Wills and Trust - Wills
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What is NC's presumption when it comes to mental capacity
NC presumes sanity. It is a rebuttable presumption
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.
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
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.
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.
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.
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)
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.
What creates a presumption of undue influence?
Confidential relationship + Suspicious Circumstances
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
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.
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.
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.
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.
Ritual Function of Formality
The performance of a ceremony for the purpose of impressing on the transferor the significance of the act
Evidentiary Function of Formaility
Supply satisfactory evidence to the court that this is in fact the testator's will
Protective Function of Formality
Safeguarding the testator from imposition
Standardization of form simplifies administration
How does NC construe the Statute of Wills
Basic Formalities of an Attested Will
Writing, signature by the testator, and attestation by at least two witnesses
The requirement that the will be signed "at the foot or end"
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
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
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.
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)
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
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.
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.
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.
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
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
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
Must a holographic will be signed?
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
What is a codicil?
A testamentary instrument (i.e. a will) that amends a prior will but does not replace it
In what ways can a will be revoked?
subsequent writing, physical act, operation of law
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
Doctrine of Dependant Relative Revocation (DRR)
A doctrine for undoing mistakes. Undoes the LAST revocation
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
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.
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.
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
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
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.
Definition: Patent Ambiguity
Is extrinsic evidence admitted?
Ambiquity apparent from the face of the document.
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
Can extrinsic evidence be admitted to help explain the plain meaning of words
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.
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
What will a court refuse to do when it comes to correcting mistakes in a will
Reformation - adding to the will
Under C/L, what happens when the beneficiary dies before the testator?
the interest lapses
Under C/L, what happens if a specific or general devise lapses?
it goes to the residuary
What is a demonstrative devise?
a general devise payable from a specific source
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.
What does the Anti-Lapse statute do?
Anti-lapse statutes does not undo the lapse, it only substitutes the beneficiaries by presuming intent.
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
Anti Lapse Statutes are ________ rules?
They apply UNLESS _________.
the testator indicates a contrary intention
When does the law of ademption apply?
when the devised property is no longer is the testator's estate at death
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
To what type of devises does the doctrine of satisfaction apply?
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
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
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
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
Does a will substitute need to be executed in compliance with the strict formalities of the statute of wills?
Definition: Inter-Vivos Trust
Trust created during the lifetime of the settlor
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
When can a will incorporate a trust document?
If the trust document was in existence at the time the will was executed.
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.
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
Does NC follow the system of seperate or community property
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.
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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