108 terms

wills flashcards

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Probate:
refers to ct proceeding in which 1) it is judicially determined that decedent left a validly executed will (OR died w/o will and intestate heirs are determined) and 2) personal rep (executor in will administrator if appointed by ct) is appointed to administer decedents estate. Letters testamentary (executor) OR letters of administration (administrator) are issued by the ct, showing personal rep's authority to represent estate in dealing w/ 3rd parties
Testator:
person who makes will
Heirs:
take by intestate succession.
Beneficiaries:
take under will
Residuary estate:
remains after debts, taxes, admin expenses paid, and all specific gifts and cash legacies made by will satisfied.
Codicil:
later amendment or supplement to will. MUST be executed w/ same formalities
Requirements for validly executed will:
**NOTE: codicil must be executed w/ same formalities. 1) Testamentary capacity: must be 18 or older and of sound mind. Also need testamentary intent. 2) Signed by testator: any mark intended as signature ok. OR proxy signature. 3) 2 attesting witnesses they are ATTESTING to T's signature SO Have to sign in CONTEMPORANEOUS TRANSACTION w/ T (not 3 days later).
Each W MUST sign in T's presence:
don't have to be in each other's presence. .IN ILLINOIS: this means LINE OF SIGHT (and conscious presence). Does not have to see W's sign but must be w/in uninterrupted scope of T's vision when sign UPC and majority conscious presence test. not necessary that testator see, if in presence and T is conscious. OK
Not required in IL:
1) T sign and foot or end of will; 2) W's know they are witnessing a will; 3) W's sign in each other's presence
Attorney Liability:
In ILLINOIS: PRIVITY is rejected as a defense. SO duty also runs to intended beneficiaries of attorney's services. CoA b/c privity rejected. Minority rule: NO privity of K. SO only client can sue (privity of K NOT rejected as defense)
what happens when Beneficiary is Attesting Witness: (note: several states have abolished this)
Validity of will: NEVER AFFECTS validity of will. but beneficiary interest VOID
Beneficiary interest when also attesting W:
VOID beneficiary- W (AND BENEFICIARIES SPOUSE under IL law- not true in most states) loses legacy (called a purging statute). UNLESS. 1) 3 Ws (2 other disinterested). SUPERNUMERARY RULE. 2) WHICHEVER IS LEAST RULE:
whichever is least rule
W-beneficiary would take a share of estate if will were NOT admitted to probate. In that case, takes lesser of bequest in will OR intestate share (or legacy under earlier will revoked by this one)
Executor that witnesses will:
Illinois: NOT entitled to compensation under IL interested W statute. Does not apply if bank is executor and bank employee is attesting W. ALSO, if attorney signs as W. Attorney and law firm not disqualified from compensation. Majority: YES entitled to compensation
Holographic Wills:
Handwritten and SIGNED but UNWITNESSED wills
holographic wills in Illinois:
does NOT recognize holographic wills (remember wills can be handwritten, just need 2 witnesses). *BUT holographic will written in state that recognizes holographic is admissible to probate in Illinois* Majority: about 30 do recognize holographic wills (and holographic codicils)
Conditional Wills:
one that provides that it is to be operative only if a stated condition is satisfied. Parol evidence may not be admitted. Argue both ways: if CONDITIONAL WILL probate should be denied b/c condition did not occur (i.e. dying on trip). BUT if, i.e., dangerous trip, was merely MOTIVE OR INDUCEMENT for MAKING A WILL, then OK
What does it take to revoke?
Mere intent? NOT ENOUGH. Can only be revoked by: 1) Later testamentary instrument. Executed with proper formalities** 2) Physical act (burning, tearing, canceling, obliterating, other act of destruction)
Examples of revocation
1) Writes at bottom of each page "this will is void and signs" in Illinois: NOT OK (not 2 Ws- not new will). Also, not a physical act. Have to write VOID across face. Anything you do to signature OK. BUT in State that recognizes holographic: VALID revocation (if in handwriting and signed). 2) Destroy Xerox copy? Nope, NOT ok. physical act must be: on will itself, not some other doc. 3) Lawyer destroys T's will at his request. Revocation by another: must be: 1) at T's direction AND 2) in Ts presence
How is destroyed will probated?
Proof of lost wills statute! proof of due execution (testimony of attesting W). Cause of will's nonproduction proved (overcome presumptions to revocation. contents must be substantially proved by copy or testimony of Ws who have seen/read will
Presumptions regarding revocation:
will last seen in T's possession or control NOT found at death. PRESUMPTION: revoked by physical act. Found mutilated: presumption is revoked by physical act. *Note: neither presumption arises if will last seen in possession of someone adversely affected by contents. *Evidence IS admissible: revocable presumption
Executing another will:
that does not explicit revoke 1st. Read 2 instruments together to extent possible. If WHOLLY INCONSISTENT, 1st considered REVOKED BY IMPLICAITION. *revocation of codicil to a will does not revoke the will
Dependent Relative Revocation:
When important: destroying 2nd will, with intent of reviving earlier will. 1st was revoked when 2nd will executed (i.e. 2nd has revocation clause). 2nd was revoked when destroyed. IL, majority rule is NO REVIVAL OF REVOKED WILLS. 1st revoked until re-executed OR republication by codicil (codicil making changes "republishes" 1st will). DRR will be applied
DRR definition.
permits revocation to be disregarded when act of revocation premised on mistake of law or fact as to validity of disposition.
Outcome of DRR:
disregard revocation of 2nd will and permit its probate. 2nd best solution
DRR NOT applied if:
DRR NOT 2nd best solution (i.e. completely change who gets property), DRR not applied, intestate distribution results. *if 2nd destroyed, use Proof of lost wills statute
Effect of changes on face of will after executed:
Illinois Law: NO EFFECT AT ALL. Partial revocation by physical act NOT VALID. if cross something out w/ pen, get what was there originally b/c on partial revocation. Want to change? NEW WILL or CODICIL. UPC/majority: partial revocations by physical act VALID. if cross something out, get what was there originally b/c of DRR. *note: changes valid if can be established that made before signed and witnessed
Anti-Lapse Statutes:
when a will beneficiary predeceases, testator, gift lapses. BUT may be SAVED by anti-lapse statute. In IL: applies only when predeceasing beneficiary was a CHILD or OTHER DESCENDENT of the testator. ALSO MUST have LEFT DESCENDANTS *falls into residuary estate if no descendants
if beneficiary that predeceased left will,
doesn't matter. this gift still goes to "descendants who survived"
*if condition
"to son if he survives me" anti lapse does NOT APPLY
Lapse in residuary gift- surviving residuary beneficiaries rule.
Ex: residuary estate given to A, B, C. A predeceases T, leaving A Jr. in IL, SURVIVING BENEFICIARIES (B, C) take entire residuary. BUT if C is descendant of T, THEN C Jr will get C's share if C predeceases. (anti-lapse TRUMPS)
"Class Gift" rule of construction.
in gift by will to a class of persons, if member predeceases testator, class members who survive testator TAKE!!! Class member wanted this group to take. Ex: T devises property to all children of A. A has 2 kids, B and C. after execution, before death has D. B dies and leaves B Jr. Then T dies Then A has E. Who gets property? C and D!! *Antilapse does NOT apply to B!!
Ex: (not class gift).
Gives blackacre in equal shares to A,B,C children of D (vs "all children of D). If A predeceases, that part goes to RESIDUARY ESTATE, they would own w/ B and C (does NOT go to B and C like it would if class gift)
Class gifts and anti-lapse
Note: subject to anti-lapse. If gift to "children of my SON, A" THEN in ex above B Jr. would take. Class closing rule: Rule of convenience. used to define takers. Class is closed when SOME class member is entitled to distribution. (outright gift by will: closes at T's death)
Deaths in Quick Succession- Uniform Simultaneous Death Act:
Illinois: Majority Rule. When title to property depends on order of deaths and no sufficient evidence that person died otherwise than simultaneously, property of each passes as though he or she survived. Wills: as though T survived and beneficiary predeceased (would invoke lapsed gift and anti-lapse). Intestacy: as though intestate survived and heir predeceased. Insurance: as though insured survived and beneficiary predeceased
USDA if joint tenants or tenants by entirety:
½ passes thorough as estate as though A survived B, ½ passes through B's estate as though B survived A. Simultaneous deaths prevent operation of right of survivorship. Treat as tenancy in common
USDA and facts to show that beneficiary/heir died later:
take under will/intestacy. Just need sufficient evidence of survival.
UPC Rule (compared to USDA):
120 hour rule. beneficiary or heir who fails to survive 120 hours treated as if predeceased
Testator marries after will is executed:
Illinois: marriage following will execution NO EFFECT. reasoning: elective share statute protects ALL spouses. UPC: if T writes will and then marries, omitted spouse takes an intestate share of estate
Testator divorced after will is executed:
Rule: final decree of divorce or annulment revokes ALL gifts and fiduciary appts (i.e. as executor) in favor of former spouse. Estate is distributed and fiduciaries are named as though the former spouse predeceases the T. Must be final decree of divorce. NO revocation of gift if divorce action filed and pending. no anti-lapse b/c wife not descendant. divorce at time of death. only applies to wills NOT insurance policy Does NOT apply to legal separation- just divorce/annulment
Testator has child after will is executed: "pretermitted child" statute.
Happens when will executed then T has another kid. *Applies ONLY to pretermitted children (born or adopted after will executed) They take: intestate share (carve this out). UNLESS: provision made in will OR appears from will (not extrinsic evidence) that intent was to disinherit. *Look for REPUBLICATION BY CODICIL.
pretermitted child and republication by codicil
will "speaks" deemed to have been executed on date of last codicil thereto. SO if codicil after child born, NO RIGHTS as pretermitted child b/c considered executed at time of codicil
Specific devise or bequest:
gift of specifically described property "I devise B to my son J"
Demonstrative legacy:
a hybrid. gift of general amt from specific source "give sum of 25,000 to be paid from proceeds of sale of Shell oil stock to S"
General legacy:
bequeath 10,000 to my nephew N
Residuary Gift
I give all the rest and residue of my estate to B
Intestate property:
if will does not make complete disposition of estate b/c will, poorly drafted, does not contain a residual clause (partial intestacy)
Abatement of legacies to pay claims:
what order are gifts sacrificed to creditors claims? 1) intestate property (if partial intestacy); 2) then residuary assets; 3) then general legacies, and finally 4) specific bequests. (demonstrative legacy treated as specific bequest but ONLY to extent of value of referenced asset. SO, if shell oil stock only worth 18,000 (gift was for 25,000) 18,000 considered specific; 7,000 considered general).
What if specifically bequeathed property not in estate: ademption problem.
Where will makes specific gift of property (i.e. blackacre to J) and property not owned by T at death: ADEMPTION applies and beneficiary takes 0.
*NOTE: ademption and demonstrative or general legacies
ademption does NOT apply to demonstrative (or general) legacies. ONLY to specific gifts. SO if gift is: 25,000 to be paid out of proceeds of shell oil stock, even if T sells Shell Oil stock, beneficiary gets 25,000 from other assets *NOTE: if sold blackacre before death for 10,000 cash and 90,000 note secured by mortgage- J DOES NOT get note. Sales K was fully performed. f K for sale but died before K fully performed: J gets remaining payments under the K
Exceptions to Ademption under UCC (adopted by IL Cts via judicial decision NOT statute)
1) will executed before T became incapacitated: and specifically devised property sold byguardian/conservator or if condemnation award or insurance proceeds relating to property paid to guardian, under UPC specific devisee has right to general legacy equal to net sale price, condemnation award, or insurance proceeds IL courts have granted relief in "incapacity" situation. (no capacity to change will) BUT only to extent proceeds can be traced & haven't been expended for ward's care IL cts have also granted relief where T did not have opp to change will (i.e. devising car to B, then dies in an accident in that car)
Bequests of stock or other securities- when is is specific bequest?:
Specific bequest: I give my 100 shares of IBM stock to A. If T sells stock and invests in other stock before death, A gets nothing BUT: general legacy: "I give 100 shares of Kodak stock to B" This is a GENERAL LEGACY. Gets date of death value of 100 shares. Even if sold before death and invested in Polaroid stock
Exception of stock rule
BUT: bequest of "I give 100 shares of Kodak to B" CAN be considered general for some purposes. i.e. specific bequest includes add'l stock produced by stock split, also stock resulting from merger, etc. after will executed but NOT stock dividends. In this case ct will consider this specific. Also, specific for ABATEMENT TO PAY CREDITORS CLAIMS *NOTE: UPC: specific bequest does NOT include stock dividends
Specific bequests of encumbered property- is lien "exonerated"?:
Illinois: overturned exoneration of liens doctrine. specific legatee of encumbered property NOT entitled to have lien exonerated unless will expressly directs exoneration. Will take title subject to lien. Common law: absent contrary provision, liens on specifically devised property EXONERATED from residuary estate
Incorporation by Reference Doctrine:
Rule: extrinsic doc, not present when will was executed and thus not part of duly executed will, can be incorporated by reference into the will IF: 1) Doc in MUST be IN EXISTENCE when will executed. 2) Will must REFER to doc as being in existence. 3) Will must DESCRIBE the doc sufficiently to permit its ID (so there can be no mistake as to the ID of the doc referred to)
Example of incorp by ref.
July 1, 2002, T executes will that provides: "I devise B to the persons named in a memo dated May 4, 2002 that I have written and placed in my safe deposit box. Residuary state to C." After death find memo that says "I want B to go to N" N takes even though memo now witnessed and not part of will signed by T and W's
Example of incorp by ref
. w/ will in safe deposit box find memo "in my will I referred to a list that I would prepare at a later date leaving certain items of property, this is it: golf clubs to H, fishing tackle to S and $2000 to D." memo signed. Doc dated 5 weeks after will signed, doc was not witnessed. llinois: NOT a valid disposition UPC: valid as to golf clubs and fishing tackle NOT as to $2,000.
UPC and incorp by ref
UPC exception for tangible personal property (NOT $$ or intangible). List must be signed, describe property w/ certainty. MAY be before or after will executed
Acts of independent Significance Doctrine:
also called doctrine of nontestamentary acts. Example: T dies leaving will that provides "I give auto that I own at my death to N, furniture and furnishings in living room to S." 1 yr before death trades Ford for Mercedes. 6mos efore death, moves a Picasso print from den into living room. N takes Mercedes S takes Picasso. Same result for: gift of "contents of my sea chest" EXCEPT for title documents (deeds, bank, passbooks, stock certs)
Mistake or ambiguity in will's terms:
Rule: Plain meaning rule. Absence suspicious circs, conclusively presumed that T read will and intended contents! extrinsic evidence NOT admissible
Example of mistake:
T tells lawyer to draw his will and to give nephew Ed "300 shares of Exxon stock." Typist makes mistake and types "200 shares," which Tom DID NOT NOTICE when signed will. E gets: 200 shares!! Negligence case under respondeat superior? Remember that IL has rejected privity of K as defense
Latent ambiguity:
when there is a misdescription Example: T's will bequeaths $10,000 to John Paul Jones and residuary to sis. Prob: T has nephew James Peter Jones and nephew Harold Paul Jones, that is all. Who takes? This is a latent ambiguity Extrinsic IS admissible. Admissible evidence includes "facts and circs" evidence (evidence about testator, his fam, claimants under will and their relationship to the testator, testator's habits and thoughts). If extrinsic does not cure, gift FAILS
Patent ambiguity:
mistake on FACE of will. Example: T's lawyer prepares a will that includes gift "I bequeath twenty five (25,000) to B. . Extrinsic IS admissible
Contracts relating to Wills:
UPC: will is NEVER contractual unless the will expressly states that a K does exist. Illinois: execution of a joint will by a husband and wife MAY be found contractual (the contract being that the survivor will not revoke the agreed-upon disposition) IF all or MOST of the following factors are present: 1) Will labeled "joint and mutual" 2) Will leaves entire estate to surviving spouse 3) Will disposes of property in a unified disposition 4) Common dispositive scheme on death of survivor
If will is held to be contractual: 2 steps
1) Apply wills law. Testator can always revoke earlier will even though it was subject to a K that it wouldn't be revoked THEN 2) Apply K law. Since revocation of earlier will breached a K, impose constructive trust against beneficiaries under that will, for the benefit of beneficiary in will 1 as to the ½ that was his by K.
What is the effect of express words of disinheritance in will?
UPC: negative bequest rule. a will can provide how property shall NOT be disposed of, meaning that words of disinheritance are given effect, estate is distributed as though disinherited predeceased (ex: devise Redacre to son, residuary to wife and says "I intentionally make no provision for daughter b/c she married out of faith.). Illinois: & overwhelming majority : when a will does not make a complete disposition of the estate (partial intestacy), words of disinheritance in the will are INEFFECTIVE
What are unlawful conditions that cts refuse to enforce?
encourage divorce and total restraint on marriage
Encourage divorce
Will that creates a trust: income to daughter until she divorces hubby, at which time trust terminates and all principal to daughter. If does not divorce...What happens to trust property? daughter takes free of trust and free of condition
Total restraint on marriage
BUT partial restraints OK: $500,000 to son if he marries jewish woman w/in 7 yrs. cases turn on motive/intent behind provision. Trust to pay income to my wife for life or until she remarries, if she remarries trustee shall pay income to daughter. OK
Slayer statutes:
Illinois: Killer forfeits interest in victims estate if he intentionally and unjustifiably causes the death of another distribute estate as if killer predeceased victim. does not apply where death resulted from accident- negligent homicide
Slayer statute applies to:
ALL forms of transfer: wills, life insurance, etc. If A & B own land as JTs w/ right of survivorship and A murders B, right of survivorship is severed. B's ½ interest passes under will or by intestacy. Statute takes away the benefit of A's right of survivorship, but A doesn't forfeit ½ interest that he owned
onprobate assets:
interests that are NOT subject to disposition by will or inheritance, and do not pass through person's probate estate for purposes of administration. Major types (also called nontestamentary assets): property passing by right of survivorship (joint bank acct, joint tenancy) property passing by contract: life insurance, death benefits under retirement plan *remember: if will says otherwise, terms of life insurance K govern!! property held in revocable trust, where trust's terms govern disposition of property
When do intestate rules apply?
1) Decedent left no will. 2) decedent's will is denied probate (not validly executed, or successfully contested by decedent's heirs) or 3) when the decedent left a valid will, but the will did not make a complete disposition of the estate (resulting in "partial intestacy") 4) also may be invoked when there is a pretermitted child
Intestate share of surviving spouse:
Illinois intestacy statute: surviving spouse's share is: ONE HALF if survived by descedants (whether from this marriage or an earlier marriage) ALL if NOT survived by decedents (also family allowance)
Surviving spouse is ALSO entitled to a family allowance:
whether decedent denied intestate or left a will- to provide support for fam during period of probate admin. MINIMUM allowance is $10,000, plus $5,000 for each minor or disabled adult child. Allowance is over and above amounts passing to spouse by will, intestacy or (if spouse renounces the wil0 elective share Has priority over all claims except funeral and admin expenses
Inheritance by descendants ("issue"): Distribution Rule in IL:
classic/strict per stirpes meaning ONE SHARE for each line of living descendants. Each child is a root or line, and the descendants of deceased children take by representation the share their parent would have taken had she survived to be an heir. Under strict per stirpes, you ALWAYS cut the shares at the child level, even if there are no living children
No kids?
Same distribution rule when inheritance by collateral relative: brother sisters, descendants of deceased's bros and sis's Shares cut at bro-sis level, even if no living siblings. at common law, siblings of ½ blood (1 common parent) inherit half as much as siblings of while blood. IL has REJECTED this rule and ½ sibs take same as whole
S, single, dies intestate survived by mom, dad, 3 sisters:
Majority rule: Sam's entire estate would be inherited by parents (or surviving parent). IL rule: parents, bros, sisters, each get EQUAL SHARES (1/5)
S, single, dies intestate survived by dad (mom predeceased) and 3 sisters:
in IL, surviving parent takes DOUBLE. So dad gets 2/5, sisters get 1/5 each
Parent disqualified:
if neglected, deserted, or failed to support the child
Inheritance by adopted children, children born out of wedlock:
Children adopted under age 18: and their descendants have FULL inheritance rights from adoptive fam (and vice versa) and are treated in all respects same as natural child Once adopted: child has NO inheritance rights from natural parents or their kin EXCEPT: child is adopted by spouse of NP. ex: c's dad dies, mom remarries and 2nd hubby adopts C. C has inheritance rights from natural mother and adoptive father- and from deceased natural father's kin as well
Stepchild:
not having been adopted, CANNOT INHERIT
Children adopted over age 18:
inherits from adopting parent but NOT adopting parents kin. adult adoption does not make that person someone else's heir. Ex: son (dying) of wealthy woman adopts companion does NOT make companion heir of son's mom.
Children born out of wedlock:
can inherit from natural father ONLY if (PAP): 1) Paternity suit: man was adjudicated to be dad in paternity suit OR 2) Acknowledged paternity: man acknowledge he was child's father during lifetime OR 3) Probate proceedings: after man's death, proved to have been father in probate proceedings by CLEAR and CONVINCING evidence
Effect of lifetime gift to an hear or will beneficiary:
Common law: lifetime gift to a child was presumptively an advancement (advance payment) of the child's intestate share, to be taken into account in distributing estate at death (theory was that a parent would always want to treat all children equally). Illinois (majority): lifetime gift to an heir is NOT an advancement UNLESS: 1) declared as such in writing by the donor OR 2) acknowledged as such in writing by the donee. 3) IF advancement: add lifetime gift to estate, and then divide estate among kids
Satisfaction of legacies:
will bequeaths 25,000 to niece. Later, T gives N 10,000 cash. IL applies common law rule of satisfaction of legacies: lifetime gift to a child named as a beneficiary in an earlier will is presumptively in partial satisfaction of the legacy, but NOT a lifetime gift to any other beneficiary (unless there is evidence that testator so intended). SO under IL rule, N takes full 25,000 under the will UNLESS there is evidence showing that the 10,000 gift was intended as in partial satisfaction of legacy. vs UPC: no satisfaction of legacy unless 1) declared as such in contemporaneous writing by donor OR 2) acknowledged as such in writing by donee
Valid disclaimer:
1) writing, signed and delivered to decedent's personal rep (executor or administrator) or trustee, or person in possession of property. 2) In IL (unlike other states) there is NO TIME LIMIT on when disclaimer must be made (under estoppel, can't disclaim after accepting). BUT for tax purposes, must be filed w/in 9 mos after decedents debt. Disclaimer can also be made on behalf of minor or incompetent person. estate distributed as though disclaimant predeceased.
Rationale for disclaimier.
avoid gift taxes, avoid creditors claims (EXCEPT fed tax liens)
Elective share/rights of renunciation
Ex: give husband in will $23. Husband should renounce will and file for elective share!!!!!
Amount of elective share: IL statute:
If decedent survived by descendants: 1/3 of net estate If NOT: ½ of net estate *note: compare surviving spouse's intestate share: ½ (descendants) or ALL (no descendants)
Notice of election:
spouse must file w/in specified time period (IL: w/in 7 mos after will admitted to probate). ****NOT AUTOMATIC
Who can make election?
can be made on behalf of legally incapacitated spouse by guardian or conservator, w/ ct approval, upon a showing that election is nec to provide adequate support for spouse during probable life expectancy. CANNOT be made by deceased spouse's executor (if spouse dies before election made)
Making up elective share:
all will beneficiaries contribute pro rata- but property devised outright to spouse by will is APPLIED FIRST
Augmented estate issue.
say H establishes intervivos trust naming bank as trustee: income to H for life, on H's death remainder to son. Will bequeaths estate to wife and son in equal shares. Sounds fair BUT what if all assets in trust? UPC and IL different
UPC and majority (augmented estate):
Wife's elective share right DOES apply to assets in trust. policy underlying elective share should not be defeated by lifetime transfers and nonprobate transfers in which donor retains rights, powers and econ benefits. In most states, elective share applies to augmented estate, which includes lifetime transfers in which grantor retained power to revoke or to invade consume or dispose of principal
Illinois and augmented estate:
DOES NOT APPLY!!!!!!!!!!! elective share DOES NOT apply to any non-probate transfers such as revocable trusts, totten trust accts, etc. b/c not pt of estate
standing and will contests
only interested parties have standing to bring a will contest: persons w/ econ interest that would be adversely affected by will's probate: heirs, legatees under earlier will whose interest would be defeated if this will probated. Ex: T survived by son, C, and C's son, G (grandson). C has standing to contest will but G DOES NOT, g would not be an heir if T had died intestate.
Lack of Testamentary Capacity: BoP on will contestants
Test: did testator have sufficient capacity to: 1) understand nature of act he was doing (executing will) 2) know the nature and approx value of property 3) know natural objects of bounty 4) understand the disposition he was making?
NOT testamentary capacity
being old, frail, drinking a lot, memory lapses, paralyzed by stroke does not itself show lack of capacity. (jury could find that met 4 pt test at time will executed)
Adjudication of incapacity and testamentary capacity?
involves DIFFERENT LEGAL TEST (capacity to contract, manage one's affairs)then this test. Jury COULD find that will signed during lucid interval. SO will be used as evidence, not enough for DV
Undue Influence:
Existence of testamentary capacity subjected to and controlled by a dominant influence or power. Contestants have burden of proof, must show: (3 pt test) 1) Existence and exertion of influence 2) Effect of which was to power 3) Product is a will (or a gift in the will) that would not have been made BUT FOR the influence *influence is NOT undue unless free agency of testator is destroyed and a will is produced that reflects the will, not of the testator, but of the person exerting the influence
*evidence of undue influence is circumstantial, these alone are NOT enough:
Opportunity: mere fact that 1 kid lived with mom not evidence that opp was taken advantage of. Susceptibility: mere fact that mom old not enough. unnatural disposition: mere fact that will gave daughter 2/3 of estate not enough
Person in confidential or fiduciary relationship was active in procuring the will and that party will receive a substantial benefit under the will:
PRESUMPTION of undue influence. CAN be overcome by: clear and convincing evidence!
No-contest clauses majority rule: "if any beneficiary contests this will he shall forfeit legacy"
Majority rule: if challenge, YES will forfeit UNLESS probable cause for contest (good faith and probable cause)
NO contest in Illinois:
DOES FORFEIT. EVEN THOUGH HAD PC! In IL, no contest given full effect regardless of PC. exception: contest filed by guardian on behalf of minor or incapacitated beneficiary- act by another should not trigger forfeiture
power of appointment Purpose:
permits life beneficiary to designate remaindermen.
General testamentary power:
Trust created "to pay income to D for life, on her death to distribute trust principal to such persons as she appoints in her last will..if she doesn't, trustee distributes to descendants" D is donee of a general testamentary power of appt. b/c she is not limited in class of beneficiaries to whom she can appoint, she can appoint property to anyone, including herself, OR her creditors, OR her estate. Descendants are takers in default of appt. Power must be EXPRESSLY EXERCISED (leaving residuary estate NOT enough)
Special testamentary power:
when limited in class of persons to whom can appoint. i.e. can appoint among descendants, cannot appoint to herself, creditors, or estate.blanket exercise OK: devises "all property, including any property over which I may have a power of appt, to daughter"UNLESS, power of appt says "appoint by a will that specifically refers to this power of appt." BUT if during beneficiary's life they enter into a K in which agrees to execute a will that exercise power of appt in faver of son, R. NOT valid if later exercises that power, NOT supposed to benefit.