WILLS

I. INTESTATE SUCCESSION
A. IN GENERAL. Is the statutory method of distributing assets that are not disposed of by will. Property may
pass by intestate succession if:
1. The decedent dies without making a will;
2. The decedent’s will is denied probate (e.g., improper execution or successful will contest); or
3. The decedent’s will does not dispose of all of his property because a gift has failed or because the will
contains no residuary clause.

B. INTESTATE SHARE OF SURVIVING SPOUSE

1. Descendants Also Survive -- If the decedent is survived by a spouse and by descendants, in most
states the surviving spouse takes one-third or one-half of the estate. If in a Uniform Probate Code
(“UPC”) state, the surviving spouse takes the entire estate if the decedent is survived by descendants
all of whom are descendants of the surviving spouse and surviving spouse has no other surviving
descendants.
a. “Descendants” and “Issue” Are Synonymous

2. No Descendants Survive -- If the decedent is survived by a spouse but no descendants, in most states
the surviving spouse takes the entire estate. In UPC states, the spouse takes the entire estate only if the
decedent is not survived by descendants or parents.

C. INTESTATE SHARE OF KIDS AND OTHER DESCENDANTS. The portion of the estate that does not
pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes to the decedent’s kids
and descendants of deceased kids. Parents and collateral kin never inherit if the decedent is survived by kids
or more remote descendants.
1. Majority Rule—Per Capita with Representation -- The property is divided into equal shares at the
first generational level at which there are living takers. Each living person at that level takes a share,
and the share of each deceased person at that level passes to his issue by right of representation. If no
issue then takes at their level absorb dead person’s share to pass down to their heir. If more than one
dead people with descendant kid then share are combined then equally distributed to all the heirs at the
lower level.
a. Compare—Classic Per Stirpes -- common law, one share passes to each child of the decedent.
If a child is deceased, that child’s share passes to her descendants by representation. The
division is always made at the child level, regardless of whether there are any living takers at
that level. This method is also called “strict per stirpes,” and continues to be used by a small
minority of states.

2. Modern Trend—Per Capita at Each Generational Level. The initial division of shares is made at
the first generational level at which there are living takers, but the shares of deceased persons at that
level are combined and then divided equally among the takers at the next generational level. Persons
in the same degree of kinship to the decedent always take equal shares.

D. SHARES OF OTHER HEIRS

1. Parents -- If the decedent is not survived by a spouse or kids then the estate passes to the decedent’s
parents (one-half each) or surviving parent (who takes all).
2. Descendants of Parents -- If the decedent is not survived by a spouse, kids, or parents, the estate
passes to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
3. Grandparents -- if the decedent left no spouse, kids, parents, or bro/sis, one-half of the estate passes
to both of the decedent’s maternal & paternal grandparent or their descendants.
4. Nearest Kin -- If the decedent is not survived by any of the above, most states divide the estate into
maternal and paternal shares. One-half goes to the nearest kin on each side of the family, no matter
how remotely related to the decedent. Many states have enacted “laughing heir” statutes, which cut off
inheritance by persons so remotely related to the decedent that they suffer no sense of loss, only gain,
at the news of the death. These statutes cut off inheritance rights of persons related to the decedent
beyond the descendant-of-a-grandparent level.
5. Escheat -- If the decedent does not leave any relative capable of taking the estate, the estate passes to
the state. This is called escheat.
E. SPECIAL CASES
1. Adopted Kids
a. As to Adopting Family—Adopted Child Treated Same as Natural Child -- The adopted child
can inherit from and through his adopting parents. The adopting parents and their kin can inherit
from and through the adopted child. A child adopted after the execution of a will is considered
to be a pretermitted child within the meaning of a pretermitted child statute. Similarly, an
adopted child is considered to be a lineal descendant within the meaning of an anti-lapse statute.
b. As to Natural Parents—All Inheritance Rights Cut Off -- Adopted kids cannot inherit from
their biological parents, nor can the bio parents inherit from the adopted kid.
a. Exception—Adoption by Spouse of Natural Parent -- An adopted kid can inherit from his
mom and stepdad (if) stepdad adopts him. Adopted kid’s bio dad is cut of completely from
inheritance from his kid and his kid cannot inherit from him. BUT if you are using the UPC
rule then stepdad’s adoption will not stop the adopted kid from inheriting form his bio dad. He
actually gets to inherit from all 3 ppl, but bio dad still cannot inherit from kid.
b. Exception—Death of Natural Parent -- If an adopted kid is adopted by his step parent after
his bio parent dies, then the adopted kid can still inherit from his dead bio parent. Also,
adoption of a child by a close relative has no effect on the relationship between the child and
the families of the deceased natural parents.

2. Stepkids and Foster Kids

a. No Inheritance Rights -- stepkids and foster kids have no inheritance rights.
b. Exception —Adoption by Estoppel -- a stepchild or foster child can inherit from or through his
stepparents or foster parents as though legally adopted if the stepparents or foster parents gain
custody of a child under an agreement with the natural parent that they will adopt the child.
Posthumous Kids -- You can’t claim to be the heir of another person unless you was alive at the
other person’s death. Exception, a child in gestation at the decedent’s death inherits as if born
during the decedent’s lifetime because he is a heir to dead man. However, if you are not a
descendant/heir to the deadman, you are not qualified as an heir for estate distribution purposes,
e.g., he is your uncle not your dad.
3. Nonmarital Kids -- can inherit from their mom, but not dad unless the natural father:
a) married the mother after the child’s birth (“legitimated by marriage”);
b) was adjudicated to be the father in a paternity suit; or
c) After his death, he is proved in the probate proceedings by “clear and convincing evidence” to have
been the father of the child.

4. No Distinction Between Half Bloods and Whole Bloods - - they inherit equally.

F. DISINHERITANCE CLAUSE
1. Majority Rule—Disinheritance Clause Ineffective If Partial Intestacy -- a will provision that
expressly disinherits an heir is ineffective if (T) dies partially intestate. Rationale: If a (T) did not make
a complete disposition of her estate, the undisposed-of property passes by force of statute to the heirs,
and a (T)’s intent is irrelevant as to any property passing under the intestacy statutes.
2. Minority Rule—Disinheritance Clause Given Full Effect -- Under the UPC a (T) may exclude the
right of an individual to succeed to property passing by intestate succession. If the person survives the
decedent, the intestate share that would have passed to him passes as though he had disclaimed his
intestate share.

I. SUBSIDIARY PROBLEMS COMMON TO INTESTACY AND WILLS

A. SIMULTANEOUS DEATH -- A person cannot take as an heir or will beneficiary unless he survives the
decedent because property cannot pass to a dead person. You will have to apply either the USDA or 120-
hour rule according to the facts.

1. Uniform Simultaneous Death Act—Property Passes as Though Owner Survived -- Under the
USDA, if the title to property or its devolutions depends on priority AND there is not enough evidence
to prove the ppl did not die at the same time, then both ppl property passes as if they died first (e.g.,
beneficiary died before decedent). The purpose of the USDA is to prevent the property of one person
from passing to a second person and then to the second person’s beneficiaries. USDA applies to
 distributions of property by any means (intestacy, will, etc.). Concerning joint tenancy: “Where there is
no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than
simultaneously the property so held shall be distributed one-half as if one had survived and one-half as
if the other had survived.” The USDA applies only if there is “no sufficient evidence” of survival.
2. 120-Hour Rule -- The Uniform Probate Code uses the 120-hour rule, under which an heir or
beneficiary must survive the property owner by 120 hours in order to take. As with the USDA, the 120-
hour rule applies to all transfers at death: wills, trusts, intestacy, life insurance, and other nonprobate
transfers.
3. Statutes Apply Unless Governing Instrument Provides Otherwise -- No one is compelled to have
the USDA presumption or the 120-hour rule apply to her estate. Neither statute applies if the
decedent’s will or other instrument makes a different provision regarding survival. In drafting wills,
the technique most commonly used to cover the contingency of simultaneous deaths or deaths in quick
succession is a time-of-survival clause, making bequests contingent on surviving (T) by, e.g., 60 days.

B. DISCLAIMERS
1. Disclaimed Interest Passes as Though Disclaimant Predeceased Decedent -- No one can be
compelled to accept a gift. A beneficiary or heir may disclaim any interest that would pass to them
from the decedent or the decedent’s estate, with the consequence that the interest passes as though the
disclaiming party predeceased the decedent. Disclaimers are made primarily for tax evasions reasons.
2. Must Be in Writing, Irrevocable, and Filed Within Nine Months -- To be effective for federal estate
and gift tax purposes, the disclaimer of a gift by will, an intestate share, or life insurance or death
benefit proceeds must be (i) in writing, (ii) irrevocable, and (iii) filed within nine months of the
decedent’s death.
a. Beneficiary Under Age Twenty-One -- a beneficiary who is under age 21 has until nine months
after her 21st birthday to make a disclaimer.
b. Joint Tenants -- the period in which a surviving joint tenant may disclaim the portion of the
tenancy acquired by right of survivorship is nine months from the other joint tenant’s death.
c. Future Interests -- to avoid federal gift tax, future interest must be disclaimed within 9 months
of its creation.
3. Disclaimer May Be Made on Behalf of Infant, Incompetent, or Decedent -- A disclaimer may be
made by a guardian or personal representative on behalf of an infant, incompetent, or decedent, but the
Ct having Jx of the estate of the incapacitated person or decedent must find that it is in the best
interests of those interested in the estate of the beneficiary and is not detrimental to the best interests
of the beneficiary.
4. Estoppel If Any Benefits Accepted -- An interest cannot be disclaimed if the heir or beneficiary has
accepted the property or any of its benefits.
5. Creditors’ Claims -- a disclaimer can be used to defeat creditors’ claims, but a disclaimer cannot be
used to defeat a federal tax lien.
6. Disclaimer of Life Estate Accelerates Remainder -- Because the disclaimed interest passes as
though the disclaimant predeceased the decedent, upon disclaimer of a life estate the remainder is
accelerated. E.g., I disclaim income for life from Mom for tax reasons. Mom’s device has clause after
I die it goes to my kids. My disclaimer accelerated my interest straight to my kids at Mom’s death, not
mine.

C. DECEDENT’S DEATH CAUSED BY HEIR OR BENEFICIARY -- One who feloniously and

intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property
passes as though the killer predeceased the victim. This result is accomplished either through the operation of
a specific statute (called a “slayer statute”) or by the imposition of a constructive trust. Note: although the
killer gets no interest, because he technically pre-deceased the decedent for his action, what he would have
gotten passes to his heirs under the anti-lapse statute. Additionally, if one joint owner in a joint tenancy,
tenancy by the entirety, or joint bank account kills the other, the killer loses the benefits of the right of
survivorship. The act turns the joint tenancy into a tenancy in common, thus the victim’s half of property interest
passes under her will (or by intestacy) as though the killer predeceased her. The killer retains her half of the
property.
1. Proof of Killing—Evidentiary Standard -- A final judgment of conviction of murder in any degree is
conclusive for purposes of this type of statute. However, in the absence of a conviction of murder in any
degree, the Ct may determine by a preponderance of the evidence whether the killing was unlawful or
intentional.
D. ADVANCEMENT OF INTESTATE SHARE -- An advancement is a lifetime gift made to an heir with the
intent that the gift be applied against any share the heir inherits from the donor’s estate.
1. Common Law—Lifetime Gift to Child Presumptively an Advancement – if an intestate made a
substantial gift to one child and not to others during his lifetime, the gift is an “advancement” of the
child’s intestate share upon the parent’s death.
2. Modern Law—Common Law Presumption Reversed -- Provides that a lifetime gift is presumptively
not an advancement unless shown to be intended as such. Under UPC no lifetime gift is considered an
advancement unless it is: (i) declared as such in a contemporaneous writing by the donor, or (ii)
acknowledged as such in writing by the donee. (The donee’s writing need not be contemporaneous.)
3. Procedure If Advancement Found -- Under common law an heir who has received an advancement
has his share reduced by the amount of the advancement. However, if the advancement is greater than
the heir’s intestate share, he is not responsible for returning the excess. The date of the gift is the value of
the advancement, not what it’s worth at decedent’s death.
4. Advancee Predeceases Intestate -- An advancement is binding upon those who succeed to the estate
of the advancee in the event the advancee predeceases the intestate. Under the UPC, an advancement is
not binding on a predeceased heir’s successors unless the required writing or acknowledgment
specifically provides otherwise.

E. SATISFACTION OF LEGACIES -- The same rules apply to lifetime gifts to will beneficiaries as to intestate
heirs. Under modern law, a testamentary gift may be satisfied in whole or in part by an inter vivos transfer
from (T) to the beneficiary subsequent to the execution of the will, if (T) intends the transfer to have that
effect. This doctrine does not apply to gifts made prior to execution of the will. In states following the UPC
approach, the doctrine does not apply unless (T) provides for satisfaction in the will or a contemporaneous
writing or the devisee acknowledges, in writing, the gift as one in satisfaction. (e.g., Mom’s will bequeaths
$10k to me. After executing the will, Mom transfers $10k to me along with a written statement that this is in
satisfaction of the bequest in her will. The bequest to me is satisfied and I will takes nothing under Mom’s
will).
1. Value of Gifts in Satisfaction -- Common law, if a gift is found to be in satisfaction of a testamentary
provision, the value of the gift must be determined at the time that gift was made. UPC approach, gifts
in satisfaction are valued at the time the devisee comes into possession or enjoyment or at the death of
(T), whichever occurs first.
2. Gift of Specifically Bequeathed Property to the Beneficiary -- There is one situation in which
satisfaction of a bequest can occur even if not proved to have been so intended. If (T) gives the
specifically described property to the beneficiary, there is both a satisfaction of the legacy and an
ademption.
II. EXECUTION OF WILLS

A. WHAT CONSTITUTES A WILL -- A will is an instrument, executed with certain formalities, that usually
directs the disposition of a person’s property at death. A will is revocable during the lifetime of (T) and only
operative at his death. Thus, an instrument that is operative during (T)’s lifetime or transfers an interest in
property while Testator is alive cannot be a will.
1. Codicil -- A codicil is a supplement to a will that alters, amends, or modifies the will.
2. Instrument Need Not Dispose of Property to Be a Will -- Although most wills dispose of property at
death, the disposition of property is not a legal requisite of a will. The term “will” includes an
instrument that merely appoints a personal representative or revokes or revises another will.
3. Will Has No Legal Effect Until (T)’s Death -- A will takes effect only upon the death of (T). Until
that time, the will may be revoked or amended, and the beneficiaries named in the will have only an
expectancy. Wills operates upon circumstances and properties as they exist at the time of (T)’s death.
In construing the will, however, the circumstances that existed at the moment the will was executed are
considered to discern what (T) meant by the words he used.

B. TESTAMENTARY INTENT -- For a will to be valid, (T) must intend that the particular instrument operate
as his will. Testamentary intent is established by the document itself. Testamentary intent can be established
by extrinsic evidence but will be found only if it is shown that (T): (i) intended to dispose of property; (ii)
intended the disposition to occur only upon his death; and (iii) intended that the instrument in question
accomplish the disposition.
1. Present Intent Required -- The intention required is a present testamentary intent. A signed and
witnessed statement of an intent to make a will in the future is not a will.
 2. Sham Wills -- An instrument containing a recital that “this is my Last Will” raises a presumption of
testamentary intent, but the presumption is rebuttable. Evidence is admissible to show that the intent was
bogus.
3. Ineffective Deed Cannot Be a Will -- If a deed fails as an inter vivos conveyance, it cannot be
probated as a will even though it was signed and attested by the required number of witnesses. If the
grantor intended the deed to be operative during his lifetime, it cannot be a will.
4. Conditional Wills – are wills that expressly provides that it shall be operative only if some condition
stated in the will is satisfied. However, language that reads like a condition may be interpreted by the Ct
as expressing (T)’s motive or inducement for making the will.
a. Condition Must Be Expressed in Will -- Parol evidence is not admissible to show that a will
was intended to be conditional, but it may be admitted to show that the instrument was not meant
to have any effect at all (e.g., a sham will).
b. Condition vs. Motive – if unclear argue both ways -- Suppose Mary signs a duly attested
instrument that reads, “I am going on a safari to Africa. If anything happens to me on the trip,
here is how I want my property disposed of” Mary returns safely from the trip, but dies five years
later. Should her will be admitted to probate? This question has no clear answer, and in your
answer you should argue both ways. The following factors have been cited by the Cts in favor of
holding that the will was unconditional:
1. The fact that (T) executed a will is an indication that she did not intend to die intestate.
2. The fact that (T) preserved the document after returning from the trip is another indication
that the will’s operation was not intended to be limited.

C. TESTAMENTARY CAPACITY—MUST BE EIGHTEEN AND OF SOUND MIND -- At age 18 you

can make a will. If you make one before that it is not valid. You must have capacity at the time of will
execution.

D. EXECUTION OF ATTESTED WILLS -- For a will to be valid and admissible to probate, (T) must meet
the formal requirements of due execution imposed by the statutes of the appropriate state (i.e., Statute of
Wills). If the statutory requirements are not met, the will is void and cannot be admitted to probate even if
there is no objection. The formalities required for execution of a will vary from state to state, but most states
require:
1. The will or codicil must be signed by (T), or by another person at (T)’s direction and in her presence.
2. There must be two attesting witnesses.
3. (T) must sign the will (or acknowledge her previous signature or acknowledge the will) in each of the
witnesses’ presence.
4. The witnesses must sign in (T)’s presence.
Some states impose one or more of the following additional requirements:
1. (T) must sign at the end of the will.
2. (T) must “publish” the will, i.e., declare to the witnesses that the instrument is her will or otherwise
communicate this fact so that the witnesses know they are witnessing a will rather than some other legal
document.
3. The witnesses must sign in the presence of each other.

1. (T)’s Signature
a. What Constitutes a Signature -- Any mark affixed by (T), with the intent that the mark operate
as his signature. Also, his signature may be made by another person at his direction if in his
presence. In fact, if that person writes (T)’s name and then writes his own name, the person can
be counted as one of the two needed attesting witnesses.
b. Contemporaneous Transaction Doctrine—Order of Signing Not Critical -- Suppose that one
or more of the witnesses sign the will before (T) signs it (or that (T) and the witnesses sign on the
wrong lines). The exact order of signing is not material, as long as all of the signings occurred as
a part of a single, contemporaneous transaction.
c. Placement of Signature -- a will is valid as long as (T) signs somewhere on the instrument. In a
handful of states a will must be subscribed (i.e., signed at the end). In states with this
requirement, if anything other than the attestation clause follows (T)’s signature, the entire will is
void. However, by statute or case decision in several states, everything appearing above (T)’s
signature is given effect, but any matter following her signature is not considered a part of the will
and is disregarded.
 1) Compare—Words Added After Will Executed -- Suppose that, after the will is signed
and witnessed, T adds several clauses, making a new gift and naming an executor,
underneath her signature. This case does not involve the “signature at the end”
requirement. Here, the added clauses are not given effect for another reason: They are
unattested words. Only the words present on the will at the time it was executed are part of
the duly executed will, everything else is striked so the will is not void.
2. “Presence” Requirement -- Signing in someone’s presence is required. In most states, each witness
must sign in (T)’s presence, but not necessarily in each other’s presence. In other states, the witnesses
must sign in (T)’s presence and in the presence of each other. In most states, (T) must sign or
acknowledge the will or signature in the presence of each witness, but not necessarily at the same time.
Cts have applied various tests to determine when a person is in another’s presence.
a. Majority View—“Conscious Presence” Test -- The presence requirement is satisfied if each
party was conscious of where the other parties were and what they were doing, and the act of
signing took place nearby, within the general awareness and cognizance of the other parties.
b. Minority View—“Scope of Vision” Test -- Under this test, a person is present only if he could
have seen the signing. (An exception is made for blind persons.) This does not mean that the
signing must actually have been observed, but only that the person was in such close proximity
that he could have seen the signing had he looked.
3. Witnesses -- a will must be attested by two competent witnesses, but under the UPC a will is valid
either if: (i) it is attested by two competent witnesses, or (ii) it is signed by a notary.
a. Competency -- means that, at the time the will is executed, the witness is mature enough and of
sufficient mental capacity to understand and appreciate the nature of the act she is witnessing and
her attestation, so that she could testify in Ct on these matters if necessary. Most states do not
impose a minimum age requirement for witnesses.
b. Interested Witnesses -- At common law, an attesting witness who was also a beneficiary under
the will was not a competent witness and was barred from testifying as to the will’s execution and
the will could not be probated. This rule has been abolished in every state.
1) Majority Rule—Will Valid, But Bequest to Interested Witness Is Void -- statutes solve
the interested witness problem by eliminating the interest: The will is valid, but the gift to
the witness-beneficiary is void. These are called “purging statutes” because they operate
to purge the bequest to the witness.
a) Exception—Supernumerary Rule -- An exception is made if the witness-
beneficiary was a supernumerary witness, i.e., if there were three witnesses, two of
whom were disinterested, and the will can be proved by the disinterested witnesses.
b) Exception—Witness-Beneficiary Would Take If Will Had Not Been Admitted to
Probate -- if the interested witness would have taken if the will were not admitted to
probate, i.e., the beneficiary would have been an heir if there were no will, or if the
beneficiary was also given a bequest in an earlier will that he did not witness. In such
a case, the witness-beneficiary takes the lesser of: (i) the legacy, or (ii) his intestate
share (or gift under earlier will).
2) Uniform Probate Code—Interested Witness Rule Abolished -- Under the UPC, a will
or codicil, is not invalid because the will or codicil is signed by an interested witness.
(e.g., Mom’s will bequeaths $25k to me and the rest to sister. I signed as an attesting
witness. In most states, the bequest to me would be purged unless: (i) I was one of three
attesting witnesses, or (ii) I would be an heir (or legatee under an earlier will) if the will had
not been executed. BUT under the UPC, I takes the $25k legacy in any case because the
UPC has abolished the interested witness rule.)
4. Attestation Clause -- A well-drafted will contains an attestation clause. This clause, which appears
immediately below the signature line for (T) and above the witnesses’ signature lines, recites the
elements of due execution.
Example: “On the above date, (T) declared to us, the undersigned, that the foregoing instrument
was her last will. She then signed the will in our presence, we being present at the
same time. We then signed the will in (T)’s presence and in the presence of each
other, we and each of us believing (T) to be of sound mind on the date hereof.”
An attestation clause is prima facie evidence of the facts recited therein. Unlike a self-proving affidavit, an
attestation clause does not constitute sworn testimony and cannot serve as a substitute for the Ct room testimony of
the attesting witnesses. Attestation clauses can be useful in two situations:
a. Witness with No Memory of signing the will and doesn’t recall if he signed it in (T)’s presence,
and Witness with Faulty Memory remembers some things but unsure of exactly what happened.
 5. Self-Proving Affidavit -- Many states and the UPC permit a will to be made self-proved at the time it
is executed. (T) and the attesting witnesses sign the will, and then sign a sworn affidavit before a notary
public reciting that (T) declared to the witnesses that the instrument was her will, and that (T) and the
witnesses all signed in the presence of each other. (The affidavit can be executed at any time subsequent
to the will’s execution, but standard practice is to execute both the will and the self-proving affidavit in
one ceremony.)
a. Substitutes for Ct Testimony of Attesting Witnesses -- The self-proving affidavit serves the
same function as a deposition or interrogatory. It is a method by which the witnesses’ sworn
testimony can be secured at the time the will is executed, eliminating the need to track down the
witnesses and arrange for their testimony in probate Ct after (T)’s death. Self-proved wills may
be admitted to probate without further proof.
b. Signatures on Affidavit Can Be Counted as Signatures Needed on Will -- Majority view is
that the will is validly executed if affidavits were signed that concern the will. There is no
requirement that the witnesses sign at any particular place on the will, the signatures on the
affidavit are sufficient for the will’s execution.
6. Uniform Probate Code—Ct Can Ignore Harmless Errors -- Even though a will is not executed in
accordance with all of the required statutory formalities (e.g., there is only one witness), the UPC gives the
Ct the authority to ignore harmless errors. The defectively executed will can be given effect if the will
proponent establishes by clear and convincing evidence that (T) intended the document to be his will.

E. HOLOGRAPHIC WILLS – recognized by both UPC and states. A holographic will is one that is entirely
in (T)’s handwriting and has no attesting witnesses. Where recognized, a holographic will usually may be
made by any (T) with capacity, but a few states limit them to persons serving in the armed forces or
mariners at sea.
1. (T)’s Handwriting -- To be valid, a holographic will must be entirely in (T)’s handwriting. Exception:
the UPC and states that recognize holographic wills accept a will that contains some typewritten text
as long as the portion not in (T)’s handwriting is not material (i.e., the typewritten portion may be
disregarded without violating (T)’s intent). Note that most states do not require that a holographic will
be dated.
2. (T)’s Signature -- A holographic will must be signed by (T), but there is no requirement that it be
signed at the end of the will, so it can be signed anywhere on the document to be valid. Most Cts will
allow initials, a first name only, or a nickname.
3. Testamentary Intent – is a requirement. The test is whether some future writing was contemplated.
Extrinsic evidence is admissible to establish that an ambiguous document was intended to be a will.
4. Interlineations -- Most states that recognize holographic wills give effect to handwritten changes, such
as substituting beneficiaries, made by (T) after the holographic will is completed. By contrast, these
types of interlineations are not given effect if made to an attested will (unless the changes themselves
are sufficient to constitute a holographic codicil and the Jx recognizes such codicils).

F. ORAL WILLS - - are not recognized by majority or UPC

G. CONFLICT OF LAWS ISSUES

1. Real Property -- To the extent that a will disposes of real property, its validity and effect are
determined by the law of the state where the property is located.
2. Personal Property -- With respect to dispositions of personal property, the law of (T)’s domicile at the
time of her death controls the validity and effect of the will.
3. Foreign Wills -- a will is admissible to probate in a Jx if it has been executed in accordance with:
i. The law of that Jx;
ii. The law of the state where the will was executed;
iii. The law of (T)’s domicile at the time the will was executed; or
iv. The law of (T)’s domicile at death.

H. ATTORNEY LIABILITY FOR NEGLIGENCE -- Suppose that an attorney negligently prepares a will or
negligently supervises the will’s execution. Can the intended beneficiaries sue the attorney for the amount
they would have received had the will been properly drafted and executed? Common Law - Privity of Contract
Is a Defense -- only client who contracted for the attorney’s services can sue for negligence. Majority Rule—
Privity of Contract Rejected as Defense -- Beneficiaries can sue the lawyer for negligence. Note: the statute
of limitations begins to run on the date of the decedent’s death and not on the date the will was executed.
 III. COMPONENTS OF A WILL
A. INTEGRATION -- A will often consists of more than one sheet of paper, yet (T) and the witnesses sign and
attest on only one sheet: the last page of the will. The rarely litigated doctrine of “integration” concerns the
following question: What sheets were present at the time of will execution and thus comprise the decedent’s last
will? If an integration question is raised, the will proponent must show that the pages were present when the will
was executed and were intended by (T) to be a part of the will. The requirements of intent and presence are
presumed when there is a physical connection of the pages (staple, paper clip, etc.), when there is an internal
coherence by provisions running from one page to the next, or when the pages, read together, set out an orderly
dispositional plan. These requirements also can be established by the testimony of witnesses or other extrinsic
evidence. Note: missing pages cannot be admitted to probate, but all other pages should be admitted if they embrace
the substance of T’s dispositive plan.

B. CODICIL
1. Republication by Codicil -- A codicil is a later testamentary instrument that amends, alters, or
modifies a previously executed will. A codicil must be executed with the same testamentary
formalities as a will. Under the doctrine of republication by codicil, a will is treated as having been
executed (“republished”) on the date of the last validly executed codicil thereto.
2. Validation of Prior Invalid Will -- Cts interpret a codicil as impliedly incorporating a prior defective
will by references, thereby validating the prior will. Thus, even if a codicil states that it is
“republishing” a defective will, it is actually incorporating it by reference.

C. INCORPORATION BY REFERENCE -- an extrinsic document (not present at the time the will was
executed) may be incorporated into the will by reference so that it is considered a part of the will. To
incorporate a document by reference, three requirements must be met:
I. The document must be in existence at the time the will is executed;
II. The language of the will must sufficiently describe the writing to permit its identification; and
III. The will must manifest an intent to incorporate the document.
1. Document Must Be in Existence at Time of Execution of Will -- The requirement for incorporation
most strictly adhered to by Cts is that the document must be in existence at the time the will is
executed.
a. Exception for List Disposing of Items of Tangible Personal Property -- a will may refer to a
written statement or list to dispose of items of tangible personal property (not money, intangible
property, or property used in a trade or business) not otherwise specifically disposed of by the
will. The writing must be signed by (T) and must describe the items and the devisees with
reasonable certainty. The writing may be referred to as one in existence at the time of (T)’s
death. It may be prepared before or after the execution of the will, and it may be altered by (T)
after its initial preparation. Note that unless a state has a specific statute addressing this issue,
such lists prepared after the execution of the will are invalid.
2. Identification of Extrinsic Document -- The language of the will must refer to the extrinsic
document in such a way that it can be identified, and the document must correspond to the description
given in the will.

D. ACTS OF INDEPENDENT SIGNIFICANCE -- aka doctrine of “nontestamentary acts”, a will may

dispose of property by reference to acts and events that have significance apart from their effect on the
dispositions made by the will. Even though the identification of a beneficiary or the amount of a bequest will
be determined by some future unattested act, the bequest is valid if the act has some lifetime significance
other than providing for the testamentary gift.
1. Identification of Beneficiaries -- The future act may relate to the identification of the beneficiaries.
2. Identification of Property -- This doctrine also permits identification of the property that is to be the
subject matter of a bequest. That property are those items of tangible personal property. The gift does
not include intangible property e.g., stock certificates, savings account passbook covering deposits, etc.
3. Acts of Third Persons -- The doctrine of independent significance has been used with regard to acts
of third persons as well as to acts of (T). The usual situation is where a (T) directs that his property be
distributed in accordance with the will of another person. If the will is executed, and the other
requirements of incorporation are met, the other person’s will can be incorporated by reference. The
more difficult case is where (T) provides that his property shall be disposed of as provided in the
future will of another person.

E. POUR-OVER GIFT TO INTER VIVOS TRUST -- the Uniform Testamentary Additions to Trusts Act
 (“UTATA”), or its equivalent, has been enacted. A devise or bequest made to a trustee of an inter vivos trust
is valid, notwithstanding the fact that (T) has reserved the power to amend or revoke the trust or has actually
amended the trust after executing his will, and further notwithstanding the fact that the trust instrument or
any amendment was not executed in accordance with the Statute of Wills.

F. POWERS OF APPOINTMENT -- Used in drafting wills that create trust, a power of appointment is an
authority granted to a person, enabling that person (the donee of the power) to designate, within the limits
prescribed by the creator of the power, the persons who shall take the property and the manner in which they
shall take it. If a (T) wants to establish a trust to pay the income to her child for life, instead of deciding now
(when the will is drafted) who will take the property on the child’s death, (T) can give the child a power to
designate the remaindermen by his will, enabling the child to take into account family circumstances as they
develop during the child’s lifetime. Also, if, for example, a parent holds a testamentary power of appointment
exercisable in favor of her descendants, existence of the power over a substantial fund tends to insure filial
devotion.
1. General vs. Special Power of Appointment -- Applies the federal estate tax to property over which the
decedent held a general power of appointment but not to property over which he held a special power of
appointment. A general power of appointment is a power exercisable in favor of the donee himself, his
estate, his creditors, or the creditors of his estate. A special power of appointment is a power
exercisable in favor of a limited class of appointees, which class does not include the donee, his estate,
his creditors, or the creditors of his estate. Note: look at fact pattern for language that limits power of
appointment to specific ppl you will have a special power of appointment, but if it is broad language
then it is general power of appointment. Also, name the takers in default of the appointment, i.e., if
donee doesn’t exercise his power of appointment.
2. Presently Exercisable vs. Testamentary Power -- A presently exercisable power of appointment is one
exercisable by the donee during her lifetime. A testamentary power is one that is exercisable only by the
donee’s will. A presently exercisable power of appointment is also exercisable by the donee’s will unless
the donor has expressly limited exercise of the power to the donee’s lifetime.
3. Appointive Property Not Subject to Elective Share Statute -- The basic theory of powers of
appointment (whether general or special) is that the donee is the donor’s agent in designating the
beneficiaries of the appointive property; the donee is not the owner of the property. For this reason, a
surviving spouse’s elective share does not apply to property over which the deceased spouse held a
power of appointment.
4. Creditors Cannot Reach Appointive Assets -- Under the theory that the donee does not own the
appointive property, if the donee does not exercise her general power (whether presently exercisable
or testamentary), her creditors cannot reach the property.
a. If Donee Exercises Power—Creditors Can Reach Those Assets -- If the donee exercises the
general power, the Cts have abandoned the agency theory in favor of a fiction that enables the
donee’s creditors to reach the property. This is true whether the donee appoints to herself or to
some other person. The theory is that the donee, in making the appointment, is exercising a
dominion that is practically identical to that exercised by her over her own property, and so her
creditors can reach the appointive property as though she were the owner.
b. If Donee Is Also Donor—Creditors Can Reach Appointive Assets -- If the donee of a general
power is also the donor, her creditors can reach the appointive assets whether or not she exercises
the power. A general power of appointment cannot be used to squirrel away one’s assets from her
creditors. (This is analogous to the rule that a spendthrift clause in favor of the settlor of a trust is
invalid.)
5. Exercise of Powers of Appointment
a. Residuary Clause Does Not, By Itself, Exercise Testamentary Power -- a residuary clause, by
itself, does not exercise any power of appointment held by (T).
1) Minority Rule—General Power With No Gift in Default of Appointment -- In states
that have enacted the Revised Uniform Probate Code, a will’s residuary clause exercises a
general power of appointment unless: (i) the donor’s will called for its exercise by a specific
reference to the power, or (ii) the donor’s will provides for a gift in default of appointment.
Because a well-drafted will makes a gift in default of appointment (as in the above
example), the second exception usually applies.
b. “Blanket” Exercise of Power Permissible -- If a person holding a testamentary power executes a
will that devises “all the rest and residue of my property, including any property over which I
may have a power of appointment,” this “blanket” exercise of any power of appointment will be
given effect unless the creator of the power called for the power’s exercise by an instrument that
specifically referred to the power.
 1) State Statute May Provide Otherwise -- Several states have enacted statutes providing
that a power of appointment may be exercised only by an instrument that makes specific
reference to the power.
c. Exercise by Implication -- The Cts will find that a power of appointment (whether general or
special) was exercised by implication when the donee purports to dispose of property subject to
the power as though it were her own, meaning that the disposition can be given effect only if it is
treated as an exercise of the power. An exercise by implication can be found unless the donor
called for the power’s exercise by a specific reference to the power.
d. Interests That Can Be Created by Power’s Exercise -- Absent a contrary provision in the
instrument creating the power, the donee can: appoint the property outright or in trust (and can
include spendthrift provisions in the trust), create life estates and future interests, impose
conditions and limitations on the interests created, and create additional powers of appointment.
6. Contract to Exercise Testamentary Power of Appointment Is Invalid -- The donee of a
testamentary power of appointment (whether special or general) cannot contract to make an
appointment; such a contract is invalid, because to permit the donee to contract for the power’s exercise
would transform a power that was intended to be testamentary into a presently exercisable power, which
would defeat the donor’s intent.

G. NONPROBATE ASSETS CANNOT BE DISPOSED OF BY WILL -- Only property owned by the

decedent at death can be disposed of by will. A will cannot make a gift of “nonprobate assets”—i.e.,
interests that pass at death other than by will or intestacy. Also, nonprobate assets are not subject to the
personal representative’s possession for purposes of administering the decedent’s estate. There are 3 principal
categories of nonprobate assets.
1. Property Passing by Contract—Life Insurance Proceeds and Employee Benefits -- Life insurance
proceeds and death benefits under an employee retirement plan are payable to the beneficiary
designated by the insured (or employee) in his contract with the life insurance company (or retirement
plan carrier).
2. Property Passing by Right of Survivorship -- Property held by the decedent and another person as
joint tenants with right of survivorship, and property held by the decedent and his spouse as tenants by
the entirety, pass directly to the survivor outside of the probate process.
3. Property Held in Trust -- When an inter vivos trust is established, legal title to the settlor’s assets is
transferred to the trustee, and if the trust continues in operation after the settlor’s death, legal title
remains in the trustee.

IV. REVOCATION OF WILLS

A. IN GENERAL -- A person must have the capacity to revoke a will and if he does have testamentary
capacity (i.e., is of sound mind, has the capacity to know the nature of the act he is doing, etc.) may revoke
his will at any time before he dies. Even a (T) who contracted not to revoke a will may do so, and the will
must be denied probate. If he does do this there may be an action for breach of contract against the decedent’s
estate, and the remedy may be the imposition of a constructive trust upon the beneficiaries under the will.
Once validly executed, a will may be revoked only by operation of law, by subsequent instrument, and by
physical act.

B. REVOCATION BY OPERATION OF LAW -- A will may be partially or totally revoked by operation of

law in the event of subsequent marriage, divorce, or birth or adoption of kids.
1. Marriage Following Execution of Will—Omitted Spouse -- marriage following execution of a will
has no effect on the earlier will, even though it makes no provision for the new spouse, on the theory
that the new spouse is given adequate protection by the state’s elective share statute. Under the UPC, if
a person marries after executing a will and the spouse survives (T), the spouse takes an intestate share
of (T)’s estate as an “omitted spouse.” In most of these states, the will is only partially revoked, i.e.,
only to the extent necessary to provide the spouse with an intestate share. In making up the omitted
spouse’s intestate share, the usual abatement rules apply. Property passing by partial intestacy (if any) is
first used, then the residuary estate, then general legacies, demonstrative legacies, and, finally, specific
devises and bequests. Note that in states with omitted spouse statutes, no revocation occurs and the
spouse does not receive the intestate share if the will: (i) makes provision for the new spouse; (ii)
provides that the spouse’s omission was intentional; or (iii) was made in contemplation of the
marriage.
2. Divorce or Annulment Revokes All Provisions in Favor of Former Spouse -- Divorce or annulment
 following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse.
The rest of the will remains valid and is read as though the ex-spouse predeceased (T). The UPC makes
provisions in favor of the former spouse’s relatives who are not relatives of (T). The UPC also revokes
any gift or fiduciary appointment in favor of the former spouse (or the spouse’s relatives) in a decedent’s
revocable inter vivos trust.
a. Statutes Do Not Apply to Life Insurance Policies only to wills and revocable trusts, not to
insurance policies.
b. Statutes Apply Only to Divorce or Annulment by (T) or Settlor, so if the will gives property to
say a brother’s wife and the brother divorced his wife, his wife still takes the gift if the will isn’t
changed.
3. Pretermitted Kids -- if (T) fails to provide in his will for any of his kids born or adopted after the will
is executed, the child is entitled to a share of the estate equal in value to what he would have received
if (T) had died intestate. Thus, in the ordinary case, the pretermitted child’s share comes out of the
residuary estate, and the will is revoked to that extent.

C. REVOCATION BY WRITTEN INSTRUMENT

1. Instrument of Revocation Must Be Executed with Testamentary Formalities -- A will or any part
thereof may be revoked or altered by a subsequently written will, codicil, or other writing declaring
such revocation, as long as there is a present intent to revoke and the instrument is executed with the
same formalities as are required for the execution of a will. In states that recognize holographic wills, a
valid holographic will may revoke a typewritten, attested will.
2. Revocation by Implication—Inconsistent Provisions -- Suppose that T executes a 2nd testamentary
instrument that does not contain any express language of revocation of an earlier will. To the extent
possible, the 2 instruments are read together; i.e., the 2nd instrument is treated as a codicil to the will
and revokes the first to the extent of any inconsistent provisions.

D. REVOCATION BY PHYSICAL ACT

1. Requirements
a. Physical Act -- burning, tearing, obliterating, or canceling a material portion of the will are
physical acts that will revoke a will. The act must be shown to have had an actual effect on the
will or its language.
b. Intent to Revoke -- The intention to revoke must be present at the time of the physical act for
revocation to be effective.
2. Revocation by Proxy Permitted -- a will may be revoked by physical act by a person other than (T),
provided that the revocation is at (T)’s direction and in his presence.
3. Partial Revocation – is allowed, as well as total, revocation by physical act. The problem is in
determining whether (T) intended a partial or full revocation. Extrinsic evidence is admissible to make
that determination.
a. Only Residuary Gifts May Be Increased --A (T) can always increase the size of a residuary
gift by canceling or obliterating a general or specific bequest.
4. Presumptions as to Revocation
a. Will Not Found After (T)’s Death -- Where a will that was last seen in (T)’s possession or
under his control cannot be found after his death, a presumption arises that the will was revoked.
However, if the will was last seen in the possession of a third person or if a person adversely
affected by its contents had access to the will, no presumption of revocation arises.
b. Will Found After Death in Mutilated Condition -- Where a will last seen in (T)’s possession or
under his control is found after his death in a mutilated condition a presumption arises that (T)
did the mutilating with the intent to revoke the will.
c. Evidence to Overcome Presumption of Revocation -- To overcome the presumption of
revocation raised in the foregoing situations, extrinsic evidence is admissible to show (T)’s
intention.
5. Effect of Revocation on Other Testamentary Instruments
a. Revocation of Will -- The revocation of a will revokes all codicils to that will.
b. Destruction of Duplicate Will -- Where a will has been executed in duplicate (both original and
duplicate are signed and witnessed), an act of revocation performed by (T) upon either copy
revokes the will. Both signed copies of the will are of the same legal stature. However, the
destruction of an unexecuted copy of the will, accompanied by an intent to revoke, does not
revoke the will. The act of obliteration, destruction, etc., must be done on the will itself.
 c. Revocation of Codicil -- A physical act of revocation performed on a codicil revokes only the
codicil, not the prior will. In the absence of evidence to the contrary, it is presumed that in
revoking the codicil (T) intended to reinstate the will provisions changed by the codicil as
though the codicil had never been executed.
6. Lost or Destroyed Will—Contents Must Be Clearly and Distinctly Proved -- Suppose that a will is
accidentally destroyed in a fire, or that the will cannot be located after (T)’s death, but the presumption
of revocation that is raised by such facts is overcome by proof that (T) did not intend to revoke the will.
All states permit probate of a lost or destroyed will provided that the following 3 elements can be
proved: (i) valid execution; (ii) the cause of nonproduction (i.e., that revocation is not the reason for
nonproduction); and (iii) the contents of the will. The contents are usually proved by the testimony of at
least 2 witnesses or by production of a carbon or photocopy of the will.

E. REVIVAL OF REVOKED WILLS -- Under the minority rule, a will, once revoked, cannot be revived
when the revoking instrument is itself revoked unless the earlier will is re-executed (i.e., re-signed and
witnessed) or republished by a validly executed codicil. In this situation, in most states, a revoked will is
presumptively revived (i.e., restored to effectiveness) unless it is shown by (T)’s statements or other evidence
that she did not intend to revive the earlier will. (e.g., you made W1 and later made W2 revoking W1, but
later decided that you want to keep W1 and not W2 so you destroy W2, thus reviving the provisions in W1
under majority rule.)
1. Reexecution -- A will can be reexecuted with full testamentary formalities or by (T) acknowledging her
signature on the will or acknowledging the will and having this attested to by two witnesses.
2. Republication by Codicil -- Provided the first will is still in physical existence, it may be revived by the
valid execution of a codicil that expressly refers to it.

F. DEPENDENT RELATIVE REVOCATION -- under the Dependent relative revocation (“DRR”) doctrine
a Ct may disregard a revocation if it can determine that (T)’s act of revocation was premised on a mistake of
law or fact and would not have occurred but for (T)’s mistaken belief that another disposition of her property
was valid. If the other disposition is ineffective for some reason, the revocation accompanying the attempted
disposition also fails and the will remains in force. Necessary to application of DRR is that the disposition
that results from disregarding the revocation comes closer to effectuating what (T) tried (but failed) to do
than would an intestate distribution.

G. UNIFORM PROBATE CODE—HARMLESS ERROR STATUTE – UPC’s “harmless error” statute that
applies to the execution of wills also applies to the attempted revocation or alteration of a will, if the
proponent establishes by clear and convincing evidence that the decedent intended the document to be a
partial or complete revocation of a will or an alteration of the will.

CONTRACTS RELATING TO WILLS; JOINT WILLS

A. CONTRACT TO MAKE A GIFT BY WILL

1. Contract Law Governs -- a contract to make, not to make, or not to revoke a will is valid. Problems in
this area are controlled by contract law and not by the law of wills. The contract is not a will; it does
not have to be executed with testamentary formalities; it cannot be probated. The contract cannot be
used to oppose the probate of a properly executed will that is inconsistent with the terms of the
agreement. Such a will must be probated. There may be an action for damages or a suit in quasi-
contract for the consideration provided, but the usual remedy is for a Ct of equity to impose a
constructive trust upon the appropriate beneficiaries under the will.

2. Consideration -- The promisee does not have any enforceable contract rights unless she provided some
consideration for (T)’s promise to name her as a will beneficiary. Without consideration, (T)’s promise
is merely a promise to make a gift in the future and is not enforceable. But note that in a contract to
make a gift by will in exchange for a promise by the beneficiary to provide care to (T), the fact that (T)
died before the promisee could provide much in the way of care does not render the contract
unenforceable—the promise to provide the care was sufficient consideration.

3. Formal Requirements -- a contract to make a will or a gift by will need not be in writing unless land
is involved. Many states have enacted statutes requiring all such contracts to be in writing. Under the
UPC, a contract to make a will, not to revoke a will, or to die intestate can be established only by:
 a. Provisions in the will stating the material provisions of the contract;
b. An express reference in a will to the contract and extrinsic evidence proving the terms of the
contract; or
c. A writing signed by the decedent evidencing the contract.
4. Remedies for Breach
a. During (T)’s Life -- there is no remedy during (T)’s life because there is no way of knowing
whether (T) will carry out his promise until his death. If (T) repudiates the contract after substantial
performance by the promisee, the promisee may seek damages, quantum meruit (value of services
rendered), or equitable relief.
b. After (T)’s Death -- If the promisor fails to make the promised testamentary gift, the promisee
can seek damages equaling the value of the property promised. If the promise was to devise
specific property the remedy is for the Ct to impose a constructive trust on the property for the
promisee’s benefit.

B. JOINT AND MUTUAL WILLS

A joint will is the will of two or more persons executed on the same piece of paper and intended to serve as
the will of each. Thus, a joint will is a single instrument executed by two or more (T)s. A joint will is
admissible to probate on the death of each (T); it is as if there were separate pieces of paper. If one of the joint
(T)s should revoke his joint will, the document would still serve and be admissible to probate as the will of
the other(s). Mutual wills are separate wills executed by two or more (T)s that contain substantially similar
or “reciprocal” provisions. Thus, a mutual will is an instrument executed by only one person but which is
similar in its provisions to the terms of another (T)’s will.
1. Revocability -- Joint wills or reciprocal wills are revocable at any time during a (T)’s life in the same
manner as any other will. This is true even if the wills are executed pursuant to a contract which
provides that the wills shall not be revoked.
2. No Presumption of Contract -- the mere execution of joint wills does not raise a presumption that the
wills are contractual. Cts find that mere execution of reciprocal wills does not constitute evidence that
the wills are contractual.

C. CONTRACTS NOT TO REVOKE -- Just as parties can enter into a contract to make a will or a gift by
will, a (T) may enter into a contract not to revoke her will. Most of these cases involve a joint will or
reciprocal wills.
1. Contractual Will Revocable During Both Parties’ Lifetimes -- Either party may revoke a
contractual will provided she gives notice to the other party to the contract, so that the other party will
have a chance to change his will.
2. Relief Denied If First Party Dies in Breach -- If one party secretly revokes her will w/o giving notice
and predeceases the other party, the survivor has no remedy because he has not been damaged.
3. Constructive Trust Remedy If Survivor Dies in Breach -- If the surviving party to a contractual will
revokes her will and executes a new one, the new will is admissible to probate and the breach of contract
gives the beneficaries standing on the estate. The remedy is to impose a constructive trust on the
property. The beneficiaries under the new will, which was executed in breach of contract, hold on
constructive trust for the benefit of the contract beneficiaries; i.e., their duty as trustee is to convey the
property to the contract beneficiaries.
a. Compare—Remedy for Breach During Survivor’s Lifetime -- If the surviving party to a
contractual will attempts to dispose of property covered by the agreement during his lifetime,
the contract beneficiaries may be able to impress a constructive trust upon the property. In
contrast, if the surviving party merely revokes his will (no inter vivos transfer or other act of
clear repudiation) in breach of the contract, the contract beneficiaries have no cause of action
until that party’s death.
V. CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILL’S
EXECUTION

A. LAPSED GIFTS AND ANTI-LAPSE STATUTES

1. Gift Lapses If Beneficiary Predeceases (T) -- If a will beneficiary dies during (T)’s lifetime, the gift
to him lapses; i.e., it fails. A will cannot make a gift to a dead person.
2. Anti-Lapse Statutes -- operate to save the gift if the predeceasing beneficiary (i) was in a specified
degree of relationship to (T), and (ii) left descendants who survived (T). The beneficiary’s descendants
take by substitution under the anti-lapse statute. The anti-lapse statute applies only when the
 predeceasing beneficiary was a descendant of (T). UPC extend the application of the statute to any
predeceasing beneficiary who is (T)’s stepchild, grandparent, or a descendant of (T)’s grandparent.
The anti-lapse statute does not save the gift for the predeceasing beneficiary’s estate.
3. Anti-Lapse Statute Does Not Apply If Contrary Provision in Will -- e.g., a survivorship clause is in
the will. Under the UPC, words of survivorship are not sufficient to negate application of the anti-lapse
statute, so the anti-lapse statute will apply.
4. The anti-lapse statute applies only to testamentary (will) gifts. Under the UPC, it applies to wills,
revocable and irrevocable inter vivos trusts, life insurance beneficiary designations, and other
nonprobate transfers.
5. Lapse in the Residuary Gift
a. Common Law—“No Residue of a Residue” -- Suppose that a (T) devises her residuary estate to
two or more beneficiaries, one of the beneficiaries predeceases (T), and the anti-lapse statute
does not apply. At common law, the share devised to that beneficiary does not pass to the
remaining beneficiaries (unless the will so provides). Instead, the lapsed residuary gift “falls out
of the will” and passes under the intestacy statutes to the testator’s heirs. This was called the “no
residue of a residue” rule.
b. Majority Rule—Surviving Residuary Beneficiaries Take -- Most states have replaced the “no
residue of a residue” rule with a statutory rule under which the residuary beneficiaries who
survive (T) take the deceased beneficiary’s share of the residuary estate. If the residue is devised
to two or more persons and the share of one of them fails for any reason, absent a contrary will
provision, his share passes to the remaining living residuary beneficiaries in proportion to their
interests in the residue.
1) Exception If Anti-Lapse Statute Applies -- If the predeceasing residuary beneficiary was
within the scope of the anti-lapse statute and left descendants, the anti-lapse statute takes
precedence over the rule that the surviving residuary beneficiaries take.
6. Class Gifts
a. Class Gift Rule—Class Members Who Survive (T) Take Gift -- If a will makes a gift to a
class of persons (“kids,” “brothers and sisters,” etc.) and a class member dies during (T)’s lifetime,
those class members who survive (T) take the gift (absent a contrary will provision). Only those
who meet the class description at that time share in the gift. If the anti-lapse rule doesn’t apply,
the class gift stops at the class members (e.g., they split the gift of the dead class members
equally at their level), it does not go to residuary estate.
b. Exception If Anti-Lapse Statute Applies -- As with the “surviving residuary beneficiaries
rule,” the “class gift rule” gives way to the anti-lapse statute when the predeceasing class member
was within the scope of that statute and left descendants who survive (T). The anti-lapse statute
applies whether the class member’s death occurred before or after the execution of the will.
7. Beneficiary Dead When Will Executed—Void Gift -- If a will makes a gift to a beneficiary who was
dead at the time the will was executed, the gift is void. In most states, the rules that apply to lapsed gifts
(anti-lapse statute, “surviving residuary beneficiaries rule”) also apply to void gifts.

B. ADEMPTION -- when specifically bequeathed property is not in (T)’s estate at death (e.g., it was destroyed,
sold, given away, or lost), the bequest is adeemed; i.e., it fails. Ademption applies because the property that
was to have satisfied the bequest was not owned by (T) at her death.
1. Ademption applies only to specific devises and bequests (i.e. rolex watch). A specific legacy is a
gift of property that is particularly designated and is to be satisfied only by the receipt of the particular
property described.
a. May Not Apply to Gift of Sale Proceeds – Ademption does not apply to the extent that sale
proceeds of a gift can be traced. (i.e., there is language in the will that states beneficiary is to get
the proceeds from the sale of the gift). Timing is not relevant: can happen before or after (T)’s
death. But if the sale proceeds cannot be traced—if, e.g., T has spent the proceeds—ademption
applies.
b. May Not Apply to Gift of (T)’s Interest in Property -- If the bequest is of (T)’s interest in the
property, rather than of the property itself, the gift may not be adeemed. (e.g., T has vendor’s
lien on his property of which he is paid money for years, T willed that property interest to bro,
and that interest in property cannot be adeemed, but if it was strictly property of which T sold to
third party then, bro gets nothing.)
2. Partial Ademption -- Partial ademption applies when, e.g., (T) devises a large tract of land, then sells
a portion of the tract. Ademption applies to the portion of the property not in the estate, but the
remaining portion in the estate at death passes to the beneficiary.
 3. Ademption Does Not Apply to General or Demonstrative Legacies -- Ademption applies only to
specific devises and bequests. It does not apply to general or demonstrative legacies.
a. General Legacy -- is a bequest of a dollar amount that is payable out of the general assets of the
estate without a claim on any particular source of payment. (e.g., T bequests to X $5k, but doesn’t
have the cash at death, it’s ok b/c ademption doesn’t apply and other property in T’s estate must be
sold to satisfy X’s general legacy bequest or the personal rep of T’s estate could make a
“distribution in kind” (i.e., a distribution of assets worth $5,000) in satisfaction of the legacy.
b. Demonstrative Legacy -- is a gift of a general amount that identifies a particular asset as the
primary source of payment. Ademption does not apply to demonstrative legacies. (e.g., I bequeath
$10k to my niece Nancy, to be paid out of the proceeds of my 3M stock.) If T sells all of his 3M
stock before death, the $10k must be raised by the sale of other property in T’s estate. NOTE -
To the extent that the property from which the gift was to be satisfied is in the estate at death,
demonstrative legacies are treated as specific legacies for abatement purposes. To the extent the
fund is insufficient, however, the demonstrative legacy is treated as a general legacy.
c. Bequests of Securities—Special Rules Apply -- The Cts will construe a bequest of securities as
a general legacy, if it is possible to do so, in order to avoid application of the ademption doctrine.
The cases turn on whether (T) made a gift of “200 shares” or “my 200 shares.” Look at the fact
pattern to see if the bequest is specific or general. If it is general then ademption doesn’t apply, but if
it points to something specific or personal then ademption applies.

4. (T)’s Intent
a. (T)’s Intent Irrelevant Under Majority View -- Most Cts apply the “identity” theory of the
common law, under which the ademption issue is decided solely on the basis of an objective
test: whether the specifically bequeathed property is a part of (T)’s estate at her death. Under this
approach, (T)’s intent is irrelevant.
b. Statutory Modifications -- Many states have enacted statutes that soften the ademption rule in
certain circumstances:
1) Where casualty insurance proceeds for the loss of the specifically bequeathed property are
paid after (T)’s death, the beneficiary is entitled to the proceeds.
2) The beneficiary is entitled to the condemnation award in cases where the specifically
devised property is taken by eminent domain before (T)’s death, but the award is paid after
(T)’s death.
3) Where specifically devised property is subject to an executory contract at (T)’s death, the
beneficiary is entitled to all of (T)’s rights under the contract, including the right to the
remaining payments and any security interest retained by (T).
4) Where a will makes a specific bequest of securities in one entity, the beneficiary is entitled
to securities in another entity owned by (T) as a result of merger, consolidation,
reorganization, or other similar action initiated by the entity.
5) If a (T) becomes incompetent and the specifically devised property is sold by a guardian
or a condemnation award or insurance proceeds are paid to the guardian for the property,
the devisee is entitled to a general pecuniary legacy equal to the amount of the proceeds.

C. INCREASES TO PROPERTY AFTER EXECUTION OF WILL (ACCESSIONS)

1. Increases Occurring Before (T)’s Death -- Increases to specific gifts occurring during (T)’s lifetime
are distributed as follows: income on property (e.g., rents and profits) goes into the general estate, but
improvements to real property go to the specific devisee.
2. Increases Occurring After (T)’s Death -- Any increase to specific gifts occurring after (T)’s death
passes to the specific beneficiary.
3. Stock Splits and Stock Dividends -- Majority rule and UPC treat stock splits and stock dividends the
same way, and they pass to the specific devisee. NOTE: A bequest of stock can be classified as
general for one purpose (ademption) and specific for another purpose (stock split) look to facts to
make a guess.

VI. RESTRICTIONS ON POWER OF TESTATION— PROTECTION OF THE FAMILY

A. PROTECTION OF THE SURVIVING SPOUSE—ELECTIVE SHARE STATUTES

These statutes give the spouse an election to take a statutory share (usually one-third or one-half) of the
decedent’s estate in lieu of taking under the decedent’s will.
1. Amount of Elective Share – Majority rule: the amount is 1/3 of the net probate estate if the decedent
 is survived by issue and 1/2 if the decedent is not survived by issue.
2. Property Subject to Election – (Majority) the share is calculated from the decedent’s net estate, which
is the probate estate minus the payment of expenses and creditors’ claims.
3. Notice Must Be Filed -- The right to an elective share is not automatic; the surviving spouse must file
a notice of election within a specified period (within 6 months after the will is admitted to probate).
4. Right to Election Is Personal to Spouse -- only the surviving spouse may make the election to take
against the will. Election can be made on behalf of a legally incapacitated spouse by a guardian, with
Ct approval, upon a showing that an election is necessary to provide adequate support for the spouse
during her life expectancy. In contrast, if the spouse dies before the election is made, the election
cannot be made by the spouse’s personal representative.
5. Effect of Election on Testamentary Plan -- The elective share is paid in the manner causing the least
disruption to (T)’s testamentary plan. Thus, the elective share is first paid in cash or kind from the
assets passing under the will that, but for the election, would have passed to the spouse outright. (Life
estates are treated as though the spouse predeceased (T), and the remainder is accelerated.) To the
extent that these assets are insufficient to satisfy the share, the excess is paid pursuant to the abatement
rules that apply to creditors’ claims.
6. Lifetime Transfers to Defeat Elective Share – (majority) lifetime transfers by the decedent are
subject to the elective share if the grantor-spouse retained the power to revoke or to invade, consume,
or dispose of the principal. Revocable trusts may not be used to defeat a spouse’s right of election.

B. PROTECTION OF KIDS—PRETERMITTED CHILD STATUTES

A (T) may disinherit her kids; i.e., a parent need not bequeath anything to her kids. Pretermitted child
statutes are not intended to address that issue but are designed to protect kids from being accidentally
omitted from the will.
1. Omitted Child Entitled to Intestate Share -- a child born or adopted after the will was executed
takes an intestate share of the decedent’s estate provided none of the exceptions below apply. In making
up the child’s share, the normal abatement rules apply.
2. Exceptions -- the pretermitted child will not take a share if:
I. It appears from the will that the omission was intentional;
II. At the time the will was executed, (T) had other kids and devised substantially all of his estate
to the other parent of the omitted child; or
III. (T) provided for the omitted child by a transfer outside of the will (e.g., took out insurance
policy naming omitted child as beneficiary) with the intent that it was in lieu of a testamentary
gift.
3. Omitted Child May Be Limited to Bequests to Other Kids -- Under the UPC if (T) had other kids at
the time the will was executed and the will makes a provision for one or more of the kids, the portion of
the estate to which the pretermitted child is entitled is limited to the provisions made to the other kids
(meaning he will get an equal share like the other kids got). The bequests to the other kids are reduced,
but no other beneficiary’s bequest is reduced.
4. Failure to Provide for Child Believed to Be Dead -- If a (T) fails to provide in her will for a living
child solely because she mistakenly believed the child to be dead, the child shares in the estate as
though he were an omitted afterborn or after-adopted child.
5. Protects Kids of (T) Only -- the pretermitted child statute operates only in favor of (T)’s kids; (T)’s
grandkids are not covered.

C. HOMESTEAD, FAMILY ALLOWANCE, AND EXEMPT PERSONAL PROPERTY

1. Homestead -- Most states have statutes that protect the family residence or farm from creditors’
claims. These statutes exempt a certain amount of land from the claims of the decedent’s creditors.
These homestead laws often include a provision that the surviving spouse or minor/dependent kids are
entitled to occupy the homestead as a residence for as long as they so choose despite the disposition of
the residence in the decedent’s will.
2. Family Allowance -- The purpose of the allowance is to provide funds for support of the spouse and
kids during the period the decedent’s assets are tied up in probate administration. The family
allowance, which usually takes precedence over all claims other than funeral and administration
expenses, is in addition to the amount passing to the spouse (or kids) by will, intestacy, or elective
share. Some states limit the allowance to a specific dollar amount, while others authorize payment of an
amount needed to maintain the spouse and kids for one year or a “reasonable amount” to be fixed by
the Ct.
 3. Exempt Personal Property -- In addition to homestead rights and a family allowance, the surviving
spouse of a decedent is entitled to petition to set aside certain items of tangible personal property. This
exemption applies to household furnishings, appliances, personal effects, farm equipment, and
sometimes automobiles. These items are in addition to amounts passing to the spouse under the
decedent’s will, by intestate succession, or under the elective share. If there is no surviving spouse,
these items may be set aside for the decedent’s minor kids. The items are exempt from all claims
against the estate except perfected security interests thereon.
VII. WILL CONTESTS

A. GROUNDS FOR CONTEST - A will contest challenges whether the document offered for probate is a
valid will. The contestant may raise any matter tending to show that the will is not valid and should be denied
probate. A will may be contested on any of the following grounds:
1. Defective execution (e.g., only one witness when two are required);
2. The will offered has been revoked;
3. (T) lacked testamentary capacity or intent;
4. The will or a gift is a product of undue influence or procured by fraud;
5. The document was executed or a gift was made as the result of a mistake.

B. PROCEDURAL ASPECTS
1. A will contest must be filed within six months after the will is admitted to probate.
2. Only interested parties have standing to contest a will. To be an interested party, the person must have
a direct interest in the estate that would be adversely affected by the admission of the will to probate.
Creditors do not have standing to contest a will because their claims can be asserted whether the
decedent left a will or died intestate.
3. In most states, all legatees under the will and all heirs are necessary parties to a will contest and must
be given notice.
4. The burden of proof is on the will contestant to establish the grounds.
5. A will is void if its execution is procured by undue influence, fraud, duress, or mistake. If only a part
of the will was so procured, only that part is void, and the remainder of the will is given effect.

C. TESTAMENTARY CAPACITY
1. As of the date of execution of the will (T) Must Be Age 18 to Make a Will.
2. To have mental capacity to make a will (which is a lower standard than it takes to make a contract), (T)
must have sufficient capacity to be able to understand:
i. The nature of her act—i.e., she must actually know that she is executing a will;
ii. The nature and extent of her property;
iii. The persons who are the natural objects of her bounty; and
iv. The nature of the disposition she is making, i.e., to be able to relate the above factors and
formulate an orderly scheme of disposition.
a. (T)’s Capacity is determined at Time of Will’s Execution. All circumstances existing at the
time of execution are admissible on the capacity issue, as well as evidence relating to (T)’s state of
mind shortly before and shortly after the execution of the will.
b. The fact that (T) was very old, physically frail or ill, that she possessed a failing memory, or was
a habitual drinker or addicted to drugs, does not mean that she lacked the requisite mental
capacity and was unable to comprehend the nature of her act.
c. A person who has been adjudicated insane or for whom a guardian or conservator has been
appointed does not necessarily lack testamentary capacity. While such an adjudication is
evidence of a lack of the required mental capacity, it is not conclusive and can be overcome by
showing that (T) still met the specific standards set out above.
3. A person may have sufficient mental capacity to conduct his affairs and to make a will, but may be
suffering from an insane delusion so as to require a particular provision in a will to fail on the ground
of testamentary incapacity. An insane delusion may invalidate the entire will or only a particular gift.
a. Causation Requirement -- A will can be set aside on the ground of insane delusion only if it can
be shown that, the delusion caused the testamentary disposition. The contestant must show that
(T) would not have made the disposition in question but for the insane delusion.
b. “Insane Delusion” Defined -- is a belief in facts that do not exist and that no rational person
would believe existed.
 3. Burden of Proof as to Mental Capacity is on the Contestant.

D. UNDUE INFLUENCE - A will (or a gift in a will) is invalid if it is obtained through the exercise of undue
influence. Influence is not undue unless the free will of (T) is destroyed and the resulting testamentary
disposition reflects the desires of the party exerting undue influence.
1. To establish undue influence, the contestants, who have the burden of proof, must establish that:
a. Influence was exerted on (T);
b. The effect of the influence was to overpower the mind and free will of (T); and
c. The product of the influence was a will that would not have been executed but for the influence.
2. Circumstantial Evidence Does Not, By Itself, Establish Undue Influence -- the Ct finds only
circumstantial evidence, and no direct evidence, that influence was exerted. These factors, by
themselves, are insufficient to establish undue influence:
a. A will cannot be set aside on proof of facts that show that a party had ample opportunity to
exert influence (e.g., she lived next door to her mother, held a power of attorney to act on her
mother’s behalf, etc.).
b. Susceptibility to Influence Due to Age or Physical Condition doesn’t mean that (T) subverted
and overpowered at the time the will was executed.
c. The fact that the will makes an unnatural disposition that favors some relatives over others is
not sufficient to establish undue influence. It is only when all reasonable explanation for the
bequests is lacking that the trier of fact may take this as a circumstance showing undue influence.
3. Presumption of Undue Influence is created by the following facts:
i. A confidential relationship existed between (T) and the beneficiary who was alleged to have
exercised undue influence; and
ii. The beneficiary participated in some way in procuring or drafting the will or in some other
significant activity relating to the execution of the will. Once these elements appear, the
burden shifts to the proponent of the will to prove that it was not induced by his undue
influence.

a. A presumption of undue influence arises when a confidential relationship (e.g., attorney-

client, doctor-patient) exists and the beneficiary participated in drafting the will. Other
relationships that show one person relied heavily upon and placed more than a normal amount of
confidence in, another may also suffice to show a confidential relationship.
1) Although spouses share a confidential relationship, a presumption of undue influence
does not automatically arise between spouses. For a spouse’s influence to be “undue,” the
spouse must have exerted influence over (T) in such a manner that it overpowered the free
will of (T) and resulted in a disposition reflecting the desires of the spouse exerting the
influence.
b. The criteria for determining whether the beneficiary was active in procuring the will can include
one or more of the following: (i) the beneficiary’s presence when (T) expressed the desire to make
a will; (ii) the beneficiary’s recommending an attorney to prepare the will; (iii) the beneficiary’s
giving an attorney instructions as to what the will should contain; (iv) the beneficiary’s knowledge
of the will’s contents prior to its execution; (v) the beneficiary’s securing witnesses for the will;
(vi) the beneficiary’s being present when the will is executed; and (vii) the beneficiary’s
safeguarding the will after its execution.
c. A presumption of undue influence may arise, despite the absence of a confidential relationship
between (T) and beneficiary, when the execution of a will is surrounded by suspicious
circumstances, as where (T) disinherits her kids in favor of a stranger. However, the mere fact that
a will is unnatural in preferring a stranger over blood kindred is not sufficient to give rise to a
presumption of undue influence unless there are other suspicious circumstances.

E. FRAUD - Where the execution of a will or the inclusion therein of a particular gift is the result of fraud, the
will or the particular gift is invalid. A finding of fraud requires a showing that (T) has been willfully deceived
as to the character or the content of an instrument, as to the extrinsic facts that would induce the will or a
particular disposition, or with respect to facts material to a disposition. (Innocent misrepresentation does not
constitute fraud)

1. Fraud invalidates a will only if (T) was in fact deceived by and acted in reliance on the
 misrepresentation.
2. Fraud in the Execution (Fraud in the Factum) is when there is a misrepresentation as to the nature
of the contents of the instrument.
3. Fraud in the Inducement - Is when (T) intends to execute the instrument as her will and to include the
particular contents of that instrument, but she is fraudulently induced into making this will, or some
particular gift therein, by misrepresentations as to facts which influence her motivation. The will or the
gifts affected by the fraud must be set aside.
4. Fraudulent Prevention of Will by one or more of the persons who would take by intestate succession.
The cases are split as to whether any relief is available.
a. Some Cts conclude there is no way of granting relief because a Ct “cannot write a will on behalf
of a decedent”; hence, the intestate succession laws apply. The better view is that a
constructive trust may be imposed against the intestate successors for the benefit of those who
would have been beneficiaries of the will that the decedent was fraudulently prevented from
executing.

F. MISTAKE
1. Mistake in Execution of Will
a. Extrinsic evidence is admissible to show that (T) was unaware of the nature of the instrument
she signed (e.g., she believed it to be a power of attorney). Such a mistake relates to the issue of
whether (T) had the requisite testamentary intent, without which the will would be invalid.
b. In cases where (T) has signed the wrong will, the Cts are divided on the question of whether
relief should be granted. Suppose that reciprocal wills are prepared for H and W, under which
each devises his or her estate to the other.
2. If the alleged mistake involves the reasons that induced (T) to make the will (or the reasons for
making or not making a particular gift therein), and the mistake was not fraudulently induced, no relief
is granted.
a. Exception If Mistake Appears on Face of Will -- relief will be granted.
b. Child Mistakenly Believed Dead -- Under the UPC, evidence is admissible to show that a (T)’s
child was omitted from the will because (T) mistakenly believed that the child was dead.
3. Mistake as to Contents of Will
a. Extrinsic evidence is not admissible to show that a provision was mistakenly omitted from a
will, or that a provision contained in the will is not what (T) intended. Absent evidence of fraud,
duress, or suspicious circumstances, it is conclusively presumed that (T) understood and approved
the terms of the new will when she signed it, so no relief is granted.
b. Evidence Not Admissible to Contradict Plain Language -- If the language of a will is
unambiguous, evidence is not admissible to show that (T) made a mistake in describing a
beneficiary or the property that was to be the subject of the gift.

4. Latent or Patent Ambiguity—Extrinsic Evidence Admissible to Cure Ambiguity

a. Latent Ambiguity -- exists when the language of the will, although clear on its face in
describing a beneficiary or property, results in a misdescription when applied to the facts to
which it refers. Extrinsic evidence is admissible to cure the ambiguity. NOTE: If the extrinsic
evidence does not resolve the ambiguity, the gift fails.
b. A patent ambiguity exists when the uncertainty appears on the face of the will (e.g., where the
will mentions two cousins, Mary Jones and Mary Smith, and then makes a gift “to my cousin
Mary”). Evidence is admissible.
5. Under UPC, a Ct may reform the terms of a will, even if the will is unambiguous, to conform to
(T)’s intent if it is proven by clear and convincing evidence that (T)’s intent and the terms of the will
were affected by a mistake of fact or law. This includes mistakes involving both the expression of
terms and inducement to make the will or any of its provisions.

G. NO-CONTEST CLAUSES - (sometimes called an in terrorem clause) provides that a beneficiary who
contests the will forfeits his interest under the will. A typical clause provides: “If any beneficiary contests
this will or any of its provisions, he shall forfeit all gifts hereunder and shall take no part of my estate.” Note
that suits objecting to the Ct’s Jx, challenging the appointment of an executor, and asking the Ct to construe
the will are not will contests within the meaning of most no-contest clauses.
1. Majority Rule & UPC—No Forfeiture If Probable Cause for Contesting Will. A beneficiary who
unsuccessfully contests a will with a no-contest clause does not forfeit the legacy if the Ct finds that
 the beneficiary challenged the will in good faith and on the basis of probable cause. Whether the
beneficiary had probable cause is a question of fact. Of course, if the contest is successful and the will
is denied probate, there is never a forfeiture because the no-contest clause is tossed out along with the
will.
VIII. PROBATE AND ESTATE ADMINISTRATION

A. TERMINOLOGY AND OVERVIEW - “Probate” refers to the proceeding in which an instrument is

judicially determined to be the duly executed last will of the decedent (or, if there is no will, the proceeding
in which the decedent’s heirs are judicially determined). At the probate proceeding, a personal
representative is appointed to carry out the estate administration. In most states, the personal representative
is called an executor if named in the decedent’s will, and an administrator if named by the Ct. Testate
estates must go through some form of administration. Intestate estates need not be administered if the heirs
are able to agree as to the distribution of property; however, they often are administered in order to cut off
creditors’ claims and to ensure clear title in the heirs.

B. SUMMARY OF RULES AND PROCEDURE

The following is a summary of probate rules and procedure:
1. Any interested person may file a petition for probate.
2. The custodian of a will must produce it within a certain time (e.g., 30 days) after the death of (T).
3. (T)’s domicile at the time of death determines the place of “primary” administration of the estate (but
“ancillary” administration, including probate, is also necessary wherever property to be administered is
located).
4. A will must be offered for probate within a specified number of years. For example, the UPC requires
that a will be probated within three years or the decedent is deemed to have died intestate.
5. A will must be probated in order for a person to take under its terms.
6. A probated will cannot be collaterally attacked (e.g., in a later will contest) when a specified short
statute of limitations after probate has run.
7. A lost or destroyed will may be probated, provided its contents can be proved.
8. In a probate proceeding, the following facts must be proved:
a. That (T) is dead (this fact is Jxal);
b. That the formalities of execution were observed; and
c. That the notice requirements for probate have been complied with.

C. PERSONAL REPRESENTATIVE
1. Appointment of Personal Representative -- Any person who has capacity to contract may serve as
personal representative. Incompetent and minors cannot serve.
a. If an “executor” is named in the will, he will be appointed as personal representative unless
subject to a particular disqualification. If no executor is named in the will or if the executor
named cannot serve, an administrator will be appointed as personal representative. If the
decedent died intestate, an “administrator” will be appointed as personal representative.
b. Preference of Appointment A typical statutory order of preference for appointment of a personal
representative would be: (i) the person named as executor in the will; (ii) the surviving spouse, if a
will beneficiary; (iii) any will beneficiary; (iv) the surviving spouse; (v) any other heir; and (vi)
after 45 days, a creditor.
c. Authority of Representative The authority of the personal representative is derived from his Ct
appointment, and he serves as an officer of the Ct.
d. Bond Required for Issuance of Letters Testamentary - The personal representative must file a
bond with sureties to secure the faithful performance of his duties, unless (T) has provided in his
will that no bond shall be required. When the personal representative has filed the required bond,
“letters testamentary” or “letters of administration” (for an administrator) are issued certifying
his authority to act on behalf of the estate.
Powers and Duties of the Personal Representative. The personal representative has functions
generally analogous to those of a receiver of a defunct corporation or a trustee in bankruptcy,
and must take whatever steps are necessary to wind up the decedent’s affairs. Like the trustee,
the personal representative serves in a fiduciary capacity. Unlike the trustee, however, the personal
representative is primarily a liquidator, rather than a manager, and generally must have Ct approval for
such activities as borrowing money, operating a business, or selling property.
2. In that respect, the primary functions of the personal representative are to:
 a. Give notice to devisees, heirs, and claimants against the estate;
b. Discover and collect the decedent’s assets and file an inventory;
c. Manage the assets of the estate during administration;
d. Pay expenses of administration, claims against the estate, and taxes; and
e. Distribute the property.
3. Compensation of Personal Representative. The personal representative is entitled to compensation for
his services rendered on behalf of the estate. Rates of compensation may be governed by statute, e.g.,
based on the estate’s value. If there is no controlling statute, the Ct has discretionary authority to award
reasonable compensation. Factors a Ct might consider in determining reasonable compensation
include the amount of time spent performing appropriate services, the degree of difficulty involved,
and a reasonable hourly rate.
a. May Be Provided for by Will -- (T) may provide compensation for the personal representative by
means of a gift in the will, but the personal representative may renounce such a testamentary gift
and take whatever compensation to which he would otherwise be entitled. Also, the Ct may deny
compensation where the personal representative has engaged in dishonest or fraudulent conduct
or has otherwise acted in bad faith or willful neglect of his duties.

D. CREDITORS’ CLAIMS
1. Notice. One of the personal representative’s first tasks is to give notice to the creditors of the estate,
advising them of the pendency of the administration and when and where claims must be filed. Notice
may be accomplished by publication, but the personal representative must mail or personally deliver the
notice to creditors who are known or are reasonably ascertainable.
2. Nonclaim Statutes. In most states, creditors’ claims must be filed within a specified period of time
(e.g., three months after notice), or they are barred. These statutes apply to all claims: liquidated and
nonliquidated, matured and contingent, contract and tort.
a. Exception—Failure to Give Notice. If notice is not given to creditors in accordance with the
statute, claims are barred only after a specified number of years have passed since the
decedent’s death.
3. Priority of Claims. Typically, statutes provide that claims are to be paid in the following order:
a. Administration expenses;
b. Funeral expenses and expenses of the last illness (up to specific dollar amount);
c. Family allowance;
d. Debts given preference under federal law (e.g., tax claims);
e. Secured claims (up to the value of the security interest);
f. Judgments entered against the decedent during his lifetime; and
g. All other claims.

E. ABATEMENT. Abatement is the process of reducing testamentary gifts in cases where the estate assets are
not sufficient to pay all claims against the estate and satisfy all bequests and devises. (T) may set out an order
of abatement in the will. If there are no contrary provisions in the will, estates in most Jxs abate in the
following order:
a. Property passing by intestacy;
b. The residuary estate;
c. General legacies, which abate pro rata;
d. Specific devises and bequests.
Note that specific bequests and devises will not be sold or asked to contribute to satisfy general legacies.
Specific bequests and devises would abate to pay costs of administration, creditors’ claims, family allowance,
or some other item with priority.

F. EXONERATION OF LIENS. At common law, if specifically devised property is, at (T)’s death, subject to
a lien that secures a note on which (T) was personally liable, the beneficiary is entitled to have the lien
exonerated (unless there is a contrary will provision). Thus, the beneficiary is entitled to demand payment of
the debt out of the residuary estate so that the property passes to him free of any encumbrance. UPC and
most states provide that liens on specifically devised property are not exonerated unless the will so directs.
In these states, a specific devise passes subject to a security interest even if the will contains a general (rather
than specific) provision to pay all debts.

G. GUIDELINES WHEN WILL AMBIGUOUS. Where there is some ambiguity, the Ct will interpret the will
 and consider any admissible extrinsic evidence to determine (T)’s intent. Only where there is no evidence of
(T)’s intent is it necessary to use a rule of construction as a presumption concerning that intent. Of course,
inevitably the existence of rules of construction will influence a Ct when it sets out to interpret a will.
1. Interpretation—(T)’s Actual Intent
a. Will Clear—Extrinsic Evidence Inadmissible. If the will clearly specifies a particular
disposition, it must be carried out, and extrinsic evidence of a contrary intent of (T), no matter
how persuasive, is inadmissible.
b. Will Ambiguous—Extrinsic Evidence Admissible. If a provision in the will is ambiguous, the
Ct should admit certain extrinsic evidence that is probative on the issue of intent. Extrinsic
evidence may be used only to explain the meaning of what is written in the will and cannot
subtract from the will, add missing provisions, or show some entirely different meaning.
1) Testimony Regarding Surrounding Circumstances at time of execution permitted.
e.g., the amount and character of his property, the natural objects of his bounty, his relations
with his relatives, and their situations and circumstances.
2) Declarations of (T) Not Admissible. What would seem the most probative evidence of
(T)’s intent—his declaration as to what he meant to do—is not admissible because of the
high chance of perjured testimony.
a) Exception—Equivocation -- is where the description of a beneficiary or of the
property describes more than one person or more than one item of property. In such
cases, and in those only, testimony of the declarations of (T) is admissible.
c. Intent as of Time of Execution. The intention of (T) should be sought as of the time of
execution of the will (or of a later codicil that republishes it).
2. Rules of Construction. When there is no evidence of the actual intent of (T), the Ct must resort to
rules of construction such as those noted below:
a. Favor those who would take intestate.
b. Favor the construction that avoids intestacy.
c. Favor the construction that is consistent with the perceived “plan” of disposition.
d. Every portion of the will should be given effect if possible.
e. Between totally inconsistent clauses, the latter is most likely the final intent.

IX. WILL SUBSTITUTES

A. IN GENERAL. Individuals wishing to avoid taxes and to eliminate the cost and inconvenience of probate
often turn to various “will substitutes” to transfer their property upon death. Frequently, the decedent’s
testate or intestate takers argue (usually unsuccessfully) that these forms of transfer constitute
“testamentary” transfers and are, therefore, invalid for failure to comply with the required formalities for
execution of a will. The following are examples of will substitutes:
1. Life insurance; Joint tenancies or tenancies by the entirety; Inter vivos trusts (i.e., trusts created during
the settlor’s lifetime); Bank arrangements; Deeds; Contracts; and Inter vivos gifts, including gifts causa
mortis (i.e., gifts made in contemplation of death).

B. LIFE INSURANCE. Life insurance is probably the most widely used will substitute. Cts have held that a life
insurance policy is a contract, and the disposition is governed by the terms of the contract.

C. BANK ARRANGEMENTS
1. Totten Trusts. A “Totten trust” is a deposit of money in the depositor’s own bank account in trust for
another person. The majority rule is that such a transfer creates a valid revocable trust, even though the
depositor retains complete control over the account during her lifetime and the transfer is complete only
upon her death. The trust is revoked to the extent of withdrawals made by the depositor before her death
and may also be revoked by the depositor’s will. Creditors of the depositor can reach the funds in the
account during her life.

2. Joint or Survivor Accounts. The deposit of money in a bank in the names of two persons “with right of
survivorship” is generally held effective to give the survivor the absolute right to all of the money.
However, in many states, extrinsic evidence is admissible to show that the dead depositor did not intend
a gift to the survivor, and that the account was only a convenience for paying the depositor’s bills.
Where the survivor is not the spouse but someone else, this issue has been frequently litigated.
 3. Payable on Death Designations. Many Cts have held a payable on death (“P.O.D.”) designation on a
bank account ineffective, on the rationale that no interest of any type is transferred to the designated
beneficiary during the depositor’s lifetime, and hence the unattested designation violates the Statute of
Wills. This result has been criticized by many authorities on the ground that a Totten trust is
distinguishable from a P.O.D. designation only by the fact that the depositor has recited that he holds the
deposit “in trust,” and yet the Totten trust device is upheld. In response to this criticism, a number of
states have enacted statutes specifically permitting P.O.D. accounts as valid will substitutes.

D. DEEDS. A deed deposited in escrow, with delivery conditioned upon the grantor’s death, may be a valid
nontestamentary transfer. Similarly, if a deed that is by its terms effective only upon the grantor’s death has
actually been delivered to the grantee, a Ct may sustain the transfer as nontestamentary by construing the
deed as a present transfer of a future interest, subject to a life estate reserved in the grantor.

E. CONTRACTS. A contract that purports to dispose of property upon death is testamentary in nature and
must comply with the formalities required for a will in order to be enforceable.
X. ADVANCE HEALTHCARE DIRECTIVES: LIVING WILLS AND DURABLE HEALTHCARE
POWERS

A. INTRODUCTION. The majority of states have enacted legislation governing the use of advance healthcare
directives, which are instructions concerning what to do regarding an individual’s health if he becomes unable
to make healthcare decisions in the future. The two most common types of advance healthcare directives are
living wills and durable healthcare powers.
1. Living Will -- states an individual’s desires, if he becomes terminally ill or is in a persistent
vegetative state, regarding: (i) whether to administer, withhold, or withdraw life-sustaining
procedures; (ii) whether to provide, withhold, or withdraw artificial nutrition or hydration; and (iii)
whether to provide treatment to alleviate pain.
2. Durable Healthcare Power -- sometimes called a “durable power of attorney for healthcare” appoints
an agent to make healthcare decisions on behalf of the principal. Unlike an ordinary power of attorney,
which normally terminates on the incapacity of the principal, a durable healthcare power does not
become effective until the principal becomes incapacitated, and it remains effective despite the
incapacity. Unless expressly limited, a durable healthcare power may extend to any and all healthcare
decisions that might arise.
3. Scope of Advance Directives -- a living will is a very limited instrument, dealing only with a
terminally ill person and pertaining only to life-prolonging or pain-relieving measures. A durable
healthcare power usually is much broader, covering all healthcare decisions. However, an individual can
define the scope of a living will or healthcare power as broadly or as narrowly as he chooses.

B. CREATION AND EXECUTION. Most states require that they be: (i) in writing, (ii) signed by (T) or
principal or another at his direction, and (iii) witnessed by two adult witnesses. Most (but not all) of these
states provide that the person designated as the agent cannot serve as a necessary witness. In contrast, the
Uniform Health Care Decisions Act does not require any witnesses for a durable healthcare power.
1. Capacity Is Presumed. (T) or principal must be an adult, and most states require that he be of sound
mind. An individual is presumed to have capacity to execute a living will or durable healthcare power.
Thus, if capacity is challenged, the burden of proof is on the challenger to show that (T) or principal
lacked capacity or was unduly influenced.
2. Family Consent Statutes. Even when a durable healthcare power is not properly witnessed, the
designated agent may nonetheless have authority to act under a state’s “family consent” statute. These
laws, enacted in some states, permit a close family member to act as a surrogate decisionmaker for a
person who has not properly designated an agent under the state’s durable healthcare power statute.

C. REVOCATION
1. Living Will -- A living will can be revoked by: (i) obliterating, burning, tearing, or destroying the will;
(ii) a written revocation of the will; or (iii) an oral expression of intent to revoke the will. The majority
of states allow a living will to be revoked at any time, regardless of the individual’s mental or physical
condition.
a. When Effective -- The revocation is effective when communicated to (T)’s primary physician.
2. Durable Healthcare Power. a durable healthcare power can be revoked by notifying either the agent or
the principal’s healthcare provider, and the revocation can be either oral or written.
a. Revocation of Prior Powers. Unless otherwise provided, the execution of a valid durable
 healthcare power revokes any prior durable healthcare powers.
b. Former Spouse as Agent. The designation of a principal’s spouse as his agent is automatically
revoked if the marriage is annulled or dissolved. Some states also revoke the designation upon
legal separation.

D. INDIVIDUALS ELIGIBLE TO ACT AS AGENT UNDER DURABLE HEALTHCARE POWER. A

principal can appoint as agent anyone except an owner, operator, or employee of a healthcare facility at which
the principal is receiving care (and that individual may be an agent if she is related to the principal).

E. AUTHORITY OF AGENT UNDER DURABLE HEALTHCARE POWER. The agent has the authority
to make any healthcare decisions on the principal’s behalf that the principal could have made for himself
while having capacity. The authority of the agent is within the discretion of the principal and must be stated
in the instrument creating the durable healthcare power. The agent must act in accordance with the
principal’s expressed instructions and wishes. If specific powers are not expressed or stated in the instrument
creating the durable healthcare power, the agent must act in the principal’s best interest, as determined by the
principal’s personal values and by weighing the factors likely to be of importance to him.

1. Powers. Some of the powers that the agent has are: (i) the power to consent to or refuse any type of
medical care; (ii) the power to admit or discharge the principal from a healthcare facility; and (iii) the
power to access the principal’s medical records.
2. Agent’s Liability. The agent is not subject to civil or criminal liability or to discipline for
unprofessional conduct relating to healthcare decisions, provided she acted in good faith.