THE KILLER
What is survivorship and how long is the period that the UPC adopts?
In order to take from someone's will, one must survive for a certain period of time.
UPC §2-702 adopts a 120-hour rule, in the absence of any contrary provision in the testator’s will or other governing instrument (such as a will substitute).
What is a class gift?
A class gift is one made to a group of people who all share some common relationship with the testator.
Often, though not always, the gift to a class is a gift of a piece of property the class should share
What would an abatement be necessary?
Changes that occur after a testator executes a will may affect the property the testator owned at the time the will was made. The testator may no longer own property identified in the will, or the property may have changed.
For 500 points, name all four devises.
For 500 points, describe or give an example of each.
Specific devise: A gift of a specific thing. “I give my nephew my car” or “I give my sister my house.”
Demonstrative devise: A gift from a specific source, but if the source is inadequate, the gift will be made from other property owned by the testator. “I give my son $10,000 from my account at Prosperity Bank.”
General devise: A gift representing value that can be made using any asset not specifically devised. “I give $500 to each of my grandchildren.”
Residuary devise: All assets remaining after all the prior devises have been made. “I give the residue of my estate to my spouse.”
Explain the difference between patent ambiguity and latent ambiguity. Give an example of each.
(1) A patent ambiguity is obvious on the face of the will.
-For ex: Moira's will states: “I give 1/3 of my estate to Juno and 1/3 of my estate to Ashe.” What happens to the other 1/3?
(2) The ambiguity does not reveal itself until the executor and others have read the will and are trying to implement its directions.
-For ex: My will states: "I give 1/2 of my estate to Gian and 1/2 to Cody." But, I have Gian (friend) and Gian (nephew). Who does the estate go to? Extrinsic evidence is needed.
What are the purpose of Slayer statutes?
Slayer statutes prevent individuals who kill the decedent from inheriting from the estate, reflecting the principle that one should not benefit from wrongdoing.
In cases where the killer is not convicted, a probate court may determine, under a civil standard (i.e. a preponderance of the evidence), whether the beneficiary should be disqualified.
This is a class gift under the UPC.
I execute a will that leaves $15,000 to my nephews A, B, & C. A dies, leaving two children X & Y. When I die, B, C, X, & Y survive me. How is the $15,000 split?
-B & C both receive $5,000 AND
-X & Y split's A's $5,000
What is ademption?
Given the time that passes between the execution of a will and the testator’s death, a will may refer to property the testator owned at the date of execution but no longer owns at time of death.
What are the Four UPC elements for an Anti-Lapse Statute to Apply?
1. The intended beneficiary must predecease the testator or be deemed to have predeceased the testator.
2. The intended beneficiary must leave living descendants
3. The intended beneficiary must be the testator’s grandparent, a descendant of the grandparents, or the testator’s stepchild.
4. The will must neither provide for an alternative gift nor state specifically that the anti-lapse rules are not to apply. A statement of intent that the testator does not want the anti-lapse rules to apply supersedes application of the anti-lapse rules, which are default rules.
At my death, I owned a home worth $400,000, with a mortgage balance of $350,000. I had an account at Well's Fargo with $50,000.
I devised my home to my son, A, and the bank account to my daughter, B. My intention was to make equal gifts to my children.
My will also states: "I direct my personal representative to pay the mortgage on my personal residence before transferring title to the beneficiary named above.”
What is the result?
Before distributing the house, the executor will have to pay off the $350,000 mortgage. The entire bank account will be used to pay the mortgage, although it will not be sufficient to pay the entire mortgage. B will receive nothing.
Gwen and Blake, a married couple, were driving together when they were in a serious car crash. Gwen died immediately, and Blake remained in a coma after the crash. Gwen's will provides “I leave all of my estate to Blake, if he survives me.” Blake survived the coma but had a significant brain injury. A conservator was appointed for Jake and made all decisions for Blake until Blake died a year later. Does Blake inherit?
Jake survived, so he inherits.
Arnold comes to you for estate planning. He wants to make gifts to his two brothers, $40,000 to his brother Baker, and $60,000 to his brother, Cedric. The residue of the estate should be used to create a trust that will provide income to Arnold’s surviving spouse for life, with the remainder going to Arnold’s descendants when the surviving spouse dies. If either Baker or Cedric predeceases Arnold, that sibling’s share should go to the other sibling. If both siblings predecease Arnold, the devises should be distributed with the residue. How would you draft the will provisions to accomplish Arnold’s wishes?
I give the sum of $40,000 to my brother, Baker, if he survives me, and if Baker does not survive me, to my brother, Cedric. If neither Baker nor Cedric survives me, this gift shall lapse and be distributed with the residue.
The same goes for the sum of $60,000 bequeathed to Cedric.
Cody’s will provides: “I leave my mother’s pearl necklace to Ellie, my car to Charles, $10,000 to Marley, $20,000 to Texas Tech University, and the residue to Judith.” When the will was executed, Cody’s estate was worth about $500,000, and he intended to leave most of it to his daughter, Judith. Unfortunately, significant medical expenses in the last years of his life depleted his estate. After the payment of debts and expenses, Cody’s estate consists of the pearl necklace, the car, and $40,000. Who takes what?
Ellie will get the necklace, Charles the car, Marley $10,000, Texas Tech University $20,000 and Judith will get only $10,000.
Anthony died with a will leaving $20,000 to LG, $30,000 to SH, and the residue to KM. (1) If LG predeceases Anthony, who takes Anthony's estate if LG is a friend of Anthony and is survived by two Children, assuming that UPC § 2-603 has been adopted?
(2) What if LG is Anthony's niece and is survived by her children, X & Y.
(1) The gift to LG lapses and is distributed to KM. The anti-lapse statute does not apply to a friend.
(2) The anti-lapse statute applies and the gift to LG goes to her children, X & Y. They divide it equally. ($10k each)
Stefani had two grandsons, Alex and Brandon, when she executed her will in 2022. Stefani's will included a provision giving $10,000 to “each grandson of mine who survives me.” In 2024, Alex transitioned from male to female. After Alex transitioned, Stefani continued to visit Alex at her college and attended her graduation in May 2025. Stefani told many family members that she “was very proud of Alex” when she graduated. When Stefani died in 2027, the probate court had to decide whether Alex should receive $10,000 from the estate. If you were the probate judge, how would you resolve this issue? Is there an ambiguity in the will? What if there were no evidence of how Stefani felt about Alex after her transition? How could the will have been drafted to avoid the problem?
-If the will had said “grandchild,” there probably would not be a problem.
-As written, the court can find the language ambiguous (grandson refers to a female grandchild) and then look at extrinsic evidence. If Stefani had granddaughters at the time the will was executed and only gave money to her grandsons, that information would cut against Alex’s argument that she should take. Otherwise, the argument could be that there were only grandsons at the time the will was executed and the word really meant grandchild.
-Even if there were no information of Stefani's relationship with Alex, the argument that grandson means grandchild is reasonable, especially if all the grandchildren were male at the time Stefani executed the will.
Gwen and Blake, a married couple, were driving together when they were in a serious car crash. Gwen died immediately, and Blake remained in a coma after the crash. Gwen's will provides “I leave all of my estate to Blake, if he survives me.” (1) Blake died after two days in the coma. Does Blake inherit? (2) What if he died after two months in the coma?
(1) Blake did not survive Gwen by 5 days, so he does not inherit.
(2) Blake survived by more than 5 days, so he inherits.
What happens when a beneficiary disclaims a devise?
The property passes as if the beneficiary predeceased the testator.
What happens when a testator lacks capacity and someone acting for the testator removes property from the estate?
The beneficiary will receive a substitute gift. The testator did not choose to sell the property and without capacity cannot execute a new will to provide for a different gift. UPC §2-606(b).
Anthony died with a will leaving $20,000 to LG, $30,000 to SH, and the residue to KM. If LG predeceases Anthony, who takes Anthony's estate if:
(1) LG is Anthony's spouse and is survived by X & Y, children from LG's prior marriage.
(2) LG is Anthony's niece and is survived by her spouse.
(1) The gift lapses and is distributed to KM. Even though a spouse is a close family member, the anti-lapse statute does not apply to a spouse.
(2) If LG has no descendants, the anti-lapse statute does not apply. The gift lapses and is distributed to KM.
Gwen has a stock portfolio worth $5 million that constitutes the bulk of her estate. When Gwen dies, her will provides that the residue of her estate goes to her son, Blake, and if Blake does not survive Gwen, to Blake's descendants by representation. Blake has built a tech business that he recently sold for a substantial amount of money. He is married and has three children— a daughter born of the marriage and two stepchildren who are his wife’s sons from a prior marriage. Blake has not adopted the stepsons, but he considers them part of his family. Advise Blake as to whether he should disclaim the residue of his father’s estate and what will happen if he disclaims. What additional information would you want? What steps should Blake take if he wants to disclaim the property and make sure his stepsons take?
If Blake disclaims his inheritance, the residue of his mother's estate will go to Blake's daughter and not to the stepchildren.
If Blake wants each child to receive the same amount, he could disclaim the inheritance (which will then go to his daughter) and then give his two stepchildren $5 million each, either immediately if he has the funds, or under his will if his estate is sufficiently large to make these gifts.
My will states: "I give my property to husband, Diego, but if we die at the same moment, it goes to the Cesar Chavez foundation"
My husband died before me. My kid says that the property is his because we did not die at the same time and the property should pass to heirs. What should a Court that does not allow the admission of extrinsic to correct a mistake do?
(This means that the law of that JX allows the admission of extrinsic evidence to establish that a will is ambiguous and to clarify BUT it will not use evidence to correct a mistake in a will)
To determine, under clear and convincing, evidence whether the testator intended, at the time he drafted his will, to provide in his will that his estate was not to pass to the charity in the event his husband was not alive at the time the testator died.
Ben’s will included a gift of ABC Corp. stock to his friend, Stan. About five years before Ben’s death, ABC Corp. was purchased by XYZ Enterprises. Ben received 100 shares of XYZ stock in exchange for his shares of ABC stock. When Ben dies, he owns 50 shares of the XYZ stock. He had sold the other 50 shares and reinvested the proceeds in the stock of a craft brewery in his hometown. Advise Stan. Is he entitled to the XYZ stock, the craft brewery stock, or nothing?
Stan should be entitled to the XYZ stock because ABC was purchased by XYZ and the XYZ shares represent his interest in ABC. This scenario fits directly within UPC §2 605(a)(2).
Hunter’s will makes a gift of $30,000 to Conor. During Hunter’s lifetime, he gives Conor $10,000. When Hunter dies, he still has assets in his estate sufficient to distribute $30,000 to Conor. Should Conor receive the full $30,000 given to him under the will?
If the doctrine of satisfaction applies, the testamentary gift has been partially satisfied by the $10,000 lifetime gift. Conor would receive $20,000 from the estate rather than $30,000.
Under modern statutes, Conor will receive the full $30,000 from the estate (in addition to the $10,000 she has already received) unless a writing indicates the testator’s intent that the gift under the will be reduced by the amount of the lifetime gift.
(1) Anthony left $90,000 total to "my sons." When Anthony executed the will, he had three sons, Cody, Don, and Gian. Cody predeceased Anthony, leaving two children. Who takes the $90,000?
(2) What if the gift had been to "my law school friends," and Cody, Don, and Gian were the friends? Assuming it is a class gift.
(3) What if it was not a class gift?
(1) If the gift is to sons, the anti-lapse statute applies, and Cody's children take his share.
(2) If the gift is to friends, the anti-lapse statute does not apply. Don and Gian each get $45,000.
(3) If the gift had been three gifts, $30,000 to each of Cody, Don, and Gian, then the gift would likely not be a class gift. If it is not a class gift, the gift to Cody would lapse and be distributed with the residue.
Who does the anti-lapse statute Texas Cover? Compare it to the UPC anti-lapse statute.
-The Texas anti-lapse statute covers bequests or devises to a testator’s lineal descendants such as children or grandchildren, and descendants of the testator's parents (i.e., siblings).
-On the other hand, the UPC anti-lapse statute covers a deceased beneficiary who was a descendant of a grandparent of the testator, allowing such beneficiary’s surviving descendants to take the gift instead of it lapsing. This means the statute applies to relatives who fall within this defined group, such as children, grandchildren, or other descendants of the testator's grandparents (such as nieces and nephews), but does not apply to non-relatives or even some relatives like stepchildren or in-laws. However, the testator’s stepchildren are covered by the statute.
Now that you know the difference, make a policy argument as to why Texas should adopt the UPC, for extra points ofc.