I. EXECUTING A WILL
a. Under the PA statute, there are 4 requirements:
i. Testator (―T‖) must be at least 18 years old;
ii. T must sign at the logical/sequential end of the will;
1. Any mark will do.
2. Another person may sign the will at T’s direction
3. If T signs the will at some point other than the end, everything
before the signature is valid; everything after the signature is void.
iii. If T signs by mark or by X, 2 witnesses must attest to it; and
1. Witnesses may be ―interested witnesses‖ (they may receive
property through the will), though it raises some concerns
regarding undue influence.
iv. The will must have some operative effect: it must dispose of property,
nominate a personal representative, or revoke/modify another will.
b. T can create a conclusive presumption to these formalities by signing an affidavit,
under oath, that recites the formalities of execution. Such an affidavit must be
signed before a notary public.
c. Codicils must be executed with the same formalities.
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II. REVOKING A WILL
a. There are several ways to revoke a will:
i. You can write out your revocation and execute it.
ii. You can revoke it through physical act.
1. This has two elements:
a. Intent to revoke; and
b. Physical act.: burning, tearing, cross-hatching, etc.
2. Writing ―VOID‖ on the back of a will doesn’t work – you must
affect the actual writing of the will.
3. Similarly, it’s not enough to ―VOID‖ a photocopy.
iii. You can revoke it through a third person. Such a revocation requires:
a. That it was done at T’s direction
b. That it was done in T’s presence
c. And that 2 witnesses can prove T’s direction.
iv. A subsequent will or codicil that does not expressly revoke the earlier will
be read together to the extent that it’s consistent. To the extent that it’s
inconsistent, the language in the subsequent will or codicil controls.
1. Note: if the subsequent will/codicil has a residuary clause, it
controls, it revokes the old will in its entirety.
v. Unless a will expressly demonstrates that it was intended to survive
divorce, divorce ―kills.‖ For purposes of the will, we treat her as though
she is dead.
1. (If they later remarry, she ―comes back to life.‖
b. An act of revocation on one copy of the will revokes all copies.
c. Revocation of a will revokes all codicils thereto.
III. DEPENDENT RELATIVE REVOCATION (DDR)
a. ―DDR doesn’t give us what T wanted. It gives us the next best thing.‖
b. If T wouldn’t have revoked but for a mistake of law or fact, we can ―cancel‖ T’s
revocation. We can’t do what he wants – but we can undo his mistake.
i. EX: T executes a will and leaves $10,000 to his son. Later, he crosses out
the $10,000 and writes in $15,000. The ―$15,000‖ isn’t effective unless it
was properly executed. Meanwhile, the $10,000 grant was revoked by
1. If the court determines that, but for his mistake (his belief that the
$15,000 grant would be effective) T wouldn’t have revoked the
$10,000 grant, the court can restore the $10,000 grant.
2. Note: On the bar, discuss & apply DDR if the ineffective gift is
larger. Discuss but do not apply it if the ineffective gift is smaller.
(In theory, T who leaves A less $$ doesn’t pass ―but-for‖ test.)
IV. INCORPORATION BY REFERENCE–FACTS OF INDEPENDENT
a. To incorporate an extrinsic writing (a letter or memo) by reference:
i. The writing must exist when the will is executed;
ii. The will must manifest an intent to incorporate the document;
iii. The will must describe the writing sufficiently to permit its identification.
b. If will states ―I leave the car I own at death to Bill‖ or ―I leave $1000 to my
employees at death,‖ and the testator buys a new car or fires employees, the will
reflects those changes through the Doctrine of Independent Significance.
i. So long as the testator had a ―lifetime motive‖ (some reason independent
of his will) for the changes, they have an operative effect on the will.
V. ********** LAPSE **********
i. Generally: when a beneficiary dies before the testator, the gift lapses.
1. Unless: it is saved by the Pennsylvania Anti-Lapse Statute.
a. It applies whenever the beneficiary is a decedent, sibling,
or child of a sibling who leaves issue who survive T.
b. If it controls, the dead beneficiary’s issue take.
2. However: the Anti-Lapse statute doesn’t apply if:
a. T’s sibling (or sibling’s children) receive the gift, and
b. Lapse would cause T’s spouse or children to take, instead.
ii. When T’s will leaves to a group of persons defined as a class (―my
children,‖ for example) and less than all of the class predecease T, the
surviving members of the class take in equal amounts.
iii. On the exam, be sure to apply the lapse statute to all takes under T’s will.
If any of them are T’s decedents, siblings, or nieces/nephews, it may
apply. If it applies, be sure to look for the statutory exception.
a. The Abatement Rule applies when T is partially insolvent—it dictates the order in
which his gifts are sold to cover expenses and claims:
i. Intestate Property
ii. Residuary Bequests
iii. ―General Legacy‖ gifts – ―I give $10,000 to my daughter, Donna.‖
iv. ―Specific Legacy‖ gifts – ―I give $10,000 to my daughter, Donna, to be
paid out of the proceeds of the sale of my stock in Acme Co.‖
v. Specific Devises or Bequests
1. (If you get to this point, you save the devises to the spouse and
children until the very end – sell all others, first.)
a. If the testator leaves something in his will that, at death, he no longer owns, the
beneficiary receives nothing. The gift in the will is adeemed.
i. If T executed a will before incompetency but he (or conservator) disposed
of property after incompetency, the specific devisee is entitled to a general
legacy equal to the net sales price, condemnation award, or insurance
proceeds paid out in place of the specific devise.
1. This exception doesn’t apply if testator was adjudicated competent
and testator dies more than one year after such adjudication.
ii. If only a portion of the property is sold or destroyed, the specific devisee
has a right to the remaining portion of the property and:
1. Any balance of the purchase price still unpaid at T’s death;
2. Any balance of the condemnation award still unpaid at T’s death;
3. Any fire or casualty insurance payments unpaid at T’s death.
VIII. ADEMPTION: SPECIFIC RULES FOR STOCK LEFT IN A WILL
a. A specific devisee gets any dividends (money, stock) resulting from the gift.
b. If stock left to a specific devisee is ―exchanged‖ for stock from an acquiring
company, under the PA statute the specific devisee gets the resulting stock.
c. Rules for stock that is subsequently sold:
i. If Testator leaves ―my 100 shares‖ that are sold, the courts will treat this
as a specific devise and will generally hold that the gift is adeemed.
ii. If Testator leaves out the word ―my‖ and leaves it as a more general
bequest (―100 shares‖): the prevailing construction is to treat this like a
general legacy and give the heir the FMV of the stock.
IX. EXONERATION OF LIENS
a. A specific devisee of encumbered property (land with a mortgage, a car with a
lease) isn’t entitled to have the encumbrance paid out of the residuary estate
unless the will shows such an intent.
b. Note: A general direction in the will to ―pay debts‖ does not show such an intent.
X. AMBIGUITIES & MISTAKES
a. Extrinsic evidence is admissible to resolve latent ambiguities.
b. If no extrinsic evidence is available, an ambiguous or mistaken gift (a gift left to
a person that doesn’t exist) fails and becomes part of the residuary estate.
c. The Plain Meaning Rule: even if it’s an obvious mistake – even if the person who
wrote the will admits that he screwed up – the will stands as executed. You can’t
disturb an unambiguous rule with extrinsic evidence.
XI. PENNSYLVANIA INTESTACY RULE
a. If the Decedent is Survived by a Spouse… Spouse Gets…
i. …but not by parents or issue: everything.
ii. …and by parents, but not issue: the first $30K and ½ of the excess
iii. …by issue, all of whom are issue
of the decedent and surviving
spouse: the first $30 K and ½ of the excess
iv. …by issue, one or more of which is
not issue of the surviving spouse: at least ½ of the entire estate
b. For any share not going to a surviving spouse:
i. It’s divided evenly among the issue—
ii. If there are no issues, it’s split evenly amongst the surviving parents—
iii. If no issue & no surviving parents, split even amongst siblings.
c. Issue take per capita (equal shares) if they’re equally related, and otherwise they
take per stirpes (by representation) (they divide up the share that comes to them).
i. EX: O dies intestate. O was survived by two children (A & B) and
predeceased by 2 children (C & D). C had 1 child, D had 3.
1. A gets ¼. B gets ¼. C’s kid gets C’s share, so he gets ¼. D’s 3
children share equally in D’s share, so they each get 1/12.
ii. EX: O dies intestate. O outlived his 4 children (A, B, C, and D). A had
no children. B had 1 child. C had 4 children. D had 5 children.
1. Because all of the intestate heirs are ―equally related‖—because
they are all O’s grandchildren—they each get a 1/10 share.
d. There are special rules for bastards:
i. A bastard can inherit, through intestacy, from his mother.
ii. A bastard can only inherit through intestacy from his father if:
1. His parents later marry;
2. There’s clear and convincing evidence of paternity; —OR—
3. The father holds the bastard out as his own, and either takes the
bastards into his home or otherwise provides financial support.
e. There are special rules for adopted children:
i. The legal effect of adoption is a ―legal transplant.‖ The adopted child can
inherit from his adopted parents through intestacy but not from his birth
1. There’s an exception: where adopted by a step-parent, the child
still retains an intestacy relationship with the natural parent.
ii. An adopted child may still inherit through intestacy from his natural
grandparents if the grandparents, in life, maintained a continuing family
relationship with the adopted child.
XII. THE PENNSYLVANIA SIMULTANEOUS DEATH ACT
a. When passage depends on priority of death and there’s insufficient evidence that
to determine such priority, absent an express provision to the contrary, the
property of each person passes as though the other person survived:
i. Wills: pretend that the testator survived the beneficiary.
1. If this generates lapse, be sure to apply the anti-lapse statute.
ii. Insurance: pretend that the insured survived the beneficiary.
1. The proceeds will pass directly to the 2nd named beneficiary.
1. to take through intestacy, the beneficiary must survive the decedent
by at least 120 hours (5 days). Otherwise, it’s as though the
beneficiary predeceased the decedent.
iv. Joint Tenancies:
1. Simultaneous death defeats the operation of the right of
survivorship. Instead, ½ of the real property passes through each
tenant’s estate (and the recipients take as tenants in common).
XIII. ADVANCEMENTS & SATISFACTION
a. Advancements are ―advances‖ on intestate inheritance
i. Gifts are not advancements unless:
1. The decedent declares that it is an advancement in a
contemporaneous writing, —OR—
2. The heir acknowledges it, in writing, as an advancement.
b. Satisfactions are ―advances‖ on inheritances by will
i. Gifts are not satisfactions unless:
1. The donor/decedent’s acts and declarations show that it was his
intent to make it a satisfaction.
XIV. RIGHTS OF THE PRETERMITTED SPOUSE
a. If decedent’s will was written before marriage, we’re dealing with a ―pretermitted
spouse.‖ A pretermitted spouse will receive an intestate share unless:
i. The will actually leaves her a larger share than what she would receive by
ii. It appears from the will that it was executed in contemplation of marriage.
b. Spouse may take an elective share of the ―Elective Estate‖
i. The ―elective estate‖ consists of the net testamentary estate,
1. Less funeral and administrative costs, and allowable creditor
2. Plus transfers with the retained power to revoke or dispose of the
principle for his own benefit (e.g., revocable trusts);
3. Decedent’s undivided interest in joint assets;
4. Any gift in excess of $3,000 made in the year before his death.
ii. The spouse may elect to take 1/3 of the Elective Estate in lieu of anything
that she would otherwise be entitled to (including property that she takes
by will, by intestacy, or that the decedent gave her inter vivos).
iii. Alternatively, the spouse may keep what she’s already got and/or what she
would receive under the decedent’s estate plan, but, if she does, she must
reduce her Elective Share by an equivalent amount.
XV. RIGHTS OF THE PRETERMITTED ISSUE
a. A pretermitted child is a child born or adopted after a will is executed.
b. Pretermitted children cannot take from a surviving spouse. We assume that the
surviving spouse will continue to care for the pretermitted child.
c. When both parents are dead, pretermitted children may take an intestate share.
i. unless: it appears that the omission was intentional.
d. Note: if you have a pretermitted child, but the parents later execute a codicil
(which also fails to account for the child), that kid isn’t pretermitted any more…
by the Doctrine of Republication By Codicil, the will is dated from the execution
of the codicil.
XVI. CONDUCT BARRING A PARTY FROM SHARING IN THE ESTATE
a. Intentional Killing: treat the killer as though he predeceased the decedent.
(Keep in mind, this doesn’t apply to intentional killings.)
b. A spouse may lose his inheritance and/or elective share rights if he willfully and
maliciously deserts or otherwise fails to support his spouse for a year or more.
XVII. CONTRACTS/AGREEMENTS AFFECTING WILLS
a. Contracts to make wills, to not revoke wills, or to die intestate must appear:
i. in the will itself;
ii. in a separate written instrument; or
iii. in a reference in the will, and extrinsic evidence proves its terms.
b. Note that the mere existence of reciprocal wills doesn’t imply a contract not to
revoke them. A contract to revoke a will must be express.
XVIII. WILL CONTESTS
i. A plaintiff has standing if his share of the estate if the will is invalidated.
ii. The personal representative must defendant the will—thus, the personal
representative must resign if he wishes to challenge the will.
b. Lack of Testamentary Capacity
i. If the answer is ―No‖ to any of the following questions, the testator lacked
testamentary capacity and the will may be invalidated:
1. Did T understand the nature of his acts?
2. Did T know the nature and character of his property?
3. Did T know the natural objects of his bounty?
4. Did T understand the disposition that he wished to make?
ii. Merely proving ―old age‖ does not create a presumption of incapacity.
Similarly, merely proving that the testator was frail, had a failing memory,
or vacillated in his decisions will not invalidate a will for lack of capacity.
iii. Insane Delusions are a form of testamentary incapacity. They occur when
T is otherwise sane but the gift lacks a basis in fact or reason, which T
adheres to against all reason and evidence.
c. Undue Influence
i. The contestants bear the burden of proof. They must show:
1. The existence and exertion of the influence
2. That the effect was to overpower the mind & will of the testator.
3. And that the result is a will that would not have been executed but
for the undue influence.
ii. These, alone, are not enough:
1. Mere opportunity to exert influence
2. Mere susceptibility due to age, loneliness, etc.
3. Mere fact of ―unnatural disposition.‖
iii. It can be shown as to the entire will or to individual gifts.
iv. In PA, a presumption of undue influence arises when a principal
beneficiary, who stands in a confidential relationship with the testator
(attorney, priest, doctor), draws or procures the execution of the will.