Wills, etc. 2020

What is another name for "freedom of disposition

Dead hand control
-facilitates decedent's intent

Define Estate (2 meanings)

(1) a person's stuff at death; or
(2) the legal entity, their estate

Define Executor

Personal representative (PR)
-administers a testator's estate after death

Define devise

A gift of real property

Define bequest

A gift of personalty

Define trust

three parties: (1) grantor, (2) trustee and (3) a beneficiary
-an agreement between a trustee and grantor that trustee will hold certain property for the benefit of a trust beneficiary

Define testator

person who makes a will

define testate

estate governed by a valid unprovoked will

Define testamentary

an act which is intended to transfer property at death and governed by the formality requirements of wills

Define heir

a person who stands to inherit under the laws of intestacy at a decedent's death
-can only be determined once individual has passed (no living person has heirs)

Define grantor

person who establishes the trust and transfers the property to the trustee

Does the freedom of disposition protect the testator or heirs

Testator's rights
-Heirs have a mere expectancy

Shapira v. Union National Bank

Decedent conditioned son's inheritance on him marrying Jewish gal w/in 7 years
-Ct. was not enforcing a restriction on marriage, they were upholding testator's intent
-Ct. said this contingent bequest was REASONABLE given circumstances (i.e. 7 years is re

What is an incentive trust

Trusts contingent on good behavior or received a certain degree

Can a trust provision is invalid if unnecessarily punitive or unreasonably intrusive into the significant personal decisions or interests of a person?

-in this light, Shapira is unfortunate; BUT this applies to trusts and trusts can be changed after testator dies

Hypo: Would a will provision that says "To my daughter Jane but only if she divorces that scumbag Jesse Pinkman" be enforceable?

No. It is repugnant on PP grounds as encouraging the breakup of marriage

Hypo: Would a will provision saying "To my daughter Jane but only if she passes a UA" be enforceable?

Yes. It is good policy to encourage people not to use drugs.

Can you devise property rights acquired after death in UPC states (including SD)?

Yes, in response to the Marilyn Monroe case
-look at property itself and it can clue you in to whether it is descendible or devisable

Rationales for inheritance

(1) in a society based on private property, it makes the most sense; and
(2) expressions of family ties are good for societal health

Freedom of disposition rationales

(1) encourages productivity; and
(2) allows parents to influence adult children's behavior for the better

Shaw Family v. CMG Worldwide, Inc.

Marilyn Monroe case, will did not explicitly bequeath right of publicity
Ct. found under applicable law (Cal. and NY) cannot pass property rights that one does not possess at time of death (modern view is opposite)
-one does own a right to publicity
-if y

What is probate property?

Property that can pass under a will or intestacy through a probate proceeding

What is non probate property

Property that passes outside of probate by a will substitute (life insurance, retirement accounts, etc.)

Can life insurance become a probate asset?

Yes, if:
(1) if primary beneficiary predeceases and no named contingent;
(2) If both primary and contingent beneficiaries predecease;
(3) if named beneficiaries are disqualified (slayer rule or divorce);
(4) If no beneficiaries are named; or
(5) If benefi

What is the rationale of probate?

(1) provides evidence of transfer of title
(2) protects creditors
(3) distributes decedent's property correctly
-varies in detail from jurisdiction to jurisdiction

What is an informal probate?

Representative petitions for appointment, if for will will must be attached, executor swears will was executed properly, w/in 30 days of appointment must notice up interest parties, if objection comes FORMAL probate, if no objection, then distribute
-no c

Where is real property probated and what laws govern that probate

Jurisdiction where real property is located

How do you bar creditors during probate?

By publishing notice in newspaper once a wk for 3 successive weeks, unknown unsecured creditors are time-barred 4 months after date of first publication; comes from a 'non claim statute'
-no hearing required

What is formal probate

Where an objection to a will is brought, a formal probate ensues

What is the rationale for formal probate

(1) to probate will;
(2) to block an informal proceeding; and
(3) secure declamatory judgement to avoid intestacy

What kind of duties does PR owe to testator

Fiduciary responsibility to carry our testator's wishes in estate distribution

Are probate assets governed by a beneficiary designation?

No, non-probate assets are

Estate of Bachard (SD 1981)

Hospital time-barred for failing to file claim w/in statutory time period, so trial court need not adjust and determine amounts owing to creditors and establish priorities.
-Mere formal direction to pay medical bills is meaningless; its boilerplate..

Small Estate Affidavit exception in SD

If the probate estate is valued at 50k or less and there's no real property, no probate is required

What is a priority statute

Gives priority to funeral bills and attorney fees (not medical bills) when it comes to creditors

AMI v. Litchfield (SD 1998)

Wife was legally married to husband. Wife was jointly liable for husband's food, clothing, and fuel bills.
-In SD, spouse is on the hook for necessaries of life debts
-here, she was also guardian of husband

How does one close an estate

(1) By verified statement; or
(2) Petition for complete settlement with a hearing (optional unless formal or supervised probate)

Simpson v. Calivas (N.H. 1994)

PR case
Drafting attorney owes duty to an intended beneficiary. Foreseeability of harm to beneficiary creates exception to privity rule in both tort and contract.
No collateral estoppel in this case as to the testator's intent, b/c probate courts only con

A v. B (NJ 1999)

Conflict case.
Firm representing H, W, and mother (of H's child) may disclose H's child's existence to W bc it affects her estate plan.
Disclosure permissible to prevent H's fraudulent act in which lawyer's services used.

What to do if husband and wife want joint representation for trust or estate

-Must discuss benefits and disadvantages of doing so at outset
-discuss conflicts of interests and written engagement should include a waiver of confidentiality

How to avoid probate

(1) utilize non probate mechanisms;
(2) don't have assets in your name at death (RLT or inter vivos gifts)

Malachy v. Ingram (Iowa 2014)

Financial advisor (non-attorney) who drafted estate plan owed duty to decedent's beneficiaries

Do attorneys owe duty to everyone involved in estate

Three theories:
(1) traditional theory (attny. represents the fiduciary)
(2) joint-client theory (both fiduciary and beneficiaries)
(3) entity theory (represents the estate)
-clarify who you represent at outset

Define partially intestate

Decedent died with a will that fails to dispose entire estate (b/c lacked a residuary clause)

Define escheat

Where no spouse, descendants, or collaterals survive an intestate decedent. The estate then goes to the state.

What are the three (primary, secondary, tertiary) purposes of intestacy laws?

(1) to carry out the PROBABLE intent of the decedent;
(2) to protect the economic health of decedent's family; and
(3) predictability and ease of administration

Why do so many people die intestate

(1) fear of death;
(2) attorneys cost money

What law governs disposition of personal property and realty?

Personal property- law of state where decedent domiciled at death
Disposition of realty- low of state where a decedent's real property is located

May a will expressly exclude folks who would inherit by intestacy under the UPC?

Yes, UPC allows negative wills
-a negative will expressly excludes someone who would inherit by intestacy

How much of an intestate share does the decedent's surviving spouse get?

It depends
:1) If the decedent's descendants are also descendants of the surviving spouse, the surviving spouse takes all;
2) If the decedent has descendants who are not descendants of the surviving spouse, then the spouse gets the first $100K + half of a

Roadmap for intestate distribution

(1) surviving spouse;
(2) descendants (and down);
(3) parents;
(4) siblings (and down);
(5) grandparents (and down)

What kind of interests do heirs have

a mere expectancy that is (1) contingent and (2) defeasible

What do you call someone who inherits by intestacy?

an heir

What do you call someone who is named in a will

A devisee/legatee/beneficiary

How does SD treat step-children for purposes of intestacy?

They're not children, so don't inherit (unless legally adopted)
-they're "last ditch" heirs under UPC

How does UPC that unmarried/cohabitating partners for purposes of intestacy?

They are not considered spouses

Does length of marriage matter in intestacy?


What is the 12-hour rule

An individual did not survive the decedent if they die within 120 hours of the decedent's death (i.e., the law treats them as if they died simultaneously).
When individuals die simultaneously, their joint property is divided in half and distributed to eac

What to consider in a deathbed marriage

consider the capacity to marry of the individuals

Janus v. Taraewicz (Ill. 1985)

Simultaneous death, wife put on life support longer than husband
-120 hour rule; one who fails to survive by 5 days is deemed to have predeceased the descendant
-must be sufficient evidence that the persons otherwise than simultaneously; cause of death ne

What happens when individuals die simultaneously (or w/in 120 hours of one another)?

Their joint property is divided in half and distributed to each of their estates

Who must be given notice of probate for a testate decedent

Both devisees AND heirs

Widow w/2 children dies. Both her children predeceased her. Child A survived by 1 child and child B survived by 9 children. Under PER STIRPES representation, who takes?

Child A's child takes 1/2 and Child B's children take 1/2 (so 1/18th each)
-Vertical equality; "by the root

Are in-laws included in intestate succession?


Explain per stirpes representation/distribution

Vertical equality; "by the root"
-beneficiaries take by their right of representation in a share equal to that of the individual they are representing
-about half of states follow this
-under UPC "by representation" means per stirpes; if will is ambiguous

Widow w/2 children dies. Both her children predeceased her. Child A survived by 1 child and child B survived by 9 children. Under PER CAPITA representation, who takes?

Child A's child takes 1/10 and B's children each take 1/10
-horizontal equality; "by the head

Explain per capita representation/distribution

-initial division of shares made at the closest generation in which one or more descendants are alive, but the shares of deceased persons on that level are treated as one pot and one dropped down and divided equally among the representatives in the next g

What are the differences between wrongful death and survival actions?

Both brought by PR or special administrator
Wrongful death-for lost support and companionship (after death happened)(benefits the next of kin and distributed in proportion to the loss of support and companionship that each suffered)
Survival- for pain/suf

What are "collateral heirs

Those related by blood but who are neither descendants (issue of the decedent) nor ancestors (parents/grandparents) - like nieces, nephews, cousins, aunts and uncles

How are half siblings treated under intestacy?

As a full sibling (i.e., half sister is a sister)

Estate of Jetter (SD 1997)

Decedent's estate did not escheat to the state despite the fact that decedent tried to disinherit any of his heirs apparent. He didn't expressly say "I want my estate to escheat to the state if my devisee predeceases me."
Estate passed to decedent's laugh

Can an adopted child inherit under intestacy from a natural parent's brother when the natural parent predeceased?

No. No double-dipping.
Can inherit from adoptive parents. See Hall v. Wallandingham;
but see SDCL which allows for inheritance from the natural parents where the new spouse of one of the birth parents adopts.

If widow remarries and the new husband adopts her child, can the child inherit from mother and new husband

Yes, can adopt from mother, adoptive father AND the other birth parent
-double dipping is okay where spouse of birth parent adopts
-death of bio parent not required, but adoption by the spouse of the birth parent is

In Minary v. Citizens Fidelity Bank & Trust (Ky. 1967), was Myrna, the wife of the testator's son who the son later adopted, allowed to inherit from the testator's trust?

No. While she was an heir of the testator's son by adoption, she was not an heir of the testator by the (now outdated) stranger to the adoption rule.

In SD, is there an age limit to adoption for purposes of testacy/intestacy

No; but person being adopted must have lived with adopting parent for at least six months during age of minority

What is the modern stranger to the adoption rule (as a rule of construction in wills)

A will leaving a devise to "children" will not include adopted children in some jurisdictions (not UPC states or SD) unless the testator is a parent (i.e. no inheritance through the adopted child or adoptive parent)

What is the stranger to the adoption rule in intestacy (an outdated doctrine)

An adopted child can inherit from an adoptive parent but not through them

How to exclude adult adopted children from will

-define "children" so that it excludes the adopted adult child

What are the elements of virtual/equitable adoption (only comes about in intestacy)

(1) AGREEMENT btwn natural and foster parents;(2)PERFORMANCE by NATURAL PARENTS (giving up custody);
(3) PERFORMANCE by FOSTER PARENTS (raise child); and
(4) Performance by child (they grow up?)
-clear and convincing standard
See O'Neal v. Wilkes (Ga. 199

Define posthumous children

Those children conceived before but born after their father's death

How are "illegitimate" children allowed to inherit under intestacy today?

From the mother and inheritance by/from/through father if paternity established.
Also from spouse or descendants.
Included in class gifts ("to my children") as a rule of will construction in SD.

What is a posthumously conceived child

Those both born AND conceived after their father's death (i.e. through artificial insemination)

What is the common law rebuttable presumption regarding gestation

That normal gestation lasts 280 days (10 months)

How does parent inherit from illegitimate child?

(1) parent must openly treat child as kindred; and
(2) does not refuse to support the child
-can only inherit from illegitimate if you are a good parent

How to ID the father of an individual born out of wedlock

(1) the subsequent marriage of the parents;
(2) by a written acknowledgement by the father during the child's lifetime;
(3) by a judicial determination of paternity during the father's lifetime; or
(4) by clear and convincing evidence "in the proceedings

How is the ID of th mother of an individual born out of wedlock?

The birth of the child ya dumbo

Is there a rebuttable presumption that a child born in marriage is that couple's child


How to prove that posthumous child should inherit

(1) bio connection to testator
(2) deceased consented to posthumous reproduction; and
(3) deceased also consented to supporting that child
See Woodward v. Commission of Social Security

How long does SD leave for posthumous conception

45 months for purposes of intestacy

Does the presumption that a child born to a married woman is the child of her husband's apply to same-sex couples


What are advancements

The doctrine for gifts taking into account (in testacy, its the satisfaction doctrine)
Common law treats any gift as a prepayment of the child's intestate share

How to figure advancements by adding gifts back into hotchpot estate (3 steps)

(1) Add gifts back into the estate (hotchpot)
(2) Figure intestate share for each child (divide by number of kids)
(3) Then credit advancements against the donee-child's share.

Under modern law, is a lifetime gift an advancement? (UPC states)

It can be:
(1) must be declared in a writing signed by the donor or recipient;
(2) value the asset gifted as of time of transfer;
(3) an advancement is not taken into account in deterring the share of the predeceasing heir's descendants

When is a guardian needed

when both parents die while the child is a minor (or disabled)

What is a guardianship?

Authority over the PERSON

What is a conservatorship

Authority over the ESTATE

What is an UTMA

A legal fiction that places a custodian in charge of a minor's property; custodian delivers property to eh minor at the age of 18
-custodian must observe the standard of care, keep records, and may expend "for the minor's benefit so much of the custodial

Belk v. Belk

UTMA custodians have fiduciary duties and fiduciary liability standards apply.
Need to be a prudent investor (diversify) and keep adequate records.

What can go into an UTMA account?

Anything; they are like trusts

What are the bars to succession?

(1) slayer rule; and
(2) disclaimer (in writing)

What are the two requirements under the Slayer Rule in SD for a slayer to not inherit from the decedent?

The slayer must (1) feloniously and (2) intentionally kill the decedent.
If not convicted, the PR of estate can ask circuit court to determine if slayer feloniously and intentionally killed decedent by PREPONDERANCE of EVIDENCE.

When slayer rule applies, what happened to to JTWROS assets

They are converted into tenancy in common assets

What are the requirements for a disclaimer

(1) in writing; and
(2) 9 month from date of decedent's death

Husband and wife own: (1) 1 million house as JTWROS; and (2) 1 million in savings also titled JTWROS
Wife owns: (1) 60k in securities in her own name
Husband kills wife but he's found not guilty by a jury. They had one child.
What can PR do?

(1) ask circuit court to determine if the husband feloniously and intentionally killed his wife by a preponderance of the evidence; if court grants, slayer rule applies.
(2) then, husband will own 1/2 house and 1/2 cash; and infant son owns the other 1/2'

How do you determine who takes in the event of a disclaimer?

Apply the legal fiction that the disclaiming individual predeceased the decedent

Disclaimer and creditors

A disclaimer works to avoid creditors unless the disclaiming individual is currently in a bankruptcy proceeding.
Exception: federal tax liens cannot be avoided with a disclaimer.

What can an individual disclaim

-can't disclaim after you already accepted property or interest or benefit

Can you disclaim an intestate share before the testator dies

No, b/c one does not have an interest until testator dies
-you can disclaim probate and non probate assets

The Wills Act

The statutes governing will formalities in each state.

Attested will

A witnessed will

Attested Will Requirements

(1) Writing;
(2) signed by Testator; and
-can direct another to sign for her, if she cannot sign
(3) Signed by 2 Witnesses who attest to witnessing Testator's signature.
Also: Testamentary intent, age (18), and competency for all wills.

Self-Proved will

An attested will with an affidavit

Do witnesses have to disinterested?

Yes, but old requirement

Does the witness have to present when the testator is signing

Yes, but looser
-in SD can acknowledge the testator's signature, not the signing
-ALSO: must acknowledge signature

Does NY have a publication ("this my will") requirement

Yes, SD and UPC do not

Holographic will requirements

(1) Testator's Signature and
(2) material portions (beneficiaries, property to be dispersed, etc.) in Testator's Handwriting (old rule: whole document in handwriting)
-1/2 states recognize
-some states refuse to recognize holographic wills executed in sta

What is the old rule regarding standardized language on a will

semi-old: Any typewritten portions of a will must be ignored; read without them
NEW RULE: intent that a document constitute the testator's will can be established by extrinsic evidence including, for holographic wills, portions of the document that are no

What is rationale of will formalities

(1) to determine if a will is authentic; and
(2) solemnity of making a will (to standardize form and protect testator)

Are Harmless Error/Clear and Convincing Evidence Wills allowed in SD

Yes, but not in most places; must show though formalities lack, the proposed instrument was intended to be the testator's final will and testament

Are notarized wills recognized in SD

No (new UPC; some states)

Are oral wills allowed in SD

No, but in some States under special circumstances

Are electronic wills allowed in SD

New thing, but legislatively approved in SD

Under Traditional law, what compliance is required with the Wills Act

Strict Compliance

Gulliver and Tilson about will formalities

(1) evidentiary function
(2) ritual function
(3) protective function
(4) expressive function

Langbein on Substantial Compliance

Point of wills formalities is to encourage uniformity in wills

What is the radial law regarding compliance under the Wills Act

Strict Compliance

In re Groffman (England 1969) is illustrative of what

Strict compliance with the Wills Act.
In that case, T did not have both Ws witness his signature/acknowledgement present at the same time, so T's will was invalid

What are four meanings of presence including SD's

(1) Line of sight (some states) (must be able to see witnesses but does not have to look)
(2) Conscious Presence ("mental apprehension" i.e. comprehend the event)
(3) SD Presence requirement is retained, BUT "not at the same time"
(4) New UPC (Presence re

What is an alternative, in SD, when you fall short of strict compliance with the Wills Act for an attested will? (Stevens v. Carsdorph)

A clear and convincing evidence will.
Here, "line of sight" is loosenened

What is the "conscious presence" of the tester we use in SD?

If Testator, through sight, hearing or general consciousness of events ("mental apprehension") comprehends the Witnesses' signing, presence is satisfied.

Estate v. McCabe

Making an "X" (because Testator's hand too shaky) is a "signature.

Do some courts state writing script signature on computer in presence of witnesses is a "signature

-some states also have order of signing laws

What is delayed attestation and what does the UPC say about it

After testator signs and the witnesses witness it, witnesses should sign acknowledging they (a) witnessed the signature; or (b) an acknowledgement there of
-UPC says: after death is okay
-basically: witnesses should sign acknowledging signature

Does a will have to be in writing

A has to be in writing but it doesn't have to be on paper

What is the order of signatures on an attested will

Testator signs before witnesses

What is substantial compliance with the wills act

Strong evidence of testamentary intent and satisfaction of the PURPOSES of the wills act should excuse an imperfect execution.

What doctrine replaced substantial compliance

Harmless Error.
A writing is absolutely require; signature next in importance; attestation less so.
Simmons says it is unlikely you could probate probate any doc w/o T's signature

What is a supernumerary

An interested witness if the will is witnessed in the presence of a sufficient number of disinterested witnesses.
-1 interested witness can have two disinterested witness and it will satisfy formality (old rule)

What are "I Love You wills

Spouses have identical wills that are identical (i.e. residue to my husband or wife)

Does the interested witness rule apply in SD or UPC


What is a self proving affidavit

witnesses are placed under oath by a notary and a sworn statement as two the execution of the will, competence of the testator, etc.
-all states recognize these

Can firm retain will

In some states
-can also deposit with the court
-whoever has will must deliver it promptly upon notice or else damages possible

Can a will fail the signature requirement if signed in the wrong place

Oh ya
See Chastain

Can a will missing a 2nd witness ever be presumptively be in substantial compliance with the wills act

No See Smith v. smith

Is a self-proved affidavit missing manage prescribed by statute in substantial compliance.


How many states is harmless error rule adopted in

10 states

In re Estate of Hall

joint will, no witnesses but notarized,, when home and destroyed, but court said it was good because testimony said it was not completed but it was good
Cts: sometimes allow for exceptions with witnesses, but not for signature and writing

Can extrinsic evidence be used to establish a holographic will?

Yes, even portions of the document not in Testator's handwriting can be used

Should a will be reviewed and given final assent by testator to be valid

-shown by clear and convincing standard; but this is basically not an academic exercise
See In re Probate of Will and Codicil of Macool

Can a notary be a witness

Yes, as long as they witnessed and affixed their own signature

Can a writing be a word document and can it be signed

See Javier Castro (word document dictated, no attestation clause, but passed clear and convincing evidence that decedent intended to be his last will and testament) (but Simmons says attestation clause is optional)
-digital documents can pass statutor

Can signing "father" on a letter qualify as a signature under the wills act

Yes, if that is the way the person always signed.
-letter must testamentary character
SEE Kimmel (decedent sick when he wrote letter; "if anything happens"=conditional)

Can a letter be a codicil

Yes, if evidence clearly establishes the letter was the decedent's testamentary intent
See Kuralt

Do codicils have the same formality requirements as wills

Yes, attested and holographic

Does Simmons think wills should be in present tense

Yes, b/c distinguishes between testamentary intent and intended disposition
-cases kind of split on this

Are wills ambulatory

Yes, they are subject to modification and revocation

What are the 2 ways to revoke a will

(1) Subsequent will/codicil revoking expressly or by inconsistency; or
(2) By physical act on the will by Testator or someone else at Testator's direction and in Testator's presence

What are the requirements to revoke a will by physical act?

(1) formal Act on the Will; and
(2) Intent to revoke (these must be concurrent) (not valid on copy, but ct. may impose constructive trust in equity)

Examples of formal act to revoke a will

Burning, tearing, canceling, obliterating, destroying the will or any part of it.
Doesn't need to actually touch the words on will to effectively revoke.

Example of express revocation by subsequent will/condicial

I hereby revoke all prior wills and codicils...

Example of revocation by inconsistency in a subsequent will/codicil

2015 Will: "Rolex and Home to Mandolorian, rest to Lil' Baby Yoda."
2016 Will: "If I croak, my Rolex to my homie, Boba Fett."
2017 Will: "Upon my death, residue to Joba the Hut."
2019 Will: "Hereby revoking all prior wills and codicils, my home to Lil' Ba

What is the new view on residual clauses revoking prior wills?

A new will with a residual clause is presumed to revoke prior wills by inconsistency
-old rule did not do this

Is there a clear and convincing option for revocation?

-harmless error doesn't apply either (only to wills)
Check with Simmons

In Thompson v. Royall (W. Va. 1934), why didn't the court find T revoked her will when she had a judge write "This will is null and void . . ." on the back of the will, coupled with her signature?

The court said this didn't qualify as a cancellation in order to revoke by physical act bc the writing on the back of the will did not touch the words in the will/physically affect the written portion.
Not a valid holographic will to revoke either bc judg

Is throwing away a will a revocatory act

No, but placing it into a paper shredder is

If a will cannot be found and was last in the testator's possession, what is the presumption

T presumed to have revoked the will

Does the UPC require revocation to be in the testator's conscious presence

-Must instruct to revoke and must be in conscious presence
-Zoom would likely not count

What happens if lawyer or PR loses will

No presumption of revocation b/c not in testator's possession AND can admit copy of will for clear and convincing evidence of testator's intent

What were the holdings in In re Estate of Stoker, where D pissed on and burned a copy of his 1997 will and later in 2005 dictated his "last will and testament" to a friend who wrote it out and D signed it?

(1) Pissing on and burning the copy of the 1997 will was ineffective as a revocation bc it's not the original;
(2) The 2005 note is not a valid holographic will bc D didn't handwrite the material provisions, his friend did; but
(3) The 2005 note is a vali

Is there a harmless error rule for revocation by physical act

The harmless error rule only works for writings intended as wills/codicils

Is it possible to revoke a will only partially?

A subsequent codicil can say something like, "I hereby revoke only Article 1 of my previous will but leave the rest of the 1997 will unchanged."
By physical act: Can just cross out article 1 of the 1997 will and leave the rest unchanged. (not all sta

What about revocatory acts on copies

Not valid but equity may impose a constructive trust



What is Dependent Relative Revocation (DRR) (Ineffective revocation)

When the testator undertakes to revoke her will because of mistaken assumption of law or fact the revocation is ineffective. DRR disregards an otherwise valid will revocation.
-cts: apply where (1) there is an alternative plan fo disposition which fails;

When the intention to revoke is conditional, does the condition have to be fulfilled to be effective


If a will can be found, what is the presumption?

Testator presumed to have revoked the will.

Classic DRR fact pattern

T makes a valid will.
T makes invalid new will (e.g., interested W in an interested-W-void-will state)
T physically revokes first will, mistakenly assuming new will is valid.
Result: Probate the destroyed first will.

Will Revival: Majority and Minority Rules

Majority: Revocation of a will (will 2) that revoked an earlier will (will 1) revives will 1 if the T intended will 1 to be revived (by the circumstances of T's statements)
Minority: A revoked will can only be revived if it's re-executed w/testamentary fo

Difference between partial revocation and complete revocation (presumption)

Must show intent to revive 1st will:
1st will
2nd will wholly revoking 1st
Revocation of 2nd will
Presumption of revival:
1st will
Codicil partly revoking 1st
Revocation of Codicil
Revoked provisions of 1st will revived
(unless proved otherwise)

Revocation by operation of law

(1) the slayer rule
(2) divorce
(3) marriage
(4) pretermitted kids

Does divorce remove any revocable disposition of property (including nonprobate designations) or nomination of a PR.

-you can draft around this if desired
And if JTWROS property -- severed and converted to a tenancy in common.

Does marriage revoke a premarital will

Not under UPC
-UPC: only divorce and slaying revokes

Does a pretermitted spouse take under intestacy

Yes, unless:
(1) text of the will says the will was made in contemplation of marriage; or
(2) the will expresses the intention that it be effective notwithstanding any subsequent marriage; or
(3) the wife is provided for by a non probate transfer will and

Effect of Pretermitted Children on pre-childbirth will

Birth of a child does not revoke a will. BUT:
(1) a pretermitted child shares in the shares of other children; and
(2) where the Decedent leaves a pre-childbirth will, the child[ren] receives an intestate share.

When won't a pretermitted child receive an INTESTATE share from Decedent's will? (3 things)

(1) the will devised all or substantially all to the child's parent;
(2) and the parent survived; and
(3) the parent is entitled to take under the will.

Does the birth of a child revoke the will

But: (1) a pretermitted child shares in the shares of other children and (2) where the decedent leaves a pre-childbirth will, the may child[ren] receive an intestate share.

What is a pretermitted heir

A child who is not mentioned in a. will and whom the court believes was accidentally overlooked by the person who made the will. For example, a child BORN or ADOPTED AFTER the will is made, may be deemed pretermitted.

If a testator had no child when the will was made, the child receives an intestate share unless:

(1) the will devised all or substantially all to the child's parent; and
(2) the parent survived; and
(3) the parent is entitled to take under the will

Doctrine of Integration for Wills

All papers (1) PRESENT at the time of execution; and (2) INTENDED to be a part of the will--are treated as part of the will
-the importance of staples and page numbers;

Republication of A VALID Will by Codicil

A codicil typically recites "I affirm and republish my Will." The will is then treated as re-executed as of that date. Original has to be valid to be republished! This can be helpful as it can correct mistakes in the original will!

Examples of Republication by Codicil

Ex. 1: Original will valid but a bequest to an interested Witness would have been purged but a codicil w/o interested Witness republics it, curing the purge!
Ex. Testator executed Will 1; then executes Will 2 wholly revoking Will 1; then executes codicil

Elements of Incorporation by Reference

(1) will manifests INTENT to incorporate;
(2) it DESCRIBES the writing adequately; and
(3) writing is already in EXISTENCE (prior to will)

Is a writing that predates a will but is later amended able to be incorporated by referenced into the will?

Simmons says no b/c amending the writing makes it so it wasn't "in existence" prior to the will.

Is it possible to republish a non-valid will with a valid codicil?


Can you incorporate printed text into a holographic will

TROUBLESOME (I think Simmons is saying no)
-Ct. goofed in case we read

Under the UPC, can you refer to a list to dispose of items of tangible of tangible personal property not otherwise disposed of by will and other money?

Yes (statutory extension of incorporation by reference) (KEY HERE IS KIND OF PROPERTY)
-must be signed and describe devisees and items; can modify after of will
-it may be prepared before or after execution of the will

Can you direct that items not disposed of (in a will) be auctioned with proceeds to named persons.


Acts of Independent Significance (AKA nontestamentary Acts) (with examples)

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will.
Ex: "To each of my employees, $5k each." - being an employee is the act of ind. legal significance
Ex: "T

Contracts to Make A Will (or not revoke one) - Validity Requirements

(1) Will STATES material provisions of K;
(2) Will expressly REFERS to K AND can be PROVED;
(3) K is in WRITING and SIGNED.
Execution of a joint or mutual will doesn't create presumption of a K to make a will.
-no clear and convincing evidence available h

Joint wills?

Dont do them

Mutual wills?

Recipricoal or mirror-image wills (I love you wills)

Ground for setting aside a will (other than formalities)

(1) minority;
(2) incapacity;
(3) involuntariness

Is there a Clear and Convincing evidence requirement to show a K was made under the UPC?

-joint will does not create the presumption of a K either

Do heirs take before or after creditors


Are will contests difficult to prove

Yes, rule of worst evidence
-lack of capacity is easy to hide when the victim is silent

What are the two testator requirements in SD to make a will?

(1) T is 18; and
(2) T is of SOUND MIND (testamentary capacity)

Elements of Testamentary Capacity

Testator must be capable of knowing and understanding:
(1) the (i) NATURE and (ii) EXTENT of her PROPERTY;
(2) the NATURAL OBJECTS OF HER BOUNTY (those who receive under intestacy); and
(3) the DISPOSITION she wishes to make.
SD emphasizes "without prompt

Is there a presumption of testamentary capacity?

Presumption of testamentary capacity (See Wright's Estate; crazy old man running around naked case)
Burden on will contestant to prove incapacity.

Who has the burden to prove or disprove incapacity

The will contestant OLD SD law

A person w/ testamentary capacity may be suffering from an insane delusion causing the will to fail if:

(1) she had an INSANE DELUSION; and
(2) it AFFECTED the dispositions in her will (causation)

Insane Delusion elements

(reasonableness standard)
(2) that is UNCORRECTABLE; and
(3) which AFFECTS a will bequest (causation) .

Insane Delusion Hypos (Contrast)

Ex: H believes W is unfaithful. H is shown repeatedly this isn't the case - any reasonable person presented w/the evidence would change their view. He persists and disinherits W bc of this belief. This is an insane delusion and Will can be set aside.

What's the primary difference between the effect an insane delusion has on a Will and a lack of testamentary capacity has on a Will?

An insane delusion can affect PART of a Will;
Testamentary capacity will invalidate the entire will.
Ex: Insane delusion about Crimson Dawn causes T to make a Will leaving $1K to the Hut Crime Syndicate, residue to wife. The specific devise will be strick

Elements of Undue Influence

(applies to non probate as well) SODR:
(1) Susceptibility (age, inexperience, weakness, dependence, dim. cap.)
(2) Opportunity: ability to exert influence (proximity, isolation of T, frequent contact, confidential relationship) (fiduciary - agent, guardia

Strategically, when should the testamentary capacity argument come

Before the insanity and undue influence arguments

Difference between undue influence and testamentary capacity

Undue influence involves wrongful CONDUCT; Capacity and susceptibility are states of MIND.

Other factors to look for in undue influence

Secrecy/haste/circumstances of will signing;Evidence of wrongdoer's involvement in plan;Sexual relationship; Disparity in wealth/age

How does the burden work when claiming undue influence?

If someone challenging a Will makes a prima facie case for UI, the burden shifts to the wrongdoer who can REFUTE by proving no involvement in T's decision.
Ultimate burden, however, always on Will contestant.
-can be on with non-probate designations, as w

What is advantage of a no contest clause

If anyone claims this is not my Will, I will disinherit them"
-you can avoid litigation if you "bait the hook" ("6k to son for not challenging the will I disinherit him in")

Is believing in ghosts an insane delusion

See Irwin
-Ct. does not want to make position on ghosts, because some religions believe in ghosts and Ct. does not want to invalidate the religions

Warning signs a will contest is looming

(1) significant departure from prior plans or an "unnatural" plan;
(2) Eccentricities; diminished capacity; weakness;
(3) Involvement of a devisee (esp. a fiduciary) in making the appointment, transporting, participating.

Duress defined

Wrongdoer threatened to perform or performed a WRONGFUL ACT (eg physical force) that coerced T into making a donation transfer that T wouldn't have otherwise made (causation)

What was the remedy for duress in Latham v. Father Divine

Constructive Trust

Elements of Fraud

Wrongdoer knowingly and recklessly:
(1) made a FALSE REPRESENTATION to donor about a material fact;
(2) w/INTENT to deceive;
(3) which DID DECEIVE; and
(4) CAUSED donor to make transfer she otherwise wouldn't have.
-can be in the execution and inducement

What are the elements for tortious interference with expectancy?

(1) expectancy;
(2) intentional and wrongful interference;
(3) causation;
(4) damages.
-not recognized in SD
-no duty of tortfeasor is required

Alienation of affections

The right of personal relations forbid the enticement of a parent from a child (as well as the seduction of a spouse)

How to avoid forgery

Ask for ID when they sign

Can you litigate probate issues

No--only for probating a will
-even in diversity, no federal jurisdiction

Under the UPC, for an express revocation to be affective, need it touch the actual words of the will?

No, relaxed from old rule

Two thematic questions under will construction

(1) Should courts exclude extrinsic evidence and adhere to plain meaning?
(2) How to handle changed property/people after date of will ("stale wills")

What type of relationship are confidential and thus are presumed for purposes of undue influence

Doctors, lawyers, POAs, financial advisors, caregivers, or adult child and ill parent

For tortious interference w/ expectancy, do you have to start in the probate court


Who needs noticed during probate

(1) everyone named in the will; and (2) everyone who would inherit under intestacy.

The Plain Meaning Rule for Construction ("No Extrinsic Evidence")

Extrinsic evidence is admissible to correct certain ambiguities, but the plain meaning of a will may not be disturbed w/ evidence of T intent.

No Reformation Rule

No reformation to correct mistaken will terms.
Based on theory that courts have no power to rewrite wills.

Patent Ambiguity defined (w/ examples)

An ambiguity in the instrument. On the Page.
Ex: "to Luke Skywalker and Ben Kenobi in 3 equal shares.

Rule for Patent Ambiguity

No extrinsic evidence allowed to correct a patent ambiguity.

Latent Ambiguity Defined

An ambiguity ascertainable only by reference to external facts.
Rule: The problem w/ latent ambiguities is w/ reference to external facts, so may use extrinsic evidence to resolve.

3 types of latent ambiguity

(1) EQUIVOCATION: Two or more persons/things fit the same description. --> Ex: "My tauntaun to Han." No problem with the document - but D had 2 tauntauns; or maybe there's one tauntaun and 2 Hans!
(2) PERSONAL USAGE Ex: "$100 to half pint." --> we don't k

Is extrinsic evidence always allowed in to show no testamentary intent


Do modern courts recognize the distinction between patent and latent ambiguities

Not really
-examine under both rules

Doctrine of Falsa demon-stratio non nocet ("Mere erroneous description does not vitiate")

Where description does not fit anything, then the less essential particulars may be rejected
i.e. cross-out exercise is ok where the description does not describe anything that the testator owned
Ex: MacGruber's Will: "To my friend Viktor my 1993 Red Miat

Is will reformation allowed in SD


When is reformation allowed?

If clear and convincing evidence establishes:
(1) a mistake of law or fact in expression or inducement affecting specific terms of the will; and
(2) what the donor's intent was

What are the problems leading to do a "stale will

(1) Predeceasing devisees; and/or(2) Changes in property after date of Will

What happens when a devisee predeceases the testator (or is deemed to bc devisee disclaimed or failed to survive by 120 hours)?

The devise either:(1) LAPSES (i.e. fails and passes to other named persons or by intestacy); or
(2) PASSES TO PREDECEASING DEVISEE'S HEIRS BY RIGHT OF REPRESENTATION (i.e., vests in descendants of predeceasing devisee per stirpes)

Examples of Lapse

$10k to my friend Yoda, reside to Kit Fisto."If Yoda predeceases, the devise LAPSES and passes entirely to Kit Fisto.
Can of course draft around this by saying, "$10k to Yoda, or if he predeceases to his issue per stirpes, reside to Kit Fisto."
Third pos

Anti-lapse (presumed intent doctrine)

As to certain types of devisees (descendants of grandparents and stepchildren), if the will is silent as to what happens when the devisee predeceases the T, then anti-lapse language is inserted by statute.
-if devisee stepchild, or a descendant of the ste

Example of Anti-Lapse

$100 to my son, Jango Fett, residue to my friend Lars."Jango predeceases survived by one infant son, Boba. The anti-lapse statute applies to children of T, so the following language is magically inserted: "$100 to my son, Jango, AND IF MY SON SHOULD PRED

What happens when a specific devise fails (by specific we mean "my watch" instead of general - "$1000")?

It becomes part of the residue.
Ex: T: "My car to my friend Wilbur, $500 to Wilbur's wife Carol, the rest to USD." Both Carol and Wilbur predecease. The car and $500 drop to the residue and go to USD.

What happens when a residuary devise fails

It passes by intestacy

What is the no-residue-of-a-residue-rule of construction (outdated and abolished in SD)

It only a share of the residue lapses, such as when one of two or more residuary devisees predeceases, the lapsed share passed by intestacy.
Ex: "Residue to my friends, Obi Wan and Anakin." --> Anakin predeceases, residue passes via intestacy if no-residu

Is it enough to say "To X if she survives me . . ." to avoid anti-lapse?

Probably not.
Be clear and either provide for an alternative devise, lapse, and/or anti-lapse.
Ex: "1/2 to X if she survives me and if she does not this gift shall lapse and her share shall instead pass to Y.

What happens when a member of a class gift predeceases T?

The remaining members of the class take the predeceasing member's share. Unless anti-lapse applies, then decendants by right of representation.
-Softens no-residuce-of-a-residue rule.

Ademption by Extinction (Identity theory)

When property subject to a SPECIFIC (i.e. "a guitar" not "$1,000) devise is not part of T's estate, the gift is extinguished ("adeemed").
Doesn't apply to general, residuary, or demonstrative devises.

Elements of Ademption in In re Estate of Anton (selling the duplex case)

(1) No opportunity for T to change her will; and (2) Traceable proceeds form the conversion of the duplex.

How does contemporary law treat stock splits?

Any stock split is included in the devise.
So, if T: "100 shares of Tiger Tail Corp. to X" --> Tiger Tail splits 3:1, T dies w/300 shares --> X takes all 300 shares.
Can of course draft around, "To X my 100 shares of Tiger Tail, but not including any stoc

How are devisees of dividends on stock treated

Only dividends between date of death and date of distribution are included in the devise.

Ademption of satisfaction (under testacy) (of GENERAL PECUNIARY BEQUESTS)

Occurs where T makes a will then makes a money gift to a devisee. If the doctrine applies, the testamentary gift is cancelled out; satisfied by virtue of gift.
-no satisfaction of a devise unless in writing.
-applies to gifts
-for partial satisfaction FMV

Does property pass subject to liens, mortgages, and encumberances?

Yes. Even if the will starts out generally directing PR to first pay all debts and expenses.Can draft around.


Instructs you how to pay debts and expenses in a testate probate proceeding


Work from the bottom (residue) up:
(1) From property not disposed of by will (e.g. if there's partial intestacy);
(2) From the residue;
(3) from property not specifically devised (e.g., general pecuniary bequests); and
(4) From all other property (specifi

Nonprobate assets other than trusts

(1) JTWROS property;
(2) TOD/POD accounts (bank & investment accts) + TOD deeds;
(3) Life insurance/retirement accts governed by beneficiary designations


Insured's ex-wife bc she is named as the beneficiary on the governing document.
Unless (1) company has waived strict compliance w/policy requirements by its own rules; (2) it was beyond the power of the insurer to comply literally; or (3) insured did all

What does ERISA do?

Employee benefit plan provided by employers
-preempts state law that implicates ERISA
-revocation on divorce doesn't apply to ERISA plans; ex-spouse can still take

Are ERISA plans exempt from creditor claims


What isa. Totten trust

-transfer upon death

How do you rebut the presumption of testamentary intent with a joint account?

With clear and convincing evidence that it was merely an account of convenience

What two theories justify overturning the intentional omission of a spouse from inheritance?

(1) Partnership theory; and
(2) Support theory

What can an intentionally omitted spouse claim upon the other spouse's death?

The elective share (aka Forced Share)

How much is typically included in the typical elective share?

Typically 1/3 of all Defendant's probate and some non probate assets

Are cohabitating partners and same-sex marriage considered for freedom of disposition purposes?

Married (they get an elected share)

What is the difference between an unintentionally omitted spouse and an intentionally omitted spouse in regards to inheritance?

An UNINTENTIONALLY OMITTED spouse receives and intestate share (either 100% or first $100k + 50%)
An INTENTIONALLY OMITTED spouse can claim an elective share (typically 1/3 of estate)

Can elective shares be waived after marriage?

Yes before and after

Who may claim an elective share?

(1) The surviving spouse;
(2) His/her conservator (if incapacitated); or
(3) his/her personal representative (if she dies prior to time for making an election)

6 Steps for Elective Share in SD

(1) Determine elective share percentage;
(2) Determine the net augmented estate;
(3) Multiply elective share % by the augmented estate;
(4) Credit amounts passing to spouse via probate or nonprobate assets;
(5)Subtract value of survivor's assets; and

How do you determine the net augmented estate?

The D's probate/nonprobate assets; the surviving spouse's property; gifts by either w/in 2 years before death (ignoring any gifts in any year less than $10k/donee)

How may a spouse waive an elective share?

A spouse may waive before or after marriage by a signed, written agreement.

How can a waiver of an elective share be unenforceable?

If the surviving spouse proves:
(1) the waiver was executed INVOLUNTARILY; or
(a) she was not provided fair and reasonable disclosure of property; and
(b) she did not voluntarily waive additional disclosure.

Community Property

Property acquired during the marriage and treated as owned 50/50 by the spouses, regardless of how it's titled unless it's a gift received by a spouse or an inheritance not commingled w/marital wealth.

What did the elective share replace?

Dower and Curtsey

Can you intentionally omit a child from a will?

Yes you can intentionally omit children. There's no elective share for omitted kids.

Do you pretermitted child statutes apply to non probate assets generally?

-most pretermitted child statutes only apply to wills

What is the rule for the unintentional disinheritance of a child (after born child)

will receive an intestate share UNLESS the will devised:
(a) lef most or all to the child's parent; and
(b) the parent survived; and
(c) is entitled to take under the will
ALSO: after born child shares in any bequest to those children