Wills - Bar Review

  1. Intestate Share of Surviving Spouse

    Surviving spouse inherits entire estate if:
    1. Decedent was not survived by descendants or a parent or

    2. the one-marriage situation: Decedent was survived by descendants all of whom were descendants of surviving spouse AND spouse had no other descendants
  2. Intestate Share of Surviving Spouse:

    Surviving spouse inherits first $100k plus 1/2 of the balance in the divided family situation where:
    1. One or more of decedent's descendants was not a descendant of the surviving spouse, or

    2. All of decedent's descendants are descendants of the surviving spouse, but the spouse has one or more descendants who are not descendants of the decedent.
  3. Intestate  Share of Surviving Spouse:

    1. Spouse inherits first $200k plus 3/4s of the the balance if decedent is not survived by descendants but is survived by a
  4. Other Statutory Rights of Surviving Spouse:

    Family Allowance
    The decedent's personal representative can set allowance of up to $18k during the period of estate administration payable to surviving spouse for benefit of spouse, minor children, dependent adult children. A greater allowance or for a period of greater than one year may be petitioned for more than one year to the probate court.
  5. Other Statutory Rights of Surviving Spouse:

    Exempt personal property of up to $10k.
    May be set aside in favor of surviving spouse or, if no spouse, decedent's children - furniture, furnishings, personal effects, automobiles.
  6. Other Statutory Rights of Surviving Spouse:

    Right to occupy residence for six months
    Spouse may remain in the house of deceased spouse for six months rent-free. Also, right of occupancy of homestead up to $500k in value.
  7. Intestate Inheritance by descendants:
    Given per capita at each generation. Take first initial division of the shares at the first generational level at which there are living takers.
  8. Intestate decedent not survived by spouse or descendents
    All to parents [one-half each] or surviving parent takes all. If not survived by parents or descendants of parents, to "kindred" in nearest degree of kinship.
  9. Intestate Inheritance by adopted children:
    Adopted children have full inheritance rights from the adoptive family, but there must be a final decree of adoption.
  10. Intestate children born out of wedlock:
    Allowed as long as paternity is established under state law.
  11. Intestate inheritance of posthumous children:
    A child conceived and in gestation at decedent's death but born thereafter can inherit as long as the child lives for more than 120 hours. A child conceived by artificial insemination of a married woman can inherit from the woman's husband if he consented to posthumous conception and consented to support any resulting child.
  12. Intestate Inheritance where there is a quick succession of deaths:
    Uniform Simultaneous Death Act Governs
  13. Uniform Simultaneous Death Act
    When title to property depends on order of deaths and there is no sufficient evidence as to which party survived, the property of each passes as though he or she survived.
  14. Massachusett's failure to adopt Uniform Probate Code 120 hour rule
    Rule generally provides that a person must survive by 120 hours to take as an heir.
  15. Affect of a lifetime gift to an heir or will beneficiary:
    No effect in MA. Will not be considered as an advancement unless expressly provided by the will.
  16. Requirements to disclaim an interest:
    1. Must be in writing and signed. (If real property is involved it must be acknowledged before a notary public and an attested copy must be recorded in county where land is located.)

    2. Must be filed with probate court within 9 months after decedent's death.
  17. Non probate assets:
    Interests in property that do not pass under a decedent's will:

    1. Property passing by right of survivorship.

    2. Property passing by contract.

    3. Property held in trust.

    4. Property over which the decedent held a power of appointment.
  18. Requirements for a validly executed will:
    1. Signed by testator, or someone at T's direction and in her conscious presence.

    2. Two attesting witnesses. Must be competent.

    3. Each witness must witness: testator's signing of the will, testator's acknowledgement of her earlier signature, or testator's acknoledgement of the will.
  19. Codicil
    A later amendment or supplement to a will that must be executed with same formalities.
  20. Proof of wills in probate:

    Informal probate
    Used in harmonious situations where there is no likelihood that the will is going to be contested. After giving seven days' written notice to heirs and devisees, an ex parte proceeding is held before the court or magistrate, who admits the will to probate without further proof if the will appears to have been validly executed.
  21. Proof of wills in probate:

    Formal Testacy proceeding
    Formal court hearing after personal notice to interested parties. In a contested case, if the will is not self-proved, the testimony or sworn statement of one attesting witness is required. However, due execution may be proved by "other evidence."
  22. Proof of wills in probate:

    Self-proving affidavit
    Formal, under oath statement by the witnesses that oversaw the signing of the will that serve the same function as a deposition or interrogatory in open court.
  23. Self-interested witness to a will:
    A bequest to an attesting witness or the wirness' spouse is void unless: 1. there were two disinterested attesting witnesses (supernumerary rule) or 2. the interested witness establishes that the bequest was not inserted, and will was not signed, as a result of fraud or undue influence by the witness.

    Witness has the burden of proof under option 2.
  24. Holographic wills in MA:
    MA does not recognize holographic wills. All wills must meet the MA requirements.
  25. Uniform Execution of Foreign Wills Act
    A will executed in another state is admissble to probate in MA if executed in accordance with: MA law, Execution law - law of place where the will was executed, or Domicile law: law of place where the testator was domiciled, either when will was signed or at her death.
  26. Conditional Will
    A will that will be denied because the conditions did not occur. Examine to see if the will should be admitted because the condition was actually simply a motive or inducement for making a will.
  27. Revocation of a will:
    A will can be revoked by:

    1. a subsequent testamentary instrument

    2. by a revocatory act on the will (burning tearing, conceling, obliterating or destroying the will or any part of it) or

    3. by a a subsequent testamentary instrument that revokes a previous will by inconsistency.
  28. Elective Share Statute:

    If Decedent was surved by issue (whether of this marriage or an earlier marriage)
    Spouse takes $25k of personal property out right, plus a life estate in 1/3 of the balance.
  29. Elective Share Statute:

    If Decedent was survived by kindred but not by issue:
    The spouse takes $25k of personal property outright plus, life estate in 1/2 of the balance.
  30. Elective Share Statute:

    How is a life estate in personal property given to a spouse seeking an elective share?
    Given to the spouse in a trust.
  31. Elective Share Statute:

    Decedent is not survived by issue or other living relation:
    Spouse takes $25k of personal property, plus one half of balance outright.
  32. Does a spouse take an elective share in a revocable trust?
    Yes, otherwise, a husband or wife could defeat policy and purpose of elective share protection by transferring the bulk of his or her property to a revocable trust.
  33. Spouse must file for elective share within
    6 months
  34. Can a spouse who dies before elective share is made recover his elective share through a representative?
  35. ABatement rules in satisfying elective share:
    Property devised outright to a spouse by will is first applied, then out of residuary estate
  36. Disqualification from right to elective share if:
    Spouse deserted the decedent or if the couple has been living part for justifiable cause.
  37. Who can contest a will?
    Persons with an economic interest that would be adversely affected by the will's probate. Heirs, and legatees under an earlier will whose interest would be defeated if the most recent will was probated.
  38. Proving lack of testamentary capacity:
    Burden of proof is on contestants to prove:

    1. Understand the nature of the act he was doing

    2. Know the nature and approximate value of his property?

    3. Know the natural objects of his bounty?

    4. Understand the disposition he was making?
  39. Undue influence on Testator:
    Must Show:

    1. Existence and exertion of the influence

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

    3. Product is a will (or gift therein) that would not have been made but for the influence.
  40. Mere opportunity to exert influence, mere susceptibility, mere fact of unnatural disposition.
    Alone, not enough to show undue influence
  41. Gift to fiduciaries
    There is a presumption of undue influence and the burden of proof shifts when a gift is given to a fiduciary.
  42. No contest clause in a will:
    In MA are given full effect, but do not apply to suits against the executor of an estate.
  43. Tortious interference with inheritance rights:
    No cause of action in MA
  44. Statute of limitations for estate claims in MA:
    One year
  45. Sale of estate real property
    Can't be made without court approval unless executor or trustee is given the Power of Sale in the Will
  46. A will's revocatory act:
    Must be performed by the testator with the intent and purpose of revoking the will or part of of it, or performed by another person at testator's direction AND in his conscious presence.
  47. Proving a destroyed will that was not properly revoked:
    1. Proof of due exection (testimony of one attesting witness or "other evidence" of due execution).

    2. Cause of will's nonproduction must be proved and overcome the presumption of revocation

    3. Proof of the will's contents which can be proved by secondary evidence such as a photocopy. Any oral testimony as to will's contents must be "strong, positive, and free from doubt."
  48. Presumptions regarding revocation:
    Where a will is last seen in testator's possession or control, is not found after death, presumption is that testator destroyed it, revoking by physical act.

    Where a will, last seen is found mutilated after testator's death: presumption is that testator did the mutilating
  49. Where T executes two wills, both marked as his "last will":
    Revoke the first only as the the inconsistent provisions. But if the first will is wholly inconsistent, than it is revoked by implication.
  50. In MA a revoked will is not relived unless:
    The will is still in existence AND there is evidence from the circumstances or testator's contemporary or subsequent statements that testator intended to revive the earlier will.
  51. Dependent Relative Revocation (DRR)
    DRR permits a revocation to be disregarded when the act of revocation was premised upon, conditioned upon, dependent upon, a mistake of law or fact as to the validity of another disposition.
  52. DRR should not be applied unless:
    the distribution that results from disregarding the revocation comes closer to doing what the testator tried (but failed) to do than an intestate distribution.
  53. Partial revocations by physical act on the face of a will:
    Are valid in MA.
  54. Words added to a will after it has been signed and witnessed:
    Are disregarded, not part of the duly executed will. Only words present when signed are allowed.
  55. When a will beneficiary predeceases the testator, the gift:
    Lapses unless the gift is saved by the state's anti-lapse statute.
  56. The MA Massachusetts anti-lapse statute applies if the predeceasing beneficiary was:
    a grandparent or a descendant of a grandparent of the testator.
  57. If a residuary estate in MA is devised to two or more persons and gift to one of them lapses or fails for any other reason:
    the surviving residuary beneficiaries take the entire residuary estate, in proportion to their interests in the residue.
  58. Class gift rule of construction: in a gift by a will to a class of persons, if a class member predeceases the testator:
    all class member who survive testator take
  59. Rule of Convenience:
    Class is closed, meaning later-born members do not share in gift, when some class member is entitled to a distribution.
  60. MA anti-laps statute also applies:
    to non-probate transfers such as life insurance policies and revocable trusts. The statute also applies to certain future interests in trusts.
  61. Omitted spouse statute:
    Applies when the testator marries after his last will is executed.

    Omitted spouse takes an intestate of share of the estate other than property left to children born before the marriage.
  62. Exceptions to the omitted Spouse Statute
    It appears from the will that the will was written in contemplation of marriage; the will states that it is to be effective notwithstanding subsequent marriage; or the major exception, provision was made for the spouse by transfers outside the will and it is shown that the transfers were intended as in lieu of testamentary gifts by testator's declarations, by amount of the transfer, or other evidence.
  63. Republication by codicil:
    The will is deemed to have been executed on the date of the last codicil thereto.
  64. What happens if T is divorced after the will is executed?
    Final decree of divorce or annulment reovkes all gifts and fiduciary appointments in favor of former spouse and relatives of the former spouse who are not relatives of the testator. Estate is distributed and fiduciaries are named as though former spouse and her relatives predeceased the testator.
  65. Omitted child statute:
    Applies only to children born or adopted after the will's execution.

    1. Omitted child (born or adopted after the will was executed) takes intestate share, unless the will devised substantially all of the estate to to the parent of the omitted child.
  66. The Omitted Child Statute does not apply when:
    It appears from the will that the omission was intentional or provision was made for the child by transfers outside of the will and it is shown that the transfers were intended as in lieu of testamentary gifts.
  67. Abatement of legacies to pay claims:
    Debts and expenses are first paid out of:

    1. Intestate property

    2. Residuary assets

    3. Then general assets

    4. Specific bequests.
  68. What happens when specifically bequeathed property is not in the estate at death?
    Where a will makes a specific gift of property, and the property is now owned by the testator at death, ademption applies and the beneficiary takes nothing.
  69. Exoneration of liens doctrine in MA:
    No exoneration of liens unless the will directs exoneration.
  70. Incorporation by reference doctrine:
    An extrinsic document, not present when the will was executed can be incorporated by reference into the will If:

    1. Writing was in existence when the will was executed.

    2. Will manifests an intent to incorporate the writing.

    3. Will must describe the wiring sufficiently to permit its identification.
  71. Statutory Exception to the incorporation by reference rule:
    WIll may refer to writeen statement or list that disposes of ONLY TANGIBLE PROPERTY other than money not specifically disposed of by the will.

    The list must be in the testator's handwriting or signed by the testator at the end.
  72. Plain meaning rule:

    Absent suspicious circumstances, it is conclusively presumed that:
    there be no ambiguity, extrinsic evidence is not admissible to overturn the words of the will.
  73. Latent ambiguities in a will:
    Can use extrinsic evidence to determine the meaning of the language.
  74. Patent ambiguity (appears on the face of the will):
    Extrinsic evidence would likely be admissible.
  75. Blanks in a will:
    Cannot use extrinsic evidence to prove what should go in the blank. No ambiguity to to interpret.
  76. Duties of attorney in drafting a will:
    Duty owed to the intended beneficiaries but not to the
  77. Duties of attorney to beneficiaries of a trust:
    Duty is to the executor or trustee who retained the attorney, not the beneficiaries because there is a natural conflict of interest between the trustee and the beneficiaries of a trust.
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