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I Wills

By Paul Washington,2014-07-10 16:47
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I Wills ...

    I. Wills

    A. Formalities of Will

    1. UPC Will requirements 2-502

    a) Written

    b) Signed by testator or some other person in the

    testator’s conscious presence and by testator’s

    direction (sign’s testator’s name)

    c) Signed by 2 Witnesses

    (1) Saw T sign or

    (2) hear T say that is my will or

    (3) hear T say that is my signature 2. CA 6110 Will requirements

    a) Written

    b) Signed By testator or Some other person signs

    testator’s name in the testator’s presence at the

    testator’s direction or

    c) Signed by 2 Witnesses who are present at the same

    time

    (1) Saw T sign or

    (2) Hear T say that is my will or

    (3) Hear T say that is my signature 3. 6111 Holographic will

    a) Signed by T

    b) Material provisions in T’s handwriting

    (1) Material provisions: Who gets what

    (a) Identification of beneficiaries

    (b) Identification of property that passes to the benys

    c) Must contain testamentary intent (in T’s hand or

    pre-printed)

    d) Date of execution not required, but helpful

    4. 6112 Interested Will CA

    a) Will still valid

    b) Presumption arises as to the gift for interested

    witnesses

    (1) Presumption got gift through fraud, etc.

    (2) I.W. must rebut, or take gift up to the amount of

    Intestate Succession share

5. Substantial compliance

    6. (6111.5) Extrinsic evidence is admissible to determine

    a) Whether a document is a will or

    b) To determine the meaning of a will if the meaning

    is unclear

    c) NOT testamentary intent

    7. Codicils

    a) Must meet requirements of a will

    b) Republishes the will

    B. Content of the will

    1. Integration: permits multiple pages to be integrated

    into a single will

    2. Incorporation by reference

    a) Incorporation by reference UPC 2-510, CA 6130

    (1) Writing

    (2) In existence when will is executed

    (3) Will refers to it

    (4) Will manifests intent to incorporate

    (5) Will describes it enough to identify it

    b) UPC 2-513 Separate Writing

    (1) Will refers to it

    (2) Written statement or list

    (3) Dispose of tangible personal property non money

    (4) List signed by T

    (5) List describes property and bennys w/ reasonable

    certainty

    a) UPC 2-512 3. Facts of independent significance

    (1) A will may dispose of property by reference to

    facts, acts and events that have can change the

    disposition of the will and

    (a) Can change the property, or the benys.

    (2) the event/fact/act has significance other than to

    change the disposition of the will it exists for a

    reason other than to change the will. Individual

    intent is irrelevant.

    (3) . If the event or act only exists to change the

    disposition of the will, it gets tossed and ignored.

    C. Construction of Will

    1. Words given their plain meaning

    2. Extrinsic Evidence

    a) Will is ambiguous

    (1) Latent Ambiguity where the language is clear

    but is capable of more than one meaning

    (a) Extrinsic Evidence Only admissible to identify

    the person or thing in the will “Surrounding

    circumstances” – facts of which the testator had

    knowledge when the will was made. Not to show

    testator’s intent.

    (b) Can be used only to interpret what is already

    there, but cannot be used to add anything to the will.

    (2) Patent Ambiguity

    b) Mistake

    (1) No extrinsic evidence to establish mistake

    D. Revocation of will

    (2) No extrinsic evidence to fix the mistake 1. Revocation three ways:

    a) Physical act to the original will

    (1) Lost will presumption that will is destroyed and

    revoked. Can be overcome by evidence (quantum of

    evidence required to rebut the presumption varies

    depending on the facts the amount of control other

    people had of the will).

    b) Subsequent instrument

    c) Operation of law

    (1) If you leave something to your spouse, and

    subsequently divorce, that gift is revoked.

    2. UPC 2-507 & CA 6120

    a) A will or part thereof is revoked if

    (1) Executing subsequent will that revokes the

    previous will or part expressly or by inconsistency

    (2) Act

    (a) Purpose and

    (b) Intent

b) If no express revocation, a subsequent will is a

    revoked if intent

    c) Presumption testator intends a subsequent will to

    be a replacement if it disposes of the entire estate

    d) Presumption testator intends a subsequent will to

    be a partial revocation if only part of estate disposed

    of

    3. Revival

    a) Re-execution

    b) Republication (Codicil)

    c) Revoke subsequent instrument

    (1) UPC

    (a) 2-509(a) Total revocation:

    (i) IF 1st Will wholly revoked by

    subsequent will

    (ii) AND IF 2nd Will revoked by physical

    act

    (iii)THEN, 1st will is still revoked.

    (iv) UNLESS Testator’s intent is that will 1

    is revived

    (a) Circumstances of the revocation,

    or from

    (b) contemporaneous or subsequent

    declarations that the testator

    intended the previous will to take

    effect.

    (b) 2-509(b) PARTIAL revocation:

    (i) IF subsequent will partially revokes

    earlier will

    (ii) AND IF subsequent will is revoked by

    physical act

    (iii)THEN previous will is revived,

    (iv) Unless Testator intent to not revive.

    (v) Circumstances of revocation or

    (vi) contemporaneous or subsequent

    declarations that the testator

    (c) 2-509(c) 3rd WILL REVIVAL:

    (i) IF 1st will is revoked by 2nd will

    (ii) AND if 2nd will is revoked by 3rd will

    (iii)THEN 1st will remains revoked

    (iv) UNLESS the terms of will 3 indicate

    testator intent to revive will 1 (NO Extrinsic

    Evidence)

    (2) CA 6123

    (a) If 2nd will that revokes previous will in whole or

    in part is revoked, 1st will remains revoked UNLESS

    circumstanced of the revocation or from

    contemporaneous or subsequent declarations that the

    testator intended the previous will to take effect.

    (b) THIRD WILL REVIVAL: If 2nd will that

    revokes 1st will is revoked by 3rd will, 1st will is

    revoked in whole or in part, except to the extent that

    it appears from the terms of the third will that the

    testator intended the first will to take effect.

    4. Dependent Relative Revocation (judicial doctrine in

    equity)

    a) Would the testator rather the benny get nothing or

    the original gift?

    (1) If the gift goes up, we can presume the testator

    wants the revocation ignored.

    (2) If the gift goes down, we can presume the testator

    wants the revocation to stand.

b) IF the cancellation of the old will and the creation

    of the new will are part of one scheme,

    c) AND IF the revocation of the old will is so related

    to the new making of the new will so as to be

    dependent on the new will being made, AND

    d) If the new will is not made or fails

    (1) Revoke by physical act - Most jurisdictions

    require a less strict standard for this type of

    revocation.

    (2) Revoke by express instrument - Most jurisdictions

    require a more strict standard for this type of

    revocation.

    (3) Some Jurisdictions (GA) hold both types of

    revocation to same standard

    e) THEN, there is PRESUMED INTENT that the

    previous will is revived.

    5. Mutual or Reciprocal Will

    a) 2-514 A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, may be

    established only by

    (1) Provisions of a will stating material provisions of

    the contract

    (2) An express reference in a will to a contract and

    extrinsic evidence proving the terms of the contract

    (3) or a writing signed by the decedent evidencing the

    contract

    (4) NO PRESUMPTION: Execution of a joint or

    mutual will does not create a presumption of a

    contract not to revoke the will or wills.

b) CA 21700 - 2-514 A contract to make a will or

    devise, or not to revoke a will or devise, or to die

    intestate, may be established only by

    (1) Provisions of a will stating material provisions of

    the contract

    (2) An express reference in a will to a contract and

    extrinsic evidence proving the terms of the contract

    (3) or a writing signed by the decedent evidencing the

    contract

    (4) Clear and convincing evidence of an agreement

    that is enforceable in equity

    (5) or Clear and convincing evidence of an

    agreement for a third party beneficiary.

    (6) NO PRESUMPTION: Execution of a joint or

    mutual will does not create a presumption of a

    contract not to revoke the will or wills

    E. Distribution of estate

    1. Types of "gifts"

    a) Specific Will refers to specific property

    (1) Cash is never specific

    b) Demonstrative will refers to amount to be paid

    from specific property

    (1) Treated as specific devise up to value of the fund

    at the time of death

    (2) Treated as a general devise as to the remainder

c) General will refers to specific amount, but not a

    specific fund

    d) Residuary devise of rest of the estate

    e) Intestate no will as to that part of the estate

    2. Effect of changes

    a) Ademption - A testamentary devise of specific real

    or personal property fails completely to pass as

    prescribed in the will when the article no longer exists

    as part of the estate at the time of death because of its

    prior consumption, loss, destruction, substantial

    change, sale, or other alienation subsequent to the

    execution of the will.

    (1) In Specie Test

    (a) Whether the gift is a specific legacy a specific

    legacy is a definite thing that is capable of being

    designated and identified

    (b) Whether the gift is found in the estate at the time

    of the testator’s death.

    (2) McGee Form & Substance Rule

    (a) Changes in substance are ademption

    (b) Changes in form are not ademption

    (3) UPC 2-606: Specific Devisee has a right to the

    property in the estate at time of death and

    (a) If sold unpaid purchase price and promissory

    note; and

    (b) If condemned unpaid amount; and

    (c) If property is destroyed unpaid insurance

    money; and

    (d) If gift is a promissory note on property that has

    been foreclosed the property received in the

    foreclosure; and

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