The ABCs of: Wills and Estates
Here is a collection of 26 important concepts, from A to Z, you need to know about Wills and Estates Family Law for the bar exam:
A - Ademption: This occurs when a specific gift in a will cannot be given because it is no longer in the estate at the testator's death. For example, if a will gifts a specific car, but the car is sold before the testator's death, the gift is adeemed (i.e., fails), and the beneficiary receives nothing. Ademption typically applies only to specific bequests.
B - Beneficiary: A beneficiary in the context of a will is an individual or entity designated to receive benefits or assets under the will. This can include relatives, friends, charitable organizations, or others the testator wishes to provide for. The rights and entitlements of beneficiaries depend on the terms of the will and the nature of the bequests.
C - Codicil: A codicil is a supplement or amendment to an existing will. It is used to make changes to a will without the need to rewrite the entire document. Codicils must be executed with the same formalities as a will.
D - Dependent Relative Revocation: This legal doctrine applies when a testator revokes their will on the basis of a mistaken belief. If the revocation was dependent on this mistake, and the mistake is proven, the revocation may be disregarded, and the original will can remain in effect. A court won’t apply this doctrine if intestate succession will otherwise result and intestacy would come closer to achieving the testator’s intent than would disregarding the revocation.
BONUS: D- Disclaimers: A beneficiary may disclaim a gift under a will by filing a written disclaimer within nine months of the decedent’s death; the property then passes as if the beneficiary predeceased the testator.
E - Extrinsic Evidence: Extrinsic evidence refers to information not contained in the will itself but that can be used to interpret the will's provisions. This evidence can typically help clarify ambiguities or the testator's intent.
F - Fraud: If the execution of a will or the inclusion of a provision in a will was the result of fraud, the will or gift is invalid. To prove fraud, the contestant must show that someone knowingly made a false representation of material fact for the purpose of inducing the testator to write a will or make a particular gift and the testator reasonably relied on the statement in making the will or gift. The burden of proof is on the person challenging the will.
G - Gift: A gift in a will, also known as a bequest or legacy, is a distribution of property or assets from an estate to a beneficiary as specified in the will. Gifts can be specific, general, or demonstrative, depending on their nature and how they are described in the will.
H - Holographic Wills: Holographs are unattested (unwitnessed) instruments that are in the testator’s handwriting and are signed by the testator. Holographic wills don’t require formal witnessing but aren’t recognized in all jurisdictions. They are often used in emergency situations or where formal drafting isn’t possible. States that recognize holographs generally will recognize handwritten changes to a printed will if the changes are in the testator’s handwriting and are signed by the testator. States that don’t recognize holographic wills may treat the change as an attempted partial revocation by physical act. (See “R - Revocation.)
I - Intestacy: Intestacy refers to the situation where a person dies without a valid will. In such cases, the distribution of their estate is governed by state intestacy laws, which typically prioritize spouses, children, and other close relatives. Issues of intestacy arise on the bar exam where there is no valid will or where a portion of the will isn’t given effect. Essay questions generally haven’t gotten too detailed regarding the order of distribution under the intestacy statute because state intestacy laws vary some. In a distribution per capita with right of representation, property is divided at the first generational level at which there are living takers. Each person at that level takes an equal share, and the share of any person at that level who predeceased the decedent is divided among that person’s descendants by representation. By contrast, a strict per stirpes distribution is always divided at the child level, regardless of whether there are living takers at that level.
J - Joint Tenancy: While not a concept exclusive to wills, joint tenancy can impact estate planning and distribution. In joint tenancy, co-owners have equal shares of property with the right of survivorship, meaning that upon the death of one co-owner, their interest passes automatically to the surviving co-owner(s).
K - Knowledge: Knowledge refers to the testator's understanding and awareness of the contents and implications of their will. This is relevant for assessing the validity of the will, especially in cases where testamentary capacity or undue influence is questioned. (See also “T - Testamentary Capacity,” “U - Undue Influence,” and “Y - Years.”)
L - Lapsed Gifts: A gift in a will lapses when the beneficiary predeceases the testator, and there is no alternate provision for the disposition of the gift. Some jurisdictions have anti-lapse statutes that allow certain lapsed gifts to pass to the deceased beneficiary's descendants. In most states, the anti-lapse statute saves a gift if it was made to a close relative of the testator (e.g., a descendant) who died before the testator but left descendants of her own. The beneficiary’s descendants take by substitution. Under the UPC, the anti-lapse statute applies to any predeceasing beneficiary who is the testator’s grandparent or a descendant of a grandparent.
M - Marriage: Marriage can significantly impact wills and estate planning. In many jurisdictions, marriage revokes a previously made will unless the will explicitly states otherwise. Additionally, spouses often have certain rights to the estate, such as elective shares, regardless of the will's provisions.
N - Nonmarital Children: The rights of nonmarital children (children born outside of marriage) to inherit under a will or intestacy vary by jurisdiction. Modern trends favor equal treatment of marital and nonmarital children, but specific inheritance rights can depend on paternity acknowledgment or legal determinations.
O - Oral Wills: Also known as nuncupative wills, these are spoken wills, typically made in urgent circumstances, and are only legally valid in certain jurisdictions and under specific conditions. Oral wills generally require witnesses and are often limited to personal property, not real estate.
P - Pretermitted Children: These are children born or adopted after a will is made and not mentioned in the will. Most states have “pretermitted child” statutes aimed at ensuring that children born after the execution of a will aren’t inadvertently disinherited. Many of these statutes provide that, under certain circumstances, a child born to a testator after the testator’s will is executed is entitled to whatever share of the testator’s estate the child would have received if the testator had died intestate. In states with such statutes, bequests in favor of an afterborn child’s other parent are irrelevant. However, a testator can avoid the consequences of such a statute if the will evidences intent to do so.
Q - Qualified Beneficiaries: This term refers to beneficiaries who meet certain criteria established by the will or by law to receive a bequest. It often involves conditions that the beneficiary must meet or actions they must take to qualify for the inheritance.
R - Revocation: A will may be revoked in three basic ways: by operation of law, by written instrument, and by physical act.
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 children. The theory behind this rule is that that it’s assumed the testator wouldn’t want the will (or the will provision) to operate in view of the changed family situation.
Revocation by subsequent instrument: A will may be revoked by a subsequent instrument that was executed with proper formality. The revocation can be express (e.g., “I hereby revoke all previous wills and codicils”), or it may be implied because provisions in the new will conflict with provisions in the old will. If a subsequent will doesn’t expressly revoke a previous will, both wills are effective to the extent that they aren’t inconsistent. To the extent they are inconsistent, the newer will is given effect, and the conflicting provisions of the older will are treated as having been revoked. If a will is revoked by a subsequent instrument, and the subsequent instrument is revoked without a replacement, in a majority of states and under the UPC, the first will is revived. In other states, the first will can be revived only if it is re-executed or republished by a codicil.
Revocation by physical act: Most states also permit a will to be revoked by physical act, such as burning, tearing, and canceling by writing over a material portion of the will with the intent to revoke. The intent must accompany the physical act.
Partial revocation by physical act: Many states also recognize the doctrine of partial revocation by physical act. A testator can eliminate a single gift in a will by striking it out. Such strikeouts are often accompanied by the testator writing in a new name or a new amount above the stricken words. The newly written words are holographs and so will be given effect only if the state recognizes holographs and the testator signed the changes. (Of course, if the replacement words were typed, then they cannot even qualify in a state that recognizes holographs—and this has been tested on the exam.) If the newly added words aren’t given effect and it was clear that the testator intended to enlarge the beneficiary’s gift (e.g., if a will had the gift “to Sally, I leave $10,000,” and the testator struck out the amount and wrote “$20,000” above it, the doctrine of dependent relative revocation might be applied). (See “D - Dependent Relative Revocation.”)
S - Slayer Statutes: These statutes prevent a person who has feloniously and intentionally killed the testator from inheriting under the testator's will. The purpose is to ensure that a killer doesn’t benefit from their crime. Remember that slayer statutes apply only when the heir kills the decedent whose estate is at issue. They don’t apply to bar someone from taking a share of an estate because she killed another person—even if that person is the source of the decedent’s property. So, as one previous MEE question tested, a daughter who killed the testator’s husband wasn’t precluded from inheriting the testator’s property because the daughter killed the husband and not the testator.
BONUS: S - Simultaneous Death Acts: If title to property depends on the order of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each will be distributed as if he survived. Many states follow the UPC or the revised Uniform Simultaneous Death Act and go even further, requiring a beneficiary to survive the testator by more than 120 hours; otherwise, the beneficiary is treated as predeceasing the testator.
T - Testamentary Capacity: In nearly all states, a person who has attained age 18 has the right and power to make a will. In addition, the testator must be of sound mind. Testable issues within this area include insane delusion, fraud, and undue influence. An insane delusion is a legal, not a psychiatric, concept. Such a delusion is a belief in facts that don’t exist and that no rational person would believe existed. An insane delusion may invalidate the entire will or only a particular gift. (See also “F - Fraud” and “U - Undue Influence.”)
U - Undue Influence: Undue influence is mental coercion that prevents the testator from exercising his free will and produces a gift wanted by the person exerting the undue influence. The burden of proving undue influence generally is on the person challenging the will. However, a presumption of undue influence will arise if: (i) the will gives a substantial benefit to a party who stood in a confidential relationship with the testator, (ii) that person was instrumental in preparing or procuring the will, and (iii) the will makes an unnatural disposition favoring that party.
V - Void: A will or specific provision within it can be declared void if it is found to be legally invalid. Reasons for a will being void include lack of testamentary capacity, undue influence, fraud, or failure to comply with legal formalities.
W - Will Contest: A will contest is a legal challenge to the validity of a will or specific provisions in it. Grounds for contesting a will can include lack of testamentary capacity, undue influence, fraud, or failure to comply with legal formalities.
X - eXecutor: An executor is a person appointed by a will to carry out the directives and administer the estate according to the will's terms. The executor's responsibilities include collecting assets, paying debts and taxes, and distributing the remaining assets to beneficiaries.
Y - Years: In nearly all states, a person who has attained age 18 has the right and power to make a will. If a 16-year-old executes a will and dies 20 years later, the will isn’t valid because the testator didn’t have capacity at the time the will was executed.
Z - Zero-share Beneficiaries: These are individuals named in a will who are designated to receive no assets. This designation is often used to clarify the testator's intent and prevent claims by these individuals under the will.
