Wills Essays
Terms
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- What is the standard a court will use to determine whether a will contestant forfeits his share of the will if the will has a no contest clause?
- Probable cause. If PC (reasonable grounds) then does not forfeit.
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Does TX have a laughing heir statute?
What happens if no parents or descendants of parents surviving? -
No - TX has NO limit on the degree of kinship for being an heir
The estate is split into two "moities" for maternal kin and a paternal kin. Each half passes on to maternal great grandparents or the descendants of great grandparents "and so on without end" until living kin are found.
For a sizable estate, the administrator should hire a genealogist or other expert to locate heirs. If no heirs found, then the estate escheats to the state. - What is the effect of a condition of survival upon application of the anti-lapse statute?
- In TX, the anti-lapse statute does NOT apply if gift is conditioned upon survival of beneficiary.
- What is the order of abatement?
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1) Personal property from the residuary
2) Real property from the residuary
3) General legacies of personal property
4) General legacies of real property
5) Specific bequests of personal property
6) Specific devises of real property - What is a demonstrative legacy and how is it treated for abatement purposes?
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When general gift is to be paid from a specific source (eg pay $100 from my XYZ stock)
Treated as specific bequests to the extent of the value of the specific property from which the legacy is to be paid, and as general legacies to the extent of any excess. - Does the anti-lapse statute apply if the beneficiary was NOT alive at the time of the will's execution?
- NO!
- Does ademption apply to demonstrative legacies?
- NO!
- Does TX recognize partial revocation by physical act?
- No!
- What are the elements of proving undue influence?
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1) existence and exertion of influence
2) the effect of which was to overpower the mind and free will of the testator
3) the product of which was a will that would not have been produced but for the influence - What are the elements of proving testamentary capacity
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1) T knew the nature of the act (writing a will)
2) T knew the nature and approx value of his property
3) T knew the natural objects of his bounty
4) T understood the disposition he was making - What is a latent ambiguity?
- Apears clear on the face of the will, but will result in misdescriptions if applied to the facts
- How can you cure a latent ambiguity?
- TX courts permit the admission of extrinsic evidence to cure latent ambiguities.
- What does gift of a receptacle "and its contents" mean?
- Means you get the receptacle and all tangible personal property located in the receptacle (eg house, but not stock certificates)