PA: Wills

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PA: Wills
2010-07-24 17:05:13

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  1. PA Wills Statute
    • REQS:
    • (1) T must be 18 or older.
    • (2) T must sign will at its logical end.
    • (3) SOMETIMES: Two attesting witnesses who witness T's signing.
    • >>>> Witnesses only necessary IF T signs by a mark, or someone else signs for T.
    • (4) Will must dispose of property, nominate a personal rep, or revoke or modify another will.

    NOTE: If T signs ABOVE a clause, the content below is NOT counted.
  2. Holographic Wills Valid
    GEN: If in T's own handwriting and signed by T, valid, even w/o witnesses b/c PA doesn't require witnesses.

    • NOTE: Holographic wills in PA not given special treatment (b/c no witness req). Valid -- whether in handwriting, typed, or mix) if signed at the end by the testator.
    • >>>> If signed in margin or on back of document, INVALID.
  3. Witnesses
    Witnesses (TWO) ONLY necessary IF T signs by a mark, or someone else signs for T.

    Witnesses, if needed, must state that T intended the document to be his will and that he signed it, or that someone signed it on his behalf, in his presence, at his direction.

    NOTE: If someone else signs for T, you need two other people to serve as witnesses.
  4. Self-Proved Wills
    • GEN: T and TWO witnesses sign will, and then T and witnesses sign a self-proving affidavit under oath before a notary.
    • >> Affidavit recites all elements of due execution.

    RESULT: Formalities of execution are conclusively proven. No contest for want of execution.
  5. Non-Self-Proving Wills
    • GEN: If a will is not self proving, then witnesses may be required to authenticate T's signature for probate.
    • >> Extrinsic evidence admissible to clarify T's intent, or the signature.
    • Wills can be revoked by
    • (1) Subsequent Instrument
    • >> Express revocation in instrument (revoked to extent stated) OR inconsistent provisions (revoked to extent inconsistent).
    • >>>> Can be full or partial.
    • (2) Physical Act
    • >> Intentionally destroying a material portion of the will with intent to revoke.
    • >> FULL v. PARTIAL REVOCATION: depends on intent of T.
    • >>>>> If claim PARTIAL REVOC: may use extrinsic evidence or infer intent from nature of the act.
    • (3) Operation of Law
    • >> Marriage -- Gifts abated to extent nevessary to satisfy omitted spouse's share.
    • >> Birth / Adoption -- gifts abated/revoked to make up share for pretermitted kids.
    • >> Divorce (partial -- all provisions in favor of former spouse)

    • RULE: Revocation by physical act requires --
    • (1) Intent to revoke; AND
    • (2) Physical act on the original (or one of the originals) that crosses the language of the will
    • >> Burnt, torn, canceled, obliterated, destroyed.

    NOTE: Presumption that will destroyed if known to be in T's possession up until death and, at death, cannot be found.

    • RULE: To be revoked by someone other than T --
    • (1) must be done at T's direction;
    • (2) in T's presence; AND
    • (3) T's direction must be proved by two witnesses.

    LOST WILLS: If destroyed but not revoked (ie. no intent), then the proponent of the will must meet elements of the lost will -- clear and convincing evidence.
  7. Codicils
    • RULE: Where codicil makes no references to a will but contains slightly inconsistent provisions to the exten possivle the will and codicil are read together.
    • WHERE INCONSISTENT: later document controls and thereby revokes by inconsistencty the prior will.

    NOTE: Where two wills and second does not in terms revoke the first -- the same rule applies.
  8. Revocation and Codicils
    RULE: Revocation of a will revokes all codicils, but a revocation of a codicil does not revoke a will.
  9. Divorce
    RULE: Divorce revokes all provisions in favor of ex-spouse UNLESS will shows it was intended to survive the divorce.

    Separation: mere separation has no effect on spouse's rights.
  10. Interlineations
    • STRIKE-THROUGHS: Certain language (ie. bequest) can be revoked through a strikethrough.
    • >> Full v. Partial Revocation: focus on intent of T.

    • INTERLINEATIONS: Interlineations (writing on will post-exec) NOT given effect UNLESS T --
    • (1) re-executes the will; OR
    • (2) republishes by codicil.
  11. Dependent Relative Revocation
    GEN: Allows the court to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact IFF the court is satisfied that, but-for the mistake, T never would have made the revocation.

    • IE. W1, then W2 expressly revoking W1, then destroy W2 in favor of W1.
    • Result: since both will revoked (W1 expressly, W2 through act), must apply DRR or no will.
    • DRR: Can bring W2 back -- T would not have revoked but for the mistake.
  12. Extrinsic Documents and Incorp by Reference
    • RULE: To incorp by reference --
    • (1) Writing must be in existence at the time the will was executed (*KEY*);
    • (2) Will must manifest an intent to incorp the document;
    • (3) Will must "describe the writing suff. to permit its identification."

    NOTE: Holographic wills can incorp defective non-holographic wills!

    INCORP: Note that documents incorporated by reference need not have been executed by T.
  13. Independent Significance
    • GEN: Certain blanks in a will may be filled in by referring to documents or acts effectuated for primarily nontestimentary motives.
    • >> Docs, acts or events must have sufficient significance apart from the impact on the will.

    Q: Actions taken for independent, lifetime reasons?
  14. Anti-Lapse Statute (MOST FREQ TESTED)
    GEN: If named beneficiary dies before T, gift lapses unless saved by an anti-lapse statute.

    • Anti-Lapse Statute
    • APPLIES: When predeceasing beneficiary is T's issue, a sibling of T, OR an issue of T's sibling -- if they survive T.
    • >> Adopted children are treated as natural children.
    • EFFECT: Issue of deceased beneficiary takes in the beneficiary's place.
    • EXCEPTION: A gift to T's sibling or a child of a sibling will LAPSE to the extent it would pass as a result to T's own spouse or issue.
  15. Antilapse and the Class Gift Rule
    GEN: When there is a gift by will to a group of persons generically described as a class (ie. "nephews") and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.

    • NOTE: If leave to children of friend A ... anti-lapse statute ≠ applies.
    • NOTE: If leave to children of brother A, anti-lapse statute applies!
  16. Residuary
    GEN (PA): If the residuary estate is devised to two or more people and the gift to one of them fails (ie. predecease), then the surviving residuary devisees take the entire residuary estate in proportion to their interests in the residue.
  17. Wills and Specificity
    SPECIFICITY: Will speaks as of the date of death, so if general items mentioned in will but identifiable at time of death, okay (ie. "my car" or "my bank account").

    INSTRUCTIONS: Okay -- ie. pay out of X account to ____.
  18. Wills and Intestacy
    IMPARTIAL INTESTACY: There can be impartial intestacy even where a will is valid.
  19. Abatement
    • RULE: money needed to pay expenses and claims is raised by selling:
    • (1) intestate property,
    • (2) residuary estate,
    • (3) general gifts, AND (finally)
    • (4) the subject matter of demonstartive and specific gifts.
    • --> gifts to spouse and children abate LAST.
  20. Devise Before Death
    • RULE: When the subject matter of a specific gift is not owned by T at death, the gift in the will is adeemed.
    • EXCEPTION: Ademption DOESN'T apply to demonstrative gifts.
    • >> IE. will states that X gets $100K, payable from VV stock. If no stock, can still get money.

    RESULT: Gift is adeemed. Nothing more (unless stated) to beneficiary.
  21. Specific Devisee Entitlements
    • (1) Any balance of purchase price owing from purchaser when contract is still executory at T's death.
    • (2) Any amount of condemnation award for the taking of D's property, to the extent unpaid at T's death.
    • (3) Any amount of fire or casualty insurance proceeds unpaid at death.

    KEY: If money already paid to T for property before death, then that property is adeed.

    STOCK: If stock increased as a result of action taken by entity and not T, devisee gets all stock.
  22. Stock and Specificity (adeed)
    If bequeath all of one's shares (SPECIFIC), rather than just [x] shares (GENERAL), then devisee is adeed if they're sold before death. In the latter case, not adeed, because executor can purchase shares with funds and then give them to the devisee.
  23. Devise of Encumbered Property
    • GEN: Encumbrace stays with the land.
    • >> Not entitled to have the encumbrace paid out of the residuary estate UNLESS the will shows such intent.
  24. Ambiguities and Mistakes
    • LATENT AMBIG: Extrinsic evidence permissible to clear up.
    • >> In absence of clarifying evidence, the gift FAILS.
    • >>>> Goes instead to the residue.

    BUT: Cannot disturb the plain meaning of a will with extrinsic evidence.
  25. Intestacy
    • Decedent survived by spouse:
    • (1) Spouse but no issue or parent: all.
    • (2) Spouse and parent but no issue: first $30K and 1/2 excess.
    • (3) Spouse and issue
    • >> If all issue are also issue of the surviving spouse: first $30K and 1/2 excess.
    • >> If one or more issue are not issue of the surviving spouse: 1/2 estate.

    Share not going to spouse or all of estate if NO SPOUSE:

    • (1) all to issue, if any.
    • (2) if no issue, to parents or survivor.
    • (3) If no issue or parents, to parents' issue (decedent's sibs).
  26. Per Capita System / Representation
    PA: Issue, whether of decedent, decedent's parents or others, take per capita if all are of the same degree of relationship. Otherwise, they take by representation.

    BUT: Gift in will or trust can designate "by right of representation" -- in that case, intent honored.

    PER CAPITA: Share not created for the deceased member. Shares of other, living members increased.

    REPRESENTATION: If member deceased and survived by any descendants, then that deceased beneficiary’s descendants will take “by representation”
  27. Unadopted Children
    • GEN: If new parent doesn't adopt child, child can still inherit IF:
    • (1) Marriage
    • (2) Parent holds child out as his and either receives him into his home or provides him with support; OR
    • (3) Clear and convincing evidence of paternity.
  28. Adopted Children
    • GEN: If child adopted by parents other than original parents, then he can no longer adopt from his original parents.
    • EXCEPTION: Step-parent adoption.
  29. Uniform Simultaneous Death Act (PA - modified)
    • GEN: When passage of title to property depends on priority of death and there is insuff. evidence that the persons have died otherwise than simultaneously, absent a will provision to the contrary, the property of each passes as though he survived.
    • >> KEY: In PA, USDA only applies where there is "no sufficient evidence of survival."
    • >>>> If one person declared dead at the scene of an accident and another taken to the hospital alive but uncons. only to die two hours later, evidence of survival -- no application of USDA.

    120-HR RULE (applies to INTESTATE only): To inherit from a decedent, you must survive the decedent by 120 hrs -- 5 days. Otherwise, treated as having predeceased.
  30. Advancements and Gifts
    • PA: No gift is an advancement UNLESS
    • (1) declared as such in a contemporaneous writing by the decedent; OR
    • (2) acknowledged as such in writing by the heir.

    NOTE: Lifetime first will be treated as having been made in prepayment of a beneficiary's interest under a will if the donor's acts and declarations show that that was the donor's intent.

    • Advancements: intestate
    • Satisfaction: testate
    • CL = Diff: lifetime gifts to descendants presumed to be advancements.
  31. Rights of the Surviving Spouse (Elective Share, Intestate)
    • Will before Marriage:
    • >> Right to intestate share UNLESS will gives spouse a greater share OR it appears from the will that it was executed in contemplation of marriage.

    • Elective Estate
    • EE: = net testamentary estate (sub funeral expenses, admin expenses, allowable creditor claims) PLUS
    • (1) Transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit (ie. revocable trust);
    • (2) Decedent's undivided interest in property acquired in right of survivorship form (ie. joint bank accounts); AND
    • (3) Transfers in excess of $3K made by decedent within a year of death.
    • NOTE: Elective estate DOESN'T include insurance.
    • Elective Share
    • 1/3 of EE -- but in lieu of all other interests the souse has in D's property (will non-testamentary transfer, property or its proceeds).
    • KEY: If spouse takes ES but elects to keep what is left to her under the decedent's estate plan, she must reduce the elective share by an equivalent amount.

    WAIVER: Right to elective share can be waived in writing after fair disclosure, where spouse has signed a prenup limiting her ability to take, or in certain circumstances where a divorce is pending.

    FORFEITURE: Desertion for a year or longer.
  32. Pretermitted Children
    • GEN: Child born or adopted after the will.
    • TAKES: An intestate share -- unless it appears that the exclusion of the child from the will was intentional.
    • NOTE: Can't fund pretermitted child's share if the esate would otherwise go to a surviving spouse.
    • >> If the decedent leaves his entire estate to his spouse, child not entitled to an intestate share.

    CODICILS POST-BIRTH: Execution of a codicil post-birth/adoption failing to name the child means the child is no longer pretermitted. The codicil republishes the will, no longer executed after birth/adoption.
  33. Desertion
    GEN: Inheritance and elective share rights forfeited if a spouse willfully and maliciously deserts or otherwise fails to support the spouse for a year or more.
  34. Will Contests (Testamentary Capacity)
    • CHALLENGERS: Anyone whose share of estate would increase if will (or gift in will) were invalidated.
    • NOTE: If the personal representative chooses to challenge the will, must resign as PR.

    • Lack of Testamentary Capacity
    • One of four problems -- T didn't understand the . . .
    • (1) nature of the act,
    • (2) nature/character of his property,
    • (3) natural objects of his bounty, OR
    • (4) disposition he wished to make.

    • >> Old age, sickness, failing memory ect. are NOT inconsistent w/ testamentary capacity if the elements above were possessed by the testator.
    • >> Where T adjudicated incompetent and appointed a guardian: evidence of a lack of capacity BUT it DOESN'T raise a conclusive presumption (ie. NO directed verdict).

    Insane Delusions: Where will or gift in will is a product of an insane delusion; has no basis in fact or reason.
  35. Will Contests (Undue Influence)
    • GEN: May be shown as to the entire will, or as to one or more gifts in the will.
    • PRESUMPTION: Presumption of UI raised where a principal beneficiary under the will stands in a confidential relationship to the testator and draws/procures the execution of the document.

    • REQS: Contestant must show --
    • (1) Existence and exertion of the influence;
    • (2) Effect is to overpower the mind and will of T; AND
    • (3) Result is a will that would not have been executed but for the influence.
    • NOTE: Evidence often circumstantial...
    • BUT: Susceptibility and access alone are insufficient.
    • >> Insuff: mere opp to exert influence, susceptibility due to illness/age, unnatural dispositions (some kids take less than others or are excluded entirely).
    • >>>> All reasonable explanation for the devise must be lacking for trier to take these factors into consideration as a badge of undue influence.
    • KEY: Free agency of T must have been destroyed.
    • >> Will expressed was not that of T, but the one exerting the influence.
  36. No-contest Wills
    • CLAUSES PENALIZING CONTESTORS: If ppl contest and lose, clause will not be enforced so long as contestor had probable cause.
    • >> NOTE: Suits objecting to the court's jdx, challenging the appointment of an executor, and/or asking the court to construe the will are NOT will contests.
  37. PA Probate, Estates, and Fiduciaries Code (PEFC)
    PA wills law.