Wills

• Total: No will
• Partial: Will doesn't dispose of all property
• NB: Always include residuary clause

Mechanical

Relatives who share your blood but are not your ancestors.

• Parents, Grandparents, etc. = Ancestors;
• Siblings, Cousins = Collaterals

• ≥1 Surviving Descendant:
• All Marital Children:
• SS gets DS's 50% (100%)
• ≥1 Non-Marital Children:
• SS keeps her 50% (50%);
• Children divide equally

• No surviving descendants:
• SS gets DS's 50% (100%)

• Personal Property:
• ≥1 Surviving Descendant:
• SS = 1/3
• Children = 2/3
• No Surviving Descendant:
• SS = 100%

• Real Property:
• ≥1 Surviving Descendant:
• SS = 1/3 (LE)
• Children = 2/3 (Remainder in LE)
• No Surviving Descendants:
• SS = 1/2
• Parents and their issue = 1/2

• ≥1 descendant:
• 100% to descendants
• 2 parents:
• 50/50 each
• 1 parent:
• 50% Surviving Parent
• 50% Their Children (if none, then to parent)
• No parents:
• 100% to parents' children (bros and sisters)
• No parents, siblings, etc.
• 100% to grandparents and their children
• Etc.

Divide at first generation, even if no survivors

Divide equally at first generation with surviving individual.

Each surviving member at each generation gets the same share

Abolished––all prop. is treated as though it was always individual's property

When an individual has no surviving relatives, his property goes to the state

No.

Treated as full-blooded heirs. Irrelevant.

• Children: May inherit from adopted and bio-parents.
• Adults: Can't inherit from or through bio-parents.

Person who puts himself out as a child's parent or makes promises as to create a K equitably adopts.

Man doesn't claim paternity, but acts like child's parent, he may equitably adopt

Step-parents and parents should adopt their children

• Mom:
• Pretty easy to tell if child is her issue

• Dad:
• Child must show paternity (born during marriage, born w/in 300 days of divorce, first 2 years of child's life, you hold them out as your own, etc.)
• Ct. decree of paternity
• Adoption
• Father executes paternity statement
• Post-death determination of paternity (clear and conv.)
• ART Statutes

Doesn't apply

Treated as issue of value marriage

May establish inheritance rights through a statute

No disc. based on marital status.

• Mom:
• Is mom

• Dad:
• Provides sperm
• Consents in writing w/ woman
• Both openly treat child as their own

NB: If mom is married, child may have no father

Ex-spouse whose material is used w/o consent is not a parent.

Deceased spouse whose material is used w/o consent is not a parent.

• Mother=intended mother (not birth mom)
• Father=intended mother's husband, regardless of sperm donor

NB: Single person can't enter gestational agreement

Unpermitted by Tex. Const.

CP goes to murdering spouse, but ct. makes constructive trust which forces it to go to descendants

Prevents unjust enrichment

Ct.'s discretion to prevent bad parent from inheriting from child

• 1) Ct. order
• 2) Deceased child under 18
• 3) Evil act by clearn and conv. ev. (abandonment, abandoning mom, parent resp. for death of 'a' child)

Result: Bad parent is seen as dying first

• 1) pending at time of death
• 2) void if: (decedent married w/in 3 mos of death, intersted person files voiding app., ground = lack of capacity at marriage

Result: Survivor is not SS of DS

• One who dies w/in 120 hours of decedent is considered to have pre-deceased
• No common disaster requirement
• Will not be applied if causes escheat
• If survival is ambiguous, presume they didn't
• Spouses are considered as predeceasing each other

Prepayment of inheritance; must be accounted for at death of testator

• 1) declare it an advancement in contemporaneous writing;
• 2) post-facto acceptance by advancee

Disavowing ownership of devised property

• 1) disclaimer doc (written and notarized)
• 2) prop. filed (<9 mos. from death in ct. where probated)
• 3) notice rep. by personal svc. or cert. mail

No.

Yes.

Can't do it.

As though disclaimer predeceased

No.

You can convey what you expect to inherit. Not binding on heirs! It's a gamble for the purchaser.

You can assign your prop. to someone immediately after death of testator, even if probate is not complete

Real prop. being sold, but before closing, can be converted to personalty and distributed as such (as personal, not real, property)

If you're dead long enough and no will is produced, intestacy is presumed

Does not matter

No shorter time exists.

• Lineals can inherit (child or grandchild)
• Collaterals may not
• Posthumous ART children––some have time after which child can't get estate

• Marital Rights
• Law of spouse's domicile at time of acquisition

• Succession Rights
• Personal prop = domicile at death
• Real prop = situs of prop

Interfering with an heir getting his inheritance may be liable for the loss of that inheritance

Allowed

NB: Has no effect on intestate distribution

Not in Texas. Must follow the rules.

• 1) Legal Capacity
• 2) Testamentary Capacity
• 3) Testamentary Intent
• 4) Appropriate Formalities

• 18 y/o;
• Married;
• Armed forces at time of execution

• 1) Understand what you're doing
• 2) Comprehend the effect of what you're doing
• 3) Know general nature and extent of property
• 4) Know who your heirs would be
• 5) Concurrence of these factors

NB: Low std., lower than capacity to K

Guardianship

• Lay testimony
• Expert testimony
• Ev. R. 704
• VERY broad. Anything wierd you've ever done in your life may be subject.

Intend that the instrument you're using is to devise your property after death

NB: It is not necessary that you know you're making a will, just upon your intention to create a revocable disposition of your property to take effect after your death

Not effective will.

Ex: Undue influence or compulsion, ceremonial participation, and jest

• If it looks like a will: ex. ev. allowed
• If it doesn't: ex. ev. is not allowed

NB: Extrinsic ev. is allowed to show intent

• 1) In writing (doesn't matter in what)
• 2) Signed by testator
• 3) Attestation of witnesses

NB: Holographic only needs the first two

None, so long as he makes a distinguishable mark.

Doesn't matter where he signs it.

• 1) By testator's direction;
• 2) In testator's presence

NB: No disability/uneduc. requirement

• 1) Two
• 2) Above 14 y/o
• 3) Credible to testify in court
• 4) W/capacity at time of attestation

• NB: SPA helps reduce likelihood of testifying in court.
• NB: Knowledge you're witnessing a will is not necessary; knowledge only necessary for SPAs.

• 1) Time: Contemporaneous w/ will exec. (can be attested before T signs, so long as its close in time)
• 2) No marks
• 3) No proxies

NB: Case law is not clear if *subscription* is necessary, so long as it's signed

In T's presence. Presence is "conscious presence"––unless blind, T must be able to see T.

NB: If blind, T must be reasonably able to see witness if he had sight

NB: Strict––no other-room attestations

• Other state requirements:
• Witnesses attest in each other's presence
• T signs in front of witnesses

No effect on will, but effect on gift

Void, unless exception applies (B is an heir)

If B Witness is an heir, he gets the lesser of intestate share or devise.

Will is otherwise established (e.g., another disinterested witness)

Corroboration by a disinterested and credible person

Don't do it. Doesn't invalidate will, but should be avoided.

Nearly universal; substitutes for in-court testimony

Does not strengthen will, just makes it easier to fight contests

One-step process––inside the will; witnesses signatures are sworn by notary

• 1) Familiar w/ T
• 2) Supernumerary are good for likely contested wills
• 3) Healthy
• 4) Traceable
• 5) Impress juries

SHIFT

Complicated and probably not as important as other things. Review day before test.

• 1) In handwriting of T
• 2) Signed (can't have adopted sig)

• NB:
• Intent jx.––were non-holographic parts intended to be part of will?
• Surplusage jx.––non-holographic parts are viewed as surplus (do the written parts stand alone?)
• Material provision jx.––if material provisions are holographic, it's sufficient

Can have them attached. A little silly, though.

Anywhere, so long as it's intended to be a signature (e.g., not a trust named after you).

• Emergency situations
• Situations where privacy is key
• Interim wills while waiting for official will to be drawn up

Oral. Not allowed after Sept. 1, 2007.

Executed to federal standards. Makes it easier on JAGs.

Ascertainable at time of will execution.

E.g., my 1998 Tahoe, VIN XXXXXXXXXXX

Not ascertainable until time of death.

E.g., I leave my car to X.

Not sufficiently described to be specific.

E.g., legacy

Legacy out of a payable fund

E.g., $1,000 out of my Frost Bank Acct.

Gift to avoid intestacy OR main gift

• 1) Capacity
• 2) Intent
• 3) Physical Act

• 1) Ademption
• 2) Divorce
• 3) Lapse
• 4) Failure to outlive by 120 hours
• 5) PC
• 6) Voidable marriage
• 7) Murder (constructive trust)

• 1) Physical act (tearing will, thick line through signature, burning)
• 2) Subsequent writing ("I revoke all prior wills and codicils)

NB: Intent w/o destruction is not enough.

• Applicant must prove will was not destroyed
• BUT, there is a presumption of non-revocation

NB: If T possesses will at time of death and it can't be produced, revocation is assumed

• 1) Cause of Non-production;
• 2) Ct. satisfied original couldn't be found thru reasonable diligence;
• 3) Prove the content of the will by person who:
• - Read the will
• - Heard contents of the will read aloud
• - Can ID a copy of the will

• Approaches:
• 1) Effective to revoke a gift;
• 2) No effect on gift [Tex.] (Unless revocation is a stand alone statement––words have meanings, crossing through someone's name doesn't make a statement)

• Types:
• 1) New will
• 2) Codicil
• 3) Declaration in writing w/ will formalities
• Methods:
• 1) Express (include execution date to make later revocations easier)
• 2) Revocation by inconsistency––e.g., two inconsistent wills w/ no dates, can't tell which is valid

• Must re-execute and re-publish
• If a will is properly executed and revokes all prior wills, prior wills don't take effect unless re-published.

• Kinds:
• 1) Express (only effective upon some condition precedent or subsequent)
• 2) Implied (Dependant Relative Revocation) (two wills, revokes first, second is invalid––if two wills are similar, follow the first one rather than send through intestacy; if very diff., follow intestate route)

• Methods:
• 1) Codicil
• 2) Re-execute prior will

• Don't do it.
• Presumptions:
• 1) If cannot locate all originals, T destroyed one w/ intent to revoke all; OR
• 2) T got wise and only wanted one version of the will

Determine T's actual intent from will or permitted ev.

Determine T's presumed intent from will or external ev.

• 1) Personal rep (to escape liability)
• 2) Beneficiaries and heirs (want more)

• 1) If residual clause is present, presumption of no intestacy
• 2) If contradictory provisions, take later one
• 3) If two ways to interpret and one gives disparate amts, go w/ the non-disparate way
• 4) Read will as a whole, in its entirety

• Patent
• Latent
• No apparent ambiguity

Fibrulous brok deem quan nibulous brok.

Language has a clear meaning, but outside fact creates need for interpretation (any material fact which may give meaning is allowed)

e.g., I leave my 1974 Toyota Truck to X. You have a 1974 Ford Mustang and a 2008 Toyota Truck.

Ex. ev. not allowed to "clear" this up––"settled legal meaning" rule does not allow for ex. ev. when terms used have a settle legal meaning.

• 1) Ct. decides if it's ambiguous
• 2) Ct. decides meaning if it's unambiguous
• 3) Fact finder decides facts to clear up ambiguities

• 1) External (diff. docs make up will)
• 2) Internal (will is a unified instrument)

• Treat written material of will as not part of will
• Requirements:
• 1) T must intend incorporation;
• 2) Incorp'ed writing must be extant at execution;
• 3) Incorp'ed writing must be reasonably ID'ed;

NB: Instrument not fully integrated into will must be described so as to preclude all possibilities of mistake

Both

Will only

Both. Codicil incorporated the will

Probate codicil only because, if merged, will wouldn't be holo. anymore.

Both

Something with a legal purpose other than to dispose of property at death.

• Can you look outside the four corners of a will at death to determine distribution?
• 1) If something is a FOIS, yes (its legal purpose is something other than to dispose of property at death. E.g., a trust)
• 2) If something is not a FOIS, no. (its legal purpose is only to dispose of prop. at death. E.g., the letter in my desk that tells people what they get)
• NB: Class members can be ID'ed using ex. ev. (e.g., I leave to my co-workers) and to resolve ambiguities

• Property goes into inter vivos trust
• (It's easier to change a trust than a will; off public record; can put $ in someone else's trust)

• 1) T's trust (even if not extant at execution)
• 2) Others' trust (even if not extant at execution)
• 3) Trust not in existance, so long as in writing and ID'ed in will.

Current terms––even if made after T's death

• Presumption: No
• Remedy: Expressly include terms in the will

• 1) On beneficiary? Not binding
• 2) On personal rep? Probably binding

People in a certain group take originally, equally, and absolutely.

• 1) Express language in will;
• 2) Earlier of: natural closing of class (no more kids when dead) or when 1st class mem. entitled to prop.

NB: Adopted children are generally included, even if adopted as adult

Re: Words of T as ev. in will litigation TRE 601(b)

• 1) Only applies to party of lawsuit;
• 2) Only applies if axn is by or against a personal rep (not party against party)
• 3) Only oral statements are allowed;
• 4) Exceptions: If corroborated; or called by opposite party to testify

Person who would benefit under prior will or intestacy.

Any interested person under §3(r) (heirs, devisees, spouse, creditors, etc.)

Beneficiary institutions of higher ed. or charities

Jury trial available

• 1) No fraud: 2 years
• 2) Fraud: 2 years from discovery of fraud
• 3) Tolled if: minor, incompetant (get guardian to avoid this)

Ct. appointee who oversees the property while it's in dispute.

• Lack of Capacity
• Lack of Testamentary Intent
• Failure to Satisfy Formalities
• Insane Delusion
• Undue Influence
• Duress
• Fraud
• Mistake

1) T believes a state of facts that do not exist and no reasonable person would believe

NB: There must be a nexus between devise and delusion

• Elements:
• 1) Influence exists and is exerted;
• 2) Subverted T's mind; and
• 3) Causation (T wouldn't have made the will but for the influence)

• Prove thru:
• 1) Direct and circum. ev.
• 2) Relationship
• 3) Susceptiblity/ability to resist
• 4) B connected w/ will prep or execution

• BoP:
• On contesting party to show U.I. (can't show person could have exerted influence, must show he did)

• 1) Limits gifts to charities under certain circumstances (e.g., churches telling people they'll go to Heaven if they donate)
• 2) Usu. held unconst.
• 3) Tex. doesn't have one––must attack gifts to charities on regular UI

Gift void (also to supervising attorney, parent, descendant, employees, and spous of attorney or supervising attorney)

• Exceptions: B is T's spouse, ancestor, related w/in 3d°, bona fide purchaser
• Impact on Law License: Can't take a substantial gift from client––but what's substantial?

Same as undue influence, but physical

• Elements:
• 1) False rep to T;
• 2) Misrep. was known to be false;
• 3) Misrep. was reasonably believed by T;
• 4) Misrep. caused T to execute will he wouldn't have w/o the fraud

• 1) Fraud in factum (T deceived as to contents of will)
• 2) Fraud in inducement (T deceived as to ex. facts and made will based on those facts)

• 1) Mistake in factum (T didn't know he was signing a will, but not because of evil conduct) (No intent)
• 2) Mistake in inducement (T incorrect about ex. fact and makes will based on that fact) (NO REMEDY!)

Most common remedy. Will is not probated.

Creature of equity. Prop. goes in a trust for the benefit of the rest of the family.

"If you contest this will, you're disinherited."

• In terrorum provisions
• Explain reasons for gifts
• Avoid bitter/hateful language
• Holographic wills
• Enhance will execution ceremony
• Video recording of ceremony
• Good witnesses
• Documentation of transaction via writings
• Other ev. to document T's axns
• Preserve prior wills
• Reexecute same will on regular basis
• Suggest testator make more traditional gift
• Make gift to disinherited-heir-apparent at execution (harder to say he lacked capacity)
• Recommend alternative estate planning techniques
• Ante-mortem probate
• Family settlement agreements

Only take effect upon the happening of a certain contingency

• Presumption:
• 1) Will is general, no conditions
• 2) Events presumed to be inducements (reasons you make will), not conditions precedent

Spec. gifts depend upon a contingency

• 1) Statements of use (precatory language, not conditions)
• 2) Illegal or against public policy or purpose (ineffective)
• 3) Personal habits (often upheld)
• 4) Marriage (depends on facts; e.g., marrying someone of the wrong religion)

• 1) Joint wills: Rare. Single doc w/ will of two or more people
• 2) Reciprocal wills: Two docs with parallel disp. (husband and wife)
• 3) Contractual wills: See contractual wills card

Will executed (or not revoked) pursuant to a valid K to dispose of/not dispose of prop. in a particular manner

• Remedy for Breach:
• Constructive trust
• Evidence:
• Four corners only––no ex. ev.
• Revocability:
• While alive, generally easily revoked, when no one dies, irrevocable (though will is still revocable, only K is irrevocable)

If you accept a benefit under a will, you must accept all terms

e.g., "I leave my house to Bill Sanders. I leave the rest of my estate to my wife." Wife has to give up her CP in house to get the rest of the estate.

Election only exists if will is open to no other construction; BoP is on person trying to show election exists

Health and Safety Code §711.309––Must make spec. mention of plot in will––if not specified, SS automatically gets one plot and rest of plots pass to heirs

A gifted item not in the estate; void.

• 1) Specific gift adeems;
• 2) When prop. is voluntarily partitioned, you get T's part
• 3) Pro tanto––gift still valid, you only get what T owns (T leaves 100 acres, sold 25, you get 75)

Easily adeemed

Remember Sept. 1, 2003!

• Proven by:
• 1) Express statement in will;
• 2) T's contemporaneous writing;
• 3) Post-facto acknowledgement by advancee

T gives B land, B sells it, T buys it back and still has B getting land in his will. Does he get it back?

Unless the requirements of ademption by satisfaction are met, yes.

Ademption by Satisfaction Changed

Exoneration no longer presumed

Paying the debts of devises through the residuary. Problematic.

100K house and 100K cash problem

Important: Can't exonerate debts on a spec. gift w/ another unless will provides for it (paid off house and ranch w/ lien––you get house free and clear and ranch w/ mortgage)

None.

Change of form rather than substance

• Automatically get the following:
• 1) Stocks from a stock split, dividend, redemption, etc.
• 2) Another org's stocks due to merger

• Do not get:
• 1) Newly purchased stocks thru market or purchase options;
• 2) Acquired thru cash dividend reinvestment plan

Based on accrual date, not when paid or rec'd

Begins running at jgmt rate one year from death

Testator dies w/o enough property to cover debts and gifts

• 1) Intestate prop.
• 2) Residuary (personal then real)
• 3) General (personal then real)
• 4) Specific (personal then real)

• NB: Within a gp., abatement is pro rata (all lose the same)
• NB: T can specify diff. order

• Presumed.
• Covers probate and non-probate assets
• NB: Can provide otherwise in will

None

Divorced spouse is seen as predeceasing T

• 1) Ex-spouse is no longer B
• 2) Ex-spouse's relatives are no longer B (adopt step-child to prevent)
• 3) Ex-spouse is no longer fiduciary (guardian, executor, etc.)

Children born or adopted after will execution.

• NB:Doesn't know they have to exist
• NB: Creates forced share

• 1) T provides for PC in will ("Residuary to Children")
• 2) T provides for PC in non-probate asset (e.g., trust)
• 3) T mentioned PC in will

• If no gifts to children:
• 1) Determine amt. not going to PCs other parent;
• 2) Give PC share of this amt. as though T died intestate w/ no SS

• If gifts to children:
• 1) Determine amt of estate going to children;
• 2) Divide by # of children and PC;
• 3) PC gets that

NB: Non-PC's shares are reduced

B predeceased T

• 1) Under express terms of will
• 2) Saved by legal rule (anti-lapse statute; cy pres doctrine)
• 3) Via residuary clause
• 4) Via intestacy

Saves gifts for descendants of predeceasing B

• 1) B predeceased T
• 2) B has descendants
• 3) B is a descendant of T or T's parents
• 4) Gift passes to B's descendants (per cap. w/ rep)

Provide alternative gifts in will

Fact Pattern: "I leave $X to A, B, and C." (anti-lapse doesn't apply). A predeceases T.

• 1) Orthodox: 1/3 passes through intestacy
• 2) Modern: Survivorship clause read in and B and C split

Don't do it

Saves lapsed charitable gifts

• Element:
• 1) T must have charitable intent;
• 2) Find similar charity to give prop. to

• Requirements:
• 1) Intent
• 2) Capacity
• 3) Physical Act

• 1) Subsequent writing
• 2) Physical act (burning, dark line thru sig, tearing)

NB: Intent w/o destruction is not enough

• 1) Ademption
• 2) Divorce
• 3) PCs
• 4) Predeceasing
• 5) Lapse
• 6) Voidable marriage
• 7) Murder

• Applicant must prove will not destroyed
• BUT, presumption of non-revocation

NB: If T has will in possession at time of death and it's not produced, presumption of revocation

• Necessary:
• 1) Cause of non-production
• 2) Ct. satisfied that will can't be found through reasonable efforts
• 3) Prove content of the will (someone who read it, heard it, or can ID a copy)