Per Stirpes Distribution

 What does "per stirpes" even mean if it shows up in a Wills essay?

Essentially, the term explains at which level the estate of a decedent should be divided for purposes of inheritance (or intestate distribution). Assume the decedent has 4 children, A, B, C, D. And that C predeceases the decedent. Each child of the decedent has 2 children. Under a policy of per stirpes, the first step is to divide the estate by 4 since there are 4 children. A, B, and D will then get their 1/4th share. C also gets a 1/4th share (this is the key, give the deceased child the share), though because C is dead that 1/4th share passes to C's 2 children and each gets a (1/4)(1/2) share or a 1/8th share). So, the end result would be that A, B, and D get 1/4th, and the 2 children of C get 1/8. One way to check your work (as high school math teachers always used to say) is to add up all the shares. They should sum to 1 if you've calculated correctly. 1/4 + 1/4 + 1/4 + 1/8 + 1/8 = 8/8 = 1 A way to understand per stirpes is to understand how this would contrast if a different policy of distribution applied (and there are a variety of policies that could apply on a bar exam). It could have been true that C's 2 children share equally with the living children of the decedent. In that case, the calculation would merely be to divide the estate by 5 so that each gets 1/5. C's 2 children would like this since 1/5 > 1/8. The living children of the decedents not so much, since 1/5 < 1/4.

Revoking a Will (UBE)

Initially, it's important to understand that unlike some other instruments (for example, an irrevocable trust) a will is revocable up until the moment of decedent's death. The question then turns to the methods one might use to affect that revocation.

A will can be revoked by operation of law. If a person gets married after the creation of a will, the new spouse will take an intestate share (the share the new spouse would have received had there been no will) unless the will makes provision for the new spouse, the omission was intentional, or the will was made in contemplation of the marriage. Divorce or annulment revokes all gifts in favor of the former spouse. In other words, the will is read as if the former spouse had died earlier. This applies not only to gifts but to appointments as well (for example if the former spouse had been appointed as guardian, trustee, etc.)

Assume that a will is created, and after the creation of the will, a child is born. In such instances, the child will take an intestate share (similar to the rule above about a new spouse) unless the omission of the child in the will was intentional, the testator had other children at the time the will was created and devised a substantial amount of the estate to the other parent of the omitted child, or the testator provided for the omitted child by a transfer outside of the will in lieu of a gift in the will. These children born after the creation of a will are known as pretermitted children.

Another method for revoking a will is by a written instrument. All or part of a will may be revoked by a subsequent instrument executed with the same formalities as a will. If the subsequent instrument expressly revokes the will then the subsequent instrument applies; if there isn't that express revocation, then the two instruments (the will and the subsequent instrument) are read together with the subsequent instrument revoking the earlier will only to the extent of inconsistent provisions. 

Physical acts can suffice to revoke a will. Quite a few physical acts will revoke a will: burning, tearing, canceling or obliterating do the trick. But there must be intent at the time. The intent must be concurrent with the physical act, though the physical act may be performed by another if done at the testator's direction and in the testator's presence. 

A tricky issue that might come up is when there is no direct evidence of revocation but a question arises as to whether the will should be presumed revoked. If a will last seen in the testator's possession or under the testator's control cannot be found after death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked the will. Of course, since it's a rebuttable presumption, the presumption can be rebutted, and extrinsic evidence is admissible to overcome the presumption.

Lastly, if the presumption of revocation is  overcome but the will cannot be found, it might still be admitted to probate. For a lost (or destroyed) will to get admitted to probate does require that the following is proven: valid execution of the will, proof that the will was not in fact revoked, and proof of the contents of the will. You might wonder: how can the contents of a lost or revoked will be proven. It's not easy, but witnesses to the creation of that will might assist, as might a carbon copy or photocopy of the will. 

Dependent Relative Revocation

The concept of "dependent relative revocation" has shown up with some frequency on the MEE over the years. And so there's not much more to do but to understand it. 

There are a variety of ways to revoke a will. One such way is by executing a subsequent will, provided that such execution satisfies all of the formalities required to create any will. The subsequent will can expressly revoke the earlier will. Or, the subsequent will might not expressly revoke a prior will but any inconsistencies will be read as a revocation of the earlier will. 

People have reasons for revoking a will. Sometimes, though, those reasons will be based on mistaken beliefs. In other words, a person might revoke will "x" only because the person believes that by doing so will "y" will take effect. It's not that person wanted no will at all; it's just that the person preferred will "y" to will "x."

And so the question then is what results when the person revokes a will thinking mistakenly that another disposition of the property will be effective but an issue with the subsequent will prevents it from taking effect. 

That's where the doctrine of "dependent relative revocation" plays its role. If a person revokes will "x" under the mistaken belief that will "y" will then take effect, and will "y" does not then take effect, the revocation fails and the previous will (here will "x") remains in effect. 

Stated slightly differently, the former will is revived when the new will is deemed invalid. The theory here is rather straightforward: the person revoked the first will on the condition that the later will would take effect, so when the later will does not take effect the condition fails and thus so does the revocation of the prior will.

Will Contests

There are many avenues that one can take to contest a will and for that reason there are many places the bar examiners can go to test the topic of will contests. Grounds for challenging a will include a claim that the will is defective in its execution and a claim that although the will was validly executed, it has been revoked. In addition, lack of testamentary capacity, lack of testamentary intent, undue influence, fraud, and mistake, are all grounds for contesting a will. This post will focus specifically on four of these grounds: lack of capacity, undue influence, fraud, and mistake. 

An initial issue for any will contest is a procedural one. Generally, a will contest must be filed within 6 months after the will is admitted to probate and only those whose interests would be adversely affected by the admission of the will have standing to contest it. The burden of proof is on the person contesting the will.

One ground for contesting a will is a claim that the testator lacked capacity at the time that the will was executed. A testator will lack capacity if the testator is under the age of 18 at the time the will was executed (in most states). In addition, a testator at the time of execution must have the capacity to understand the nature of the act of execution, the nature and extent of the property left in the will, and the natural objects of the testator's bounty (the closest surviving relatives). It's not enough to prove that the testator was old at the time the will was executed or that the testator was ill or that the testator had a struggling memory. It's also not enough to show that the testator has addiction issues with drugs, alcohol, etc. None of that will satisfy the standard required for lack of testamentary capacity. An adjudication of insanity, on the other hand, is evidence of lack of testamentary capacity. But that, too, is inconclusive. 

Another ground for contesting a will is by establishing undue influence. To establish undue influence, the will contestant must establish that influence was exerted, the effect of the influence was to overpower the mind and free will of the testator, and the resulting disposition in the testator's will would not have been executed but for the influence. Although the above elements must be proved (circumstantial evidence is insufficient) under certain limited circumstances a presumption of undue influence is appropriate. Such a presumption arises if there was a confidential relationship between the testator and a beneficiary and the beneficiary was active in procuring, drafting, or executing the will. If the presumption applies, then the burden will shift to the proponent of the will to rebut the presumption. 

Fraud is another ground for contesting a will. For this contest to be successful, the testator must have been willfully deceived as to the character or content of the will or as to extrinsic facts that would induce a particular disposition in the will. 

Lastly, mistake is a ground for contesting a will, and there are a few different types of mistakes to consider. Mistake in execution requires the contestant prove that the testator did not know that the instrument he/she was signing was a will. Extrinsic evidence is permissible for this purpose. Mistake in inducement, on the other hand, is not a mistake as to the nature of the instrument itself. Rather, it's a mistake involving the reasons a testator made the will. Although in certain circumstances a contestant might successfully contest a will based on mistake in inducement, it is not as strong of a case as mistake in execution. 

Ambiguity also falls under the category of mistake. There are two types of ambiguity to keep in mind. Latent ambiguity arises if a will's language is clear on its face but results in a misdescription as applied, whereas a patent ambiguity exist if the uncertainty appears on the face of the will itself. Importantly, extrinsic evidence is admissible to cure latent ambiguities but is less like to be admissible to cure patent ambiguities. A modern view has done away with this distinction and allows extrinsic evidence to cure the ambiguity in either case. 

The testator may want to control whether anyone contests the will in any manner discussed above. That's allowable through a no-contest clause. A no-contest clause is a clause in a will providing that any beneficiary who contests the will will forfeit any interest left to the beneficiary under the will. Such a clause is valid and enforceable unless the beneficiary had probable cause for contesting the will. In some states, a no-contest clause is given full effect even if the beneficiary had probable cause for contesting the will, but under the UPC (which is applied on the UBE) even if a no-contest clause in in place, the beneficiary can contest the will if there is probable cause to do so.

Powers of Appointment

When choosing which topics to write about here, the primary consideration is whether the topic has shown up on previous bar exams. So, although it's reasonable to not necessarily expect to see a topic like powers of appointment in a Wills essay, it's been there. 

Here's what to know:

A power of appointment is an authority granted by a person (known as the donor of the appointment) to another person (known as the donee of the appointment), enabling the donee to designate who should take the donor's property and the manner in which that property should be taken. Importantly, there are both general and special powers of appointment. General powers are exercisable in favor of those including the donee himself. A special power, on the other hand, is exercisable only in favor of a limited class of appointees which does not include the donee. 

Another distinction between powers of appointment deals with time. A presently exercisable power of appointment is one exercisable by the donee during the donee's lifetime. A testamentary power of appointment is one exercisable only by the donee's will.

Creditor issues may appear on an exam. Assume that a donee has a power of appointment (either presently exercisable or testamentary). The donee's own creditor can not reach the property that the donee has the power to appoint prior to the donee appointing that property. However, once the donee appoints the property to another person, creditors of the donee can reach the appointed property as if the donee were the owner of that property. There is one exception to note: if the donee of a general power of appointment is also the donor of the appointment then creditors can reach the property even before it has been appointed by the donee. This is to prevent fraud against the creditor on the part of the donee.

You might come across questions where there is a residuary clause in a will. In most states, a residuary clause by itself does not exercise any power of appointment held by the testator of that will. In other words, more specific language is required by the testator to exercise the testator's power of appointment. In a minority of states, a will's residuary clause does exercise a power of appointment held by the testator of the will but only if it's a general (rather than special) power of appointment. And even in that minority of states there are some exceptions to that rule.

Lastly, it's worth noting that absent a contrary provision in the instrument creating the power, the donee can appoint the property outright and can also appoint the property to a trustee of a trust (and so these powers can show up in Trusts essays as well). The donee of a testamentary power of appointment (special or general) cannot contract to make an appointment; that contract is deemed invalid.

Advancements

Wills is a commonly tested essay subject on the UBE. It doesn't show up on every exam but it shows up more often than not. And the concept of "advancements" has shown up multiple times over the years. Thankfully, it's not too difficult. 

Not all Wills questions deal with wills; heirs can also inherit through intestate succession. Property will pass by intestate succession when (1): a decedent dies without having made a will; (2): a decedent's will is denied probate; or (3): a decedent's will does not dispose of all of his/her property either because a gift has failed or because the will contains no residuary clause. 

An advancement is a lifetime gift to an heir with the intent that the gift be applied against the share the heir inherits from the donor's estate. It's important not to presume that a lifetime gift is an advancement; that was true under the common law but is not true under the Uniform Probate Code. Under the Uniform Probate Code, a lifetime gift is presumptively not an advancement unless shown to be intended as such. Specifically, a gift is intended as an advancement only if it is declared as such in a contemporaneous writing by the donor or acknowledged as such in a writing by the heir.

Let's assume then that the elements above are satisfied and that a lifetime gift is deemed an advancement. Here's how the math works:

If found to be an advancement, the gift's value when given is added back into the estate for purposes of calculating intestate shares. After calculating shares, it is then subtracted from the recipient's share. 

An an example, let's assume that a donor ("D") has three children, A, B, & C. During D's lifetime, D advances $50,000 to A. All elements of a valid advancement are satisfied. D dies with an intestate estate of $250,000 with A, B, and C as his only heirs. 

The first step is to take the advancement of $50,000 and add it back into the estate. Once added back, the estate would consist of $250,000 + $50,000 = $300,000. Then calculate how much each heir would have received had there been no advancement. Here, each heir would have received 1/3 of that $300,000 or $100,000 each. But A has already received 50,000, so you should deduct that from A's $100,000 share.

As such, A will now receive $50,000, B will receive $100,000, and C will receive $100,000. 

Will Substitutes and Living Wills/Durable Healthcare Powers

Although not the most essential topic to know within the subject of Wills, if you get an essay on Wills it helps to understand will substitutes, living wills, and durable healthcare powers to round out the subject.

Will substitutes may enable people to pass property upon death while avoiding taxes and other inconveniences associate with probate. Be sure to know the following:

Life Insurance: A widely used will substitute, this is a contract with the disposition governed by the terms of the contract.  Rather than leaving property in a will, the property will pass to the beneficiaries designated in the contract.

Totten Trusts. A Totten trust is a deposit of money in a bank account in trust for another person. Importantly, the depositor never loses the ability to revoke throughout the depositor's lifetime. The transfer is complete only upon the death of the depositor.

Joint Accounts with Rights of Survivorship: A joint account is an account in which funds are deposited in the name of two or more persons. A right of survivorship gives the survivors the absolute right to the funds when an account holder dies. For UBE purposes, creditors can reach the money in a joint account to the extent that the decedent deposited money in the account if the other estate assets are insufficient to satisfy valid claims of the creditors.

Deeds: A deed can be deposited in escrow with delivery conditioned upon the grantor's death. Less likely but worth keeping in mind is that a grantor can deliver a deed to a grantee during the grantor's lifetime and a court might construe that transfer as the delivery of a future interest to the grantee which will only become possessory upon the grantor's death (the grantor has therefore retained a life estate).

Living wills have popped up from time to time on the exam. A living will states an individual's desires regarding whether to administer, withhold, or withdraw life-sustaining procedures as well as whether to provide, withhold, or withdraw, artificial nutrition and hydration. A durable healthcare power, on the other hand, appoints an agent to make healthcare decisions on behalf of a principal and does not become effective until the principal becomes incapacitated. Both living wills and durable healthcare powers generally require a signed writing and most states require that the creation is witnessed. It might be noted that the Uniform Health Care Decisions Act does not require witnesses. Both living wills and durable healthcare powers can be revoked and the duty of an agent in a durable healthcare power is to always act in the principal's best interest. The agent is not subject to civil or criminal liability for deviations from reasonable care while acting as agent provided that the agent has acted in good faith.

Anti-Lapse Statutes

In the most recent post I outlined the concept of ademption, an area in the subject of Wills that is also seen on the MBE.  Another area that creeps its way onto the test is anti-lapse statutes. The concept is straightforward, but you should know it well:

As a review, ademption occurs when a testator leaves property to a beneficiary in a will but at the time that the testator dies that property is no longer in the estate. Situations will also arise when a testator leaves property to a beneficiary in the will and at the time that the testator dies the beneficiary is no longer alive.  How should this be addressed?

The general rule is that the gift lapses. But nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator. States vary but often the beneficiary will need to be a descendant of the testator, a grandparent of the testator, or a descendant of the testator's grandparents. In addition, it'll be necessary that the beneficiary leaves descendants who survive the testator.

For example, assume that the testator leaves property in his will to his grandfather. His grandfather is not alive when the testator dies and as per the general rule the gift left by the testator to his grandfather would lapse. But because the grandfather is in a degree of relationship often contemplated by anti-lapse statutes, instead of the gift lapsing the next step is to determine whether the grandfather has any living descendants. If so, then rather than the gift lapsing, the gift will pass to the grandfather's descendant(s).

Anti-lapse statutes apply unless there is a contrary provision in the will. In other words, if a testator states in a will that the gift should go to "x" only if "x" survives the testator, then any anti-lapse statute should be ignored. That gift will lapse if "x" is not alive when the testator dies.

Ademption

Wills is a very heavily tested subject on the MEE, the essay portion of the Uniform Bar Exam. And, although far more limited, it also shows up (in Property questions) on the MBE.  One topic that appears on the MBE is ademption.

Ademption is implicated when a testator leaves property in a will but the property is no longer in the testator's estate at the time of death. What to do in such a situation?

First is to note that ademption only applies to specific gifts in a will. A specific gift is a gift that can only be satisfied by receipt of the specific property described in the will. If such a gift is no longer in the testator's estate at the time of death, the gift is adeemed and the beneficiary who was supposed to receive the gift receives nothing.  If, however, some of the gift remains (for example, a tract of land is left to the beneficiary and some of the land is sold prior to the testator's death), then the beneficiary will receive whatever remains.

Also tested are gifts that are not adeemed. For example, a general gift is a gift in a will of a specific dollar amount. If testator leaves a dollar amount to a beneficiary in a will and there is not enough cash in the estate at the time of death to satisfy that gift, that general gift of cash is not adeemed; rather,  the gift will be satisfied by selling other assets.

There are a few additional important points to keep in mind: assume a specific gift of land is no longer in the estate at the time of testator's death. Although the gift is adeemed, the beneficiary of that gift may be entitled to proceeds from the sale of that land if the land sale contract was executory at the time testator died. The beneficiary may also be entitled to casualty insurance proceeds for loss of personal property that was left to the beneficiary in a will if the proceeds are paid after the testator's death. Lastly, a condemnation award (if land is condemned after testator dies) may go to the beneficiary in the will who was supposed to receive the condemned land as a specific gift.

Intestate Shares

Some of the material required for Wills has to do with situations in which the decedent left a will at the time of death. But also required for the exam is to know the procedure when the decedent had no will at the time of death or when the will is denied probate. This procedure, known as intestate distribution, can become complex.

Generally, if there is no will of which to dispose all of the property, the surviving will take a large percentage (1/3rd or 1/2 most commonly). Under the Uniform Probate Code, the surviving spouse takes the entire estate provided that any descendants of the surviving spouse are also descendants of the decedent. And if there are no descendants, the surviving spouse generally gets the entire estate as well.

After the spouse receives a share, the children get a share, but the share will depend on the method of distribution. In some states the children will take their share per capita with representation which means that 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 that person's issue by right of representation.

So, assume that D dies, leaving 5 children, V, W, X, Y, and Z.  At the time that D died, V and W were alive, but X, Y, and Z had already died.  X had 2 children, C1, and C2, Y had one child, C3, and Z had 3 children, C4, C5, and C6. Had all 5 of V, W, X, Y, and Z been alive, this would be simple: V, W, X, Y, and Z would receive 1/5th of the estate. But here only V and W were alive so only they will each get their 1/5 share.

As to X, Y, and Z, each of their children will get what each of X, Y, and Z would have gotten had they been alive. X would have gotten 1/5, so C1 and C2 will get (1/5)/(2) =1/10. Y would have gotten 1/5 so C3 will get 1/5. And Z would have gotten 1/5 so C4, C5, and C6 will each get (1/5)/(3)= 1/15.

You can always check to make sure the math is correct since all shares should equal 1.

More importantly for purposes of the UBE (since this is the method used in the Uniform Probate Code) is a method of distribution called per capita at each generational level. Once again, the initial division of shares is made at the first generational level at which there are living takers. But here, the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Using the same characters from above, assume again that V and W are alive at the time of D's death, but that X, Y, and Z have already died.  V and W will once again get their 1/5 share.  But this time, the 3 shares of X, Y, and Z (1/5th each) will be combined for a total of 3/5. That 3/5 share will then be distributed equally among C1, C2, C3, C4, and C5.  In other words, C1, C2, C3, C4, and C5 will all get an equal share of 3/5th or (3/5)/(5)=3/25.

Once again, a quick check will determine if all shares when combined equal 1.