2017, H died in an automobile
accident. He had never revoked or modified his 1998 will. What are A’s rights to
share in H’s estate?

A pretermitted child is ______________________________________________

and in UPC and some other states is entitled to take: ______________________

UNLESS: 1) It appears from will that omission was intentional;

2) H left substantially all of his estate to the other parent

of the pretermitted child; or

3) H provided for child by transfer outside will and

intended transfer to be in lieu of provision in will.
Amount of outside transfer irrelevant; extrinsic
evidence including H’s oral statements admissible to
show intent.

Result on our facts: ________________________________________________

37. What if, in the above case, H had executed a codicil after A’s birth. In the codicil
he named Smith instead of B as executor; in all other respects he reaffirmed and
ratified the previous will. Do we have a pretermitted child situation?

38. Believing child (Doughboy) to be dead, T executes will leaving all of her estate to
her spouse if spouse survives her, otherwise to John and Jane in equal shares.
John and Jane were T’s other two children. T’s spouse predeceased her and T
died survived only by John, Jane, and Doughboy who, as it turns out, was not
dead after all. What are Doughboy’s rights?

a. Common law: No relief for mistake in inducement to make or not to make

provision in will unless the mistake appears in terms of will.

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b. Statute found in UPC and many states: If at the time of execution of will, T
fails to provide in her will for a living child solely because she believes child
dead, child is treated as pretermitted.

Our facts?

IX. CONDUCT BARRING PARTY FROM SHARING

IN THE ESTATE-HOMICIDE
In UPC and most states, a person who feloniously and intentionally kills the decedent is
not entitled to any benefit from decedent’s estate by will, by intestacy (including family
allowance, exempt property and homestead), under life insurance contract or otherwise.
Property passes as if killer predeceased decedent. Jointly held property with right of
survivorship passes half to killer and half as if killer predeceased decedent.

X. RENUNCIATION
Before acceptance, an heir, devisee or appointee of a power of appointment may
renounce his interest in writing in whole or in part within nine months after the death of
decedent. Renunciation results in property passing as if renouncing party predeceased
decedent, unless will provides otherwise.

XI. ADVANCE HEALTHCARE DIRECTIVES

A. LIVING WILL
A living will is a statement of an adult individual’s desires with respect to life-
sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment
when the individual becomes terminally ill or is in a persistent vegetative state.

Execution: In writing, signed by an adult testator or by another at his direction.

Although the Uniform Healthcare Decisions Act does not require witnesses, most
states do. The usual requirement is that there be two adult witnesses.

Revocation: By any manifestation of intent to revoke (including physical act) at any

time before death without regard to the principal’s mental or physical condition.

B. DURABLE HEALTHCARE POWER

A durable healthcare power is used by one person (the “principal”) to appoint an
agent to make healthcare decisions for the principal such as giving consent to
medical treatment, accessing principal’s medical records, and admitting or
discharging principal from a healthcare facility. The instrument does not become
operative until the principal loses capacity.

Eligibility to serve as an agent: Any person except an unrelated person who is

associated with the principal’s healthcare facility.
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Execution: Same as for Living Will. That is, in writing, signed by an adult principal
or by another at his direction, and by two adult witnesses. In most states, the
agent may not serve as a witness.

Revocation: Unless otherwise stated in the power, by written or oral notice of revocation
to either the agent or the principal’s healthcare provider. Also, a durable healthcare
power is automatically revoked by the execution of a later durable healthcare power.

Liability: An agent under a durable healthcare power is not civilly or criminally liable or
subject to discipline for unprofessional conduct for healthcare decisions made in good
faith.

XII. ADMINISTRATION OF ESTATES

Questions about the administration of estates rarely appear on the bar exam. Here,
however, are a few points to keep in mind.

1. Probate of will
A will is not effective unless it is admitted to probate. Statutes in most states
impose civil liability on anyone who fails to deliver a decedent’s will to the court.

2. Appointment of Personal Representative

The person who administers the estate is called a personal representative (PR).
Some states refer to this person as an executor if the decedent nominated the
person in his or her will and an administrator if the decedent died intestate.

3. Priority of Appointment
If there is a will, priority goes first to the person nominated in the will, then typically
to the surviving spouse unless disinherited in the will, then to other will
beneficiaries (or heirs if there is no will).

4. Bond Requirement
Unless waived in the decedent’s will, a PR (other than a bank) must post a bond.

5. Power to sell property

In the absence of an explicit authority in the will, a PR must usually get a court
order to sell real property.

6. Inventory Requirement
The PR must file an inventory of all assets of the estate. The inventory must
include the value of the property.

7. Publication of Notice to Creditors

PR must publish notice of administration in the legal notices section of the
newspaper. In addition, the PR must send actual notice of administration to all
known or reasonably discoverable creditors. This starts a short (typically 3 or 4
months) statute of limitations. Exception for secured creditors.
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XIII. WILL CONTESTS

Standing: Any person who would take more as heir if there were no will or as
beneficiary under a prior will.

Lack of testamentary capacity: Burden of proof on contestants.

The test:
1) Did T understand the nature of the act he was doing?
2) Did T know the nature and character of his property?
3) Did T know the natural objects of his bounty?
4) Did T understand the disposition he wished to make?
Evidence of T’s capacity or lack of it must relate to the circumstances at the time the will
was executed, or shortly before or shortly thereafter. The more distant in time from the
will’s execution a particular fact may be, the less significance it has on the question in
issue: Did T, at the time the will was executed, have capacity?

Mere old age, physical frailty, sickness, failing memory or vacillating judgment are not
inconsistent with testamentary capacity if the testamentary prerequisites (above) were
possessed by the testator.

If T had been adjudicated incompetent and a guardian appointed, this is evidence of lack
of capacity but it does not raise a conclusive presumption (i.e., it will not support a
directed verdict). Reasons: (i) the test for whether a guardian should be appointed is
different from the four-point test above; (ii) even if T had a mental problem, the jury could
find that T wrote the will during a “lucid” interval.

Insane delusion: A distinctive form of testamentary incapacity: Where T is otherwise

sane, but the will (or a gift in the will) is a product of an insane delusion, having no basis
in fact or reason, which T adheres to against all reason and evidence, and where the will
(or gift in the will) is the product of the insane delusion.

Undue influence: Burden of proof is on contestants, who must show:

1) Existence and exertion of the influence.

2) Effect is to overpower the mind and will of the testator.

3) The result is a will that would not have been executed but for the influence.

Influence is not undue unless the free agency of the testator was destroyed and a will
produced that expresses the will, not of the testator but of the one exerting the influence.

While evidence of undue influence is usually circumstantial, these alone are not enough:

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1) Mere opportunity to exert influence.

2) Mere susceptibility to influence due to illness, age. Such evidence does

not (by itself) establish that T’s mind was in fact subverted and
overpowered.

3) Mere fact of “unnatural disposition” -- that some children take less than
others or are excluded entirely. It is only where all reasonable explanation
for the devise is lacking that the trier of facts may take this circumstance as
a badge of undue influence.

Undue influence may be shown as to the entire will, or as to one gift in the will.

In most states, a presumption of undue influence arises upon a showing that a principal
beneficiary under the will who stands in a confidential relationship to the testator
(attorney-client, priest-parishioner, doctor-patient) draws or procures the execution of the
will.

Suspicious circumstances may also tend to show undue influence. E.g., relative stranger
insinuates himself with T when T, because of mental or physical condition or age is
susceptible to influence, and T then writes will that disinherits children.

39. Will includes this clause: “Any person who contests this will shall forfeit his
legacy.” A son, who was left only $10,000 in the will, claims that the testator
lacked capacity and that the will was the product of undue influence. What is the
effect of the “no contest” clause (sometimes called “in terrorem” clause) on Son’s
claims?

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