WILLS

1. FORMALITIES OF WILL EXECUTION

a. A will is a document that disposes of the real and personal property of the
decedent/testator. Will is executed during testators life and does not take
effect until death. Testator can change or revoke will during his lifetime.
Beneficiaries of the will have no present interest, only an expectancy. Will
speaks at the death of the testator.
b. Testator must have testamentary capacity.
i. Must be 18 years old at time of execution.
ii. Must have mental capacity. Not the same as contractual capacity.
T must understand:
1. that he is executing a will;
2. nature and extent of his property;
3. persons who are the natural object of his bounty;
4. nature of the disposition he is making.
iii. Must have capacity at time of execution.
iv. T that is very old, physically frail, ill, failing memory, drug addict,
drunk, can have capacity.
v. T who is insane or under guardianship can have capacity.
vi. Insane delusion: A belief in facts that do not exist and no rational
person would believe existed.
1. Contestant must show the disposition would not have been
made but for delusion.
vii. Presumption that a T is competent.
c. T must have testamentary intent. Usually a declaration in the instrument:
"I, T, declare this is my last will and testament."
i. If no declaration must show:
1. T intended to dispose of property;
2. T intended the disposition to occur only on his death;
3. T intended the instrument to dispose of that property.
ii. Intent must be present.
iii. Presumption of intent can be overcome by showing of other
motive.
iv. Ineffective deed is not a will.
v. Condition, motive. A will may be conditional, but may be only an
expression of motive.
1. Example: "If I do not come back from my trip on the space
shuttle, I want my girlfriend Fifi to have everything." T
returns safely, dies ten years later. Is this a will?
2. If T did not intend to die intestate and retains document
after he returns from space, looks like will.
d. Attestation
i. Signed by T or by another at T's direction and in T's presence;
ii. two witnesses;
 iii. T must sign will in witnesses' presence or acknowledge previous
signature as his;
iv. Witnesses must sign in T's presence;
v. Witnesses must sign in each other's presence.
1. Any mark intended to be signature will suffice.
2. Order of signing is not important so long as they are part of
one transaction.
3. Words added after signatures are not part of the will.
4. "Presence" requirement is satisfied if each party was
conscious of where the other parties were and what they
were doing and signing took place nearby in the general
cognizance and awareness of each other.
vi. Witnesses
1. Must be competent--understand what he is doing, can be a
minor.
2. Interested witnesses. In C/L will invalid. Modern rule, will
valid but interested witness cannot take. UPC interested
witness can take.
2. ORAL WILLS
a. Only for disposition of personal property.
b. Soldiers or sailors in combat or person during last sickness or in
contemplation of immediate death.
c. two witnesses
3. CODICILS
a. Essentially a will. Amends or adds to an existing will. Requires some
formalities. For purpose of dating will, will is republished by execution of
codicil; e.g., pretermitted child.
4. ACTS OF INDEPENDENT SIGNIFICANCE
a. A will may make a disposition on the basis of some act independent of and
outside of the will. Such a disposition is effective if act is unlikely to be
influenced by the disposition. Example: "$1000 to whoever is the parson
of the First Universal Church at the time of my death."
5. INCORPORATION BY REFERENCE
a. Extrinsic document
b. must be in existence at time of execution
c. will must sufficiently describe
d. will must show intent to incorporate.
6. LIST DISPOSING OF TANGIBLE PERSONAL PROPERTY
a. List need not be in existence at time of execution.
b. List can be modified at any time before death.
c. Cannot dispose of real or intangible personal property.
7. HOLOGRAPHIC WILL
a. Holographic means handwritten, but the issue really is unwitnessed will.
A handwritten will that meets witnessing requirements is same as is a
formally executed will.
b. Material portions of will must be in T's handwriting and signed by T.
 c. Recognized by UPC and half of states.
d. Is a handwritten memo or a letter a holographic will? Extrinsic evidence
is admissible to show whether a future writing is contemplated.
e. Interlineations in T's handwriting will be given effect.
8. POUR OVER GIFT TO INTER VIVOS TRUST
a. T can establish an unfunded revocable trust during his lifetime that is
funded by his will. Does not pass through probate.
b. Nonprobate assets cannot pass by will.
i. Trust
ii. life insurance and death benefits
iii. Joint tenancy w/ right of survivorship.
9. PRETERMITTED CHILD
a. Parents can disinherit children. A pretermitted child is one who was born
or adopted after execution of will.
b. Omitted child is entitled to intestate share.
c. Unless:
i. omission was intentional, or
ii. at time of execution T had other children and will devised most of
his estate to other parent of omitted child, or
iii. child provided for outside of will.
10. OMITTED SPOUSE
a. Cannot disinherit spouse.
b. C/L--dower and curtesy. Don't need to know.
c. Modern approach--ELEVTIV SHARE OF AUGMENTED ESTATE.
Details get very complicated. General idea is that Dead Guy cannot
disinherit wife. (Obviously applies to surviving husband as well.)
Surviving Spouse can calculate Augmented Estate, compare it to her
elective share she is entitled to by statute, and elect to take whatever share
is greater.
i. Elective share varies from 1/3 of DG is survived by issue, 1/2 if
DG is not survived by issue. Other approach is % based on length
of marriage. For example in Co starts at 3%, additional 2% per
year until 50% at 15 years.
ii. Augmented Estate consists of:
1. Property that passes by reason of death to SS, both probate
and non-probate;
2. Property that passes by reason of death to 3rd parties. both
probate and non-probate;
3. Inter vivos gifts made in two years preceding DG's death
over a certain limit. e.g., more than 10k per year.
4. Inter vivos transfers where DG retains control.
iii. Spouse must be file notice within 6 months.
d. Homestead exemption.
e. Family allowance.
f. Exempt personal property.
11. ANTI-LAPSE
 a. In C/L if a beneficiary died before T the gift lapsed.
b. An anti-lapse statute creates an alternative gift.
c. I recommend using the UPC.
i. Predeceased bene was a linear descendant of T's grandparents or
T's grandparents.
ii. Predeceased bene must leave issue.
iii. Alternative gift created is issue.
iv. Can be defeated by language in will.
d. Lapsed residuary gift.
i. C/L rule: No residue of a residue.
ii. Modern rule: Lapsed residuary goes to other residuary.
e. Class gifts. Class members who survive T take.
f. If bene is dead when will executed gift is void.
12. ADEMPTION
a. Ademption means gift in will is no longer in T's estate. Gift fails.
b. Only applies to specific devises and bequests
c. Exceptions
i. insurance proceeds which have not yet been paid
ii. condemnation that has not been paid
iii. contract price has not been paid
iv. replacement property
v. does not apply to demonstrative legacies or general legacies.
d. Ademption by satisfaction. Is an intestate share or a devise satisfied by
inter vivos transfer from T to bene?
i. C/L presumption was yes.
ii. Modern rule is not unless
1. T intended inter vivos gift to be ademption, and
2. T expresses so in a contemporaneous writing or donee in a
writing, which need not be contemporaneous.
13. CLASSIFICATION OF GIFTS
a. A specific devise is a gift of specifically identified property and is satisfied
only by receipt of that property.
b. A general legacy is a gift of a dollar amount payable out of the assets of
the estate.
c. A demonstrative legacy is a gift of a general amount that identifies a
particular source of funds.
d. A residuary devise disposes of all other estate assets that are not otherwise
disposed of.
14. INCREASE IN VALUE OF PROPERTY AFTER EXECUTION BEFORE
DEATH
a. Real property income goes to general estate. Improvements go to specific
devisee.
b. Stock--increase due to stock split goes to specific devisee, increase from
reinvesting stock proceeds goes to general estate.
15. WILL CONTRACTS
 a. A contract to make a will is enforceable under contract principles, not the
Law of Wills. To be enforceable there must be consideration. Conversely
a contract cannot prevent the probate of a will that violates the contract. A
court may impose a constructive trust on the will benes.
b. UPC. A contract to make a will can be established only by
i. Provision in the will stating the material provisions of the contract;
or
ii. an express reference in the will to the contract and extrinsic
evidence; or
iii. a writing signed by decedent evidencing the contract.
c. Joint and reciprocal wills
i. Joint will is a will by two persons in the same document.
Admissible on the death of each. If one revokes will still effective
as to other.
ii. Reciprocal wills are separate wills that contain substantially similar
provisions.
iii. Revocable at any time before death.
iv. Joint wills may be interpreted as contractual.
16. REVOCATION
a. A will may be revoked any time before death, even if it is a contractual
will.
b. T must have capacity.
c. Methods of revocation
i. By law
1. Marriage after execution of will does not revoke will. New
spouse is protected by elective share.
2. Divorce revokes provisions of will in favor of divorced
spouse
3. Statutes do not apply to insurance policies.
ii. By instrument
1. Express revocation by will, codicil or other instrument,
present intent to revoke and formalities are satisfied.
2. Implied revocation by subsequent instrument that has
inconsistent provisions. To extent possible the instruments
will be read together.
iii. By act
1. Burning, tearing, obliterating, or canceling a material
portion of the will.
2. Burning cover of will or singeing corners not sufficient.
3. Cancellation not effective unless lines touch words of will.
4. Revocation by proxy effective if done at T's request and in
T's presence.
5. Partial revocation can be shown by extrinsic evidence.
iv. Presumptions of revocation
 1. If will was last seen in T's control, absence of will after T's
death raises presumption but not if in possession of 3rd
party.
2. Will found mutilated.
v. Revocation of duplicate revokes other duplicates.
vi. Revocation of codicil revokes only the codicil.
vii. Lost or Destroyed will will be probated if elements are proved
1. valid execution
2. cause of nonproduction--not to revoke will
3. contents of will
17. REVIVAL
a. Generally revoked will does not revive previous revoked will. But UPC
allows revocation of previously revoked will if that is T's intent.
b. Dependent relative revocation. If revocation is premised on a mistake of
law previous will be revived to best meet T's intent.
18. DISCLAIMERS
a. A beneficiary or heir may disclaim. Property passes as though bene or
heir predeceased T.
b. For tax purposes, disclaimer must be irrevocable, in writing, and made
within nine months of T's death. Infant must disclaim within nine months
of reaching majority.
c. Can defeat creditors.
d. Of life estate means remainderman takes possession.
19. UNIFORM SIMULTANEOUS DEATH ACT
a. when title to property depends on priority of death and there is insufficient
evidence of who died first each is presumed to have predeceased the other.
b. Example:1 H and W own Blackacre as tenants by the entirety. H and W
die in a traffic accident.2 There is insufficient evidence to show who died
first. W's one half interest passes as though H predeceased W, and H's one
half interest passes as though W predeceased H.
c. 120 hour rule. Unless bene survives T by 120 hours bene is deemed to
have predeceased T.
20. DECEDENT'S DEATH CAUSED BY HEIR OR BENE
a. Bene who intentionally and feloniously causes death of T cannot take.
Interest passes as though bene predeceased.
b. In absence of felony conviction, if bene is shown by preponderance of
evidence to have intentionally killed T, bene cannot take.
21. INTESTACY
a. Dies without a will, will is denied probate, or will does not completely
dispose of property.
b. Intestate Share of Surviving Spouse. UPC
i. If no children or surviving parents of DG, SS takes all.

1
Swiped from BarBri state subjects outline, Wills outline, page 6.
2
I want to die in my sleep, like my grandfather, not screaming in a fiery auto collision, like the passengers
in his car.
 ii. All children of DG are children of SS and SS has no other children
SS takes all.
iii. No children of DG but a surviving parent of DG. SS takes first
200k and 3/4 of remainder. Parent takes rest.
iv. All children of DG are also children of SS and SS has a child not
DG's SS takes first 150k and 1/2 of remainder and children of DG
takes rest.
v. Child of DG is not child of SS, SS takes first 100k and 1/2 of
remainder and child of DG takes rest.
c. No children of DG and no SS parents of DG take.
d. No children of SG, no parents of DG, no SS, descendants of DG parents
by representation.
e. When we get to grandparents I give up.
f. Descendants take per capita at each generational level.
g. If no heirs escheats to state.
h. Adopted child same as natural child.
i. Stepchildren take nothing, unless adoption by estoppel
j. Nonmarital children cannot take in C/L. Modern rule allow inheritance
from mother and from father if father during lifetime acknowledged child
as his.
k. Half bloods treated same as full blood.
l. Intestate share of children and other descendants
i. Per capita with representation at each generational level. I have to
explain it.
22. GROUNDS TO CHALLENGE WILL
a. Must have standing--i.e., will benefit from challenge.
b. Undue influence.
i. Influence exerted on T
ii. effect of influence was to overpowers the mind and free will of the
T
iii. producing a will that would not have been executed but for undue
influence.
iv. Presumption of undue influence
1. confidential relationship
2. beneficiary participated in execution of will
3. unnatural disposition
c. Fraud--must be cause of will disposition
d. Mistake