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Wills Bar Prep Questions &Exam (elaborations) answers 100% satisfaction guarantee
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Wills Bar Prepabatement - ✔✔abatement is the process of reducing testamentary gifts in cases where the estate
assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises. if
the testator does not set out an order of abatement in the will, testamentary gifts will usually abate: (1)
property passing by intestacy (2) residuary estate (3) general legacies (4) demonstrative legacies (5)
specific bequests and devises. within a class abatement is pro rata. in some states, personal property
in each category is used before real property in that category
accessions (increases to property after execution of will) - ✔✔appreciation and depreciation of
specifically gifted property between will execution and death is normally irrelevant. income on
property goes to the general estate, but improvements to real property go to the specific devisee. any
increase to specific gifts occurring after the testator's death passes to the specific beneficiary
because the beneficiary is deemed to own the property from the time of the testator's death. a specific
bequest of stock includes any additional shares produced by a stock split but does not include shares
produced by a stock dividend. the UPC and nearly all states include stock dividends. the beneficiary
does not take new securities that have been purchased or acquired by the reinvestment of dividends
acts or facts of independent significance - ✔✔an act or fact of independent significance is something
outside of a will which has a purpose for a legal reason other than disposing of property at death. a
will may dispose of property by reference to acts and events, even though they are in the future an
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unattested, if they have significance apart from their effect on dispositions made by the will.
Examples: (1) specific gifts of a general nature (2) class gift designations (3) gifts to my spouse (4)
gifts of contents (ex. I leave the contents of my safe deposit box)
ademption by extinction - ✔✔ademption refers to the failure of a gift because the property is no
longer in the testator's estate at the time of their death. it applies only to specific devises and
bequests. the beneficiary does not take a substitute gift nor the value of the gift, and the beneficiary
cannot trace into the proceeds of the sale of the gift even if they are identifiable. a gift may be partially
adeemed (ex. testator devises large tract of land and conveys a portion during life, beneficiary takes
the remaining portion). neither general or demonstrative legacies are adeemed by an absence of
cash or the specific asset in the estate, they will be satisfied by selling (or directly giving) other assets
ademption by satisfaction - ✔✔a testamentary gift may be satisfied in whole or in part by an inter
vivos transfer from the testator to the beneficiary after the execution of the will, if the testator intends
the transfer to have that effect. most states require a writing or specific instructions in the will before
the gift is deemed a satisfaction. in UPC states, the doctrine does not apply unless the testator
provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in
writing, the gift as a satisfaction. a writing is not required if the testator gives specifically described
property to the beneficiary, there is both satisfaction of the legacy and an ademption
,adopted children and intestate succession - ✔✔adopted children are treated the same as the
biological children of the adopting parents. generally there is no inheritance in either direction
between adopted children and their biological parents
advancement of intestate share - ✔✔an advancement is a lifetime gift to an heir with the intent that
the gift be applied against any share the heir inherits from the donor's estate. a lifetime is
presumptively not an advancement unless show to be intended as such. UPC states, and others, find
an advancement only if it is (1) declared as such in a contemporaneous writing by the donor or (2)
acknowledged as such in a writing by the heir (need not be contemporaneous). if found to be an
enhancement, gift's value is added back to the estate, and then subtracted from the recipient's share.
the heir need not return the amount of an advancement in excess of the value of their intestate share.
an advancement is generally binding on those who succeed to the estate of the advance if the
advancee predeceases the intestate. in UPC an advancement is not binding on the successors
unless the required writing states it is
ambiguity - ✔✔(1) a patent ambiguity exists if a provision is ambiguous on its face (doesn't convey a
sensible meaning). traditionally, extrinsic evidence was not admissible to correct, but modern view is
that it is admissible. extrinsic evidence cannot be used to fill in blank spaces or supply omitted gifts.
(2) a latent ambiguity exists when the language of the will is clear on its face but cannot be carried out
without further clarification. the court will consider extrinsic evidence (3) no apparent
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ambiguity--mistake. may arise where a will provision is clear on its face and can be carried out as
written, but a beneficiary or other interested person thinks the testator made a mistake. under the
traditional approach, extrinsic evidence cannot be used to disturb the clear meaning of a will. other
jurisdictions adopt a more liberal rule that permits extrinsic evidence. must provide clear and
convincing evidence (usually only works for scrivener error)
anti lapse statutes - ✔✔nearly all states have anti lapse statutes that operate to save the gift if the
predeceasing beneficiary was in a specified degree of relationship to the testator ex. descendant of
the testator, parent, grandparent) and left descendants who survived the testator. the descendants
take by substitution. the statute applies unless a contrary provision appears in the will. in most states,
words of survivorship are considered contrary to will provision, and the anti lapse statute will not be
applied. under the UPC, mere words of survivorship are not sufficient to negate application of the anti
lapse statute
applicable law to intestate succession - ✔✔for property while married, we use the law of the domicile
at the time the property was acquired (inception of title rule). the marital rights do not change as the
couple moves from one state to another. for personal property, we use the law of the decedent's
domicile at death. for real property, we use the law of the situs of the property
, applicable law to wills - ✔✔the validity and effect of a will with respect to real property are
determined by the law of the state where the property is located. with respect to personal property,
the validity and effect of a will are determined by the law of the testator's domicile at the time of death.
most states and the UPC have a savings statute, where a will is admissible to probate in a jurisdiction
if the will has been executed in accordance with the law of (1) that jurisdiction (2) the state where the
will was executed (3) the testator's domicile at the time of the will's execution, or (4) the testator's
domicile at death. once the will is admitted to probate, local law governs the construction and
application of the will's provisions
attestation clauses in wills - ✔✔recites the elements of due execution and are prima facie evidence
of those elements. they are not required
attorney liability for negligence in wills - ✔✔the intended beneficiaries of a will may sue an attorney
for negligent preparation or execution of a will. the statute of limitations begins to run on the date of
the decedent's death and not on the date the will was executed.
bank arrangements - ✔✔bank arrangements, such as totten trusts, joint or survivor accounts, and
payable on death designations are popular will substitutes
beneficiary dead when will executed - ✔✔if a will makes a gift to a beneficiary who was dead at the
time the will was executed, the gift is void. in many states, the rules that apply to lapsed gifts also
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apply to void gifts
class gifts by will - ✔✔if a will makes a gift to a class, only the class members who survive the
testator take a share of the gift, unless the will provides otherwise or the anti lapse statute's
requirements are met
classification of testamentary gifts - ✔✔(1) devises are gifts of real property, and the recipient is a
devisee (2) a bequest is a gift of personal property (specific bequests are property distinguishable
from the rest of the estate, specific bequest of general nature is not distinguishable from the rest of
testator'e estate until testator dies) (3) a legacy is a gift of personal property in a will, usually money,
and the recipient is the legatee (a general legacy is a gift of a general economic benefit, usually a
dollar amount, payable out of the general assets of the estate without requiring an particular source of
payment. A demonstrative gift is a gift of a general amount that is to be paid from a particular source
of fund, if the designated fund is insufficient, the balance is usually paid from other assets of the
estate). a specific devise or legacy is a gift of a particular item of property distinct from all other
objects in the testator's estate. the residuary estate consists of the balance of the testator's property
after paying (1) debts, expenses, and taxes and (2) specific, general, and demonstrative gifts
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