WILLS
PROFESSOR STANLEY JOHANSON
Copyright © 2017 by BARBRI, Inc.
ILLINOIS WILLS I
Professor Stanley Johanson
University of Texas
I. EXECUTION OF WILLS
Probate refers to the court proceeding in which (1) it is judicially determined that decedent left a
validly executed will (or that decedent died without a will and his intestate heirs are determined),
and (2) a personal representative (executor if named in will, administrator if appointed by the
court) is appointed to administer the decedent's estate. Letters testamentary (if an executor) or
letters of administration (if an administrator) are issued by the court, showing the personal
representative’s authority to represent the estate in dealing with third parties. The probate estate
does not include non-probate transfers—interests that pass by right of survivorship (e.g., a joint
and survivor bank account) or under the terms of a contract (e.g., life insurance proceeds or
employee death benefits).
Residuary estate is the estate of a testator that remains after all debts, taxes and administration
expenses have been paid, and after all specific gifts and cash legacies made by the will have been
satisfied. Under most wills, the residuary beneficiary is the testator’s preferred taker. (E.g., "I
give all of the rest, residue and remainder of my estate to my wife Wendy.")
A. Requirements for a validly executed will
T must be
18
[Feb. 2004]
years old.
#1. Signed by testator (or [July 1998] by someone at T's direction and in her presence -"proxy signature")
#2. Two attesting witnesses
[Feb. 1990: will not valid; signed by only one witness]
** #3. Each witness must sign in testator's presence.
Codicil (later amendment or supplement to a will) must be executed with same formalities.
Illinois law does not require:
-----
that the testator sign "at the foot or end" of the will.
that the witnesses know they are witnessing a will (no "will publication" requirement).
that the testator sign in the witnesses’ presence
that the witnesses sign in each other's presence.
1. Tess types a will that disposes of all her property. Tess takes the will across the street to the
house of her neighbor Ned and asks Ned to "witness my will." Ned signs on the first witness
line; then Tess signs. Tess's signature is barely legible due to an arthritic condition. Tess then
takes the will across the street to her neighbor Olive and asks, "Would you mind witnessing this
legal document for me? It needs two signatures besides mine." Tess proffers the document with
her signature showing. Olive signs, thinking she is witnessing a power of attorney. After Tess's
death, the will is offered for probate. Should it be admitted?
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2. WILLS—ILLINOIS
Does it matter that one of the witnesses signed before Tess signed? ________
Exact order of signing is not critical when the execution ceremony is
_________________________________________________________________.
(But where T forgot to sign when witnesses signed, signed three days later in same
witnesses' presence, not a contemporaneous transaction; will denied probate.
They are attesting witnesses and must attest to T's signature when they sign.)
[Feb. 2004] Does it matter that Tess's signature is barely legible? ________
Does it matter that Ned and Olive didn't sign in each other's presence? ________
[Illinois and majority rule]
Does it matter that Olive thought it was a power of attorney, and did not
know she was serving as a witness to a will? [Illinois and majority rule] ________
B. What constitutes signing “in the testator’s presence”?
2. Todd is confined to a hospital with a contagious disease, his bed hidden by a vinyl screen.
The will is handed to Todd at a point when the two witnesses are standing in the doorway to the
room, not in Todd's line of sight because of the screen. From behind the screen Todd says, "This
looks all right. Where do I sign?" After Todd signs the will, a nurse carries the will to the
doorway where the two witnesses sign under the attestation clause; Todd cannot see either of
them sign. Was the will validly executed? (Did the witnesses sign in Todd's presence?)
UPC and majority rule: Yes under the
conscious presence test
.
It is not necessary that testator should actually see the witnesses when they sign. They are
in his presence if he is so near to them that he is conscious of where they are and what they
are doing.
Illinois: _______ Witnesses must be in Testator's ________________________________
Testator does not have to see witnesses sign, but witnesses must be within the
uninterrupted scope of testator's vision when they sign, so that testator could have seen
them sign if he had looked. [But “swivel chair” case meets the line of sight test.]
However [July 1990], will not valid when T lapsed into a coma before witnesses signed.
WILLS—ILLINOIS 3.
C. Can an attorney be held liable for the negligent preparation of a will?
3. Larry Lawyer prepares draft of will that (per Tom's instructions) bequeaths Tom's residuary
estate to nephew Ned in paragraph 13. After reading over the draft, Tom decides to add a gift to
his grandchild. Lawyer prepares a final draft that adds a gift to the grandchild in a new
paragraph 13. By oversight, the present paragraph 13, making the residuary gift to Ned, is
omitted. The omission is not detected when Tom signs the will. Tom dies, and the will is
admitted to probate. There being no residuary clause, the residuary estate passes by intestacy:
1/2 to Ned and 1/2 to Ollie. Does Ned have a cause of action against Larry Lawyer for
negligence, seeking the amount he would have taken if the mistake had not been made?
Minority rule ________ because there is ______________________________________..
Under the minority rule (New York, Ohio, Texas, Virginia): attorney's duty runs only to:
Client who contracted for the attorney’s services.
Illinois (majority rule) _______ because ________________________________________
Under the Illinois (and majority) rule: attorney's duty also runs to:
D. What happens when a will beneficiary is an attesting witness to the will?
4. Will includes these provisions: "I give $30,000 to my faithful nurse Nell, and the rest of my
estate to my sister Sue. I appoint Hobie Gates as executor." Nell and Hobie are the attesting
witnesses to the will.
[Feb. 1989 -- both witnesses were beneficiaries!] Can the will be admitted to probate
when Nell is both a beneficiary and attesting witness? (Answer in every state.) ________
Interested witness situation never affects validity of the will, but beneficiary-witness loses
legacy (called a "purging statute"), unless
(1) there were two disinterested attesting witnesses -- supernumerary rule; OR
(2) witness-beneficiary would take a share of the estate if this will were not admitted to
probate, in which case she takes the lesser of (i) bequest given by the will, or (ii) intestate
share (or legacy under an earlier will revoked by this one ) -"whichever is least" rule.
Thus if Nell would have been T's heir if T left no will, Nell would take the lesser of (i)
$30,000 bequest or (ii) intestate share. [The obvious point: If Nell would inherit, say, $200,000 as
an heir, she would not be interested; the will would be against her interest.] Here, however, Nell was
not related to T.
[July 2008] Does Nell take the bequest under the Illinois statute?
On these facts, neither exception applies.
NO
4. WILLS—ILLINOIS
Is Hobie Gates, who signed will as witness, entitled to compensation for serving as
executor under the overwhelming majority rule?
YES
In most states, the interested witness statute applies ONLY TO BENEFICIAL
GIFTS, not earned compensation.
Is Hobie Gates entitled to compensation for serving as executor (or testamentary trustee)
under the Illinois interested witness statute? _________
Careful: Illinois no-compensation rule applies only to the executor who signs the will as
an attesting witness. Does not apply if bank is named executor and bank employee is
attesting witness; and if attorney signs as witness, neither the attorney nor her law firm is
disqualified from being compensated for representing the estate.
4a. Suppose, in #4, nurse Nell did not witness the will, but her husband Norman was one of
the two attesting witnesses.
Does the interested witness statute void a legacy to a witness's spouse under the
overwhelming majority rule?
NO
In most states, only a bequest to the witness herself triggers the statute.
Does the statute void a legacy to witness's spouse under Illinois interested witness statute?
Uniform Probate Code, several states have abolished the interested witness rule. "A will or
codicil, or any part of it, is not invalid because the will is signed by an interested witness."
E. What are holographic wills—and are they valid?
5. [Six times since 1990!] Winkie writes a document in her own handwriting that reads: "July 24,
2005. I, Winkie Waters, declare that this is my last will. I leave all my property to the Morris
Crippled Children's Home. /s/ Winkie Waters" The writing is not witnessed. Is it admissible to
probate . . .
In about 30 states, including states that have enacted the Uniform Probate Code? YES
The UPC and about 30 states recognize holographic -- handwritten and signed but
unwitnessed -- wills.
In Illinois? NO Illinois is one of about 20 states that do not recognize holographic wills.
In Illinois, all wills must be signed by two attesting witnesses.
But disposition of real property is governed by laws of state where real property is located.
If [July 2012] testator domiciled in Illinois owned real estate in jurisdiction that recognizes
holographic wills, the holographic will would be valid to dispose of testator’s real property
in that state even though invalid as to rest of testator’s property.
WILLS—ILLINOIS 5.
** Exam tip: If facts of any Wills question include a handwritten letter, note or
memorandum signed by the testator, discuss majority and Illinois rule, as to whether it
can be given effect as a holographic will (or holographic codicil to an attested will).
You can have a handwritten will in Illinois, but all wills (handwritten or typewritten)
must be signed by two attesting witnesses.
Model answer: "In about 30 states, including Michigan, the instrument would be valid as
a holographic will because it was entirely in Tom's handwriting and signed by him. In
Illinois, however, the instrument is not valid as a will even though Tom may have
intended it as such, because it was not witnessed by two witnesses."
[July 1990] Does Illinois recognize oral wills under any circumstances?
NO
[Thus cassette tape into which T dictated his “will” was not a will.]
F. What is a “conditional will”?
6. Ted writes a will that is properly signed and witnessed: "I am going on a mountain-climbing
expedition to the Himalayas. If anything happens to me on the trip, I leave all of my property to
my good friend, Alice Adams." Ted climbs Mt. Everest that summer, returns from the trip in
July, and dies three years later without having changed his will, which is found in his desk
drawer. Does Alice take Ted's estate under the will?
Was this a conditional will, meaning that probate should be denied because the condition
did not occur (i.e., nothing happened to Ted on his trip)?
Or did Ted's reference to the dangerous trip merely reflect the motive or inducement for
making a will? (i.e., the dangers he faced on the trip prompted him to think of the
possibility of death and the need for a will.)
II. REVOCATION OF WILLS
A. What does it take to revoke a will? The mere intent to revoke is not enough. A will can
be revoked only by (i) later testamentary instrument, executed with proper formalities, or
(ii) [July 2000, Feb. 2005] physical act (burning, tearing, canceling, obliterating, other act of
destruction.)
7. [Feb. 1990] Hobie's will is found among his papers after his death. At the bottom of each
page of the three-page will is written, in Hobie's handwriting, "This will is VOID. Hobie Gates."
Did Hobie validly revoke his will?
Valid revocation by subsequent instrument if state recognizes holographic wills?
YES__
It's in his handwriting and signed; doesn't have to be on a separate sheet of paper
Valid revocation by subsequent instrument under Illinois law? ________
6. WILLS—ILLINOIS
Valid revocation by physical act? (Was this a “cancellation”?) ________
What if Hobie had written: "I cancel this will." Revocation by cancellation? ________
Suppose Hobie had crossed out his signature with a big X. Valid revocation? ________
8. The executed copy of Adam's will is in his safe deposit box; a xerox copy that shows
Adam's and the witnesses' signatures is in Adam's desk at home. Adam destroys the xerox copy
with the intent to revoke his will. Valid revocation?
________ Physical act must be:
9. [July 1988] Ted calls his attorney on the phone and tells him, "Revoke my will. I'll come
down to your office next Monday and write a new one, but for now I don't want that will." The
attorney thereupon gets Ted's will out of the file, puts a large X across each page, and tears the
will into twelve pieces. He tells Ted, "I have destroyed your will. Be sure to come in on
Monday. We sure wouldn't want you to die intestate. Heh, heh." Ted is struck by lightning and
is killed while playing golf on Sunday. Was Ted's will validly revoked?
To be a valid revocation by physical act by another person (proxy revocation), must be:
(1) _________________________________ and (2) _______________________________
9a. [Feb. 1990] But how can Ted's will in #9 be probated if it was destroyed???
By satisfying __________________________________________________________
(1) Proof of due execution (testimony of attesting witnesses) as in any case.
(2) Cause of will's nonproduction must be proved. (Must overcome presumptions as
to revocation set out below.)
(3) Contents must be substantially proved by copy of will or by testimony of
witnesses who have read it or heard it read.
WILLS—ILLINOIS 7.
B. There are several important presumptions regarding revocation. (1) Where a
will last seen in testator's possession or control is not found after death, presumption: testator
revoked it by physical act. (2) [July 1990] Where a will last seen in testator's possession or control
is found mutilated after testator's death: presumption: testator revoked it by physical act.
(i) Neither presumption arises if the will was last seen in the possession of someone
adversely affected by its contents. [Recent case: Shortly after T's death, desk where will
was located was "tidied up" by one adversely affected by the will.] (ii) Evidence is
admissible to rebut the presumption of revocation where will cannot be found or is found
in damaged condition. [Feb. 1990: will destroyed in fire that killed testator.]
10. [July 1990] In 2010, Tim executes his "last will." In 2012, Tim executes another "last will."
The 2012 will does not contain language of revocation of earlier wills.
To the extent possible, you read the two instruments together. The second "last will" is
treated as a codicil to the first will, and revokes the first will only to the extent of
inconsistent provisions. But [July 1996, July 2000, Feb. 2005] if the second will is wholly
inconsistent with the earlier will (first will leaves "all my property to Betty," second
will leaves "all my property to Carol"), the first will is revoked by implication.
[Feb. 1990] Revocation of codicil to a will does not revoke the will; the part of the will
modified by the codicil is restored; takes effect as though codicil had never been written.
C. What is “dependent relative revocation”?
11. Tim executes a will that bequeathed his residuary estate to his grandchild Gary. Two years
later, Tim executes a new will, "hereby revoking all earlier wills." This will bequeathed Tim's
residuary estate in trust for Gary for life, remainder to Gary's children. Tim did not destroy the
earlier will. Six months later, after reading over both wills, Tim decided that he wants his estate
to go to Gary outright after all. He thereupon destroyed the second will with the intention of
revoking it and of reviving the earlier will. Tim died last week, survived by his daughter (Gary's
mother) Doozie, whom Tim detested, as well as by Gary. Is either will admissible to probate?
#1. First will was revoked when second will (with its revocation clause) executed.
General rule is that a will is an "ambulatory" document, meaning it has no legal effect
during testator's lifetime, and is effective only at testator's death. This is the one
exception to the general rule: The one legal consequence a will can have during the
testator's lifetime is to revoke an earlier will.
#2. Second will was revoked by physical act.
** #3. [July 2000, Feb. 2005] No revival of revoked wills. [Illinois, majority rule.] When Tim
executed that second will containing a revocation clause, the first will was legally dead
and could not be "revived" simply by destroying the later will, unless (1) the will was
re-executed—signed by T and two witnesses, or (2) the doctrine of "republication by
codicil" applies. [E.g., Tim validly executed a codicil to the first will that makes
various changes; the codicil “republishes” the will.]
#4. Dependent relative revocation should be applied. "DRR" permits a revocation to be
disregarded when the act of revocation was premised upon, conditioned upon,
dependent upon, a mistake of law or fact as to the validity of another disposition.
Here, Tim revoked the second will by physical act on the mistaken belief (a mistake of
law) that by doing so, he could revive or restore the earlier will. This did not happen --
8. WILLS—ILLINOIS
Illinois law says "no revival of revoked wills." Tim's intent to revoke was tainted by
the mistake of law. Effect of applying DRR would be to disregard the revocation of
the second will (the will that was revoked based on a mistake of law) and permit its
probate. Rationale: It is better to disregard the revocation and let Tim's estate to pass
into trust for grandson Gary than to have an intestate distribution (under which
daughter Doozie, whom Tim intended to disinherit, would take the entire estate).
DRR is sometimes referred to as a second best solution doctrine. The best solution
would be to give effect to Tim's intent, and revive the earlier will. But we can't do that;
for better or worse, Illinois says "no revival of revoked wills." But since we know what
Tim tried (but failed) to do, let's seize on the fact that his intent to revoke was tainted
by the mistake of law, and disregard the revocation.
[July 2000] Necessary to application of DRR is that the distribution that results from
disregarding the revocation is the second best solution, and comes closer to giving
effect what testator tried (but failed) to do than would an intestate distribution. If [July
1991] Will #1 said "all my property to Gary" and Will #2 said "all my property to Hobie
Gates" and other facts were the same, DRR would not be applied.T's revocation of Will
#2 ("I do not want Hobie to take my estate") would be independent of Tim's intent to
revive the first will in favor of Gary. To disregard the revocation of Will #2 and give
the estate to Hobie would defeat T's intent. Instead, the conventional rules would be
applied and an intestate distribution would result.
Back to original facts; apply DRR and disregard revocation of second will (in trust for Gary).
But how can the later will be probated, when it was destroyed by Tim???
#5. __________________________________________________________
D. What is the effect of changes on face of will after it has been executed?
12. Elsie's will makes a number of legacies, including:
"10. I give the sum of $5,000 to my nephew, Hobie Gates.”
"11. I give the sum of $2,000 to my niece, Susan Slade."
Elsie decides to make some changes in her will without the assistance of an attorney. With a
marking pencil, she deletes clause 10 in its entirety and strikes the $2,000 in clause 11. With a
ball point pen, Elsie writes in $5,000 above the crossed out $2,000, and initials and dates the
margin alongside these changes. Elsie dies three years later. What is the effect of these changes
on the face of the will?
Under Illinois law:
Was the legacy to Hobie Gates validly revoked under the UPC and in most states? YES_
Majority rule: partial revocations by physical act are valid.
WILLS—ILLINOIS 9.
[July 2008] Was the legacy to Hobie Gates validly revoked under Illinois law? _________
In Illinois, partial revocations by physical act are: ______________________
[Feb. 2005]
Does Susan get the $5,000 legacy? ________
Words added to a will after it has been signed and witnessed are:
Elsie crossed out $2,000 before writing in $5,000. Is
Susan nonetheless entitled to the $2,000 under Illinois law? ________
Bottom line in Illinois: If Elsie wanted to change her will, what would she have to do?
Suppose it is shown that Elsie crossed out "$2,000" and wrote in "$5,000" immediately
before the will was signed and witnessed. Are the changes valid?
Yes, IF this can be established by proof. The words were part of the duly executed will.
III. BENEFICIARY DIES DURING TESTATOR'S LIFETIME
A. When does an “anti-lapse statute” save the gift?
13. [Every third bar exam!] Tim's will devised Blueacre to his son Sam, and his residuary estate to
his wife Lois. Sam predeceased Tim, leaving a child (Junior) who survives Tim. Sam left a will
leaving all his property to his wife Sarah. Tim died two months ago. Who takes Blueacre?
When a will beneficiary predeceases the testator, the gift ____________________________
You can’t make a gift to a dead person; a dead person can’t hold title to property.
Unless the gift is saved by the state's ____________________________________________
The anti-lapse statutes vary as to the scope of beneficiaries covered by them. E.g., the UPC
statute applies when predeceasing beneficiary was a descendant of testator's grandparent.
In Illinois the anti-lapse statute applies only when the predeceasing beneficiary was a
_______________________________________________________ of the testator.
[child, grandchild]
10. WILLS—ILLINOIS
Two elements must be present before the statute applies: the predeceasing beneficiary (i)
must have been in the prescribed degree of relationship to the testator, and (ii) must have
left descendants who survived the testator.
Therefore, in #13 Blueacre passes to:
[July 1991] But what of the fact that Sam's will bequeathed his entire estate to his wife
Sarah? (Doesn't the anti-lapse statute save the gift for the deceased beneficiary's estate?)
a.
What if Sam left no descendants (meaning anti-lapse statute wouldn't apply); who
would take Blueacre?
If a bequest lapses and the anti-lapse statute does not apply, the lapsed gift:
b.
[July 1997] What if the land was devised to son Sam "if he survives me." Would the
anti-lapse statute apply in favor of Junior?
13a. [Feb. 2005] Void gifts—same rules apply. Suppose that a beneficiary named in the will was
dead at the time the will was executed? (This is called a void gift.) All of the above rules (lapse
rule, anti-lapse statute; surviving residuary beneficiaries rule) apply to void gifts.
B. Lapse in the residuary gift—the “surviving residuary beneficiaries” rule
14. [Feb. 2008] Teresa's will bequeaths “my residuary estate in equal shares to my nephew Hobie
Gates, my friend Bill Baker, and my daughter Mary." Hobie predeceases Teresa, leaving a child
(Hobie Jr.). Teresa, a widow, is survived by Hobie Jr., Bill, and Mary. Who takes the residuary
estate?
[Feb. 1998] Does the anti-lapse statute apply in favor of nephew Hobie Jr.? ________
Who takes Hobie's one-third share of the residuary estate, then?
Illinois (majority rule): If residuary estate is devised to two or more persons and gift to one
of them lapses or fails, the surviving residuary beneficiaries take the entire residuary estate,
in proportion to their interests in the residue (absent contrary will provision).
WILLS—ILLINOIS 11.
14a. What if in #14 it was Teresa's daughter Mary who predeceased Teresa, leaving a child
(Missy) who survived Teresa? Hobie Gates and Bill Baker survived Teresa. What happens to
Mary's 1/3 share of the residuary estate?
Does the anti-lapse statute apply in favor of Missy? ________
The anti-lapse statute _____________________________________________________ the
"surviving residuary beneficiaries" rule if the predeceasing residuary beneficiary (i) was
within the scope of the statute, and (ii) left descendants who survived the testator.
C. The “class gift” rule of construction
15. [July 1991] Ted's will devises Blackacre "to the children of my good friend, Joe Barnes," and
his residuary estate to his wife Rose. When the will is executed, Joe has two children: Al and
Bill. After the will is executed but before Ted's death, another child (Carl) is born to Joe; and Al
dies, survived by a son, Al Jr. Then Ted dies and his will is admitted to probate. Eighteen
months later, Joe has another child, Donna. Who owns Blackacre?
Al?
Class gift rule of construction: In a gift by will to a class of persons ("children,"
"brothers and sisters," etc.) if a member of the class predeceases the testator, CLASS
MEMBERS WHO SURVIVE THE TESTATOR TAKE (absent contrary provision).
Rationale: testator was "group-minded" in making the gift, and wanted this group and
only this group to share the property. (You read the will and determine takers of a class
gift as of testator's death.)
Contrast gifts to individually named beneficiaries: If the will devised Blackacre "in equal
shares to Al, Bill and Carl, the children of my friend Joe Barnes" and Al predeceased
Ted, the one-third share bequeathed to Al would lapse and fall into the residuary estate.
The residuary beneficiaries would own a share of Blackacre along with Bill and Carl.
[Feb. 1990, Feb. 2005] Subject to possible application of the anti-lapse statute. If the gift
were "to the children of my son, Joe Barnes," since the beneficiary who predeceased
testator was covered by the anti-lapse statute and left a child who survived the testator,
Al Jr. would take under the statute. The class gift rule gives way to the anti-lapse statute
when the predeceasing class member is a descendant of the testator.
Why is Donna excluded from sharing in the gift, when she's a child of Joe Barnes???
Rule of convenience ["class closing" rule]: Rule of construction used to define takers of
a class gift. Class is closed, meaning later-born class members do not share in gift, when
some class member is entitled to a distribution. This is done to determine the minimum
share of each class member, so a distribution can be made without the necessity of
rebate. Called "Rule of Convenience" because any other result would be INconvenient.
12. WILLS—ILLINOIS
-- Outright gift by will: the class closes at T's death.*
* [Feb. 1990] Subject to gestation principle.
Common law presumption: 280 days from conception to birth.
D. Deaths in quick succession—the Uniform Simultaneous Death Act
16. [July 1997] Mom and Sonny, riding in a car, are hit broadside by a train. Both die instantly.
Mother died intestate. For purposes of distributing Mom's estate, is Sonny an heir?
_______ Illinois (majority rule): Simultaneous deaths and deaths in quick succession
are governed by the Uniform Simultaneous Death Act [USDA]: When title
to property depends on order of deaths and there is no sufficient evidence
that the persons have died otherwise than simultaneously, the property of
each passes as though he or she survived (absent contrary provision).
Wills:
[Feb. 1997, July 2004] As though testator survived and beneficiary predeceased.
(This would invoke the lapsed gift doctrine and the anti-lapse statute.)
Intestacy:
As though intestate survived and heir predeceased.
Insurance:
As though insured survived and beneficiary predeceased.
[Feb. 1990] If joint tenants (with right of survivorship) or tenants by the entirety die
simultaneously: one-half passes through A's estate as though A survived B, one-half
passes through B's estate as though B survived A. The point: Simultaneous deaths prevent
operation of the right of survivorship. In effect, treat it as a tenancy in common.
16a. [July 1993] Same facts, except that autopsy shows that Mom died instantly, and that Sonny
died six minutes later.
For purposes of distributing Mom's estate, is Sonny an heir? [Illinois, most states] _______
Model answer: “Under Uniform Probate Code's 120-hour rule, a will beneficiary or heir who
fails to survive the decedent by 120 hours is treated as if she predeceased. Under that rule,
Sonny would not inherit because he did not survive Mother by 120 hours. In Illinois,
however, the controlling law is the Uniform Simultaneous Death Act. As there is sufficient
evidence that Sonny survived Mother by a measurable interval of time, the Simultaneous
Death Act doesn't apply.”
WILLS—ILLINOIS 13.
IV. CHANGES IN FAMILY AFTER WILL'S EXECUTION
A. Testator marries after will is executed
17. [Feb. 1998] Hobie Gates, who is single, writes a will leaving his estate to his mother Maude.
Hobie marries Winkie two years later, and then dies without having changed his will. He is
survived by Maude and Winkie. What distribution?
Under the Uniform Probate Code and in several states, if a testator writes a will and
then marries, the omitted spouse takes an intestate share of the testator's estate.
In Illinois and most states, however, marriage following execution of a will:
Reason for the rule:
B. Testator is divorced after will is executed
18. [Feb. and July 1995] Hank's will devises Blueacre to his wife Ida Lou, and the rest of his
estate to his sister Sue. The will names Ida Lou as executor "if she is able; if not my brother Sam
is to be executor." Two years later, Ida Lou divorces Hank. Then Hank dies without having
changed his will. He is survived by Ida Lou (and her daughter Wookie) and by Sue and Sam.
Who takes Blueacre?
_________________________________________
Who serves as executor? _________________________________________
(Illinois and nearly all states:) Final decree of divorce or annulment revokes all gifts and
fiduciary appointments in favor of former spouse. Estate is distributed and fiduciaries are
named as though the former spouse predeceased the testator. [Feb. 1996: Must be final
decree of divorce; no revocation of gift if divorce action has been filed and is pending.]
But if we read the will as though Ida predeceased the testator, doesn't the
anti-lapse statute apply in favor of Ida Lou's daughter Wookie, then? ________
If the couple reconcile and remarry, so that Ida Lou is Hank's wife at his death, she takes under the will.
The statute operates to revoke the gifts and appointments only if they are divorced at testator's death.
Does the “divorce revokes” statute apply to a life insurance policy on
Hank's life naming "my wife Ida Lou" as beneficiary? (Illinois and majority rule) ________
[July 1993] Does the statute apply to a legal separation? ________
14. WILLS—ILLINOIS
C. Testator has child after will is executed—the “pretermitted child” statute
19. [Feb. 1998] At the time he made his will, Tony and his wife had one child: Alvin. After
Tony made the will, he and his wife adopted a child: Billy. Tony died survived by his wife,
Alvin and Billy. His will left one-third of his $300,000 estate to his wife and the other two-thirds
to a sister. What rights, if any, do the children have in Tony's estate and why?
[Feb. 1998] Alvin (alive when will was executed -- Illinois, majority rule): ______________
because the pretermitted child statute applies only to:
How about Billy? In Illinois (majority rule), pretermitted child (born or adopted after will
executed) takes:
Unless it appears from the will (no extrinsic evidence) that omission was intentional.
[July 1993] Does the pretermitted child statute apply to a
life insurance policy taken out before Billy was adopted? ________
19a. Same facts, except that two years after adopting Billy, Tony executed a codicil to his will
that names Second Bank instead of First Bank as executor. Is Billy still protected by the
pretermitted child statute?
Under the doctrine of republication by codicil, the will "speaks" (is deemed to have
been executed) on the date of the last codicil thereto. Billy is treated as having been
born before the will's execution and has no rights as a pretermitted child.
V. PROBLEMS ASSOCIATED WITH TESTAMENTARY GIFTS
Specific devise or bequest: A gift of specifically described property. "I devise Blackacre
to my son John."
Demonstrative legacy:
A hybrid: gift of a general amount from a specific source. "I
give the sum of $25,000, to be paid from the proceeds of the
sale of my Shell Oil stock, to Sally."
General legacy:
"I bequeath $10,000 to my nephew Ned."
Residuary gift:
"I give all the rest and residue of my estate to Betty."
Intestate property:
If the will does not make a complete disposition of the estate
because the will, poorly drafted, does not contain a residuary
clause (resulting in a partial intestacy).
WILLS—ILLINOIS 15.
A. Abatement of legacies to pay claims. [Feb. 2007] What if there are so many creditors'
claims that, after all debts and expenses are paid, there aren't enough assets to satisfy all of the
gifts under the will? In what order are gifts sacrificed to pay creditors' claims? (Called the
abatement problem.) Absent a contrary will provision, debts and administration expenses are
first paid out of: (1) intestate property (if there is a partial intestacy for some reason); (2) then
residuary assets; (3) then general legacies; and finally (4) specific bequests. Within each
category, no distinction is made between real and personal property.
A demonstrative legacy (just like the hybrid it is) is treated the same as a specific
bequest (and thus is the last to abate), but only to the extent of value of the referenced asset;
treated the same as a general legacy to the extent of any excess. If (in the above example—
“$25,000, to be paid from the proceeds of sale of my Shell Oil stock”) T owns Shell Oil stock
worth only $18,000 at his death, it is treated as specific bequest (and is the last to abate) to
extent of $18,000; and abates as a general legacy as to the $7,000 balance.
[Feb. 2005]
B. What if specifically bequeathed property is not in the estate at death—the
“ademption” problem
20. [Feb. 2005] Terry executes a will that provides: "I leave Blackacre to my John, and my
residuary estate to my wife." A year later, Terry sells Blackacre for cash and uses the sale
proceeds to buy Whiteacre. Terry dies, and his will is admitted to probate. What does John take
under Terry's will?
Where a will makes a specific gift of property, and the property is not owned by the
testator at death:
21. Henny's will contains this provision: "I give the sum of $25,000, to be paid out of the
proceeds of sale of my Shell Oil stock, to Sally." [A demonstrative legacy.] One year before her
death, Henny sells all of her Shell Oil stock and uses the sale proceeds to buy Exxon stock.
[Feb. 1996] Does ademption apply to demonstrative (or general) legacies? ________
On Henny's death, what does Sally get?
(But if Henny owned any Shell Oil stock at her death, executor would be under a duty to sell it first to
raise the $25,000.)
16. WILLS—ILLINOIS
22. Same facts as in #20 (specific devise of Blackacre), except that Terry sold Blackacre for
$10,000 cash and a $90,000 note secured by a mortgage on Blackacre. When Terry died, the
balance on the note was $65,000. What does John take under Terry's will?
Illinois (majority rule):
Only Illinois statute on ademption: If Terry had entered into contract for sale of the
property but died before the contract was fully performed [July 2008—installment sale
contract] John would take remaining payments under the contract. But in #22 contract
had been fully performed.
The UPC and several states have enacted statutory exceptions to the ademption doctrine. The
Illinois courts have adopted some of these exceptions by judicial decision.
***
Will executed before T became incapacitated: If specifically devised property is sold by
guardian or conservator (or agent acting under durable power of attorney), or if
condemnation award or insurance proceeds relating to the property are paid to the
guardian (or agent), under the Uniform Probate Code the specific devisee has a right to a
general legacy equal to the net sale price, condemnation award, or insurance proceeds.
(Rationale: T didn't have capacity to change his will.)
***
[July 1995] The Illinois courts have granted relief in the "incapacity" situation (where
testator did not have capacity to change her will), but the specific beneficiary gets the sale
price, condemnation award, or insurance proceeds but only to the extent they can be
traced and haven't been expended for the ward's care.
The Illinois courts have also granted relief where testator did not have opportunity to
change his will under circumstances that there would be no intent to work an ademption.
[July 1993: T's will devises her 1999 Buick to B; T is killed in accident in which the Buick
is demolished. B is entitled to insurance proceeds from the collision claim on the Buick.].
C. Bequests of stock or other securities
23. Trevor executes a will that provides: "I bequeath my 500 shares of IBM stock to Albert
Avins, and my residuary estate to my wife Martha." A year later, IBM declares a two-for-one
stock split, and Trevor receives a certificate for an additional 500 IBM shares. Two years after
that, IBM declares a ten percent stock dividend, and Trevor receives a certificate for an
additional 100 shares. On Trevor’s death, how many shares of IBM stock does Avins take?
Avins takes the additional shares produced by the stock split [and any shares produced by a
merger, takeover, reorganization, etc.] and in most states takes the shares produced by the stock
dividend—but [Feb. 2007] not in Illinois! In Illinois, Avins takes 1,000 shares, but the 100
shares produced by the stock dividend pass to Martha under the residuary clause.
WILLS—ILLINOIS 17.
D. Specific bequest of encumbered property—is the lien “exonerated”?
24. [July 1997, Feb.1990] Trish's will devises Blueacre to Joan and her residuary estate to Betty.
Blueacre is subject to a mortgage securing a $10,000 note on which Trish was personally liable.
Joan demands that Trish's executor pay the debt out of the residuary estate so that title will pass
to her free of the mortgage lien. Must the executor pay the debt?
Common law rule:
YES Absent contrary provision, liens on specifically devised
property are exonerated from the residuary estate.
However, Illinois (and the Uniform Probate Code) has overturned the "exoneration of liens"
doctrine by statute. A specific legatee of encumbered property is not entitled to have the
lien exonerated unless the will expressly directs exoneration.
Under the Illinois rule, Joan takes exactly what testator owned: Title subject to a lien.
VI. REFERENCE TO ACTS AND EVENTS OUTSIDE THE WILL
A. The “incorporation by reference” doctrine
25. [July 1996] On July 1, 2002, Tex executes a will that provides: "I devise Blackacre to the
persons named in a memo dated May 4, 2002 that I have written and placed in my safe deposit
box. I give my residuary estate to my brother Ben." After Tex's death there is found, in his safe
deposit box, a typewritten memo, signed but not witnessed, dated May 4, 2002. The memo says:
"Pursuant to my will, I want Blackacre to go to my nephew Norman."
Does Norman take Blackacre pursuant to the memo, when the memo was
not witnessed, and was not part of the will signed by Tex and the witnesses? ________
An extrinsic document, not present when the will was executed and thus not part of the duly
executed will, can be incorporated by reference into the will . . . IF:
#1.
[July 2006] Document must be in existence when will executed, and
#2.
Will must refer to document as being in existence, and
#3.
Will must describe the document sufficiently to permit its identification. ("So
there can be no mistake as to the identity of the document referred to.")
26. [July 2006] With Tom's will in his safe deposit box was the following typewritten memo:
"In my will I referred to a list that I would prepare at a later date leaving certain items of
personal property, and this is it: I give my golf clubs to my friend, Hobie Gates, my fishing
tackle to my son Sam, and $2,000 to my daughter Donna. /s/ Tom Testator." The document was
dated five weeks after will was signed, and was not witnessed.
Valid disposition under the law of Illinois and most states? ________
18. WILLS—ILLINOIS
Under the Uniform Probate Code, valid disposition . . .
as to the golf clubs? YES
as to the fishing tackle? YES
as to the $2,000? NO_
UPC statutory exception to incorporation by reference rule: Will may refer to a
written statement or list that disposes of tangible personal property (but not money or
intangible property) not specifically disposed of by the will. The written list must be signed
by the testator, must describe the property with reasonable certainty. May be written before
or after the will is executed, and can be altered at any time.
[July 2006]
The UPC provides a simple and inexpensive procedure for making gifts of personal items of
sentimental value, without having to amend the will every time client changes his mind or
wants to add to the list.
B. “Acts of independent significance” doctrine—nontestamentary acts
27. [July 2006—five times since 1990!] Tina dies leaving a will that provides: "I give the automobile
that I own at my death to my nephew Norman. I give the furniture and furnishings in my living
room to my sister Sue." A year before her death, Tina trades her 1998 Ford in on a brand new
Mercedes. Six months before her death, Tina moves a $25,000 Picasso print from her den and
mounts it on her living room wall. What is the effect of these acts on Tina's will?
Does Norman take the Mercedes? ________
Does Sue take the Picasso? ________
Key words: Acts of independent significance. Also called doctrine of nontestamentary acts
[July 1991] Same result for gift of "contents of my sea chest"?
*__________
* Except for title documents (deeds, bank passbooks, stock certificates).
VII. OTHER WILLS DOCTRINES
A. Mistake or ambiguity in the will’s terms
28. Tom tells his lawyer to draw his will and to give his nephew Ed "300 shares of Exxon
stock." A typist makes a mistake and types in "200 shares," which Tom didn't notice when he
signed the will. At Tom's death, he owns 300 shares of Exxon. What does Ed get and why?
(Illinois and majority rule:)________ shares:
Absent suspicious circumstances, it is conclusively presumed that:
WILLS—ILLINOIS 19.
Uniform Probate Code and Restatement (Third) Donative Transfers: 300 shares: Wills (and not just
trusts) can be reformed to correct mistakes, if the mistake is shown by clear and convincing evidence.
What other issue is raised by the facts of #28? (Attorney's secretary made a mistake.)
29. [July and Feb. 1990] Tim’s will bequeaths "$10,000 to my nephew, John Paul Jones," and his
residuary estate to his sister. Problem: Tim has a nephew James Peter Jones, and a nephew
named Harold Paul Jones, but no nephew named John Paul Jones. Who takes the $10,000?
This is called a __________________________ because there is a ________________________
Is extrinsic evidence admissible? YES.__
[Feb. 1996] Does the admissible evidence include "facts and circumstances" evidence?
(evidence about the testator, his family, the claimants under the will and their relationship
to the testator, testator's habits and thoughts, etc.)? YES.
Does the admissible evidence include testator's declarations of intent? (e.g., he told a friend
that he had bequeathed $10,000 to his nephew James Peter Jones.) NO.
Concern is possible perjury, the courts have said.
Does the admissible evidence include testator's statements to attorney who prepared the
will? YES.________
Why do we allow extrinsic evidence in #29 and not in #28? Because in #29 we are trying to
give meaning to the words that testator used in the will; whereas in #28, where the words in
the will have a plain meaning, any extrinsic evidence would be an attempt to change the
meaning of the words used by the testator.
What if the extrinsic evidence does not cure the ambiguity?
30. [July 1999; three times since 1990] Tom's lawyer prepares a will that includes this gift: "I
bequeath the sum of Twenty-Five Dollars ($25,000) to my brother Bob." What does Bob get?
This is called a ________________________________________________ because
Is extrinsic evidence admissible?
20. WILLS—ILLINOIS
B. Contracts relating to wills
31. In 2004 Bart and Betty, each of whom had a child by a former marriage, executed a joint
will providing:
"We, Bart and Betty Brown, husband and wife, make this our Joint and Mutual Will. On
the death of the first of us to die, all our property shall go to the survivor; and on the death
of the survivor of us one-half of our property shall go to Bart's son Billy and the remaining
one-half shall go to Betty's daughter Beulah."
Bart died in 2007 and the will was probated for his estate. In 2008, Betty executed a new will
"hereby revoking all earlier wills" that made a gift of $10 "to my stepson Billy," and "all the rest
of my property to my beloved daughter Beulah." Betty died two months ago, and both the 2004
will and the 2008 will were offered for probate as her last will. What issues are raised?
#1.
Was the 2004 will contractual (the contract being that the survivor could not effectively
revoke the agreed-upon disposition)?
Under the Uniform Probate Code and by statute in several states, a will is never
contractual unless the will expressly states that a contract does exist. In Illinois and a
number of states, however, execution of a joint will by a husband and wife may be
found contractual (the contract being that the survivor will not revoke the agreed-upon
disposition IF all or [Feb. 2006] most of the following factors are present:
-----
#2.
Will labeled "Joint and Mutual"
Will leaves entire estate to surviving spouse
Will disposes of all of their property in a unified disposition
There is a common dispositive scheme on the death of the survivor (as in #31)
If [Feb. 2006] will is held to be contractual: Step 1: Apply Wills law. A testator can always
revoke an earlier will even though it was subject to a contract that it wouldn't be revoked.
So, 2008 will must be admitted to probate. Step 2: Apply contract law. Since revocation of
the 2004 will breached a contract, impose constructive trust against beneficiaries under
that will, for the benefit of Billy as to the 1/2 that was his by contract.
[July 1996] Reciprocal wills (separate wills containing reciprocal or "mirror" provisions are
never presumed to be contractual unless clear and convincing evidence of a contract.
C. What is the effect of a disinheritance clause in a will?
32. [Feb. 1996, Feb. 1990] Todd's will devises Redacre to his son Sam and his residuary estate to
his wife Ann, and then says: "I intentionally make no provision for my daughter Nancy, as she
married out of the faith and has been a great disappointment to me." Todd divorces Ann, and
then dies without having changed his will. He is survived by Sam and Nancy as his nearest kin.
Who takes the residuary estate?
Ann?
WILLS—ILLINOIS 21.
Who takes the residuary estate? Illinois (majority rule): ______ to Sam and ________ to Nancy.
Model answer: "Under the Uniform Probate Code's negative bequest rule, a will can
provide how property shall NOT be be disposed of, meaning that words of disinheritance
are given effect; estate is distributed as though disinherited person predeceased the
testator. Under this rule, Nancy would take nothing.
However, Illinois applies the common law and overwhelming majority rule, which says . . .
When a will does not make a complete disposition of the estate (partial intestacy), words
of disinheritance in the will are ineffective. Rationale: When property passes by intestate
succession, it passes pursuant to the intestacy statute, not the decedent's will.
D. What are the unlawful conditions that courts refuse to enforce?
33. Mom dies leaving a will that creates a trust: "Income to my daughter Betty until such time as
Betty divorces her husband Hobie Gates, at which time the trust shall terminate and all trust
principal shall be distributed to Betty. If Betty does not divorce Hobie, on Betty's death principal
to the National Organization for Women." Valid condition?
What happens to the trust property, then?
33a. [July 1991] Dad's will bequeaths $500,000 "to my son Daniel, provided he marries a Jewish
woman within seven years after my death. If Daniel does not meet this condition, the money
shall go to the State of Israel." Valid condition?
33b. [July 1994] Testamentary trust "to pay the income to my wife for life or until she
remarries. If my wife remarries, the trustee shall pay the income to my daughter Bonnie for
life." Valid condition?
Compare reputed will of Heinrich Heine, German poet: Money bequeathed "to my wife on the
express condition that she remarry. I want at least one person to truly bereave my death."
E. “Thou shalt not kill”
34. [July 1993] Fred, a widower, has two children, Sam and Donna. After a heated family
argument, Sam bludgeons Fred to death with an axe. Fred, who left no will, is survived by
Donna, Sam and Sam’s two children. Who takes Fred's estate? Donna takes 1/2, of course. As
to the other 1/2:
22. WILLS—ILLINOIS
Illinois "slayer" statute: Killer forfeits interest in victim's estate if he intentionally and
unjustifiably causes the death of another. The victim's estate is distributed as though:
However [Feb. 2006] "slayer" statute does not apply where death resulted from
accident—negligent homicide.
The “slayer” statute applies to all forms of transfer: Wills, life insurance policies, etc. If A and B
own land as joint tenants with right of survivorship and A murders B, the right of survivorship is
severed. B’s one-half interest passes under his will or by intestacy. The statute takes away the
benefit of A’s right of survivorship, but A doesn’t forfeit the one-half interest that he owned.
35. [Feb. 1997] Billy, named as beneficiary on a life insurance policy, was tried and acquitted on
charges of murdering the insured. Nonetheless, in a civil action the trial court found as fact that
Billy had murdered the insured.
Should the decision be affirmed on appeal? ________
Conviction of murder—conclusive proof that he intentionally and unjustifiably caused victim’s
death. Civil determination of guilt—evidentiary test is preponderance of evidence.
Illinois statute: Abuse of elderly or disabled person: perpetrator forfeits all interest in estate if convicted
of (i) criminal abuse or neglect or, (ii) financial exploitation of elderly or disabled person.
F. Nonprobate assets are interests that are not subject to disposition by will or inheritance,
and do not pass through a person's probate estate for purposes of administration. Major
types (also called nontestamentary assets):
#1. [July 2005] Property passing by right of survivorship (joint bank account, joint
tenancy, etc.).
#2. Property passing by contract: life insurance, death benefits under retirement plan.
#3. Property held in revocable trust, where trust's terms govern disposition of property.
36. [July 2005] Trudy has a $100,000 Aetna life insurance policy that names Bill Bates as
beneficiary. Trudy dies leaving a will that provides: "I direct that the proceeds of my Aetna life
insurance policy be paid to my sister Ann Painter." Who takes the $100,000 policy proceeds?
WILLS—ILLINOIS 23.
VIII. INTESTATE SUCCESSION
The intestacy rules apply (1) when the decedent left no will, (2) when the decedent's will is
denied probate (not validly executed, or successfully contested by decedent's heirs), or [July 2008]
(3) when the decedent left a valid will, but the will did not make a complete disposition of the
estate (resulting in a "partial intestacy"). The intestacy rules also may be invoked in a question
involving a pretermitted child.
A. Intestate share of surviving spouse
Under the Illinois intestacy statute, the surviving spouse's intestate share is:
ONE-HALF [Feb. 1995] if survived by descendants (whether from this marriage or an earlier
marriage);
ALL if not survived by descendants.
Surviving spouse is also entitled to a family allowance—whether the decedent died
intestate or left a will—to provide support for the family during the period of probate
administration. Minimum allowance is $20,000, plus $10,000 for each minor or disabled
adult child. Allowance is over above amounts passing to spouse by will, intestacy or (if
the spouse renounces the will) elective share. Has priority over all claims except funeral
and administration expenses.
B. Inheritance by descendants (“issue”)
37. Amy, a widow, dies intestate survived by the indicated family members. What distribution?
Amy
Al
Ben
Carol
C-1
Al: _______
Ben: _______
C-2
C-1 and C-2: _______
Donna
D-1
D-2
D-3
D's three children: _______
[July 1999] The distribution rule in Illinois is classic (strict) per stirpes (literal translation: "by the
roots"), meaning one share for each line of living descendants. Each child is a "root” or line,
and the descendants of deceased children take by representation the share their parent would
have taken had she survived to be an heir. [Feb. 2006: Under strict per stirpes, you always cut the
shares at the child level, even if there are no living children.]
The same distribution rule (strict per stirpes) applies to inheritance by collateral
relatives: brothers, sisters, and the descendants of deceased brothers and sisters. In making a
distribution among collateral kin, the shares are cut at the brother-sister level, even if there
are no living siblings. At common law, siblings of the half-blood (one common parent)
inherited half as much as siblings of the whole blood. [July 2004] Illinois and nearly all states
have rejected this rule; a half-sister takes same share as a sister of the whole blood.
[July 2009]
24. WILLS—ILLINOIS
C. Other intestate distribution rules
38. Sam, who was single, died intestate survived by Mom, Dad, and three sisters: A, B and C.
Majority rule: Sam's entire estate would be inherited by his parents (or surviving parent).
In Illinois, parents, brothers and sisters take:
Mom and Dad:
Sisters A, B and C:
Same facts, except that Sam's mother also predeceased Sam. Sole surviving parent takes:
Dad:
Sisters A, B and C:
A parent is disqualified from taking as heir if he neglected, deserted, or failed to
support the child.
D. Inheritance by adopted children, nonmarital children
[July 2012] Children adopted under age 18 and their descendants have full inheritance rights
from the adoptive family (and vice versa), and are treated in all respects the same as natural
children. But [Feb. 1994] a stepchild, not having been adopted, cannot inherit.
[July 1999] In Illinois, child adopted by a new family has no inheritance rights from the
natural parents or their kin or for purposes of determining rights under a will or trust
UNLESS (1) natural parent died before child was adopted, (2) child was adopted by a
relative, or (3) contrary intent show by will or trust terms by clear and convincing evidence.
Example showing exception #1: Clyde's father dies; mother remarries and second
husband adopts Clyde. Clyde has inheritance rights from natural mother and adoptive
father—and from the deceased natural father's kin as well.
Children adopted OVER age 18 inherit from the adopting parent, but not the adopting
parent’s kin. Rationale: Adult adoption should not be used to make the “child” someone
else’s heir. [Illinois case: son of a wealthy woman, dying of AIDS, adopted his companion in an
effort to make him an heir.]
Constitutional litigation in the 1970s and '80s expanded the rights of nonmarital children
(children born out of wedlock). In Illinois and most states, a child born out of wedlock can
inherit from natural father only if [the acronym is PAP -- for Pappy]:
--
Paternity suit: [July 2012] The man was adjudicated the father in a paternity suit; OR
--
Acknowledged paternity [July 1999]: Man acknowledged he was child's father during
his lifetime; OR
--
Probate proceedings: After the man's death, he is proved to have been the father of the
child in the probate proceedings by clear and convincing evidence.
WILLS—ILLINOIS 25.
E. What is the effect of a lifetime gift to an heir or will beneficiary?
39. [July 1999] Mary gives Blackacre (worth $30,000) to her son Al on Al's 35th birthday,
orally telling her other sons (Ben and Chris) they will receive similar gifts when they reach 35.
Mary dies intestate two years later without having made gifts to Bill and Chris. She left an estate
valued at $90,000; what distribution? (Should Mary’s gift to Al be treated as an advancement?)
Common law: Lifetime gift to a child was presumptively an advancement (advance
payment) of the child's intestate share, to be taken into account in distributing the estate at
death. (Theory was that a parent would always want to treat all children equally.)
[Feb. 2006] Illinois
and majority rule: Lifetime gift to an heir is not an advancement
unless (i) declared as such in
or (ii) acknowledged as such in
by the donor,
by the donee.
Therefore, distribute Mary's estate:
If there were written evidence of an advancement, it would be treated as a [$90,000+ $30,000 =]
$120,000 estate to be divided three ways. Each child's share would be $40,000, with Al already
having received $30,000 (date-of-gift value) of his share.
40. [July 2000] Will bequeaths $25,000 to niece Nellie. Later, T gives Nellie $10,000 cash.
Unlike doctrine of advancements applicable to intestacy, no Illinois statute governs this
situation. Illinois applies the common law rule as to satisfaction of legacies: A lifetime gift to a
child named as beneficiary in an earlier will is presumptively in partial satisfaction of the legacy,
but not a lifetime gift to any other beneficiary (unless there is evidence that testator so intended).
[Feb. 2007] Therefore, under the common law (and Illinois) rule, niece Nellie takes the full
$25,000 under the will unless there is evidence showing that the $10,000 gift was intended
as in partial satisfaction of the legacy.
Uniform Probate Code: No satisfaction of legacy unless (i) declared as such in a
contemporaneous writing by the donor, or (ii) acknowledged as such in writing by donee.
F. What does a beneficiary or heir have to do to disclaim an interest?
41. [Feb. 1994] Joe's will bequeaths his $2,000,000 estate "to my children in equal shares." Joe
is survived by two children: Sue and Bob. Sue, a partner in a large Chicago law firm who has
two children, wants to disclaim her interest in her father's estate. What must Sue do to make an
effective disclaimer?
All states recognize that no one can be compelled to be a beneficiary or heir against her
will. An intestate heir, will beneficiary, beneficiary of a life insurance policy or pensio
plan, or any other interest in property can disclaim the interest, in whole or in part. [A
disclaimer also can be made on behalf of a minor or incompetent person by guardian, or by
personal representative of a deceased person, but only with court approval]. A disclaimer,
once made, is irrevocable. To be a valid disclaimer:
26. WILLS—ILLINOIS
#1. Must be in writing, signed and delivered to decedent’s personal representative
(executor or administrator) or trustee, or person in possession of the property.
#2. Unlike most states, in Illinois there is no time limit on when a disclaimer must be
made. (But under an estoppel principle, a person cannot disclaim after accepting the
property or its income, or after mortgaging, etc., the interest.)
However, to be effective for tax purposes, must be filed within _________________
after decedent's death.
[Feb. 2007] If Sue makes an effective disclaimer, how should Joe's estate be distributed?
Why would anyone ever want to disclaim a gift or inheritance???
(1) _____________________________ (2) [Feb. 1994] _________________________________
*Except federal tax liens (Drye v. United States, S.Ct. 1999)
WILLS—ILLINOIS 27.
FREQUENCY OF WILLS ISSUES TESTED ON ILLINOIS BAR EXAM
Illinois and MEE Bar exam issues since July 1988 (thru July 2012). There are more issues listed than
questions [numbers in brackets] because most questions had multiple issues.
INTESTATE SUCCESSION [11]
Survived by spouse and descendants: 1/2 to spouse, 1/2 to descendants
Intestate distribution among children and descendants of deceased children—per stirpes
[3] Distribution among grandchildren if all children dead: strict per stirpes (cut shares at child level)
Stepchild, not adopted, could not inherit
[2] Child born out of wedlock could inherit; (i) father acknowledged child; (2) paternity adjudication
Half-brother (one common parent) inherited same share as brother of whole blood
No spouse or descendants: Niece by deceased brother inherited
[2] Partial intestacy resulted where will did not dispose of entire estate
UNIFORM SIMULTANEOUS DEATH ACT [4]
[4] Wills—if no sufficient evidence of survival, property of each passes as though she survived
Joint savings account—distribute 1/2 as though A survived B, 1/2 as though B survived A
Simultaneous Death Act did not apply—there was sufficient evidence of survival by several minutes
ADVANCEMENTS, SATISFACTION OF LEGACIES [6]
[3] No advancement where there was no writing signed by donor or donee heir
[3] No presumption of satisfaction of legacy when beneficiary not related to the testator
DISCLAIMERS [4]
Disclaimer by child named as will beneficiary—anti-lapse statute applied
[2] Disclaimer by [uncle] [sister] named as will beneficiary—anti-lapse statute did not apply
Disclaimer was valid so as to defeat creditors’ claims
EXECUTION OF WILLS [13]
[2] Signature requirement satisfied where testator signed (i) with initials, (ii)“Ted”
Signing in testator’s presence—line of sight test not satisfied where T unconscious when W signed
Proxy signature valid—will signed by another at testator's direction and in testator's presence
But will not valid where proxy witness did not sign in testator’s presence
Will not valid where signed by only one witness
Words added after will’s execution disregarded unless will re-signed; not part of duly executed will
[7] Illinois does not recognize holographic (handwritten, signed but unwitnessed) wills
But where land located in state that recognizes holographic wills, land passed under that will
Illinois does not recognize oral wills under any circumstances
INTERESTED WITNESS [6]
[4] Interested witness: will valid, but gift to witness-beneficiary void
Both witnesses were beneficiaries—will valid but both bequests were void
“Whichever is least” rule if witness-beneficiary an heir—took lesser of bequest, intestate share
REVOCATION; PROOF OF LOST WILLS [12]
[3] Second will with no revocation clause treated as codicil; revoked earlier will only to extent of
inconsistent provisions
[3] But revocation by implication where will #2 wholly inconsistent with will #1
Writing "void" across face of will: revocation by physical act
But writing "void" in the margin did not revoke will either by instrument or by physical act
[5] No partial revocation by physical act in Illinois
[2] Revocation by physical act by third party must be at T's direction and in T's presence
Presumption of revocation where will, last seen in testator’s possession, found torn in two
Presumption of revocation rebutted - will was accidentally destroyed in fire in which testator died
[3] No revival of revoked wills—Illinois applies common-law rule
[2] But revocation of codicil by physical act revokes only the codicil, and restores the will
[3] Dependent relative revocation shouldn’t apply if disregarding revocation would defeat intent
28. WILLS—ILLINOIS
Crossing out $10,000 and writing in $50,000 disregarded; not part of duly executed will
Apply rules governing proof of lost wills
MARRIAGE OR DIVORCE FOLLOWING EXECUTION OF WILL [6]
Marriage had no effect on earlier will; spouse should renounce will and file for elective share
[3] Divorce revoked bequests and fiduciary appointments in favor of former spouse
[2] “Divorce revokes” rule applies only if final divorce decree, not where divorce action is pending
“Divorce revokes” rule does not apply to legal separation
PRETERMITTED CHILD STATUTE [4]
[2] Pretermitted child took intestate share
[2] Statute applies only to after-born or after-adopted children; does not protect existing child
Statute applies only to wills; and not to life insurance policies taken out before child was born
INCORPORATION BY REFERENCE; ACTS OF INDEPENDENT SIGNIFICANCE [12]
[3] Incorporation by reference applied if memo was in existence when T wrote will
[4] No incorporation by reference where document or memo not in existence when T wrote will
[2] UPC exception for list of tangible personal property written after will was signed
[5] Bequest of [“my car”] [“my automobile”] [“my pickup truck”] [“my house”]—acts of
independent significance where testator had purchased a new vehicle or new house
CONTRACTUAL WILLS [2]
Joint and mutual wills were contractual—survivor could not revoke agreed-upon disposition
Reciprocal wills not contractual unless clear and convincing evidence of contract
Contract revoked when H told W during lifetime he had changed his mind; notice of revocation
CONDITIONS THAT ARE AGAINST PUBLIC POLICY [1]
Partial restraints on marriage are permitted (“if she marries a Catholic within 7 years”)
“Income to my wife for life, but if she remarries, to Carol” not an unlawful condition; motive was to
provide support during widowhood
LAPSED GIFTS AND ANTI-LAPSE STATUTE [14]
[3] Anti-lapse statute applied to bequest to testator’s child who predeceased testator
Child’s will is irrelevant; statute names substitute takers
[2] Anti-lapse statute applied to class gift to testator’s children where one child precedeased
[5] Anti-lapse statute did not apply; gift was to [friend] [niece] [mother], not T’s descendant
A/L statute did not apply: bequest was to child “if she survives me”; condition of gift not met
[3] Surviving residuary beneficiaries took where residuary beneficiary predeceased and anti-lapse
statute did not apply
Anti-lapse statute applied where son murdered testator; will read as though son predeceased
Void gift (named beneficiary dead when will executed)—anti-lapse statute applied
CLASS GIFTS [5]
[2] Class gift rule: surviving class members take
Anti-lapse statute applied to bequest to testator’s “children,” trumping class gift rule
Testator's posthumous child included in class gift under “gestation” principle
Rule of convenience: Class closed when class member was entitled to distribution
ADEMPTION [11]
[7] Ademption applied where specifically bequeathed property was not in estate at death
Ademption does not apply to general legacies
[2] Ademption did not apply under circumstances where T could not have intended ademption
—devisee of car took insurance proceeds where car destroyed in accident that killed testator
[2] Ademption did not apply; contract to sell specifically devised real property was still executory
Ademption did not apply where bank account moved from one bank to another; change in form and
not in substance
Conservator sold diamond ring: Beneficiary gets sale proceeds (to the extent traceable to the sale and
not expended for ward’s care)
WILLS—ILLINOIS 29.
BEQUESTS OF SECURITIES [4]
Bequest of "my 100 shares of GM stock" was a specific bequest; ademption applied
Specific bequest of stock included additional shares produced by a stock split
Are stock dividends included in bequest of stock? No in Illinois but Yes under UPC
EXONERATION OF LIENS [3]
[3] No exoneration of liens unless will directs exoneration
Just debts” clause not a sufficient directive that lien be exonerated
MISTAKE, AMBIGUITY [4]
Latent ambiguity: gift of “my Volkswagen Jetta” and T owned two Jettas
[2] Latent ambiguity -- extrinsic evidence was admissible
Patent ambiguity; ¶2 said “all my securities to Albert” and ¶4 said “Exxon stock to Betty,” give
effect to both provisions
Bequest to “my best friend” invalid—no ascertainable beneficiary
WILL CONTESTS; NO-CONTEST CLAUSES [8]
T survived by child C and grandchild G (C’s child)—G lacked standing to contest will; would not be
an heir if T had died intestate
[3] Burden of proof as to capacity on contestants; discuss evidence in context of 4-point test
[3] Undue influence—burden of proof on contestants; discuss evidence in context of 3-point test
[2] presumption of undue influence where one in confidential relationship procured will
[2] No-contest clauses are given full effect in Illinois, regardless of probable cause for the contest
No-contest clause did not preclude spouse from filing for elective share
ELECTIVE SHARE, SPOUSAL RIGHTS [5]
[2] Elective share was 1/3 where decedent was survived by descendants
1/2 where decedent was not survived by descendants
Wife was entitled to elective share even though legally separated from her husband
Elective share applies only to probate estate; revocable trust not included
Where W filed notice to take elective share, no-contest clause in H’s will was not relevant
OTHER WILLS DOCTRINES
[5] Apply “abatement of legacy” rules where residuary estate was exhausted
[3] Words of disinheritance in a will are ineffective if there is a partial intestacy
Bequest of “desk and its contents” included tangible property but not stocks and bonds in desk
Gift of "my $5,000 savings account at [designated] Bank" was merely descriptive; bequest gave the
$25,000 that was on deposit at T’s death
[2] Slayer statute applied to life insurance policy where son murdered insured father …
even though found not guilty in criminal proceeding
POWERS OF APPOINTMENT [5]
Residuary clause that made no reference to power of appointment did not exercise the power
General reference in residuary clause (“including any property over which I may have a power of
appointment”) exercised testamentary power of appointment
But general reference did not exercise power that required specific reference for its exercise
Contract to exercise special testamentary power of appointment in favor of child is invalid
Special power to appoint among descendants—appointment to charity invalid
NONPROBATE ASSETS [2]
Joint tenant who died first couldn’t will his 1/2 interest, which passed by right of survivorship
Life insurance—beneficiary can’t be changed by will; contract governs change of beneficiary
DURABLE POWERS OF ATTORNEY
“Springing” durable power of attorney became effective when principal became incapacitated
Duties of agent under durable power of attorney