Wills and Trust - Wills

NC presumes sanity. It is a rebuttable presumption

• An adult (above 18) and
• Capable of knowing and understanding in a general way

• The nature and extent of his property,
• The natural objects of his bounty (family), and
• The disposition that he is making of that property

He must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property.

a decided and rational desire as to the disposition of their property

A delusion is a false conception of reality. An insane delusion is a belief not susceptible to correction by presenting the testator with evidence indicating the falsity of the belief. The testator believes the delusion against all evidence and reason to the contrary.

A party asserting that a testator was suffering from an insane delusion must meet the burden of showing that the testator suffered from such delusion.

Must show that the testator labored under an insane delusion, and the will (or some part thereof) was a product of the insane delusion.

To invalidate the will, the delusion must have NO foundation in fact AND must be the product of the testator's diseased or deranged mind. It must also be shown that the insane delusion was actually operative in the production of the will.

ID - a false belief not susceptible tocorrection by presenting the testator with evidence that the belief is false (remedy - nullifying the will provision- is provided)

Mistake - a false belief that is susceptible to correction if the testator is presented with true facts. (Under traditional rules, no remedy is provided for mistakes - the mistaken will provision stands)

When the influence exerted over the donor overcomes the donor's free will and causes the donor to make a donative transfer that the donor would not have otherwise made. If the person who benefited from the will also participated in its preparation, an undue influence claim is likely.

Confidential relationship + Suspicious Circumstances

A person who is subject to influence

Opportunity to exert influence (time, access)

Disposition to exert influence (subjective intent of wrongdoer)

A result indicating undue influence




 

Occurs where the testator is deceived by a deliberate misrepresentation and does that which he would not have done had the misrepresentation not been made. It is usually said that the misrepresentation must be made with both the intent to deceive the testator and the purpose of influencing the testamentary disposition.

Involves fooling the testator into making or changing will provisions

Occurs when a misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoers' favor.

Involves getting the testator to sign the wrong document

Occurs when a person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testators intent.

A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise had made.

The performance of a ceremony for the purpose of impressing on the transferor the significance of the act

Supply satisfactory evidence to the court that this is in fact the testator's will

Safeguarding the testator from imposition

Standardization of form simplifies administration

Strictly

Writing, signature by the testator, and attestation by at least two witnesses

The requirement that the will be signed "at the foot or end^"

To provide evidence of finality and to distinguish the will from notes or drafts

NO, but if he does not, he must acknowledge his signature either by acts or conduct

The attesting witnesses must sign the will in the presence of the testator but they don’t have to sign in the presence of each other.

Whether the testator is capable of seeing the witnesses in the act of signing. You don’t have to see them, but must be able to see them were you to look (NC Rule)

If the witnesses are so near at hand that they are within the range of any of the testator's senses, so that he knows what is going on, the requirement is met, and the will is NOT invalidated because the testator did not see the witness sign

Thestatute allows a will attested by an interested witness to be  admitted to probate and be considered valid, but voids (purges) any bequest/transfers to the interested witness.

Not required for valid execution.

They are phrased from the witnesses' point of view attesting the elements of the local statute have been followed. The clause recites that the will was duly executed and gives rise to a presumption of due execution 

It facilitates probate by providing "prima facie evidence" that the testator voluntarily signed the will in the presence of the witness.

Not required for valid execution

The testator also signs the affidavit, and (2) the affidavit is notarized. Typed at the end of the will, swearing before a notary public that the will was duly executed. The purpose of it is to prove that all of the requirements of due execution have been complied with, which permits the will to be probated.

Not used in NC bc NC follows the rule of strict compliance with the statute of wills.

The court may deem a defectively executed will as being in accord with the statutory formalities if there is clear and convincing evidence that the defective execution nonetheless fulfills the purposes of those formalities 

Not used in NC bc NC follows the rule of strict compliance with the statute of wills

The court may excuse noncompliance with statutory formalities if there is clear and convincing evidence that the decedent intended the document to be his will

NC permits typed words not affecting the meaning of the handwritten words - handwritten words being sufficient to constitute a holographic will (if you take away the printed words, leaving just handwritten text, does the handwriting alone suffice to be deemed a holographic will). See 31-3.4

Yes

If it is signed according to NC statute even though he didn’t put his signature at the end. All that is required is that the testator wrote his name on the will, it doesn’t necessarily have to be at the end. It could be anywhere on the face of the document

A testamentary instrument (i.e. a will) that amends a prior will but does not replace it

subsequent writing, physical act, operation of law

NO, no will or any part thereof that has been revoked can be revived otherwise than by a re-execution thereof, or by the execution of another will in which the revoked will or part thereof is incorporated by reference

 A doctrine for undoing mistakes. Undoes the LAST revocation

Yes, A will that is lost, or destroyed without the intent to revoke, can be admitted into probate if its contents are proved. Proof is often made by a copy of the will or by other clear and convincing evidence

If the intention is to revoke both documents, destroying the will is usually sufficient. If he intention is unclear, the codicil may remain valid IF it can sensibly stand alone, but it will fail if it needs the wills support. Tearing up the codicil normally leaves the will in place.

It is presumed to be revoked, but this presumption can be overcome.

All papers present at the time of execution, intended to be part of the will, are integrated into the will

A will is treated as re-executed as of the date of the codicil. The will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator's intent.

A codicil can only republish a will that was executed validly in the first place

A writing in existence when a will is executed, language of the will that manifests the intent to incorporate, the will describes the writing/document sufficiently to permit its identification.

Ambiquity apparent from the face of the document.

No 

Language, though clear on its face, is susceptible to more than one meaning, when applied to the facts

Yes 

No

Equivocation - When a will clearly describes a person or thing, and two or more persons or things fit the description exactly. Extrinsic evidence, including a direct expression of the testator's intent, is admissible. 

Where no one person or thing exactly meets the description in the will, but two or more persons or things partially fit. In such cases, since extrinsic evidence was consulted to expose the ambiguity, extrinsic evidence can be consulted to resolve it.

 

1. The court can ignore certain details making the ambiguity latent. Since the ambiguity is now latent, extrinsic evidence can be admitted to figure out what the testators intent was.

2.Falsa demonstratio non nocet (mere erroneous description does not vitate). Where there are several particulars in the description, the less essential particulars may be dropped provided the rest of the description fits clearly

Reformation - adding to the will

interest fails

the interest lapses

it goes to the residuary

a general devise payable from a specific source

It lapsed because the residuary beneficiary has already predeceased. The devise is passed by intestacy and the heirs of the testator take it.

Anti-lapse statutes does not undo the lapse, it only substitutes the beneficiaries by presuming intent. 

The predeceased either has to be a grandparent of the testator OR a descendant of a grandparent of the testator

default

the testator indicates a contrary intention 

when the devised property is no longer is the testator's estate at death

Act equivolent to revocation by physical act. The devisee does not take the property under the identity theory but can possibliy take if  the intent theory is followed

General devises

Whether the testator still intends to give the divisee the full general devise OR whether he intended the inter-vivos transfer to be in satisfaction of the general devise

There is a rebuttable presumption that the gift is in satisfaction of the devise made by the will

This is opposite of advancement in intestacy where the presumption is a gift and not an advancement unless otherwise shown

NO, the devisee takes subject to the encumbrance

When the estate has insufficient assets to pay debts as well as all the devises. 

Some of the devise's are reduced 

NO

Trust created during the lifetime of the settlor

A will that designates a trust as one of its beneficiaries. The effect is to pour probate assets into the trust

If the trust document was in existence at the time the will was executed.

An agency relationship whereby the agent, called an attorney-in-fact is given a written authorization to act on behalf of the principal. A simple power of attorney terminates the agent's authority when the principal becomes incapacitated.

A durable power of attorney continues throughout the incapacity of the principal and ends when the principal dies

seperate

• Husband and wife own separately all property each acquires, except those items one spouse has agreed to put into joint ownership with the other. Separate property
• includes property acquired before marriage and property acquired during marriage by gift or inheritance. There is no automatic sharing of earnings.

Husband and wife own all acquisitions from earnings after marriage in equal, 1/2 undivided shares, unless spouses agree to separate ownership.  Either spouse can dispose of his or her half of the community assets at death. The surviving spouse owns the other half, which is not, subject to testamentary disposition by the deceased spouse. The one half of the community property belonging to the deceased spouse may be devised to whomever the decedent pleases, the same as separate property.