Wills and Trust - Wills

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  1. What is NC's presumption when it comes to mental capacity
    NC presumes sanity. It is a rebuttable presumption
  2. To be competent a testator must be?
    • An adult (above 18) and
    • Capable of knowing and understanding in a general way

    • The nature and extent of his property,
    • The natural objects of his bounty (family), and
    • The disposition that he is making of that property

    He must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property.
  3. A person is mentally capable of making a will if they have what?
    a decided and rational desire as to the disposition of their property
  4. What is an delusion? What is an insane delusion?
    A delusion is a false conception of reality. An insane delusion is a belief not susceptible to correction by presenting the testator with evidence indicating the falsity of the belief. The testator believes the delusion against all evidence and reason to the contrary.
  5. What is the Insane Delusion Test?
    A party asserting that a testator was suffering from an insane delusion must meet the burden of showing that the testator suffered from such delusion.

    Must show that the testator labored under an insane delusion, and the will (or some part thereof) was a product of the insane delusion.
  6. In NC what must be shown in order for an insane delusion to invalidate part of a will?
    To invalidate the will, the delusion must have NO foundation in fact AND must be the product of the testator's diseased or deranged mind. It must also be shown that the insane delusion was actually operative in the production of the will.
  7. What is the difference between an insane delusion and a mistake?
    ID - a false belief not susceptible tocorrection by presenting the testator with evidence that the belief is false (remedy - nullifying the will provision- is provided)

    Mistake - a false belief that is susceptible to correction if the testator is presented with true facts. (Under traditional rules, no remedy is provided for mistakes - the mistaken will provision stands)
  8. When is a donative transfer procured by undue influence?
    When the influence exerted over the donor overcomes the donor's free will and causes the donor to make a donative transfer that the donor would not have otherwise made. If the person who benefited from the will also participated in its preparation, an undue influence claim is likely.
  9. What creates a presumption of undue influence?
    Confidential relationship + Suspicious Circumstances
  10. NC Elements for Undue Influence
    A person who is subject to influence

    Opportunity to exert influence (time, access)

    Disposition to exert influence (subjective intent of wrongdoer)

    A result indicating undue influence

  11. When is a will influenced by fraud?
    Occurs where the testator is deceived by a deliberate misrepresentation and does that which he would not have done had the misrepresentation not been made. It is usually said that the misrepresentation must be made with both the intent to deceive the testator and the purpose of influencing the testamentary disposition.
  12. Fraud by Inducement
    Involves fooling the testator into making or changing will provisions

    Occurs when a misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoers' favor.
  13. Fraud in the Execution
    Involves getting the testator to sign the wrong document

    Occurs when a person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testators intent.
  14. When is a donative transfer procured by duress?
    A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise had made.
  15. Ritual Function of Formality
    The performance of a ceremony for the purpose of impressing on the transferor the significance of the act
  16. Evidentiary Function of Formaility
    Supply satisfactory evidence to the court that this is in fact the testator's will
  17. Protective Function of Formality
    Safeguarding the testator from imposition
  18. Channelling Function
    Standardization of form simplifies administration
  19. How does NC construe the Statute of Wills
  20. Basic Formalities of an Attested Will
    Writing, signature by the testator, and attestation by at least two witnesses
  21. Definition: Subscription
    The requirement that the will be signed "at the foot or end"
  22. What is the purpose of requiring that the will be signed?
    To provide evidence of finality and to distinguish the will from notes or drafts
  23. In NC, must the testator sign in the presence of the witnesses?
    NO, but if he does not, he must acknowledge his signature either by acts or conduct
  24. How and where must the witness's attest the will?
    The attesting witnesses must sign the will in the presence of the testator but they don’t have to sign in the presence of each other.
  25. Line of Sight Presence Doctrine 
    Whether the testator is capable of seeing the witnesses in the act of signing. You don’t have to see them, but must be able to see them were you to look (NC Rule)
  26. Conscious Presence Doctrine
    If the witnesses are so near at hand that they are within the range of any of the testator's senses, so that he knows what is going on, the requirement is met, and the will is NOT invalidated because the testator did not see the witness sign
  27. Purging Statutes
    Thestatute allows a will attested by an interested witness to be  admitted to probate and be considered valid, but voids (purges) any bequest/transfers to the interested witness.
  28. Attestation Clauses
    Not required for valid execution.

    They are phrased from the witnesses' point of view attesting the elements of the local statute have been followed. The clause recites that the will was duly executed and gives rise to a presumption of due execution 

    It facilitates probate by providing "prima facie evidence" that the testator voluntarily signed the will in the presence of the witness.
  29. Self Proving Affidavits
    Not required for valid execution

    The testator also signs the affidavit, and (2) the affidavit is notarized. Typed at the end of the will, swearing before a notary public that the will was duly executed. The purpose of it is to prove that all of the requirements of due execution have been complied with, which permits the will to be probated.
  30. Curative Doctrine: Substantial Compliance
    Not used in NC bc NC follows the rule of strict compliance with the statute of wills.

    The court may deem a defectively executed will as being in accord with the statutory formalities if there is clear and convincing evidence that the defective execution nonetheless fulfills the purposes of those formalities 
  31. Curative Doctrine: Harmless Error
    Not used in NC bc NC follows the rule of strict compliance with the statute of wills

    The court may excuse noncompliance with statutory formalities if there is clear and convincing evidence that the decedent intended the document to be his will
  32. Under NC law, what part of an holographic will has to be in the handwriting of the testator?
    NC permits typed words not affecting the meaning of the handwritten words - handwritten words being sufficient to constitute a holographic will (if you take away the printed words, leaving just handwritten text, does the handwriting alone suffice to be deemed a holographic will). See 31-3.4
  33. Must a holographic will be signed?
  34. Where can a holographic will be signed?
    If it is signed according to NC statute even though he didn’t put his signature at the end. All that is required is that the testator wrote his name on the will, it doesn’t necessarily have to be at the end. It could be anywhere on the face of the document
  35. What is a codicil?
    A testamentary instrument (i.e. a will) that amends a prior will but does not replace it
  36. In what ways can a will be revoked?
    subsequent writing, physical act, operation of law
  37. Can a will be revived in NC?
    NO, no will or any part thereof that has been revoked can be revived otherwise than by a re-execution thereof, or by the execution of another will in which the revoked will or part thereof is incorporated by reference
  38. Doctrine of Dependant Relative Revocation (DRR)
     A doctrine for undoing mistakes. Undoes the LAST revocation
  39. Can a will that is lost, still be admitted to probate?
    Yes, A will that is lost, or destroyed without the intent to revoke, can be admitted into probate if its contents are proved. Proof is often made by a copy of the will or by other clear and convincing evidence
  40. How does revocation work when there is a will and a codicil?
    If the intention is to revoke both documents, destroying the will is usually sufficient. If he intention is unclear, the codicil may remain valid IF it can sensibly stand alone, but it will fail if it needs the wills support. Tearing up the codicil normally leaves the will in place.
  41. What is the presumption that applies when it is known that the will was last in the hands of the testator but now cannot be found?
    It is presumed to be revoked, but this presumption can be overcome.
  42. What parts of the will are integrated into the will?
    All papers present at the time of execution, intended to be part of the will, are integrated into the will
  43. Republication by Codicial
    A will is treated as re-executed as of the date of the codicil. The will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator's intent.

    A codicil can only republish a will that was executed validly in the first place
  44. NC Requirements for Incorporation by Reference
    A writing in existence when a will is executed, language of the will that manifests the intent to incorporate, the will describes the writing/document sufficiently to permit its identification.
  45. Definition: Patent Ambiguity

    Is extrinsic evidence admitted? 
    Ambiquity apparent from the face of the document.

  46. Definition: Latent Ambiguity

    Is extrinsic evidence admitted 
    Language, though clear on its face, is susceptible to more than one meaning, when applied to the facts

  47. Can extrinsic evidence be admitted to help explain the plain meaning of words
  48. What are the two types of latent ambiguities?
    Equivocation - When a will clearly describes a person or thing, and two or more persons or things fit the description exactly. Extrinsic evidence, including a direct expression of the testator's intent, is admissible. 

    Where no one person or thing exactly meets the description in the will, but two or more persons or things partially fit. In such cases, since extrinsic evidence was consulted to expose the ambiguity, extrinsic evidence can be consulted to resolve it.

  49. When there are obvious mistakes in the will, for example an initial or an address number is wrong, what two things can a court do to resolve the mistake?
    1. The court can ignore certain details making the ambiguity latent. Since the ambiguity is now latent, extrinsic evidence can be admitted to figure out what the testators intent was.

    2.Falsa demonstratio non nocet (mere erroneous description does not vitate). Where there are several particulars in the description, the less essential particulars may be dropped provided the rest of the description fits clearly
  50. What will a court refuse to do when it comes to correcting mistakes in a will
    Reformation - adding to the will
  51. Definition: Lapse
    interest fails
  52. Under C/L, what happens when the beneficiary dies before the testator?
    the interest lapses
  53. Under C/L, what happens if a specific or general devise lapses?
    it goes to the residuary
  54. What is a demonstrative devise?
    a general devise payable from a specific source
  55. What happens when a divise to a residuary devisee lapses? 
    It lapsed because the residuary beneficiary has already predeceased. The devise is passed by intestacy and the heirs of the testator take it.
  56. What does the Anti-Lapse statute do?
    Anti-lapse statutes does not undo the lapse, it only substitutes the beneficiaries by presuming intent. 
  57. In NC what has to be true in order for the anti-lapse statute to apply?
    The predeceased either has to be a grandparent of the testator OR a descendant of a grandparent of the testator
  58. Anti Lapse Statutes are ________ rules?

    They apply UNLESS _________. 

    the testator indicates a contrary intention 
  59. When does the law of ademption apply?
    when the devised property is no longer is the testator's estate at death
  60. What is the affect of a devise being adeemed by extinction?
    Act equivolent to revocation by physical act. The devisee does not take the property under the identity theory but can possibliy take if  the intent theory is followed
  61. To what type of devises does the doctrine of satisfaction apply?
    General devises
  62. What is the question that needs to be asked when applying the satisfaction doctrine?
    Whether the testator still intends to give the divisee the full general devise OR whether he intended the inter-vivos transfer to be in satisfaction of the general devise
  63. What is the presumption that is applied under the doctrine of satisfaction. 

    What is this presumption opposite of?
    There is a rebuttable presumption that the gift is in satisfaction of the devise made by the will

    This is opposite of advancement in intestacy where the presumption is a gift and not an advancement unless otherwise shown
  64. In NC, is a devisee exonerated of an encumbrance (debt or lien) that is on proeprty that has be devised to them?
    NO, the devisee takes subject to the encumbrance
  65. When does the issue of abatement arise?

    What occurs as a result? 
    When the estate has insufficient assets to pay debts as well as all the devises. 

    Some of the devise's are reduced 
  66. Does a will substitute need to be executed in compliance with the strict formalities of the statute of wills?
  67. Definition: Inter-Vivos Trust
    Trust created during the lifetime of the settlor
  68. What is a pour over will?
    A will that designates a trust as one of its beneficiaries. The effect is to pour probate assets into the trust
  69. When can a will incorporate a trust document?
    If the trust document was in existence at the time the will was executed.
  70. What does the execution of a power of attorney document create?
    An agency relationship whereby the agent, called an attorney-in-fact is given a written authorization to act on behalf of the principal. A simple power of attorney terminates the agent's authority when the principal becomes incapacitated.
  71. When does a durable power of attorney end?
    A durable power of attorney continues throughout the incapacity of the principal and ends when the principal dies
  72. Does NC follow the system of seperate or community property
  73. What is the system of seperate property?
    • Husband and wife own separately all property each acquires, except those items one spouse has agreed to put into joint ownership with the other. Separate property
    • includes property acquired before marriage and property acquired during marriage by gift or inheritance. There is no automatic sharing of earnings.
  74. What is the system of community property?
    Husband and wife own all acquisitions from earnings after marriage in equal, 1/2 undivided shares, unless spouses agree to separate ownership.  Either spouse can dispose of his or her half of the community assets at death. The surviving spouse owns the other half, which is not, subject to testamentary disposition by the deceased spouse. The one half of the community property belonging to the deceased spouse may be devised to whomever the decedent pleases, the same as separate property.
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Wills and Trust - Wills
2012-06-26 21:32:21
Wills Trust

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