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Wills MEGATHREAD

Category 1: I don’t have a Will. What will happen to me?

 No will = Property passes by INTESTATE succession of whatever state you’re in (Tip: MEE might
give you the state’s particular intestate succession law, so follow that to make things easier).

What are the basic scenarios for intestate succession?

SCENARIO 1: I died with no will and left only a spouse and no kids!!

Most States: Spouse gets everything.

UPC: Spouse gets everything but some states require grandparents and parents to get a portion.

SCENARIO 2: I died with no will and left a spouse AND issue (child, grandchild, etc.)
Most states: Surviving spouse receives a portion and issue receives a portion
UPC: Surviving spouse receives EVERYTHING if all kids and grandkids are issue of the surviving spouse
(the theory being that the spouse will use it to benefit the youngsters)

SCENARIO 3: I died with no spouse?

This one is easy. It goes to the issue of the dead person (kids, grandkids).

SCENARIO 4: I was a lonely person had no issue or spouse.

First it goes to the dead persons PARENTS or PARENT if only 1, then the dead persons siblings and their
kids, then to “more remote ancestors” then to kids and grandkids of more remote ancestors. So PARENTS -
SISTER AND BROTHER - NIECES AND NEPHEW - REMOTE ANCESTORS.

what if my kids die before me?

Don’t get confused by this per stirpes/per capita stuff. It is just a way to divide assets when one or more of a
testators kids dies before them… we need to know how to trickle down the assets down the proverbial family
tree.

Per capita is like the “fair method” = all the issue get equal amounts.

Per stirpes is the old school “unfair” method = all the issue get different amounts. if you have more kids, each
of your kids gets less.

(MOST STATES/UPC)
Per Capita at Each Generation: Divide evenly at first generation, then pool the shares of predeceased
individuals and divide EVENLY among their issue – issue get SAME AMOUNTS. Basically let’s say Testator
has three kids but two died before he died and his estate is worth $10. One of his dead children who died
before him had two kids and another of his dead children who died before him had three kids. So the
SURVIVING child will get $3.33 and the 5 grandkids of testator will all get $1.33. Simple and fair, right?
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Per Stirpes: Divide evenly among Testator’s living children then issue gets DIFFERENT amounts based on
how many of them there are on the branch. So let's say testator has three children and two die before him... and
one of his dead children had two kids and another had one kid. So his SURVIVG child gets $3.33 (same as
before), but then the one grandchild of his one dead kid gets a FULL $3.33 because he had no siblings lol, and
the two grandchildren of his other dead child get $1.66 (they basically got screwed over since they had
siblings… which wouldn’t happen in per capita at each generation).

Creating a will: There are FOUR requirements of a will:

1. Testamentary capacity… aka the “are you completely insane” test. You must know:

a. Nature and extent of your property (what kind of stuff do u

have)
b. The NATURAL objects of your property (do u know who ur
relatives & friends are?)
c. The disposition that you are making of the property (do you
even know what is happening and who you are giving all this
property to?)
d. The ability to connect all the above elements together to
form a coherent plan (need to have at least the pattern
recognition of a highly advanced dolphin)

i. Pro-tip:
 Mental capacity is PRESUMED burden on will challenger to show suffering from a mental defect.

2. Testamentary intent (you need to actually intend that this document is a will, you can bring in outside
evidence for this. Maybe the person thought they were shading in the eyelids of a picture of a llama instead of
writing a will)

3. Legal Capacity (basically… you need to be 18)

4. Complies with state law formalities

 (HINT: will TELL us there is a law or statute in the state we’re in, then we can use that to help us
analyze the formalities. i.e. In July 2019 MEE the question gave the state’s holographic will
requirements then talked about whether the state recognized a holographic will, etc.)

What are the formalities in making a will in most states?

Most states require:

(1) writing,
(2) attestation (witnessed by at least 2 witnesses),
(3) signed by testator.
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MNEMONIC: WAS. Written. Attested. Signed.

UPC: (1) writing, (2) signed by testator or some other individual in the testator’s “conscious presence” and
by the testator’s direction, (3) signed by at least two individuals within a reasonable time after witnessing the
signing of the will (this can be anyone, I witnessed like 57 in a row at a firm and you just awkwardly stand
there and listen and then sign while the couple smiles at you) or NOTARIZED.

Important Note:
The UPC follows the “conscious presence” test… so the testator only needs to know you’re signing it by using
their SENSES directly. The MEE could try to trick you like you heard someone sign it through a phone or
some shit. This won’t work. Your spiderman senses need to be operating to sense it when they are actually
nearby. The minority “line of sight” rule is that the testator needs to actually SEE you sign it. Let’s be real…
this has like a 97% chance of appearing in the problem if Wills comes up so don’t fuck this one up.

Interested Witnesses

I remember this because my Wills professor had a character in one of our problems named Taker McWilerson
who was an interested taker under the will and witnessed the signing of the will.
Common law allowed NO TAKERS to witness (anyone receiving a benefit under the will).

Most states temper this rule though with some caveats.

A few weird scenarios the MEE tests:

Taker McWilerson is there but there are also two disinterested takers (some states will allow this so long as
there are a total of two non-takers).
Taker McWilerson is there and he’s an HEIR. Some states will then reduce his gift to what his INTESTATE
share would have been.

The UPC just says fuck it, Taker McWilerson can be there. Because the whole point of the interested witness
rule is to prevent undue influence and fraud, and these problems aren’t alleviated by leaving Taker
McWilerson out (who is almost always there at the REQUEST of testator). So under the UPC it won’t change
anything.

I have my Will! But wait… I want to make changes to my Will. How do I do it? CODICIL TIME.

A codicil is a supplement to a will made after the will was made. It can modify, amend or revoke the will.
Maybe you got mad at your son for partying too much and want to take him out of the will… why go through
all the hassle of creating a new will? Whip out a sheet of looseleaf paper and make yourself a codicil.
Actually… it doesn’t even need to be a separate document! It can appear on the actual will that it amends. It
doesn’t need to be typed and can be handwritten by the testator! (this is called a ~*Holographic*~ codicil)

Great – I can just write whatever I want with a crayon and it’s a codicil.
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Not exactly. The codicil still has to be signed by the testator and witnessed by two witnesses.
 A valid codicil republishes the will (the republished will is then deemed to be executed on the same
day as the codicil).

Can my codicil cure defects in my will? Maybe.

Some MEE problems throw in a scenario where the will may have interested witnesses, and so long as the
codicil has two disinterested witnesses, it cures the defect. But for the most part if your will is totally fucked up
the codicil can’t save it.

Okay I’ve got my Wills and my Codicils… I’d like to incorporate by REFERENCE some other random
documents that I put in a desk drawer into my will. Can I do that?

Yes! must incorporate extrinsic random documents even if don’t meet any of the formalities of a will!

They have to meet THREE requirements though:

(1) The writing is in existence at the time the will is created,

a. Bar Exam TRICK: It may not have been around at the time the Will was published, but if it’s around at the
time the CODICIL is published… it can be incorporated. Sorry NCBE… we will not be returning in July.

(2) The language of the will actually MANIFESTS intent for the document to be incorporated (in one
problem the testator said something like I want that document to “republish” my will and this wasn’t enough…
it was kind of the same thing but republish means something different than incorporate – make arguments on
both sides),

(3) The language of the will DESCRIBES the writing with particularity to allow it to be identified(does
it actually describe it or is the testator playing a little fast and loose with his words? Hit them with law school
analysis on this)

We have a will, a codicil, and many documents in our desk drawer incorporated by reference. Now we
want to light the will on fire. How can we revoke it? Two ways.
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PHYSICAL ACT REVOCATION

The testator needs to:

(1) INTEND to revoke it, and

(2) will must be burned, destroyed, torn or cancelled by the testator (or someone at his
direction and in his presence).

Revocation by Subsequent Will or Codicil

You can execute a subsequent valid will or codicil to revoke the old will but it will ONLY revoke to the extent
it CONFLICTS with the old will. UNLESS you actually say in the new will or codicil “I’m revoking all the
shit in the first will in it’s entirety” - you gotta expressly revoke the whole damn thing my future barristers.

Great then I can just cross stuff out and substitute gifts and write all over the will to cancel it?
Kind of.

Common law approach: Words of cancellation must come in contact with words of the will to revoke it.

UPC Approach: Words of cancellation are valid even if they did not come into contact with the words of the
will.

Pro-tip: The UPC is always just way more chill and laid back than the common law. The UPC is basically like
the Common Law if it was extremely stoned. It allows everything.

If I give my friend a motorcycle can I just cross motorcycle out and type in "Bookshelf"?

No. This is an MEE ULTRA TRICK: Sometimes they have people "typewrite" changes on their will and try to
trick your sleep deprived mind into thinking you are looking at a HOLOGRAPHIC will or codicil. It's not
Holographic because it's TYPED. (holographic wills must be handwritten).

What the hell is a holographic will or codicil?

This is just about the riskiest thing you could do in all of Wills law. You take out a pencil and just write a
bunch of shit on a sheet of paper and sign it (holographic will) with no witnesses around. Or you pencil up
your actual will and add in changes then sign it (holographic codicil). This creates chaos in the probate system
because people can challenge whether it was the testator's real handwriting and creates all this ambiguity, etc.

What if I revoke a will but I had a mistaken belief as to a law or fact?

HOT TOPIC ALERT: DEPENDENT RELATIVE REVOCATION (DRR)

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The court basically looks at your will and says “this guy really didn’t understand what he was doing… he
revoked his will or bequest because he thought his new will or codicil would be valid… we need to reform it to
match closer to what he wanted.”

The court is looking at what the Testator ACTUALLY WANTED. Say something on the test like “this is an
intent-effectuating doctrine” for maximum points.

But remember that what you revoked has to share a SUFFICIENTLY CLOSE IDENTITY with what you
originally wanted. In the problem earlier where the dude had a motorcyle he was going to give to his Uncle
Larry or something and he typed BOOKCASE across it in wild handwriting. The court was like “yea we’re not
going to apply DRR because those aren’t close enough.” DRR can save the day if the things are kind of
similar... but otherwise the court won't use it. There was some other one where the Testator was going crazy
and he thought his son was on drugs but his son was actually a sober Rhodes scholar… and the court STILL
didn’t use DRR on that because he didn’t actually write that he thought his son was on drugs when he revoked
his sons bequest in the will, he only said it out loud to people.

But they use DRR when clearly the testator wanted his friends or family to get money and he just messed up
all the numbers with his senile revocations and then the courts go back and kind of apportion it out correctly.
 You can usually argue this both ways. Sorry for the rant but this one was important.

Can I advance some gifts to people before I die? They are broke and need my stuff ASAP.
This was an old ass rule from like 1612 but basically it only applies to INTESTATE SUCCESSION (not when
the person has a will). This relates to giving people LIFETIME GIFTS (advancements) and how it might
reduce their INTESTATE SHARE.

Common law = Lifetime gifts were treated as a down payment on what you got when Testator died without a
will. If you were going to get 50 racks from Testator when he died and he gave you 25 beforehand… sorry…
you’re only getting 25 when he dies without a will.

UPC (stoned): UPC presumes it was just a gift unless the testator’s INTENT is shown for it to reduce the
intestate share. You can show all types of evidence, what the gift receiver thought, the testators intent, the
testators calculations, etc. Make the argument.

Let’s say I try to give a gift to someone in my Will… but they die before I die.

It’s time to activate the Anti-Lapse machine which is kind of similar to the large Hadron Particle Collider in
terms of its effects and power.

Back in the day = if you gave a gift to someone and they died before you did, or PREDECEASED you, the gift
failed or “LAPSED.”
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But now basically all states have ANTI-LAPSE statutes - if the person you are giving the gift to dies before
you die, it goes to their children, grandchildren, stepchildren, grandparents and grandparent’s issue (the UPC
says all these are proper issue but each state statute will specify different issue).

So you need TWO things:

(1) The predeceased beneficiary is a specified descendant of the testator(specified by statute) aka
BLOOD relation not your best friend (the theory being basically that if you gave a gift to your sister
you’d be fine with her kids having it, but if you gave a gift to your friend Jimmy it would be kind of
weird if it just passed down to his kids who may not have even known you), &

(2) the beneficiary has issue.

MEE Trick: They may try to throw some anti-lapse statute like they did on J2019 which is crazy broad.
Normally this whole anti-lapse business is for BLOOD relations. The MEE Gods might throw in a statute that
says ANY issue gets it (blood relation or not) or maybe it even says it passes to people’s teacup pigs or
hamsters or something if they die - your reading comprehension needs to be on point here.

What if I make a gift… but it’s destroyed or sold before my death? It’s Ademption time.

Remember IDENTITY v. INTENT

Common law says: If you didn’t have it at death, the person isn’t getting shit. (Identify if it’s there, if it’s not…
nobody gets it. The theory being that you LOST it while you were alive, so if you wanted to give them some
other shit you would’ve). This is called ademption by extinction. Use the phrase “The Will SPEAKS at the time
of death***”*** if you want to sound smart while talking about this stuff - basically sums up the theory behind
ademption by extinction. You can also have ademption by SATISFICATION if you give the person the gift
before you die.

Remember, we are talking about SPECIFIC property here like “My red corvette with license plate 123.” If they
say “my automobile” … that’s a general bequest that won’t adeem. In one problem the dude gave his friend
Carrie “My automobile” then he sold his white automobile for a blue automobile… but she still got the blue
automobile.

Courts look at the Testator’s intent. Did you want this person to have some substitute item?
Then they might get:

(1) any real property or tangible item the testator acquired as a replacement for the gift
(2) money equal to the value of the specific gift, or
(3) (3) if the gift was destroyed they may even get insurance.
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Real estate: If you gave someone some specific real estate, UPC and “property replacement theory” says you
get ANY property the person purchased as a substitute for the original property. So if they give you 123 main
street but they sell it for 456 condo street, you get the condo. Easy.
Wait a second…. I gave away too much of my shit to my friends and I have a bunch of creditors….

What will happen? ABATEMENT.

Here’s the deal: you have to pay your expenses, taxes, and debts. Your beneficiaries you gave all those
ferrari’s to are only going to get the NET value of your estate. Uncle Sam and all the loans you took out need
to be paid first. So the gifts you so graciously bequeathed now must be reduced aka ABATED.But what order
are we doing this reducing in? Who goes first?

In most states (unless you specify otherwise) it goes like this:

1. Property not disposed of in the will (this is easy to remember… you can’t piss anyone off if
you start with property not even in the will)
2. Residuary bequests (stuff that was going to go to people who weren't designated in will)
3. General bequests to people aka fixed dollar amount bequests.
4. Specific bequests to people aka stuff like “my Richard Mille watch”

They will abate “pro rata” which means a portion of each gift will be taken off before the whole category is
depleted (to be fair).

What happens if I intentionally and violently murder the person who graciously and thoughtfully put
me in their will?
 You may find this hard to believe, but if you literally murder the person who put you in their will, you
will not be getting any benefit from the will. A criminal conviction is conclusive proof and you won't
get anything but it can be based off a preponderance of the evidence standard at a probate hearing.
These are called SLAYER STATUTES (if this shows up on the MEE we are all passing, this is the
easiest thing to remember).
 This doesn’t apply to people with durable healthcare power of attorney (medical decision maker
appointed by the Testator) who decides to pull the plug on you. The theory is that the testator CHOSE
this person, their values align with this person, so if they decide they want a do not resuscitate order…
it won’t be murder. To sound smart you can say something like “medical ethicists agree this is not
intentional murder.”

What if I don’t want my inheritance or a gift from a will? Can I disclaim it?
 I had to google why someone would not want a gift from a Will but I think I found us an answer: let’s
say someone gave you a bigass house or something but the property taxes were like enormous. Or for
complicated tax reasons or maybe you wanted it to pass to someone else.

You can disclaim a gift under a will if

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(1) You declare it in writing

(2) Describe the interest or power that you are disclaiming
(3) Sign it
(4) Deliver or file it

Under common law you had to disclaim within a “reasonable time”.

Under the UPC you can disclaim ANYTIME.
If you disclaim - it will pass according to the terms of the will or as if you had died before the testator.

Uh-oh. I think I forgot to put a kid into my will.

 Don’t worry. If you adopted or gave birth to a child after the execution of a will, all state’s have these
“pretermitted heir” statutes which allow your child to take a forced share of the will if they were
unintentionally left out (every state varies on what the child gets for their forced share). UPC only
protects children born after the will was created and not before. But you can still disclaim your kids
intentionally in the will if you want to, don’t worry.

Can I screw my wife or husband over in the will and give them a small share?
 No. Spouses can get a forced share: Many states allow a surviving spouse to elect to take a forced
share instead of the share in the will (usually 1/3rd).

Okay sorry for boring you - now let’s talk about challenging wills and old people getting scammed.

Who can initiate a “will-contest” and challenge a will in court?

You can challenge a will if :

(1) you’re a beneficiary of the will,

(2) you should be a beneficiary of the will, or
(3) you would be financially benefitted if the decedent died without a will.

Pro-tip: No-contest clauses are allowed. (A clause in the will that says you get disclaimed from the will if
you challenge it lol). Basically, you can have a section in the will that penalizes someone for challenging the
will. Which seems a little weird. But they don’t apply when probable cause exists to challenge the will or if
there is a good basis showing of fraud or you’re saying the court doesn’t have jurisdiction. Basically “don’t
complain and whine if you don’t get paid a lot” clauses are allowed, but they won’t punish you if you have a
legit challenge.

What if you think someone got scammed? Gotta show UNDUE INFLUENCE.
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Undue Influence: SODA. SUSCEPTIBILITY + OPPORTUNITY + DISPOSITION +

APPEARANCE

Contester of the will must show:

S – Testator was **(S)**usceptible to undue influence (in some problems they will say he was like a mega
powerful businessman who was still making power moves every day and then you have to argue he was of
sound mind and still on point). They will look at age, personality, his prior business decisions, mental capacity,
etc.

O – Accused has **(O)**pportunity to exert undue influence (the problem always has like some caretaker who
has cut some old feeble person off from society and their family and keeps telling them that there are no other
caretakers in the whole world and they will leave them if they don’t give them $10 million in Ethereum)

D – Accused had **(D)**isposition to exert undue influence (was this a sneaky motherfucker?)

A – **(A)**ppearance of will shows that some serious trickery occurred. (Did the Testator give $47 million
dollars to his maid who he had met four months ago?)

A common law presumption of undue influence occurs when there is

(1) a confidential relationship with the wrongdoer,

(2) the wrongdoer actively participated in the drafting of the will, and
(3) an unnatural or weird result occurred.

CATEGORY 2: LET’S HOPE NONE OF THIS SHIT COMES UP. One sentence per topic power
round.

What if my will is kind of fucked up, but still good enough?

 Common law says you have to SUBSTANTIALLY comply with the state’s requirements for it to be
valid, UPC follows relaxed “harmless error” approach where if you can prove by preponderance of the
evidence this is what Testator intended, it will be good enough.

Which states laws affect my will?

 State where it’s executed or testator’s domicile at time of death or domicile at time of signing the will.
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Can the court look at outside facts to show what I meant?

 Yes. A court can look at facts of INDEPENDENT LEGAL SIGNIFICANCE!!! A court can use
random stuff you did or said outside the will to fill in gaps if they are confused as to what you meant.

If I revoke Will #2, does Will #1 revive?

 Common law = yes. UPC = Gotta show INTENT for the first one to be revived.

Can I have a contract to execute mutual wills with my spouse? Yes. Analyze it like a contract on MEE.
What if I die with no spouse and no issue and no will and I have to determine who gets priority… my
niece or my uncle? This is where it gets really crazy.

2 methods to determine how things are distributed among remote intestate heirs:

COMMON LAW = (CO)nsanguinity method = same degree of relationship takes equally aka nieces and
uncles take the same. They are both “level 3’s.” Intestate guy is level 0, his parents are level 1, his brother is
level 2, his niece is level 3. For the uncle… Intestate guy is level 0, his parent is level 1 removed, his
grandparent is level 2 removed, and his uncle is level 3 removed. Level 3’s take equally. Easy, right?

The UPC says this is bullshit, and they wanted to prevent these so called “laughing heirs” or people too remote
that weren’t as emotionally connected to the decedent, so they cooked up the

Parentelic method = aka the NIECES OVER UNCLES method. Using my example from before, the NIECE
takes over the UNCLE because the NIECE comes from a less remote ancestor (parent) vs. uncle who comes
from a MORE remote ancestor (grandparent). I hope that made sense… if not I’m sorry for writing that.

Effect of divorce on Will: A final divorce revokes any disposition or appointment of property the wife or
husband had in the will. The theory being… you’re done with this person… so why should they get your $4.1
million Koenigsegg Jesko?

MEE TRICK ALERT: They may say the person is in the “process” of getting a divorce… this is not enough,
if you die in the “process of divorce” your spouse still takes what you put in the will.

Residue of a Residue: You guys better hope this doesn’t come up. I had to hypo-manically google this for 27
minutes to even partially understand what it meant. Basically the whole idea behind this rule is that a if a gift
“lapses” in a will, a testator doesn’t want it to go back to his heirs (intestate estate). He wants it to go to
OTHER people he specifically named in his will (I think… someone correct me on this if I’m wrong).
Common law says = sorry, if you lapse, no residue buddy… it’s going back to my heirs. The new age shit is
Residue of a RESIDUE… so it will pass to the OTHER residuary beneficiaries, not to the unnamed
INTESTATE HEIRS.

Class gift: can put a class gift in a will. There was one problem where some dude tried to give all his shit to
“My friends” or something though and they said that was too vague to be determined so it was void.
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What if I get stock and there is a stock split or dividend… do I get that too? Yes.

Can you reform a will or modify a will? Yes, with clear and convincing evidence of what the intent of
Testator was and by showing a mistake of fact or law affected by the specific terms of the Will. Sometimes
you can knock off "surplasage" if the person clearly didn't intend something and keep the good stuff.

What is the legal definition of children for inheritance? Common law said you had to be biological FULL
BLOODED children born into wedlock to inherit (no muggles allowed at Hogwarts).
Modern view includes marital and non-marital, half blood, and adopted kids.

NOTE: Adopted kids can’t take from their original parents.

Can I be a jealous lover and put something in my will that says someone can only take if they don’t get
married? No, this is against public policy. But you can do this if you explicitly state the purpose of the
provision is to take care of the persons daily needs until they find support or you can put a restraint on
remarriage tied to your surviving spouse’s interest.

Simultaneous Death: When spouses die in a plane crash or in a house fire at the same time – at common law
it was just presumed they died at the same time and were treated as if they predeceased each other.
In UPC they have a 120 hour rule – so you have to die 120 hours later to be presumed to have survived your
spouse. You have to talk about the evidence of who died first (in one problem it was a fire and one person died
in the bed and another person died crawling down the stairs. The stairs person probably lived longer… but not
120 hours longer). Make the arguments.

Can I have a LIVING will that states my healthcare preferences and designates someone to carry them
out? Yes, it’s called an advance directive and you can appoint a DURABLE healthcare Power of Attorney for
it. Has to be in writing and witnessed. If the healthcare POA tries to pull some crazy evil shit there are
mechanisms in place for the family to challenge stuff like Do Not Resusciate (DNR) orders in court.

Can I commit Fraud to trick someone into signing a will?: No. Fraud can be used to contest will, analyze it
how we normally analyze fraud. Can be in the inducement (scamming someone with false facts) or the
execution (scamming someone on the actual document they are signing).
That’s everything – if you can think of anything else or have corrections drop it below. If you freak out just
start going on a flowery rambling paragraph about how the purpose of Wills law is to “effectuate the Testator’s
intent” and all construction will be in favor of the Testator’s likely intent.