MEE BN EstatesWills

MEE WILLS & ESTATES
Learning Objectives
After watching this lecture, you will be able to:
1. Evaluate whether a will was validly executed by:

 assessing the capacity of a testator;
 analyzing the intent of testator and issues affecting intent; and
 identifying requisite formalities to execute a will.
2. Determine whether there has been effective revocation or revival of a will.
3. Evaluate whether there are colorable challenges to the will.
4. Identify what documents or acts comprise part of the will.
5. Construe a will in distribution of property and identify statutory authority to override

some or all of its provisions.
6. Recognize property not passing by will and determine its proper distribution.
NOTE: This lecture covers heavily tested topics on the bar exam and is not intended to be your
sole source of information on the subject matter. Please refer to your Subjects Outline Materials
and Bar Points to gain a greater understanding of the nuances within the subject.
MEE is a trademark of the National Conference of Bar Examiners.
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INTRODUCTION AND BROAD OVERVIEW
1. What is the Law of Decedents’ Estates?

 Who gets what when we die? Anglo-American law has decided that it would be inefficient and
presumably, unfair were a decedent’s property simply be destroyed or buried with her. The law of
estates (and the transfer methods that inform it) is nothing more than an inquiry into where
decedent’s property will go instead, and the answer turns on the circumstances that apply at that
decedent’s death.
 If property is really only a series of rights (i.e. to use, possess, consume, enjoy, exclude others
from, and transfer “stuff”), then at bottom, the law of decedents’ estates is really just the name we
give to one of those rights – “transfer” – when it is being exercised at death.
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2. Big Picture, Useful Terminology
Intestate Succession Testate Succession

The decedent died: Without having written a will Leaving a validly executed will
The decedent is called: The decedent The testator
The decedent’s probate estate is The intestate probate estate The testate probate estate
the real and personal property
the decedent leaves at death
and is called:
Property not passing through The non-probate assets The non-probate assets
probate, such as will substitutes,
are called:
The probate estate will pass Intestate succession, through Testate succession, under the
according to: the state laws of descent and testator’s valid will
distribution
The probate estate will pass to: The decedent’s heirs, i.e. The decedent’s beneficiaries
takers under the intestate or devisees, i.e. takers under
succession statute the decedent’s will
The broadest groupings of the Scheme, status, and Make, revoke, challenge,
relevant law: alteration comprise, and construe
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3. Helpful Hints
 Any transfer at death is a “probate transfer” whether through testate or intestate succession.
 A decedent can die totally or partially testate or intestate.
 On a bar exam question, be sure to distinguish between probate and non-probate assets, which
represent pre-death transfers and pass outside of testate or intestate succession.
o Examples of non-probate assets (often called “will substitutes”): joint tenancy, tenancy by the
entirety, POD and TOD accounts, revocable trusts, and life insurance policies that pay to a third
party rather than to the decedent’s estate.
o Will substitutes give you the benefits of death time transfers (e.g. the chance to change
your mind) without the burdens (e.g. the time, cost, and publicity of the usual probate
process).
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EXECUTION OF ORDINARY WILLS
1. A will is a document executed by a testator or testatrix (“T”) that takes effect at testator’s death.
 Although a will usually disposes of a person’s property, it need not actually do so. And a will may
also include any codicil and testamentary instrument that:
o appoints an executor;
o nominates a guardian;
o revokes or revises another will; or
o expressly excludes or limits the rights of an individual or class to succeed to property of the
decedent passing by intestate succession (which is a so-called “negative will”).
 Questions pertaining to testate succession generally fall into one of four categories:
o making a will;
o revoking a will;
o challenging a will;
o comprising and construing a will.
 There are three types of wills:
o an attested or formal will, which is generally one with witnesses and exists in all jurisdictions;
o a holographic will, which is unattested (i.e., has no witnesses) and exists in most jurisdictions;
and
o an oral will (aka nuncupative will) which exists in a very limited way in a few jurisdictions.
 While the formal requirements of a will depend on what type of will is in issue, all wills require:
o testamentary capacity;
o testamentary intent; and
o the appropriate formalities.
2. Capacity to Execute a Will

 Age: To execute a valid will, most states demand that testator be 18 years of age or older.
 Mental Capacity
o Testator must be of sound mind.
 Sound mind is determined at the time the will is executed (i.e., when the formalities are
being met).
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 Generally, sound mind means that at the time the will is executed, testator holds the ability
to understand:
 the nature, condition, and extent of testator’s property;
 the nature of the disposition that testator is making of his or her property; and
 the names of and testator’s relationship to the natural objects of testator’s bounty.
o The fact that a testator may be eccentric, hold unusual opinions, or exhibit unique behavior
does not necessarily render testator mentally incapable of making a will.
o An insane delusion is defined as an irrational belief with no basis in fact or reality.
 One who suffers from an insane delusion does not necessarily lack “soundness of mind”
and might still hold the capacity to make a donative transfer during life (i.e., “gift”) or at
death (e.g., “will”).
 A particular gift or will is invalid, however, to the extent that it was the product of the
insane delusion.
 Mere eccentricity does not constitute an insane delusion.
 Similarly, a rational suspicion (or even an irrational one) holding some basis in fact is not an
insane delusion.
3. Testamentary Intent
 At execution, a testator must intend that the particular document under discussion be his or her
will.
EXAMPLE: T sends a letter to his sister saying he intends to make up a will next week and details
how he wishes to have his property distributed. If T dies before making that will, can the letter be
admitted into probate? No, because at the time T wrote the letter, he did not intend that letter to
be a will. The letter cannot be deemed to be T’s will because he lacked testamentary intent.
EXAMPLE: T sends his niece Caroline a handwritten, signed letter that professes his love for her
and promises to leave her his entire estate. However, T dies before making a will. Does this letter
constitute a will? This letter was not intended to be a will, so not a will.
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Three Concepts that Prevent Testamentary Intent

Undue Influence Fraud Mistake
(most frequently tested)
 Undue Influence
o Undue influence is sufficient to void a will if:
 a contestant can prove the wrongdoer exerted such influence over testator that it
overcame testator’s (donor’s) free will; and
 the influence caused testator (donor) to make a donative transfer that the testator (donor)
would not otherwise have made.
o A presumption of undue influence arises if:
 the alleged wrongdoer was in a confidential relationship with the donor; and
 there were suspicious circumstances surrounding the preparation, formulation, or
execution of the will.
NOTE: In evaluating whether suspicious circumstances are present, all relevant factors may
be considered.
 Factors to consider include:
o the extent to which the donor was in a weakened condition physically, mentally, or
both, and therefore susceptible to undue influence;
o the extent to which the alleged wrongdoer participated in the preparation or
procurement of the will;
o whether the donor received independent advice from an attorney or from other
competent and disinterested advisors in preparing the will;
o whether the will was prepared in secrecy or in haste;
o whether the donor’s attitude toward others had changed by reason of his
relationship with the alleged wrongdoer;
o whether there is a decided discrepancy between new and previous wills of the
donor;
o whether there was a continuity of purpose running through former wills indicating a
settled intent in the disposition of his property; and
o whether the disposition of the property is such that a reasonable person would
regard it as unnatural, unjust, or unfair.
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 This rule is not limited to fiduciary relationships, but also covers any relationship where the
testator relies on another for day-to-day affairs, e.g., nursing care given to an elderly
testator.
 If these factors are shown by clear and convincing evidence, the burden of proof returns to
the proponent of the will to show that the gift or bequest was not the product of undue
influence.
o If proven, undue influence will void the provisions of the will that benefit the person exerting
the undue influence.
o Without more, the mere fact that a parent treats children unequally or even cuts them out of
the will completely without disclosing a rationale for doing so does not by itself raise a
presumption of undue influence.
HYPOTHETICAL: From 2014 on, Roger repeatedly threatened his sick brother George that he would “pull
the plug” on him if he did not leave him money in his will. George died in 2019, leaving Roger a large
bequest. George’s son, Barry, moved to have the will set aside for undue influence, but notes found in
George’s effects showed that George had always intended to leave most of his estate to Roger, but simply
had never wanted to tell Roger that. Can Barry succeed?
No suspicious circumstances; evidence that George always wanted to leave Roger the money but didn’t want to
tell Barry. Barry will fail.
 Fraud: There are two types:

o In the execution
 Fraud as to the nature of contents or writing itself.
 Fraud in the execution will invalidate the will.
EXAMPLE: Radar O’Reilly presents a stack of papers for Colonel Henry Black to sign, stating
they are all important documents. Radar inserted a piece of paper that states “I, Colonel
Henry Black, leave all my property to Radar O’Reilly.” Radar used fraud to have Colonel
Black sign the document. Will is invalid.
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o In the inducement
 Fraud as to intrinsic facts that induces someone to take action that affects the distribution.
 Test: Would the testator have made this gift had testator known the true facts?
 Fraud in the inducement is established upon proof that a beneficiary made a knowingly
false representation to the testator for the purpose of inducing the testator to draw a will
in his favor, after which testator made a different will than testator would have absent that
representation.
 EXAMPLE: A child fraudulently claims to be T’s non-marital son. As a result, the T leaves
half of the estate to the child. Would the T have left half of the estate to the child had T
known the truth? If no, then invalidate the gift. If yes, then effectively the fraudulent claim is
ignored and the gift stands.
o If fraud is alleged with respect to only a part of the will, the court may reject that part and
admit the rest to probate. The legacy that is void due to fraud would then fall into what is
called “the residue,” or, if there is no residuary clause, through intestacy.
o If the entire will is tainted, all of the property will pass by intestacy.
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HYPOTHETICAL: T, a Giants fan, made a will that left his estate to Al and Sara. Sara fraudulently
persuaded T that Al was an avid Giants fan. This was a lie; Al was a diehard Dodgers devotee. T died
leaving property to Al based on a mistaken presumption. How will the court divide T’s estate?
Product of fraud, so cannot be given effect. Gift to Al fails. Since Sarah perpetuated the fraud, she’d probably
get her gift, but the gift to Al would likely fall to residuary.
 Mistake: There are two types:

o In the execution
 Mistake as to the nature of the document.
 Will is invalid.
o In the inducement
 Mistake as to the true facts that causes testator to execute a will or will clause.
 No affect on testamentary intent, thus no relief is granted.
NOTE: When a mistake is made, there is little that a court may do because the best evidence of
a testator’s intent has died along with that testator. In very rare circumstances where clear and
convincing evidence of testator’s intent exists, a court may reform the terms of a will.
Formal Requirements of Wills

1. In Writing
4. Formal Requirements of Wills 2. Signed
 A valid attested will must be: 3. Witnessed or Attested/Acknowledged
o in writing;
 Any reasonably permanent record is sufficient.
o signed by the testator or in the testator’s name by another in the testator’s conscious
presence and by the testator’s direction;
 Conscious presence includes within earshot.
 Assisted signatures are permitted, whether or not the testator requested assistance,
provided the testator was the motivating force of the signature (signifying intent).
 Distinguish a directed or guided signature, whereby somebody grabs the testator’s
wrist and moves the pen for testator.
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 There is no requirement that:

 The signature is the testator’s formal name; it can be anything that indicates testator’s
intent that the document be testator’s will or the mark be testator’s signature.
 The signature is in a specific place in the will, e.g., the “end,” “close,” or “foot”; it can
appear at the beginning of the document or on the back of the document.
o witnessed or attested/acknowledged;
 One of two requirements (witnessed or attested/acknowledged) must be met, EITHER:
 Signed by at least two individuals,
o each of whom signed within a reasonable time after having witnessed (1) the
signing of the will; (2) testator’s acknowledgement of that signature; or (3) testator’s
acknowledgment of the will.
o The “reasonable time after” does not demand that the witnesses sign before
testator’s death. In a particular case, the “reasonable time” requirement could be
satisfied even by signing after testator’s death.
 Note, however, that a rule regarding “contemporaneous acts” permits
witnesses to sign the will before the testator if all are acting within the same
event, act, or time frame.
 There is no requirement that the signing witnesses sign the will in each other’s
presence; each can sign it separately within the requisite reasonable time.
 But recall that the will is not formally executed until the second witness signs
the will.
 OR acknowledged by the testator before a notary public or other individual
authorized by law to take acknowledgments.
o This approach will work whether or not the will is properly witnessed. A notary who
is involved in the process of making a will self-proving (SPA), acts in a different role
than here, where the notary is attesting to the will in lieu of or in addition to witness
attestation.
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o There is NO requirement that the testator “publish” the document as testator’s will, that
testator request witnesses to sign, or that the witnesses sign in the presence of testator or
each other.
EXAMPLE: Alice signed her will across the back of the document after reading and folding it
up. Is her signature valid? Yes, because there is no requirement that she sign anyplace
specifically on the will.
 Harmless Error Rule: Notwithstanding these “wills formalities,” the law favors testate succession.
Any attempt to make a will—even a defective or failed one—will be validated if the proponent of
that document proves by clear and convincing evidence that the testator intended the
document to constitute testator’s will.
 Integration Rule: Generally, any pieces of paper actually present at execution that are intended
to be part of the will, will in fact be part of the will. For example, a will that consists of several
sheets of paper need not be signed by the testator and all witnesses on each page. No state
requires each sheet of paper of a multiple-page will to be separately executed.
5. Qualifications of Witnesses
 Generally, a witness is competent if the witness has the ability to observe the testator affix his or
her signature and comprehend the nature of the act.
 Interested Witnesses (frequently tested topic)
o An interested witness is a witness who is also a beneficiary of the subject will.
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 The signing of a will by an interested witness does not invalidate the will. Rather, in some
states, it will “purge” the interested witness’s share by treating that witness as having
predeceased the testator. In other states, the fact that a witness is interested is irrelevant
to that witness’s inheritance.
o Under the Uniform Probate Code (UPC), an interested witness is perfectly fine and both the will
and the gift to the interested witness is valid and safe.
 Additionally under the UPC, an interested proxy is permissible.
o Note, however, that where an interested witness is involved in the will, it may give rise to
questions of undue influence.
EXAMPLE: Arnold executes a will signed by two witnesses: his wife Maria and his attorney,
Wellington. The will’s primary beneficiaries are Maria, Arnold’s children, and several nonprofit
organizations. Maria is therefore and interested witness. Is this will valid? Assuming all other
formalities are met, the will is valid because an interested party can serve as a witness. Will Maria
be purged of her share? That question turns on how the jurisdiction decides to treat interested
witnesses.
6. Probate of Will
 The “proving” of a will involves the process by which the testator’s signature and other formalities
(e.g., “presence and direction” for proxy signatures) is established.
 Self-Proving Will
o A self-proved will proves itself. In other words, it is deemed to satisfy all will execution
requirements without the need for testimony of any attesting witnesses immediately upon
filing of the will, acknowledgment, and affidavits. This “eased” probate process, which avoids
the cost and difficulty of hostile or unavailable witnesses, will not apply if there is evidence of
fraud or forgery affecting the acknowledgment or affidavit.
o A will may be made self-proved if it is simultaneously executed and attested by
acknowledgment of the testator and affidavits of the attesting witnesses (the “self-proving
affidavit”—SPA), each made before an officer authorized to administer oaths and evidenced
by the officer’s certificate, under official seal.
o A will may also be made self-proved at any time after its execution by acknowledgment of
the testator and affidavits of the attesting witnesses, each made before an officer authorized
to administer oaths and evidenced by the officer’s certificate, under official seal.
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EXECUTING THE SPECIAL WILL: SPECIAL WILLS & CODICILS
1. Types of Wills
 Holographic Wills
o A holographic will is one written by the testator, and traditionally, entirely in his or her own
handwriting.
o To qualify as a valid will under the UPC, only the material portions and signature of the will
must be in testator’s handwriting.
o Material portions of a will are those distributing money and property.
o Testator’s testamentary capacity and testamentary intent are still required.
o A holographic will does NOT require any witnesses.
HYPOTHETICAL: Wanda died in 2015 after a long, debilitating illness. While in the hospital the week
before she died, she told her daughter Dora that she wanted to leave her everything. The next day, Dora
handwrote a document entitled “Will,” which she presented to Wanda at the hospital. Too weak to read
or sign the instrument, Wanda could only make an “X” on the signature line after Dora read the
instrument out loud to her. Two nurses entered the room to watch Wanda mark her “X”; each thereafter
signed on a line marked “Witness.” Dora filled in the date. After Wanda died, Dora petitioned for the
admission of the 2015 will into probate. What objections could be raised concerning its validity?
1. Lack of testamentary capacity-18 and of sound mind- sound mind means understanding:
 the nature and extent of testator’s property
 people who are natural objects of the testator’s bounty
 the nature of the act involved:
o Wanda was too weak to sign or read- was she of sound mind, question of fact.
2. Intent- Undue influence claim- presumption- (1) confidential relationship, reliance (2) suspicious
circumstances.
3. Valid execution: Attested will: in writing; signed; signing made in presence of 2 witnesses, each of whom sign
in testator presence at T request. X could be signature, nurses are two witnesses.
4. Failure to comply with formalities for holographic will: material provisions not in Wanda’s handwriting,
Dora’s. Not valid holographic will, but it is a valid attested will.
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 Conditional Wills
o Conditional wills are permitted; a will can be conditioned upon some event.
HYPOTHETICAL: While in the Navy, Taylor wrote to a friend stating that “if I die by shark attack out in the
south pacific,” Taylor’s bonds, cash, and any pay that was due should go to Betty Black, an old friend.
After Taylor left the Navy, unscathed by sharks, he lived with the Black family, and mentioned that letter
many times. When Taylor died, Betty Black tried to probate the letter; Taylor’s aunt (who would take if he
died with no will) contested it. What should be the result?
Conditional will. Condition not met. Will invalid.
2. Contracts to Make a Will, Joint or Mutual Wills

 The UPC will uphold as valid a contract to dispose of by will all or part of a person’s property,
whether real or personal.
 A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, may be
established only by:
o provisions of the decedent’s will stating material provisions of the contract;
o express reference in the decedent’s will to a contract and extrinsic evidence proving the terms
of the contract; or
o a writing signed by the decedent evidencing the contract.
 In some states, when two persons execute a single document as their joint will or where they
execute two wills with reciprocal provisions (mutual wills), this gives rise to a presumption that the
parties contracted not to revoke the will except by consent of both. However, under the UPC, the
execution of either a joint will or mutual will does not create a presumption of a contract not to
revoke, and thus both joint and mutual wills are revocable by either party at any time.
EXAMPLE: A, penniless, has three children from a prior marriage. A marries wealthy B. A and B
have one more child, Xavier. A and B enter into a contract that Xavier should get half of their
property, and the other half should be split among A’s children from the previous marriage. They
execute wills in line with the contract. After B dies, A wants to change A’s will so that all four of A’s
children get equal shares of the estate. If the contract can be sufficiently proven, it will be
honored. However, it will be honored as follows: A’s changed will will be admitted to probate, but
Xavier can sue the estate for damages or for specific performance.
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EXAMPLE: Husband and Wife executed a joint will, providing that the survivor would receive all of
the other’s property at death, and making specific gifts upon the death of the survivor, with the
remainder going to Husband and Wife’s child. Husband died first, and his estate passed to Wife.
Wife executed a new will making the specific gifts mentioned in the joint will, but leaving the
balance of her estate to her new boyfriend. To whom should Wife’s estate be distributed? To the
boyfriend – exactly as her will states.
3. Codicils
 A codicil is an instrument that is executed subsequent to a will and may be attested or
holographic.
 By its nature, a codicil refers to an earlier will by adding to, explaining, or deleting from it.
o As to the original will: A codicil republishes the will to which it refers, which means the will is
treated as if it were first written and executed as of the date of the codicil.
 A validly executed codicil cures most defects in the execution of the original will, particularly when
coupled with the doctrine, later described, known as “Incorporation by Reference.”
EXAMPLE: In 2012, A signs a typed will witnessed only by J. The will provides, among other things,
that Blackacre should go to X. Unless it meets validation under “harmless error,” the will is not
valid. It is typed, and thus not holographic. It has only one witness and is not notarized. Four years
later, A executes a document specified as a codicil of A’s 2012 will, making additional dispositions,
and specifically republishing the 2012 will in all other respects. If the 2016 codicil is valid, the
invalid 2012 will’s provisions will become valid through the formalities of the codicil operating in
tandem with the doctrine of “Incorporation by Reference.” Moreover, the will is now deemed to
have been executed in 2016.
EXAMPLE: A executes a will in September 2013 when he has two children. He executes a codicil in
December 2015, by which point he has a third child, unnamed in either the original will or the later
codicil to it. The codicil republished the original will and is deemed to have been executed in
December of 2015. Therefore, the left-out third child may not claim to have been unintentionally
omitted by being born after the will’s execution.
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4. Validity of Execution of Foreign Wills

 A will is validly executed if:
o In compliance with will formalities (e.g., UPC 2-502) or is saved under “harmless error” (e.g.,
UPC 2-503);
o in compliance with the law at the time and place of execution; or
o in compliance with the law of the place where at the time of execution or death, testator is
domiciled, has a residence, or is a national.
NOTE: Under common law, if there is a conflict between the laws of the states where the
testator was domiciled at death and that of the state where the will was executed, the validity
of the will is determined under the law of the state where testator was domiciled at death.
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REVOKING AND REVIVING THE WILL
1. Methods of Revocation
 Under the UPC, wills may be revoked by: Methods of Revocation
o physical act, or performing a revocatory act Physical act;
on the will; Later valid will; or
 A “revocatory act on the will” includes: Divorce.
burning, tearing, canceling, obliterating,
or destroying the will or any part of it,
whether or not the burn, tear, or cancellation touched any of the words on the will.
 The key is that the physical act must be done with the intent to revoke.
 Testator’s direction to another to perform the revocatory act is sufficient if the other
individual performs it in the testator’s conscious presence. The act need not be
performed in the testator’s line of sight.
 Words written on a different, distinct document cannot serve as revocation by
cancellation (e.g., A handwritten note on a note card in the same folder as a will that
states "Need to change this--call lawyer to fix" is insufficient unless that note
independently meets the capacity, intent, and formalities requirements of a later valid
will).
EXAMPLE: A called attorney B, and stated, “immediately destroy my will.” B does so while A
is on the line, listening to the sounds of paper being torn. The attempted revocation is
invalid.
EXAMPLE: T’s will leaves Cynthia $10,000. T becomes disenchanted with Cynthia and
crosses out the final zero (0), seeking to reduce her bequest to $1,000. T’s reduction of
Cynthia’s gift is valid as a partial revocation by physical act. Cynthia will get $1,000. *Note
that T did not intend to give Cynthia more—only to take away some, leaving less.
o executing a subsequent will that revokes the previous will or part expressly or by
inconsistency; or
 A valid later will may revoke an earlier one in whole or in part. (Partial revocation would be
called a “codicil.”)
 Revocation by later will can be express.
 If a later will does not expressly revoke the prior one, its execution might nevertheless
revoke the prior one by inconsistency in whole or part.
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 The testator is presumed to have intended a later will to replace rather than supplement a
previous will if the later will makes a complete disposition of the testator’s estate. If
this presumption is not rebutted by clear and convincing evidence, the previous will is
revoked.
EXAMPLE: T’s valid first will states “Blackacre to A, my car to B, residue of the estate to C.”
T’s valid second will makes no reference to revoking the first, and provides, “I give Blackacre
to R, and the rest to X.” There is no mention of the car in the second will. A and C lose their
bequests by inconsistencies between the wills and the later will controls. Moreover, B will
not receive the car, because the later will makes a total disposition of the estate and
presumptively replaces (rather than supplements) Will #1.
 If a subsequent will does not fully dispose of the testator’s estate, it will revoke the prior
will only up to the inconsistency.
EXAMPLE: Valid Will #1 states “I give $500 to Sue, my art collection to John, and the residue
of my estate to Carrie.” Valid Will #2 states “I give $300 to Warren and my art collection to
Hank.” The second will neither expressly revokes Will #1 nor contains a residuary clause. All
provisions of both wills that can be given effect will be followed. Read together, Sue gets
$500, the art collection will go to Hank instead of John, Warren gets $300, and the residuary
will still go to Carrie.
o divorce.
 If the testator is divorced after making a will, all provisions of the will in favor of or relating
to the now ex-spouse become ineffective for all purposes unless it is apparent in the will
that the provisions were intended to survive the divorce.
NOTE: The burden of proof to establish revocation is on the party seeking to revoke it.
HYPOTHETICAL: T’s will left $100,000 to Cousin. After a fierce argument, T validly executed a new will that
disinherited Cousin, and left two copies of it in his safe deposit box along with the original of the earlier
will. Cousin and T later reconciled. T went to the safe deposit box, removed one of the copies of the later
will, and tore it up, stating to a present neighbor “I feel better now. Cousin is taken care of.” What, if
anything, will Cousin take from T’s estate?
Negative wills permitted. Revoked copy of instrument, which is not revocation of will itself, so not valid
revocation of 2nd will disinheriting Cousin. Remains disinherited.
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HYPOTHETICAL: Jeff executed a valid, seven-page will leaving his entire estate to his children in equal
shares. After Jeff’s death, the children discovered that he’d defaced the first page by placing a large “X”
and the words “NO WAY” across it. The children also discovered a second will in Jeff’s handwriting, which
purported to leave everything to Jeff’s healthcare worker Helen. The second will did not mention either
the first will or Jeff’s children. Did Jeff revoke his first will? Explain.
Revocation may be accomplished by subsequent testamentary act/document, physical act or by operation of
law. Revocation by physical act requires intent to revoke as well as burning, tearing, canceling, obliterating, or
otherwise destroying the document. When a testator executes a second testamentary instrument that does not
contain any express language of revocation of an earlier will, the second instrument is treated as a codicil to the
will, but it revokes the will to the extent of any inconsistent provisions. A valid, subsequent will serves to revoke
all contradictory provisions of an earlier will.
Prior to Jeff's death, Jeff placed a large "X" across his first will and printed the words "NO WAY" on the first page.
This physical act by Jeff would go to show intent to cancel the document. However, Jeff only wrote on the first
page and did not write anything on the last six pages. It could be argued that Jeff did not intend to revoke the
entire will, only the first page. Also, Jeff had executed a second will with no mention of the first will. When a
testator executes a second will that does not contain express language of revocation of an earlier will, the
second will is treated as a codicil. The second will revoke the first will to the extent of any inconsistent
provisions. Here, the first will leaves his estate to all his children. Yet, Jeff’s second will leaves his estate to Helen.
Since these provisions are inconsistent, the second will trump the first will.
NOTE: The fact pattern tells you first will is VALID-no need to discuss validity of will before revocation.
2. Dependent Relative Revocation (DRR)

 Rule: DRR (i.e., conditional revocation): if a revocation was based (“conditioned”) on a mistake of
fact or law, then undo or “lift” that revocation if that's what testator would likely prefer.
 The doctrine of dependent relative revocation is the law of second best, i.e., its application does
not produce the result the testator actually intended, but is designed to come as close as possible
to that intent.
 Typically, courts apply DRR only when there is a sufficiently close identity between the bequest
mistakenly revoked and the bequest reflecting testator’s likely intent.
NOTES:
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3. Revival of Revoked Wills

 General Rule: Once a will is validly revoked, it cannot be brought back to life.
o Exceptions: The will is restated, re-executed, republished, or other clear evidence of intent to
revive.
 Republication can be made by codicil (again note the doctrine of “incorporation by
reference”) or by literally re-executing the original will that had been later revoked.
 Codicil to a will: Revives a will, so if a codicil is made to a revoked will, it will generally incorporate
and revive the revoked will as of the date of the codicil.
EXAMPLE: Bill writes Will 1, providing “Blackacre to A, $200 to B, the residue to C.” Bill then
executes Will 2 sometime later, which expressly revokes Will 1 and provides “$200 to X, residue to
Y.” Later still, Bill executes a codicil to Will 1, which provides “I give my car to Z, and hereby
republish Will 1 in all other respects.” This codicil now revives Will 1 and makes it a valid will again,
as if it were written for the first time as of the date of the codicil. Therefore, all of Will 1’s
provisions become later provisions in relation to Will 2. When Bill dies, it will be as if his will stated,
“I give Blackacre to A, $200 to B, my car to Z, and my residue to C.” The impact of the republication
of Will 1 by the codicil on Will 2 is that Will 2 will be considered revoked in its entirety, as Will 1
makes a total disposition of Bill’s estate, unless some evidence can be brought showing that Bill
did not intend for this complete revocation.
HYPOTHETICAL: T had a valid will leaving $20,000 to his sister. Deciding to increase that bequest, T
crossed out “I give $20,000 to Sister” on page 1 of the will, writing above the crossed-out phrase, “I give
$40,000 to Sister.” How much, if any, will Sister take?
Attempt to give $40 k failed- not valid holographic codicil- need signature. Sister can't get $40 K- so does she get
$20 k or nothing? Under DRR, revive $20 k gift that T crossed out. Most likely result- best carries out T's intent.
4. Lost Wills
 A will that can be traced to testator’s possession at death but which either cannot be found or is
found mutilated after testator’s death is presumed to have been destroyed or mutilated by
testator (and not someone else) with the intent to revoke.
 If the will was known not to be in testator’s possession at death, the presumption is not raised.
NOTES:
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HYPOTHETICAL: Richard’s will leaves Joanne $10,000. Richard gives a copy of the will to Joanne. When
Richard dies, the original will cannot be found. Joanne seeks to probate her copy, while Richard’s family
asks the probate court to declare him intestate. What should be the result?
If the will is in the custody of decedent, presumed revoked. Copy is irrelevant; original must be proven.
5. Copies of Wills
 Executed Copies
o If testator signs the copy of a will, it becomes an executed copy and functions as an original
will.
o Revocation of an executed copy is a perfectly effective revocation.
 Unexecuted Copies
o Unexecuted copies have no legal effect.
o The revocation of an unexecuted copy means nothing.
 If multiple executed copies, the revocation of one is presumed to extend to and revoke all copies.
NOTES:
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26
CHALLENGING THE WILL: WILL CONTESTS
1. In a will contest, a person interested in the distribution of the estate objects to the admission of the
will to probate on the ground that the will is invalid for some reason.
2. Standing to Object to Probate or Contest the Will

 Only someone who will have a beneficial interest if they succeed can challenge a will. Heirs always
have such an interest (i.e., standing), even if not named in an earlier will.
3. The grounds for contest of a properly executed will are:

 lack of testamentary capacity;
 undue influence;
 mistake;
 fraud; or
 ambiguity.
o Patent ambiguities: appear on the face of the instrument.
o Latent ambiguities: arise when the language of the will could benefit multiple parties,
competing parties, or apply to different property due to lack of specificity.
o Once an ambiguity, patent or latent, is established, both direct and circumstantial evidence
of the donor’s intent may be considered to resolve it.
4. In Terrorem Clauses (No-Contest Clauses)

 Generally, an in terrorem clause in a will attempts to disqualify anyone contesting the will from
taking under it.
 While permitted, courts dislike such clauses and tend to construe them narrowly.
 If the challenge goes to some kind of fraud, the court will never hold the in terrorem clause valid
against the challenging party.
 Most states hold that the clause is ineffectual if the person affected had reasonable cause to
contest the will or acted in good faith when doing so.
NOTES:
27
28
COMPRISING AND CONSTRUING THE WILL: INTERPRETATION
1. In General
 Wills are always to be construed in accordance with the discernible intent (hence the term “will”)
of the testator.
2. Integration
 Recall the primary question and answer: what comprises the will? Any pages that suffice under
integration, i.e. present at execution plus intended to be a part of the will.
 If a question of integration arises, the will proponent must show that the will offered for probate is
actually the will that the testator intended to make, and that no insertions or removals of pages
from the will have occurred.
 As explored below, there are four doctrines under which either pages or acts that would fail
“integration” may nevertheless become part of the will and given testamentary effect.
NOTES:
29
3. Incorporation by Reference
 The UPC recognizes the common-law doctrine of incorporation by reference, which permits the
inclusion by reference of unintegrated, unattested documents as part of a will if:
o the writing was in existence at the time of execution of the will;
o the will manifested intent to incorporate; and
o the will described the writing sufficiently to permit its identification.
EXAMPLE: Jane’s will provides, “I want the provisions in the letter written by me on August
10th, 2014, a letter now in my desk in my home, to be given effect.” When Jane dies, if a letter
is found in Jane’s desk with that date, it will be given effect and incorporated into the will if it
existed as of the date of the will’s execution (which the facts suggest that it did).
4. Facts of Independent Significance

 Under the doctrine of facts of independent significance, a will may provide for the designation
of a beneficiary or the amount of a disposition by reference to some future unattested act
occurring after the execution of the will, so long as that act or fact holds some significance apart
(‘independent of”) an attempt to change the will.
EXAMPLE: The actual property disposed under a bequest of “all my household furnishings” will be
dependent on what kinds of property the testator dies owning. These are facts of independent—
i.e., non-testamentary—significance; people buy and sell things to use or dispose of them, not to
covertly alter the provisions of a will. Alternatively, a bequest to “such persons as I have named in
a paper to be found in my desk marked “Last Instructions” would fail this test (but possibly be
saved under a different doctrine, e.g. incorporation by reference.
 A second and common example of this is a residuary clause, which provides for everything not
otherwise disposed to go to a particular beneficiary – everything done in life will affect that
residuary clause.
NOTES:
30
5. Personal Property List: The UPC recognizes the ability for a testator to make a writing that lists
personal property the decedent would like to transfer to certain individuals if the writing described
the beneficiaries and the property to be given away with reasonable certainty.
 The writing will dispose of the property even if not properly attested, as long as it is signed.
 This writing can be created even after the will is in existence, as opposed to before, which
incorporation by reference requires.
 Real estate or real property cannot pass in this way. Moreover, the statute makes clear that
money is not personal property for this purpose.
6. Dispositions to Inter Vivos Trusts: Under the Uniform Testamentary Additions to Trust Act (UTATA),
if a testator makes a gift to a trust in existence at the time of the decedent’s death, that gift will be a
valid disposition, even if the trust is created or altered/amended after the will was executed.
 The disposition of assets in a revocable trust is determined by the trust instrument.
7. Selected Statutory Rules of Interpretation

 A will speaks at death, so the situation in existence at the time of death will carry the day. For
example, “the rest to my children” will cover children born after the time of execution as well as
those already born before.
 The UPC takes the position that the will controls all probate assets of the decedent’s estate at the
time of death, even if the property is purchased post-will execution but before death. In fact,
property acquired by a decedent after death may also be controlled by the will, such as post-death
bonuses.
 After-acquired property will not be covered by the will if the will does not speak to it.
EXAMPLE: T executes a will giving $500 to X and all real property to Y. After the will is written, T
purchases a car. When T dies, the car will not pass under the will, because the only provisions in
the will involve cash and real estate rather than cars. This would be a case of partial intestacy, and
the car will go to T’s heirs under the applicable statute of descent and distribution.
NOTES:
31
32
COMPRISING AND CONSTRUING THE WILL: LIMITS ON TESTAMENTARY DISPOSITIONS
1. Spouse’s Elective Share

 A surviving spouse has the right to decline to take under the will or pursuant to the intestacy
statute, and instead choose to take an elective-share.
o The amount of the elective share is generally equal to 50% of the value of the marital-
property portion of the augmented estate.
o The right to elect survives even where the testator specifically and purposely left the spouse
out of the will.
o An election not exercised personally by the surviving spouse may be exercised on the surviving
spouse's behalf by his or her conservator, guardian, or agent under a power of attorney. In any
case, the surviving spouse must be alive when the election is made.
o Elective share percentages are creatures of statutes, which can create, limit, and abolish them.
 Procedure for Election
o The surviving spouse must make an election within the later of:
 nine months after the date of the decedent’s death; or
 six months after the probate of the decedent’s will.
HYPOTHETICAL: Herb and Winnie were married for 30 years when Herb died, leaving a will that gave
everything to his dear friend Homer. Winnie was outraged. Does she have any recourse?
(1) Can try to challenge will. (2) Can take elective share; must be within 9 months of death or 6 months of
probate of estate.
 Property Subject to Election

o As earlier stated: the surviving spouse has a right to an elective share amount generally equal
to 50% of the value of the marital property portion of the augmented estate.
o The 50% is a constant. The value of any particular decedent’s augmented estate and the
“marital property portion” thereof are not.
NOTES:
33
o Picture the augmented estate as a “metaphorical pile” that consists of the sum of all property,
whether real or personal, movable or immovable, tangible or intangible, wherever situated,
that constitute:
 the decedent’s net probate estate;
 the decedent’s non-probate transfers to persons other than the surviving spouse;
 the decedent’s non-probate transfers to the surviving spouse; and
 the value of the surviving spouse’s net assets at the decedent’s death, plus the surviving
spouse’s non-probate transfers to others.
o Under the UPC, the amount of the surviving spouse’s elective share is calculated by applying a
sliding scale percentage to the augmented estate that is guided by the principle that the
longer the marriage, the higher the “marital property portion.”
 Marriages of a few months generate a marital property portion of 3% of the augmented
estate.
 Marriages of 15 years or more generate a marital property portion of 100% of the
augmented estate.
 Remember: the surviving spouse is entitled to 50% of that amount.
o In satisfying the elective share, the decedent’s probate and non-probate transfers to the
surviving spouse and the marital portion of the surviving spouse’s assets are applied first.
(Policy: least disruptive to decedent’s estate plan.)
 If the amount of the elective share is not satisfied from same, the decedent’s probate and
non-probate transfers to others are proportionately liable to satisfy the balance.
o The UPC also provides for an amount of a supplemental elective share, a special feature for
small estates that is designed to bring the surviving spouse’s assets up to at least $75,000, or
as close to that figure as the value of the assets permits.
o Case law in many states allows a surviving spouse to claim an elective share of assets
contained in a revocable trust under the theory that if the decedent could have revoked that
trust at will, the property in it “kind of” continued to belong to that decedent up until death.
 Property Not Subject to Election
o The right of election of a surviving spouse may be waived, wholly or partially, before or after
marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
NOTES:
34
o This often occurs in prenuptial agreements (and in some states, post-nups) between the
couple.
 A prenuptial agreement in which spouses waive rights to a share in each other's assets
upon death or divorce is valid. However, such an agreement does not bar either party from
making subsequent gifts or bequests.
o These sorts of waivers are carefully scrutinized, and might be ineffective if inequitable or based
upon incomplete financial disclosure.
o The decedent’s transfers that were supported by adequate and full consideration are excluded
from the augmented estate, even if the purchaser is a relative.
2. Additional Spousal Protection – After Marriage

 If a testator’s surviving spouse married the testator after the subject will was executed, the
surviving spouse is entitled to receive an intestate share (which is often greater than an elective
share) unless:
o the will indicates that the spouse was not intended to take anything under the will; or
o if inter vivos gifts are made to the spouse in satisfaction of the spouse’s share.
3. Children Not Mentioned in the Will – After-Born or Adopted Children

 Omitted Heirs: Children Living at Time of Execution of Will
o Generally, under the UPC, a testator can disinherit a child intentionally. There is no forced or
elective share for children in the same way that there is for a spouse.
o Omitted heirs are testator’s children who had been living/already adopted at the time that
testator’s will was executed, who are neither mentioned nor provided for in the will, and would
have inherited from testator had testator died intestate.
o Those omitted heirs gain no protection.
o Recall that the UPC allows negative wills to disinherit anyone, even children, and even affect
how much those who are disinherited can take through intestate succession as well as under
the will.
NOTES:
35
 Children Born After Execution of the Will: Statutory Protection

o If testator fails to provide for a child born or adopted after making the will, the UPC protects
such child from unintentional disinheritance and instead entitles the child to some share,
unless it appears from the will that the failure was intentional.
 If the testator had no child living when the will was executed, the after-born or adopted
child receives an intestate share.
 Exceptions:
o The will devised most or all of the estate to the omitted child’s other parent.
o The face of the will reflects that testator intended omission.
 If testator had one or more children living at the will’s execution, and the will made a devise
to one or more of them, the omitted after-born or adopted child is entitled to share in what
they received as if the child had been given an equal share of that portion of the estate.
NOTES:
36
EXAMPLE: Testator writes a will when two children are alive, giving each $7,500. After the
will is executed, a third child is born. There is no indication that the third child was
intentionally omitted or disinherited. The after-born child is entitled to receive under the
will. The disposition to the first two children will be combined, and the amount distributed
proportionally to all three children. In this case, the two $7,500 dispositions will combine
for a total of $15,000, and each child will get $5,000.
 If testator had living children at the time of the will’s execution but they received nothing
under the will, the after-born or adopted child will continue to “share” by also getting
nothing.
 Special Applications
o Non-marital after-born children are entitled to take under this statute from their mother’s
estate, and from their father’s estate, if the father and mother of the child marry, or the father
holds the child out to be his during his lifetime, there is a judicial determination of paternity, or
some other clear and convincing evidence of paternity.
o Recall the effect of a valid codicil: republication. If a valid codicil is executed after the birth of
an originally after-born child, the entire will is republished as of that date, the child is treated
as if in existence at execution, and will not be entitled to an intestate share.
NOTES:
37
EXAMPLE: A will is executed in 2000. Testator has two children at that time. A third child is
born in 2010. A codicil is executed in 2012. The codicil republished the will as of 2012. The third
child is no longer an after-born child.
4. Restrictions on Charitable Dispositions

 Any rule that a charitable devise is invalid if it exceeds a certain proportion of the testator’s estate
or if it is contained in a will that was executed within a certain time before the testator’s death is
abolished.
NOTES:
38
COMPRISING AND CONSTRUING THE WILL: SPECIAL STATUTORY PROVISIONS
1. Disqualifications
 Slayer Act
o Any person who participates, either as a principal, co-conspirator, or an accessory before the
fact, in the willful and unlawful killing of the decedent may not acquire any property or receive
any benefit as a result of the decedent’s death.
 This rule often arises with insurance proceeds, contracts, and pension plans.
o The slayer rule does not apply if the killing was reckless, accidental, or negligent.
NOTE: An agent who acts in good faith in making health-care decisions is generally
shielded from both civil and criminal liability, even for a decision to withdraw or withhold
care or treatment.
EXAMPLE: Howard dies of gunshot wounds inflicted by his spouse, Charlotte, who is later
convicted of voluntary manslaughter. He died intestate, leaving Charlotte and his parents,
George and Diane. Who takes his property? Because it is a felonious intentional slaying by
Charlotte, she cannot take as an heir. The parents will split the property equally.
o Distribution of Property
 The slayer will be deemed to have predeceased the decedent.
 This applies to property that would have passed from the decedent or his or her estate to
the slayer under the statutes of descent and distribution or by statutory right of the
surviving spouse (i.e., “elective share” or “after-married spouse”).
 Joint tenancy property with rights of survivorship is converted to tenancy in common. The
interest of the slayer prior to the slaying will be kept, with the other portion passing as
tenancy in common property to probate estate.
o Proceeds of Insurance
 If the slayer is the beneficiary or assignee of a policy insuring the life of the decedent, or is
the survivor of a joint life policy, the proceeds will be paid to the decedent’s estate, or, if
designated, to a contingent beneficiary, even if the contingent beneficiary is a relative of
the slayer.
NOTES:
39
 Other Circumstances
o Refusal to Support; Desertion: The UPC requires some definitive legal act in order to bar the
surviving spouse; desertion or abandonment are insufficient.
o Effect of Divorce and Remarriage Upon Wills
 An ex-spouse is no longer a surviving spouse.
 All provisions of the will relating to the divorced spouse are ineffective unless it is
apparent in the will that the provisions were intended to survive the divorce or the
parties remarry.
 This ends heirship rights at a minimum.
 There must be a final legal decree of divorce. Pending divorces and separations are
deemed not final enough to bar the other party.
2. Simultaneous Death
 In many states, survival by an instant is enough. By contrast, under the UPC, one who cannot be
established to have survived the decedent by 120 hours (5 days) by clear and convincing
evidence is deemed to have predeceased that decedent.
 If the time of death of the decedent, the heir/beneficiary, or both cannot be determined so as to
establish death order by 120 hours each will be deemed to have failed to survive the other.
EXAMPLE: A and Spouse, B, die together in a car crash. Witnesses report that B survived A by two
hours. B is treated as having predeceased A for purposes of succession, despite sufficient
evidence of B’s literal, physical, scientific, and actual survival.
 For joint tenancy property, the 120-hour survivorship rule remains.
EXAMPLE: A and B are sisters and joint tenants in Blackacre. A and B die together in a car crash
within 24 hours of one another. They are survived by their brother, C, who would have been the
heir to each of them in intestacy, and a woman named Louise. Sister A died intestate; Sister B died
testate with a will bequeathing everything to A and the rest to Louise. A’s ½ of the joint tenancy
will pass to C through intestacy. B’s ½ of the joint tenancy will not go to A for failure to survive by
120 hours. Instead, it will fall into the residual estate and thus to Louise. In result, Louise and C will
be tenants-in-common of Blackacre.
EXAMPLE: Same facts as above, but A, B, and Louise all own Blackacre in joint tenancy. Louise will
take the property fully under the will substitute and her right of survivorship therein.
NOTES:
40
HYPOTHETICAL: Tom and Samantha are married; Tom is Samantha’s next of kin; Tom’s parents will
inherit if Tom survives Samantha. Tom and Samantha are in a car accident, with Tom declared dead at
the scene and Samantha, ten hours later at the hospital. Who will inherit Tom’s estate? Samantha’s?
Samantha will be deemed to predecease; Tom’s parents will take estate in equal shares. Samantha’s estate will
go to her heirs or beneficiaries.
3. Disclaimer of Property Interests

 A disclaimer is a refusal or rejection of a testate or intestate share.
 In order to be effective, a disclaimer must be:
o in writing or other record;
o declare the disclaimer;
o describe the interest or power disclaimed;
o signed by the disclaiming party; and
o delivered or filed.
 A disclaimer may be either total or partial, disclaiming less than the full bequest.
 It is impermissible to disclaim where:
o The would-be recipient has waived their right to disclaim the bequest.
o The would-be recipient had already received and accepted the property.
o The would-be disclaimed interest has already been assigned or encumbered (i.e., by
mortgage).
o The would-be disclaimed interest has already been sold in a judicial sale.
 Effect of Disclaimer
o A disclaimer relates back to the date of the death of the decedent.
o Because of that relation back, the disclaimant is treated as having predeceased the testator,
even though the disclaimer is made after the death of the testator.
 Thus, the disclaimer will accelerate the possession of subsequent interests.
EXAMPLE: If T left property to L for life and remainder to L’s children, and L disclaimed, the
remainder will be distributed to the children as though L had predeceased T. Even if there
is a gift-over in case one of the remaindermen dies during the life estate, the remainder will
be accelerated if the life tenant disclaims.
NOTES:
41
 A contingent remainder will not be accelerated where there are prior successive interests.
EXAMPLE: If T leaves property “to A for life, remainder to B and his heirs, but if B dies
without issue, to A’s heirs,” A’s disclaimer will not accelerate the interests of A’s heirs,
because B’s interest precedes those interests.
o Reasons people disclaim:
 To defeat creditors (one treated as having predeceased the decedent is thought to have
never acquired the disclaimed property, at all, to begin with).
 Tax purposes.
 To try to manipulate shares.
EXAMPLE: Father dies intestate, survived by Son. Son has two children – X and Y who also
survive Father. Father had a daughter, Daughter, who had predeceased, but who had a child
of her own, Z surviving Father. In intestacy, and in every single jurisdiction no matter what
representational scheme were employed, Father’s estate will pass by representation with 1/2
to Son and 1/2 to Z, representing daughter. However: if Son’s disclaimer could be treated as
though Son predeceased Father. In certain jurisdictions, that would result in X, Y, and Z each
taking 1/3 of Father’s estate. Note the reduction of Z’s share from 1/2 to 1/3 and the increase
of X & Y’s shares from 0 to 2/3rds (in the process, increased the share of “their line” from the
1/2 that their dad would have taken had he not disclaimed).
 This “share manipulation,” is tricky and potentially intent-defeating as it is, will not be
recognized under the UPC. Instead, a disclaiming party’s children will only take the share
that the disclaiming party him or herself would have taken had that party not disclaimed.
NOTES:
42
43
COMPRISING AND CONSTRUING THE WILL: POST-EXECUTION CHANGES TO PEOPLE AND PROPERTY
1. Classification of Testamentary Distributions [Post-Execution Changes Relating to Property]

 A specific bequest (i.e., of personal property) or devise (i.e., of real property) is a gift by will of
something that can be identified and distinguished from all other things of the same kind, and is
satisfied only by delivery of the particular thing.
o The use of the possessive word “my” usually indicates that a specific legacy was intended.
 A general legacy is one payable out of the general assets of the decedent’s estate and not
separated or distinguished from other things of like kind.
 A bequest or devise is classified as demonstrative when it is a bequest of a sum certain to be
paid out of a particular fund.
o If the fund is not in existence at the testator’s death or if it is insufficient the legatee will be
entitled to satisfaction out of the general estate.
EXAMPLE: Compare “100 shares of ABC stock to B” or “$100 to A” with “my 100 shares of ABC
stock to B” or “my gold coins under the bed worth $100 to A.” In the first set of testamentary
transfers, note that neither is specific, and the executor could offer either to purchase the
stock or coins or transfer their value to satisfy the gift in the will. In the latter two instances, the
transfers are specific and that sort of latitude will not be permitted.
NOTES:
44
2. Ademption
 Ademption is what happens when a gift under a will fails for whatever reason.
 Ademption by Extinction
o Ademption by extinction can only occur with:
 A specific bequest/gift/devise;
 if it is a general gift, it cannot adeem by extinction.
o A testamentary gift is adeemed by extinction—i.e., it fails—when property specifically
bequeathed or devised is no longer in the testator’s estate at death.
EXAMPLE: If the testator specifically devised Blackacre to X in a will executed in Year 1,
exchanged Blackacre for Whiteacre in Year 2, and died in Year 3, the devise of Blackacre would
adeem by extinction and X would be out of luck.
NOTE: Generally, the fact of the property’s absence matters but the reason for its absence
does not.
o Conveyance of an Incapacitated Person’s Property
 Ignoring intent in this way can be harsh. So, if specifically devised property is sold or
mortgaged by a conservator or agent acting by a durable power of attorney for an
incapacitated principal, the devisee has the right to a general devise equal to the sale price,
the unpaid loan amount, or the recovery.
 A power of attorney is a relationship under which the principal appoints an agent to act
on his or her behalf. The power gives the agent the authority to deal with and transact
the principal’s property during the principal’s life. The “durable” power of attorney
continues even after the principal is incapacitated.
o Non-Ademption; Balance
 A specific devisee has a right to all specifically devised property that remains in the
testator’s estate at the testator’s death, and to:
 any balance of the purchase price, together with any security agreement, owed by a
purchaser at the testator’s death by reason of a sale of the specific property;
 any amount due but as yet unpaid at testator’s death for the condemnation of the
specific property;
 any proceeds unpaid at testator’s death on fire or casualty insurance on or other
recovery for injury to the specific property;
NOTES:
45
any real property or tangible personal property owned by testator at death which was

acquired as a replacement for the specifically devised real or personal property.
EXAMPLE: R provides in his will, “I devise Orangeacre, my vacation property, to J.” Post-
execution but pre-death, R sold Orangeacre and bought Greenacre, which he used until
his death as a vacation property. Under the exception to the ademption rule, Greenacre
could be argued as a replacement of Orangeacre as they are both vacation properties,
and J will get Greenacre.
EXAMPLE: Same facts as above, but Orangeacre was commercial property (and
specified as such in the will). Greenacre, used as vacation property, is unlikely to be
deemed a replacement to Orangeacre, which was commercial property, and the specific
bequest to J will therefore adeem.
 Stock
 Dispositions of stock are often troublesome because it is unclear whether the testator
intended a general or a specific bequest.
EXAMPLE: If the will says “my fifty (50) shares of Wood stock to Jimmy,” the possessive
pronoun makes this a specific disposition of the identified shares (i.e., those the
testator owns); if she owns none at her death, the bequest is adeemed and Jimmy end
up out of luck.
EXAMPLE: If the will says “fifty (50) shares of Vladivos stock to Leonid,” and the testator
owned no such shares at her death, the court would instead interpret this as a general
bequest, with Leonid entitled to either the value of 50 shares of Vladivos stock as of the
date of the testator’s death or perhaps the executor’s purchase of 50 shares to transfer
to Leonid instead.
 Ademption by Satisfaction
o An ademption by satisfaction occurs when a testator makes an inter vivos gift of property to
a beneficiary of a general or residuary (thus non-specific) disposition with the intent that the
provision of the will be thereby satisfied in whole or in part.
o Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise only
if:
 the will provides for deduction of the gift;
 the testator declared in a contemporaneous writing that the gift is in satisfaction of the
devise or that its value is to be deducted from the value of the devise; or
NOTES:
46
 the devisee acknowledged in any writing that the gift is in satisfaction of the devise or that
its value is to be deducted from the value of the devise.
EXAMPLE: T’s will provides, “I leave $10,000 to J.” During T’s life, he makes a gift of $3,000 to
J, and in writing then and there states, “This gift reduces the amount of any gift J takes
under my will.” This will be sufficient to find partial satisfaction, by the gift, of the will
bequest. J will therefore take $7,000 under the will. Had there been no writing, there would
be no satisfaction.
HYPOTHETICAL: Tara leaves “my car to my niece Sarah.” When Tara wrote her will, she owned a 1967
Firebird. Tara subsequently gave the Firebird to Sarah and purchased a 1998 Honda minivan, which she
still owned at the time of her death. What should be the result?
Sarah gets both- two cars.
Firebird: “my” important- specific bequest- subject to ademption by extinction. Was not in estate- Sarah can’t
get it under will BUT Sarah already got it.
Minivan: NO ADEMPTION BY SATISFACTION- This is specific, doesn’t apply to specific - Sarah will likely get
minivan. No Ademption by Extinction, because substitute rule. No contemporaneous writings, so no Ademption
by Satisfaction.
3. Encumbered Property: No-Exoneration Rule

 Property (often real estate) that is subject to a lien will go to the designated beneficiary with that
lien intact. The debt is not exonerated.
 However, if the testator’s will specifies for the executor to pay the debt on the property, the
executor will do so and the devisee will take the property free and clear of the mortgage or other
lien.
o Exception: A direction to pay “all debts and expenses” is considered boilerplate and will not
cover mortgages.
4. Abatement
 Abatement occurs if the assets of the testator’s estate are insufficient after payment of all claims
against the estate to satisfy all the bequests or devises to the beneficiaries.
NOTES:
47
 Order of abatement:
o property that would pass intestacy;
o residuary bequests;
o general bequests;
o demonstrative bequests;
o specific bequests.
 Accordingly, the estate will be distributed as follows:
o Specific devisees get first and get their full bequests.
o Then general devisees will take, and if necessary, their shares will be reduced proportionally
under abatement.
 If the beneficiary is a class and abatement is required, the whole class will share in the abatement
proportionally to the value of their gifts.
HYPOTHETICAL: T wrote a will that left Blackacre, the family home, to Sister. T later sold Blackacre and
reinvested the sales proceeds in Whiteacre, which became T’s new family home. What is Sister entitled to
receive from T’s estate?
Specific bequest. Normally adeems. Exception for replacement, however. Here, clearly replacement property.
HYPOTHETICAL: Tara leaves an estate consisting of Blueacre (worth $50,000) and $25,000 cash. Tara’s
will devises Blueacre to Jill, and the balance of her estate to Robin. There are, however, debts against
Tara’s estate in the amount of $15,000. What should be the result?
Only $60k in estate to satisfy $75k worth of gifts in the will. Thus, abatement. Residuary hit first; if not enough
to cover, generals hit; if that’s not enough, then specific. Robin will get $10k in cash. Jill will get Blueacre in full
value.
5. Class Gifts [Post-Execution Changes Relating to Persons]

 A class gift exists when the testator makes a gift to a number of persons as a group, and the size
of the group may either increase or decrease in size; the share of each depends upon the ultimate
number in the class.
 Closing of Class—Maximum Membership
o As a general rule, class gifts close at the time the will is effective (i.e., at T’s death).
o Courts will often employ, alternatively, the rule of convenience, under which a class closes
when any person is entitled to call for a share.
NOTES:
48
6. Lapse [Post-Execution Changes Relating to Persons]

 Under the common law, a lapse occurs whenever a beneficiary predeceases the testator (i.e., fails
to survive by the required period of time). The gift to that beneficiary will fail.
 Under the common law, unless saved by an anti-lapse statute:
o A lapse in the body of the will falls into the residuary (if there is one, or if not, to intestacy).
o A total lapse in the residuary of the will falls to intestacy.
o A partial lapse in the residuary falls to the other residuary takers.
o A lapse in a class gift falls to the other class members.
Remember your basic visual of the will:
 Anti-Lapse Statute
o Under an anti-lapse statute, a gift is saved if:
 the predeceasing beneficiary was closely enough related to the testator; and
 the predeceasing beneficiary was survived by descendants who also survived the
testator; then those descendants will take by anti-lapse unless the will clearly expresses a
contrary intent.
NOTES:
49
 Examples of the required relationship between testator and the predeceasing

beneficiary:
o Any relative.
o Any relative but a spouse.
o Any relative who is a descendant of testator’s grandparent(s).
o No relationship required; all predeceasing beneficiaries qualify.
 Examples of an expressed contrary intent include:
o Will states that the anti-lapse statute shall not apply,
o Will specifies survival as a requirement or states that predeceasing triggers lapse, or
o Will implies requirement of survival by naming a contingent beneficiary.
HYPOTHETICAL: T devises the “rest and residue” of his estate to Bob and Fred. If Bob predeceases T, who
will receive Bob’s share of the residue?
Fred, under common law lapse principles, unless the gift was saved by anti-lapse. Revives residuary legatee, so
no intestacy.
 Class Gifts
o Because lapse and anti-lapse principles apply to class gifts in wills, the UPC requires that
words of survivorship for class gifts must be explicit in stating that anti-lapse statutes
should not apply.
EXAMPLE: T has three daughters, A, B, and C. A dies in 1977, leaving issue. T executes a will in
1978, leaving his entire estate “to my daughters.” B dies in 1979, leaving issue; T dies in 1980.
Neither A nor her issue take anything. Because A died before T executed the will, T was
presumed to draft it to refer to the daughters alive when he wrote it, i.e. B and C. B’s take
under the class gift would lapse to C under the common law. However, because there was no
explicit requirement that B survive, B’s gift is saved from common law lapse by the anti-lapse
statute. Even though B’s issue are technically not T’s daughters, but instead, his grandchildren
(granddaughters though they may be), they take B’s one-half share of the estate per stirpes,
and C takes the other half.
NOTES:
50
HYPOTHETICAL: Adam died at the scene of a car accident at the age of 92. The driver was his grandson
Sam. Adam’s will had the following devises:
(1) “I give $25,000 to Bob, my dear friend.
(2) I give Blackacre to Carla, my loving niece.
(3) I give the rest of my estate in equal shares to my son Donald, my sister Edna, and my best friend
Faye.”
Although all named beneficiaries were alive when Adam executed the will, each except for Faye, pre-
deceased Adam. Bob was survived by his only son, who was alive at Adam’s death. Niece Carla was
survived by two daughters, both of whom were alive at Adam’s death. Donald (Adam’s son) was survived
by his own son, Sam (Adam’s grandson and the driver of the car at the time of the fatal accident).
Grandson Sam survived the accident but died three days after. Sister Edna was survived by three
grandchildren. Distribute Adam’s estate.
Bob – lapses; not protected by statute because friend. $25k will fall into residue.
Carla – anti-lapse applies; Carla’s two daughters will share equally.
Residue – Sam – slayer, but accident, so untriggered; predeceased because not 5 days survival. Edna’s
grandchildren will take her interest in residuary. Faye survived so will take her share. Therefore – Faye will get
half, Edna’s grandchildren will get 1/6 each.
NOTES:
51
HYPOTHETICAL: Andy, who had divorced his first wife Mary years ago, remarried Helen. Andy had one
son with Mary, Opie. Helen had two children from a previous marriage, Ernest and Peggy. Andy adopted
Peggy, but not Ernest because he was already an adult. Andy and Helen never drafted a will together, but
Andy also never revoked an old will from his first marriage to Mary. That valid will left:
(1) the house to his then-wife Mary;
(2) $10,000 to Mayberry Church; and
(3) the residue to Opie.
Andy died owning the home, a boat, and two bank accounts with $25,000 in each. Who should be
awarded what portions of Andy’s estate, and why?
If Andy died with valid will, its terms should be given effect to extent possible. His house would have gone to
Mary. As divorced spouse, now treated as having predeceased Andy, so Opie would get house under anti-lapse
statute or under residuary clause. The $10,000 to church remains. Opie would normally get the rest, boat and
bank accounts BUT need to consider restrictions on testamentary distribution- an omitted spouse and omitted
children. Helen is entitled to spousal share. UPC’s elective share statute provides that the spouse of a decedent
may elect to take one half interest in the marital property. Boat and bank accounts - marital property. Helen is
entitled to ½.
Need to consider omitted child doctrine. Because Andy adopted Peggy (but not Ernest), she may be considered
pretermitted child- natural or adopted child born/adopted after making of will. Recall that if testator had one
or more children living at the will’s execution (Opie), and the will made a devise to one or more of them, the
omitted after-born or adopted child (Peggy) is entitled to share in what they received as if the child had been
given an equal share of that portion of the estate.
NOTES:
52
INTESTATE DISTRIBUTION: SCHEME, STATUS, AND ALTERATION
1. In General
 Property of the estate that, for some reason, does not pass under a will passes according to state
statutes called the intestacy laws, or more specifically, “statutes of descent and distribution.”
EXAM TIP: Bar questions pertaining to intestate succession generally fall into three categories: (1)
questions of scheme; (2) questions of status; and (3) questions of alteration.
 A testacy proceeding refers to a proceeding to establish a will or determine intestacy.

o Intestacy is total if the decedent either never made a will at all, tried to make a will but
through an invalid document that cannot be saved by harmless error, succeeded in making a
valid will but validly and totally revoked it, or succeeded in making a valid will that was itself
successfully challenged.
o Intestacy is partial when the testator makes a will that does not cover all of testator’s
property, e.g. because of its terms or sometimes because of lapse.
EXAMPLE: A leaves an estate (after expenses, debts, and taxes) of $1,000. His will states only
that C, D, and E are each to receive $300, and does not specify what is to be done with any
excess property (thus no residuary clause). The $100 not distributed under the will passes via
intestacy for distribution to A’s heirs under the state statute of descent and distribution.
2. Statutory Provisions (i.e., Questions of Scheme)

 General Rule: A surviving spouse will always take some portion of the decedent’s estate.
How much? That depends on what other relatives of the decedent also survive that decedent.
NOTES:
53
Scenario Outcome
Surviving spouse but no surviving descendants or Surviving spouse takes the entire estate.
parents.
Surviving spouse and surviving descendants, all of Surviving spouse takes the entire estate.
whom are descendants of both the surviving
spouse and the decedent (i.e., no stepchildren on
either side).
Surviving spouse plus no surviving descendant of Surviving spouse takes the first $300,000 plus
decedent, but he or she is survived by 3/4 of the balance of the intestate estate.
parent/parents. The rest (assuming any is left over after that
large lump sum [$300,000] comes off the top!)
goes to the surviving parent(s) equally.
Surviving spouse plus surviving descendants of Surviving spouse takes the first $225,000 plus
the decedent, all of whom are issue of the 1/2 of the balance of the intestate estate.
surviving spouse, but where surviving spouse also The rest (assuming any is left over after that
has one or more surviving descendants who are large lump sum [$225,000] comes off the top!)
not descendants of the decedent. goes to the decedent’s descendant(s).
Surviving spouse plus any surviving descendants Surviving spouse takes the first $150,000 plus
of the decedent who are not also descendants of 1/2 the balance of the intestate estate.
the surviving spouse. The rest (assuming any is left over after that
large lump sum [$150,000] comes off the top!)
goes to decedent’s descendant(s).
o Bottom line: The more it looks like the surviving spouse will take care of the relatives of the
decedent fairly, the more likely that he or she will take everything. Once you add in in-laws and
steps, though, loyalties are divided and the amount he or she will take decreases.
 Remember: Intestate succession is the default rule, so those who don’t like what it
provides can always make the effort to write a valid will and leave it all exactly as desired
(subject to the spouse’s elective share: 1/2 of the value of the marital property portion
of the augmented estate).
NOTES:
54
 No Surviving Spouse; Spouse Not Entitled to Take

o The shares of the estate, if any, to which the surviving spouse is not entitled, or everything if
there is no surviving spouse, will descend in general as follows:
 To the decedent’s descendants by representation.
 “Representation” is defined differently in different jurisdictions:
o Pure/strict per stirpes (older, least common, modernly)
o Modern/modified per stirpes (newer, most common, modernly)
o UPC approach: Per capita by representation at each generation
 All three schemes are in play; sometimes they all generate the same result and
sometimes they differ.
 On the exam, look to see if they give you an intestacy statute.
 By representation through the following steps:
NOTES:
55
NOTE:
1. If a descendant survives the decedent and also leaves surviving descendants him or herself, those
children will take nothing and their parent will take everything under the theory that they will
benefit directly or indirectly, now or later, by that parent’s inherited wealth.
2. If a descendant predeceases the decedent and does not have any descendants of his or her own
to take their share, the entire root has died, the share fails and it is treated just as if that
child had never been born.
3. All of these notes are roughly based on presumed intent.
EXAMPLE: X has two children, A and B. A has two children, 1 and 2. B has one child, 3. 1
has two children, 4 and 5. 3 has one child, 6. X dies, survived by all 8 descendants. What
result? Applying the steps and notes above, A and B would share in X’s estate, taking 1/2
each. This would be so because of the notes above and irrespective of the
representational scheme applied. No one else would take anything.
NOTES:
56
EXAMPLE: Now assume that A, B, 1, and 3 predecease X but everyone else survives.
Applying the steps and notes above, in a pure per stirpes jurisdiction, 4 & 5 would
take 1/8 each, 2 would take 1/4, and 6 would take 1/2. No one else would take
anything. In a modified per stirpes jurisdiction, 4 & 5 would take 1/6 each, 2 would
take 1/3, and 6 would take 1/3. No one else would take anything. In a UPC
jurisdiction, 2 would take 1/3 and 4, 5 & 6 would each take 2/9 ths. No one else would
take anything.
 Note how in this final example, the results would come out in three different ways
depending on what representational scheme is applied. If the decedent is survived by
neither spouse nor descendant(s): the surviving parents of the decedent take in equal
shares.
 If only one parent survives that parent takes all.
NOTES:
57
 If the decedent is survived by neither spouse, descendant, nor parents: the descendants of
the decedent’s parents or either of them take by representation.
 In some instances, the courts will look to priority of distribution by looking at the degree
of consanguinity (blood-relatedness), but this is the minority rule.
 If there are no descendants, parents, or descendants of parents: go to the grandparents, or
if none, to their descendants (e.g. aunts, uncles, cousins) by representation.
 If there is no one there either, the estate will either pass to the next closest relative under a
degree of consanguinity, or will escheat to the state.
 Bottom line: Picture the family tree as a series of expanding pyramids. Intestacy laws try
to protect those in the closest pyramid to the decedent, based on the notion that those
“close in blood” are presumably also “close in heart.” The farther away the relative, the less
likely that relative will inherit.
HYPOTHETICAL: Harry dies, survived only by his parents, Herb and Winnie. He is predeceased by his wife
Wanda. What share does Herb and Winnie take?
Share, half to each.
NOTES:
58
HYPOTHETICAL: Next assume that Herb and Winnie had two other children, Abe and Alex. Alex has two
children, Bob and Benno; Bob has two children, Constance and Callie. If Herb, Winnie, Alex, and Bob all
predecease Harry, who takes?
Abe gets half. Benno takes 1/4 (half Alex’s share). What Bob would have taken (1/4) is split equally among
Constance and Callie - each will get 1/8.
3. Uniform Simultaneous Death Act

 Applies to intestate succession as well as testate succession and assorted non-probate transfers
(i.e., joint tenancies, life insurance policies).
 Heir must still survive decedent by 120 hours.
4. Special Problems of Intestate Distribution (i.e., Questions of Status)

 Adopted Children
o The UPC follows a transplantation theory with regard to adopted children.
NOTES:
59
 The theory holds that an adopted child generally loses any relationship with his natural
parents and is generally treated as the natural-born child of the adoptive parents, so that
such child can inherit from and through his adoptive parents and their kindred, and the
latter can inherit from and through the adopted child.
NOTE: In a majority of states, a child who is adopted can no longer inherit from natural
parents; however, in a minority of jurisdictions, a child who is adopted to a relative of the
natural parent may still take from the natural parent.
o However, if a natural parent dies and the child is later adopted:
 within the decedent’s family or
 by the surviving parent’s new spouse
 the child will still have inheritance rights through the deceased natural parent’s family
estate.
o In addition, if the natural parent remarries and consents to the adoption of his child by his new
spouse, the right of the adopted child to inherit from both of his natural parents is not
affected.
 A parent-child relationship exists between an individual who is adopted by the spouse of
either natural parent.
EXAMPLE: Following her divorce, Mother, M, gets custody of Child A, and then remarries. If the
stepfather, with M’s consent, now adopts the child, A will not be cut off from his natural
mother and can inherit from M, as well as inherit from his natural father.
HYPOTHETICAL: Amy married Robert after the death of her first husband, Andrew. Robert adopted
Amy’s two boys from that marriage. Two years after the adoption, Andrew’s only brother, Charles, dies
intestate. Amy’s children are the closest next of kin to Charles. Can they take by intestacy?
Yes, they can take.
 Stepchildren
o Stepchildren and foster children, while they might be loved and cherished, have no inheritance
rights unless they are legally adopted or can prove adoption by estoppel (which is essentially
an unperformed contract to adopt).
NOTES:
60
 Half-blood Relatives
o Half-blood relatives are siblings of the decedent by only one of his or her parents. In most
jurisdictions, they and their representatives take equally with relatives of the whole blood and
their representatives.
EXAMPLE: If the decedent is survived by a brother who shares the same mother and father,
and by a half-brother who only shares the same mother, both brothers are on an equal footing
for inheritance purposes.
 Non-marital Children
o A child born out of wedlock is considered the child of his mother and her kindred for purposes
of intestate inheritance.
o For similar purposes, a child born out of wedlock is also considered to be the child of his or her
father if paternity is sufficiently established, such as where:
 the parents marry each other;
 during the lifetime of the child, the father openly holds out the child to be his and receives
the child into his home; or
 a judicial determination of paternity exists.
 Posthumous Children
o Typically, persons conceived before the decedent’s death but born alive thereafter take as if
born in biological parent’s lifetime.
 Modernly, while conception must still precede birth, additional possibilities exist:
Conception Death of either father OR mother Birth (e.g., surrogacy)

Death Conception (e.g. frozen eggs, sperm, or Birth
embryos; posthumous sperm retrieval)
o Child must, however, survive its own birth by 120 hours.

EXAMPLE: B dies while A was pregnant with B’s child. If B’s will provides that each of B’s
children will get $25,000 from his estate, unborn and posthumously born child X will take
$25,000 from B’s estate if X survives its own birth by 120 hours. If B dies intestate, X will take
under any representational scheme if X survives its own birth by 120 hours.
NOTES:
61
HYPOTHETICAL: Fred died of cancer in 2008, but not before making deposits in a sperm bank to ensure
his bloodline. If his wife, Sarah, goes through an in vitro fertilization process after Fred’s death and
successfully carries fertilized embryos to term, can the posthumously conceived and posthumously born
children claim against Fred’s estate?
Yes, provided they meet the test – in utero within 36 months of death or born not later than 45 months after
death.
5. Advancements (i.e., Alterations)

 Similar to ademption by satisfaction.
 If a person dies intestate as to all or any part of an estate, property that had been given during life
to one who ends up being an heir is treated as an advancement against the estate only if:
o it is specifically or generally declared in a contemporaneous writing by the decedent; or
o acknowledged in ANY writing by the heir as an advancement.
 Property given as an advancement will reduce the amount of the person’s intestate share by the
value of that advancement.
 If the recipient of the property fails to survive the decedent, the gift is not counted as an advance
against the pre-deceasing relative’s own descendants in computing the division and distribution of
the decedent’s intestate estate unless the decedent’s contemporaneous writing provides
otherwise.
NOTES:
62
HYPOTHETICAL: Dorothy had three children, each with two children apiece (hence, six grandchildren).
Five years before her death, Dorothy gave Grandchild #1 $60,000 to buy a home and stated, “This is for
you because I love you.” Dorothy did not give similar transfers to any of her other grandchildren.
Dorothy’s three children predeceased her, and Dorothy left a $120,000 estate at her death. To whom
should Dorothy’s $120,000 estate be distributed? What is the amount of each person’s share? *Note that
as reflected below, it does not matter which representation scheme (pure, modified, UPC) would apply.
However, that reality would change were the grandchildren not “equally distributed,” e.g. if Child A had 3
children, Child B had 2, and Child C had 1.
Goes to descendants by representation. Originally had 9, but all 3 children dead, so 6 grandchildren will share
equally. Advancement – nothing written to indicate intent or acknowledgement, so no advancement towards
her share.
NOTES:
63
HYPOTHETICAL: Dan and his daughter Clara were involved in a car accident. First Dan dies, then his
daughter was pronounced dead upon arrival at the hospital. Clara was survived by her spouse, Sam, who
was her sole beneficiary under her duly probated will. Clara did not have any children. Dan was survived
by a brother, half-sister, adopted sister, and paternal grandfather, and left an estate of $300,000. Who
will share in Dan’s estate? What is the value of the share each will receive?
Heirs? Daughter – technically survived, but not by 120 hours, so predeceased. Natural, half, and stepsiblings will
each split estate equally; paternal grandparents not heirs because siblings are closer.
NOTES:
64

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MEE WILLS & ESTATES

After watching this lecture, you will be able to:

1. Evaluate whether a will was validly executed by:

2. Determine whether there has been effective revocation or revival of a will.

3. Evaluate whether there are colorable challenges to the will.

4. Identify what documents or acts comprise part of the will.

5. Construe a will in distribution of property and identify statutory authority to override

MEE is a trademark of the National Conference of Bar Examiners.

INTRODUCTION AND BROAD OVERVIEW

1. What is the Law of Decedents’ Estates?

2. Big Picture, Useful Terminology

Intestate Succession Testate Succession

EXECUTION OF ORDINARY WILLS

2. Capacity to Execute a Will

Three Concepts that Prevent Testamentary Intent

 Fraud: There are two types:

 Mistake: There are two types:

Formal Requirements of Wills

 There is no requirement that:

EXECUTING THE SPECIAL WILL: SPECIAL WILLS & CODICILS

2. Contracts to Make a Will, Joint or Mutual Wills

4. Validity of Execution of Foreign Wills

REVOKING AND REVIVING THE WILL

2. Dependent Relative Revocation (DRR)

3. Revival of Revoked Wills

CHALLENGING THE WILL: WILL CONTESTS

2. Standing to Object to Probate or Contest the Will

3. The grounds for contest of a properly executed will are:

4. In Terrorem Clauses (No-Contest Clauses)

COMPRISING AND CONSTRUING THE WILL: INTERPRETATION

4. Facts of Independent Significance

7. Selected Statutory Rules of Interpretation

COMPRISING AND CONSTRUING THE WILL: LIMITS ON TESTAMENTARY DISPOSITIONS

1. Spouse’s Elective Share

 Property Subject to Election

2. Additional Spousal Protection – After Marriage

3. Children Not Mentioned in the Will – After-Born or Adopted Children

 Children Born After Execution of the Will: Statutory Protection

4. Restrictions on Charitable Dispositions

COMPRISING AND CONSTRUING THE WILL: SPECIAL STATUTORY PROVISIONS

3. Disclaimer of Property Interests

1. Classification of Testamentary Distributions [Post-Execution Changes Relating to Property]

3. Encumbered Property: No-Exoneration Rule

5. Class Gifts [Post-Execution Changes Relating to Persons]

6. Lapse [Post-Execution Changes Relating to Persons]

 Examples of the required relationship between testator and the predeceasing

INTESTATE DISTRIBUTION: SCHEME, STATUS, AND ALTERATION

 A testacy proceeding refers to a proceeding to establish a will or determine intestacy.

2. Statutory Provisions (i.e., Questions of Scheme)

 No Surviving Spouse; Spouse Not Entitled to Take

3. Uniform Simultaneous Death Act

4. Special Problems of Intestate Distribution (i.e., Questions of Status)

Conception Death of either father OR mother Birth (e.g., surrogacy)

o Child must, however, survive its own birth by 120 hours.

5. Advancements (i.e., Alterations)

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