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INTESTACY & WILLS

INTRODUCTION
A. Non-Probate Property: Passes pursuant to the non-probate instrument.
a. JT w/ right of survivorship, Life insurance/Payment on death K, life estates, remainders, inter-vivos
trusts.
B. Probate Property: Passes pursuant to decedent’s will, otherwise through intestacy
C. Probate: Probate property must pass through the probate system. Probate court is the state court with special jx
over determining who is entitled to receive probate property. It is a court proceeding in which:
a. It is judicially determined that a decedent left a validly executed will or that he died without a will and his
intestate heirs are determined and
i. Testate – dies with valid will; property distributed according to will.
ii. Intestate – dies without a valid will. Property distributed pursuant to state statute on descent
and distribution.
iii. Both – a decedent that dies w/ a will that disposes of some of his prop but not all, he dies both
testate and intestate.
b. a personal representative is determined to administer the decedent’s estate
i. Executor – if named in the will; ct will issue letters testamentary
ii. Administrator – if appointed by court; ct will issue letters of administration
c. Ensures creditors receive notice, opportunity to present claims and payment & extinguishes claims of
creditors who don’t present their claims to probate court.
d. Ensures that decedent’s property is properly distributed to those entitled to receive
e. Opening probate: probate ct in county where decedent domiciled at time of death has
domiciliary/primary jx over the probate estate. Ct has jx over personal and real property in that jx.
i. Presenting death cert opens probate.
ii. Ancillary jx: may be necessary if dec owned real property in another jx from domicile. It ensures
1. Local creditors in jx where real prop located receive notice and can present claims
2. There is compliance w that jxs recording system.
f. Will contests: if challenging will offered for probate, most jx’s stats require contest be brought in timely
manner after probate is opened or the claim will be barred.
g. Heirs: Person taking by intestate succession
h. Beneficiaries: [devisees or legatees] persons taking under a will or non-probate instrument.
D. Devise: gift of real property under a will.
a. Devisee: beneficiary receiving real property under will.
E. Bequest: gift of personal property under a will.
F. Legacy: Gift of money [modernly, of any personal property] under a will.
a. Legatee: beneficiary receiving money under will.

INTESTATE SUCCESSION
A. Intestate Succession Applies: Based on dec’s presumed intent
a. Dec dies without a will
b. Decedent’s will is denied probate
c. Will does not dispose of all property either bc gift has failed or bc the will doesn’t contain a residuary
clause
d. Decedent’s will specifies that his prop should pass according to intestate laws.
B. IL Rules of Descent & Distribution: if decedent is a resident [domicile] his real and personal property, and if
non-resident, his real property within IL, after all just claims [creditors] are fully paid, distributed as follows:
a. Surviving Spouse:
i. If survived by descendants [& their issue]  surviving spouse gets ½ Descendants get ½
ii. No surviving descendants  surviving spouse gets 100%
iii. Family allowance: Surviving spouse always entitled to family allowance whether or not D left a
will, above the amount passing to the spouse by will or intestacy
1. Minimum: $10K + $5K for each minor child or disabled adult child.
2. Purpose: to provide for family during period of probate admin
3. Priority: over all claims except funeral administration expenses.
b. No surviving spouse but descendant: entire estate to descendants [& their issue] per stirpes
c. Descendants take per stirpes: the portion not going to the surviving spouse [1/2], or entire estate if
no surviving spouse.
i. IL Strict per stirpes:
1. property is divided into equal shares at the first generational level [i.e. child level]
regardless of whether any living takers at that level.
2. Each living person at that level takes a share, and the share of each deceased person at
that level passes to his issue by right of representation [i.e. child steps up and represents
predeceased relative].
3. Any child who predeceased the decedent leaving no surviving descendants is disregarded
in determining the number of stirpital shares.
ii. Majority: shares determined at the first generational level at which there are living takers.
d. Collateral Relatives  No surviving spouse No descendants: estate is distributed in order below
until a taker is found:
i. Parents, siblings, issue of a sibling 
1. IL: Equal shares of entire estate to parents, siblings, or issue of dead siblings
a. Sole surviving parent takes double portion.
b. Issue of dead sibling: per stirpes the portion which deceased sibling would have
taken if living. Shares are cut at the brother/sister level.
i. Half siblings:
1. IL: inherit the same as whole-blooded siblings
2. CL: Inherit ½ as much as siblings of whole-blood.
c. Disqualification: Parent who, for one year or more before death of a
minor/dependent child, is disqualified from taking as heir if he neglected,
deserted, or failed to support the child.  applies to intestate, wills, or non-
probate transfers. Doesn’t apply to:
i. JTs
ii. Court can order reduced benefit instead of total disqualification as the
interests of justice so require. Reduction must be at least equal to amount
of unpaid child support as of child/s death.
2. Majority: Parents get entire estate.
ii. Grandparents & their descendants [per stirpes]
1. Paternal grandparents & descendants  ½
2. Maternal grandparents & descendants  ½
3. Both halves to one side if no takers on the other side.
iii. Great grand-parents & their descendants [Per stirpes]
1. Paternal  ½
2. Maternal  ½
3. Both halves to one side if no takers on the other side.
iv. Entire estate to the nearest kindred in equal degree in equal shares and without representation.
1. Don’t need to know degrees of kinship for bar
v. If none of the above, estate escheats to the county.
C. Children – Who may inherit: rules for intestacy, wills, and non-probate
a. Adopted Children Inheriting from and Through Adoptive Parents: General rule is that adopting
parents step into the shoes of the natural parents. Adoption also severs the parent-child relationship
with the natural parents.
i. Under 18: treated same as natural children; inherit from adoptive parents.
ii. Over 18: Inherits from and through adopting parents, but not adopting parent’s lineal or
collateral kin UNLESS the adopted child lived with the adoptive parents before age of 18.
b. Adopted Children Inheriting From and Through Natural Parents: Not treated as a child of the
natural parents [or natural lineal/collateral kin] for inheritance, or determining rights under will, trust, or
other non-probate instrument. EXCEPT:
i. Child was adopted by a relative of natural parent or spouse/surviving spouse of a relative
1. i.e. Child is adopted by spouse of natural parent [step-parent]
2. Limited to one share: Where adopted child related to decedent through more than one
line of relationship, he is entitled only to the share based on the relationship that gives
the largest share.
ii. Child’s natural parent died before child was adopted.
iii. Contrary intent established in terms of the instrument by clear and convincing evidence.
c. Stepchild/Foster Child: No inheritance right. Exceptions only for intestate:
i. Exception – Adoption by estoppel: adoption by estoppel based on unperformed K to adopt.
Clear and convincing evidence that person obtained custody of a child under a K with the
natural parent that she would adopt the child, and she never carried out with the K.
1. Person agreeing to adopt and those claiming under her are estopped from denying
existence of a valid adoption.
2. K to adopt can be established by circumstantial evidence.
ii. Exception – Equitable Adoption: no express/implied K to adopt. Clear and convincing
evidence of a foster/step parent’s intent to adopt and treat child as natural child. “only in those
cases where there is sufficient and objective evidence of an intent to adopt… supported by a
close enduring familial relationship…”
1. Doesn’t apply where foster/step parent merely treats the foster/step child lovingly and
on equal basis with her natural or legally adopted children
2. “Equity regards as done that which ought to be done”
d. Non-Marital Children:
i. From and through Parents: Has full inheritance rights from child’s mother and her kin [vice
versa]. Can inherit from father & his kin only if one of the following:
1. Legitimation by marriage: father married mother after child’s birth and acknowledged
child as his own
2. Acknowledgement of paternity: father acknowledged paternity in his lifetime
3. Adjudication in Paternity Suit: decedent adjudged to be the father in paternity suit in his
lifetime
4. Adjudication in Probate Proceedings: After his death, decedent was proven to be father
by CCE.
ii. From Non-Marital Child: Grants inheritance rights to “eligible parents” – one who, during
child’s lifetime (1) acknowledged child as his child (2) established parental relationship with child
(3) didn’t breach his duty to support the child.
1. Survived by spouse or descendants: take normally.
2. Survived by eligible parents or parent: [no spouse or descendant]
a. Survived by both eligible parents – parents take equal portions with child’s
siblings. [same as normal]
b. If only one parent is an eligible parent – ½ passes to eligible parent, other ½
passes to eligible parent’s descendants per stirpes.
3. No eligible parent: as though her parent’s predeceased her.
4. Child support: if eligible parent arrears of more than 1 yr of child support, he/she
doesn’t get a share unless the court grants a reduced share.
e. Posthumous Heirs: A posthumously born child, one conceived while father is alive, but born after
father’s death, takes from decedent [but not posthumous child of any other relative] as though he had
been born during the father’s lifetime as long as the child was in utero at decedent’s death. Child must
be born within a reasonable time period thereafter.
f. Disinheritance Clause & Intestacy: to disinherit, decedent must make a complete disposition by will.
Any property not disposed of by will falls to intestacy stat, regardless of contrary intent expressed in will.
REQUIREMENTS & EXECUTION OF WILLS
A. TERMINOLOGY:
a. Attested Will: A will in writing, signed and witnessed.
b. Holographic Will: not witnessed. In a writing, signed, in T’s handwriting, and express testamentary
intent [that document is T’s will].
c. Codicil: Will that merely amends an existing will.
B. ATTESTED WILL:
a. Formal Requisites:
i. Capacity – T must be 18 or older and of sound mind at the time of making a will.
ii. Testamentary Intent – Present intent that the instrument operates as his will. Promises to
make a will in the future and ineffective deeds are not wills.
1. Sham Wills – instrument says “this is my last will” raises a presumption of testamentary
intent, but the presumption is rebuttable. Evidence is admissible to show, for example,
that T made the will naming GF as beneficiary to induce her to sleep with him or that
instrument was executed as part of a ceremonial initiation into a secret order.
2. Ineffective Deed – if deed fails inter-vivos conveyance [e.g. doesn’t convey] it cant be
probated as a will even though signed and attested properly. If Grantor intended the
deed to be operative during his lifetime, its not a will.
iii. A Will – Instrument executed with certain formalities that directs the disposition of a person’s
property at death.
1. A will is revocable during T’s lifetime and operative at his death. – named beneficiaries
only have an expectancy until T’s death.
2. An instrument that appoints a personal representative or revokes an earlier will can also
be a will. i.e. a will does not actually have to dispose of property.
3. A codicil is a supplement to a will that modifies it.
iv. Conditional Wills – a will providing that it is to be operative only if a stated condition is
satisfied.
1. Parol evidence may not be admitted to show conditions. But can be admitted to show
instrument was not meant to have any effect at all [e.g. sham will]
2. A court may interpret what appears to be a condition as merely expressing the
motive/intent for making the will, and might give the will effect even if the condition
doesn’t occur. Must argue both ways
a. Conditional will: Probate should be denied because the condition did not occur.
Conditional language also reflects that the will is actually conditional on that
occurrence, and thus, should be denied probate.
b. Motive/Inducement Unconditional Will: The will should be admitted to
probate because the conditional language reflects that T was thinking generally
about the possibility of death and the need for a will, which at that moment, took
the specific shape of that condition.
i. Evidence that will is unconditional
1. The fact that T executed a will is an indication that she didn’t
intend to die intestate
2. The fact that T preserved the document [e.g. in a drawer] after
returning from the trip [condition] is an indication that the will’s
operation was not intended to be limited.
v. Holographic & oral wills – holographic wills and oral will are not recognized in IL BUT a
holographic will that is valid in another state could be admitted to probate in IL.
1. UPC & Majority Holographic Wills: recognize holographic wills. Written entirely in
T’s handwriting and signed by T, but not witnessed by attesting witnesses.
a. Most states accept a will containing some typed text as long as the portion typed
is not material [i.e. typewritten portion may be disregarded without violating T’s
intent]
b. IL allows for handwritten wills, but must satisfy other requirements.
c. In about 30 states, the instrument would be a valid holographic will because it was written
entirely in T’s handwriting and was signed by T. In Illinois, however, the instrument is not
valid even though T may have intended it as such, because it was not witnessed by two witnesses.
2. IL Exception For Holographic wills: A “foreign” holographic will can be admitted to
probate in IL if admitted to probate in another state or validly executed in accordance
with:
a. IL law
b. The law of the state where it was executed or
c. The law of the state where the T was domiciled when the will was executed
b. Requirements for a Valid Will:
i. Capacity – T must be 18 or older and of sound mind at the time of making a will.
ii. Testamentary Intent – Present intent that the instrument operates as his will.
1. Future promises to make will in future are not wills.
2. “this is my last will and testament” raises presumption of testamentary intent
a. Watch out for sham wills – This intent can be rebutted.
3. Ineffective deeds are not wills.
iii. Writing – Oral wills are invalid in majority & IL.
iv. Signed by T/Proxy – Writing must be signed. Anything the T intends as his signature is
sufficient – doesn’t require full name, any mark will suffice as long as that is what T intended as
signature.
1. Intent – If T intends to write whole name but doesn’t finish it, general rule is that partial
signature doesn’t qualify.
2. Signed by another – Will can be signed by proxy i.e. someone at T’s direction and in
his presence. Direction must be express, not implied.
3. Location of Signature: IL doesn’t require signature at the end/foot of the document
like in many states do. [Majority does require]
v. Witnessed: T must sign or acknowledge in the presence of at least 2 credible witnesses.
1. Will Publication: W’s must know that what they are signing is a will. Not in IL.
2. W’s Present at the same time: Majority requires that T sign/acknowledge in presence
of 2 Ws who are present at the same time. IL does not require both to be present at
the same time.
3. Acknowledgement: T need not sign in front of the W’s as long as he acknowledges in
front of the W’s that the signature already present on the document is T’s signature.
a. IL: W’s must witness T sign or witness T acknowledge instrument as his own
and acknowledge its execution. In IL, W’s do not even have to see T’s signature
or see him sign.
4. W’s must sign in the presence of T: [T doesn’t need to sign in presence of W’s; & W’s
do not need to sign in the presence of each other]
a. IL Line of Sight: T must actually see or have the opportunity to see the W’s
sign the will. A W signs in the T’s presence when he signs his name in the
uninterrupted range of the T’s vision. [i.e. T would have actually seen the
signature if he had looked at the right moment].
i. Swivel chair is okay
ii. T doesn’t actually have to see them sign.
b. Majority/UPC Conscious Presence: W is deemed to be signing in T’s
presence when the T comprehends, either through sight, hearing, or general
consciousness, that the W is signing.
5. Order of signing: Traditional approach requires T to sign before either W can sign.
a. Contemporaneous Transaction Doctrine: [IL & Majority] W may sign before
the T signs or acknowledges, as long as all parties sign the will as part of a single,
contemporaneous/continuous execution ceremony.
i. E.g. 1 or more W’s signs before T or T and W’s sign on the wrong lines.
ii. T can’t sign 3 days later
iii. No one leaves the room during execution ceremony
6. Attestation clause: [Not required] recites the requirements for execution of the will. It
is prima facie evidence of due execution in probate proceedings [in lieu of the W’s
testimony]
a. Presumption is not overcome by testimony of an attesting W that they cannot
now remember whether execution was proper or even if they deny a fact
necessary to establish the will’s validity.
7. Witnesses Must be Credible: Simply means a competent witness. Competency
determined at time the will is executed. A person is an attesting W if she signs the will
with intention to be an attesting witness and not for some other purpose [e.g. as a
notary].
a. The fact that W is incompetent to testify in probate proceedings doesn’t
invalidate the will if W was competent when she signed it.
vi. Date of execution: Majority require that the will bear a date of execution. IL doesn’t require.
vii. Delayed Attestation: If stat does not require W’s to sign in the T’s presence, UPC permit the
W’s to sign the will later even after the death of the T as long as signed in a reasonable time
period.
1. IL: Requires W’s to sign in T’s presence.
2. Reasonable: Should sign while recollection of execution ceremony was valid.
C. INTERESTED WITNESSES: Witnessing requirement implicitly assumes that the W’s assess the T’s capacity
at the time of execution, assess the execution ceremony, and protect T. This arguably requires W’s to be
disinterested i.e. that they do not take under the will. Otherwise, it would be a conflict of interest.
a. CL: Interested W not allowed to testify in court. If interested W is necessary W to the will, without his
testimony the whole will fails.
b. IL & Majority: An interested W never affects the validity of a will, the will can still be admitted to
probate. No will or any part thereof is invalidated by the fact that an attesting witness is also a
beneficiary under the will. It only goes to whether the bequest to the witness should be voided.
i. Void Interested W’s Gift: If a will makes a bequest to an attesting witness the bequest is void.
Then W’s ability to testify is restored. Will can be probated, but W’s gift is voided. UNLESS
either:
1. Supernumerosity: There were 2 other uninterested W’s, making the interested W a
supernumerary W.
2. Purging Approach: Adopts argument that a W has a conflict of interest only to the
extent he stands to take more under the will than he otherwise would if the will were not
probated and purges the interested W only of his excess interest under the will. 
Interested W takes whichever is least of:
a. Calculate how much W would take if will wasn’t valid
i. Using intestate scheme or a prior will of the T
b. Calculate how much W stands to take under the will
i. If this is greater, purge W of the excess interest.
ii. Earned Compensation:
1. Majority: The party who signs as a W is entitled to compensation for serving as an
executor. [Interested W statute only applies to beneficial gifts, not to earned
compensation]
2. IL: No compensation for witness-executor or testamentary trustee, they are fiduciaries.
But if a bank [creditor] is named as an executor, a bank employee can witness and so can
an attorney.
iii. Spouse of Interested W:
1. Majority: Interested W statute does not void legacy to a W’s spouse
2. IL: A bequest to a W’s spouse is void.
c. UPC Abolishes: Completely abolish interested W doctrine. The will is given its full effect.
D. ATTORNEY LIABILITY FOR NEGLIGENCE IN PREPARING WILL:
a. Minority: Intended beneficiary does not have a cause of action against the attorney because there is no
privity of K. [duty runs only to client who K’d for the services]
b. IL/Majority: Intended beneficiary does have a cause of action because privity is rejected as a defense –
the duty runs to intended beneficiary of the services.

REVOCATION OF WILLS
A. REVOCABILITY: Wills are executed inter-vivos but not effective until death. If T changes his mind after
execution, he can revoke it, replace it, or amend it any time.
B. REVOCATION BY OPERATION OF LAW:
a. Subsequent marriage: Marriage after execution doesn’t effect will or provisions.
b. Divorce/Annulment: If T divorced or marriage annulled after execution, all gifts to former spouse and
all appointments of spouse as executor/trustee under the will are revoked.
i. Doesn’t apply to life insurance policies naming former spouse as beneficiary.
c. Pretermitted children: [partial revocation] Under IL pretermitted children stat, if T fails to provide for
any children born/adopted after will’s execution the child takes an intestate share. In determining, all
legacies abate [i.e. revoked] proportionately and the will is revoked to that extent.
C. REVOCATION BY ACT: Will can be revoked by act as long as the act is destructive in nature [burning,
tearing, cancelling material portion, obliterating] and is performed with an intent to revoke.
a. Proxy Revocation: Will can be revoked by proxy but must be done (1) at T’s direction and (2) in T’s
presence.
b. Destructive Act:
i. Majority, IL, and CL requires the destructive act to affect some part of the written portion of
the will.
1. It must touch the words of the will – writing “void” is insufficient.
2. Crossing out signature is sufficient because “it’s a decisive act of revocation.”
3. Crossing out entire pages sufficient.
ii. UPC: destructive act only needs to affect some part of the will.
iii. Writing as revocation by act: The act of writing can qualify as revocation by act. If T takes
types, attested will and writes “void” across the first page but doesn’t sign the document after
writing void – this wouldn’t be a revocation by writing bc is doesn’t qualify as a valid will [not
signed (holographic); not attested]
1. IL: Writing “void” must touch the words of the will – must be across whole page, not
merely at the end.
iv. Destruction of copy: Not a revocation bc the copy is not the will.
c. Intent to Revoke: Accidental destruction wont revoke a will, even if T later decides he wanted to
revoke it – bc the intent to revoke must be present at the time of physical act of destruction.
d. Partial revocation by physical act: Crossing out or changing only certain terms
i. UPC & Majority: partial revocation is valid.
ii. IL: No partial revocation [only in the entirety]. An attempt at partial revocation is ineffective and
the original terms are effective.
1. To change in IL need to execute a new will or codicil
2. Words added after execution/signatures are disregarded because they are not part of the
duly executed will [but if the change is done before the signature, they are valid]
D. REVOCATION BY WRITING: A will can be revoked by a subsequent writing expressing the intent to
revoke, but only if the subsequent writing qualifies as a valid will. [i.e. within wills act formalities – attested or
holographic (not in IL)]
a. Express Revocation: Clear and express statement of the intent to revoke prior will – “I hereby revoke
my prior will.” A properly executed instrument that does no more than express the intent to revoke a
prior will is a valid will.
b. Revocation by Inconsistency: Occurs when subsequent will disposes of T’s property in a way that is
inconsistent [either wholly or partially] with the prior will. Because the later expression of T’s intent
controls over the prior in-time expression of intent, the prior will is revoked to the extent of any
inconsistencies.
c. Partial Revocation - Codicil: If subsequent instrument only partially revokes or amends prior will,
either expressly or by inconsistency [partial inconsistency], the subsequent will is a codicil. The prior will
still stands and is valid to the extent it is not revoked by the codicil.
i. Codicil Execution: A codicil is a will. It must be executed within wills act formalities. A codicil
merely amends an existing will rather than completely replacing it.
ii. Codicils as holographic wills: Handwritten codicils/amendments to a holographic will
constitute a valid holographic codicil, even where the handwritten amendments don’t qualify as a
valid holographic will in their own right.
1. Majority: If a state recognizes a holographic will, T can write “void” /s T [in T’s
handwriting & signed]
2. IL: Writing “void” /s T is not sufficient because 2 witnesses are required.
d. Complete Revocation – New Will: If subsequent instrument completely revokes prior will, either
expressly or by inconsistency [wholly inconsistent], the subsequent will becomes the T’s sole will.
e. Mixed Wills & Codicils: [under majority, but not IL] Holographic codicils to attested wills are valid;
attested codicils to holographic wills are valid.
E. REVOCATION BY PRESUMPTION: If will was last seen in T’s possession or under T’s control and
cannot be found after his death or is found in mutilated condition, a rebuttable presumption arises that T
revoked it. If not overcome, its deemed revoked. If presumption is rebutted the will is deemed “lost” and
extrinsic evidence is allowed to prove its terms. NO PRESUMPTION if will was last seen in the possession of
someone adversely affected by its contents.
a. Lost or destroyed wills: Need the following to admit it to probate:
i. Proof of due execution: Testimony of attesting W’s [need to know who they are]
ii. Cause of Will’s non-production: Must overcome presumption as to revocation.
iii. Contents substantially proved: By copy of will or testimony of W’s who have read the will and
recalls its contents
F. EFFECT OF REVOCATION ON OTHER INSTRUMENTS:
a. Duplicate Original Wills: Both are duly executed. An act of revocation by T on either of the original
duplicates revokes the will. However, destruction of unexecuted copy, accompanied by intent to revoke,
does not revoke the will.
b. No revival of revoked wills: In IL, once a will is revoked by language of revocation in a later will, it is
legally dead and can’t be revived unless:
i. The will is re-executed with the necessary formalities or
ii. Republished by executing a codicil to the will.
iii. *merely destroying the later will [and language of revocation therein] doesn’t revive earlier will.
c. Majority Revival: e.g. T validly executes #1, then he validly executes #2 that expressly/implicitly
revokes #1. Then he validly revokes #2, intending to give effect to #1. T must do something to revive
#1.
i. Minority: [IL] T must re-execute #1 to revive it [or incorporate by reference into new valid
will/codicil]. Must go through all wills act formalities.
ii. Majority & UPC: All T has to do to revive #1 is to intend to revive #1. Proving intent is the
difficulty. If T revoked #2 by act, courts take almost any evidence of T’s intent to revive will #1,
even T’s own alleged statements. If T revoked #2 by writing a new will [#3] the intent to revive
will #1 must be set forth in the new will [#3].
d. Revocation of will revokes all codicils thereto
e. Effect of revoking codicil: Doesn’t revoke the will. The part of the will that was revoked or modified
by the codicil is revived, and takes effect as though the codicil was never executed.
G. DEPENDENT RELATIVE REVOCATION: Court may disregard a revocation if it determines that an act
of revocation was premised on a mistaken belief [of fact or law] that another disposition of property was valid.
If the other disposition fails, the revocation also fails and the will remains in force.
a. Exception – Doctrine should never be applied to defeat intent: doesn’t apply if intestate succession
will come closer to achieving the T’s intent [i.e. what he tried, but failed to do].
b. Analysis: Usually when revocation by act it’s a mistake of law; when revocation by writing it’s usually a
mistake of fact.
i. First will was revoked when second will/codicil was executed
ii. Second will revoked by physical act
iii. No revival of revoked wills: first will became legally dead upon revocation and cannot be
revived unless (1) re-executed or (2) under the doctrine of republication by codicil [codicil
republishes the will]
iv. Dependent relative revocation applies: Permits a revocation to be disregarded when the act
of revocation was premised on a mistake of law or fact as to the validity of another disposition
[T believed that revoking will 2 would restore will 1]. DRR will admit will 2 to probate as
opposed to intestacy, if it is the second-best solution [closer to T’s intent than intestacy].
v. If the second will is VERY different, then DRR does not apply.
vi. Go to proof of lost wills doctrine to probate the destroyed will.

SCOPE OF A WILL
A. INTEGRATION: The scope of a will starts with the threshold issue of determining what constitutes the pages
of the will. Doctrine of integration provides that the papers physically present at the time of the execution and
that T intends to be part of the will constitute the pages of the will.
a. Physical attachment and internal coherence of pages raises a presumption that they were present and
intended to be part of the will when executed.
b. Proof of integration can also be proved by testimony and other extrinsic evidence.
B. INCORPORATION BY REFERENCE: Will can incorporate by reference an extrinsic document not
executed with wills act formalities, thus giving effect to the intent expressed in the incorporated document.
a. Requirements:
i. Document must be in existence when the will was executed
ii. Will must refer to the document as being in existence
iii. Will must describe the document sufficiently to permit its identification
b. UPC Tangible Personal-property List: Permits T to give away his tangible personal property [not $
or intangible property] via a list not executed with wills act formalities or disposed of by will, even if the
list is created after the will is executed, as long as the will expressly states such intent.
i. List must be signed and describe the property with reasonable certainty
ii. It may be written before or after the will and can be altered at any time.
iii. i.e. this doctrine waives the requirement for incorporation by reference that document be in
existence at the time the will is executed.
iv. IL & Majority: Not permitted.
C. INTEGRATION VS INCORPORATION BY REFERENCE: If document is physically present when T
executes will, use integration. If document is in existence but not physically present when will is executed, use
incorporation by reference.
D. ACTS OF INDEPENDENT SIGNIFICANCE: A will can dispose of property by reference to acts outside
of the will [referenced act can control either who takes or how much they take], even though the acts are in the
future and unattested, as long as the referenced act has significance independent of its effect on T’s probate
estate.
a. Conceptually: Allows T to change provisions without having to execute a codicil.
b. Applies to tangible property and cash only: Does not apply to title documents [deeds, bank
passbook, stick certificates].
c. E.g. T leaves her car to C. At the time of execution, T had a ford. At death, T had a Benz. X takes the
benz.
d. E.g. Bequest to “all those in my employ when I die” valid. T wouldn’t make hiring decisions based
solely on disposition of property.
e. E.g. T’s will says:
i. Clause 1  “I give $1,000 to each of my son-in-laws,
ii. Clause 2  all of the stuff in my garage to my brother, Bob,
iii. Clause 3 and I leave $10,000 to each of the persons I will identify in a letter I will leave for my
executor.”
iv. Facts When will executed, T had 2 unmarried daughters. Both daughters married thereafter. T
bought a new lawnmower that she stored in garage and T wrote a letter to executrix telling her
to give $10,000 to Carolyn and $10,000 to Kristin.
v. Analysis:
1. Could argue that after each of the daughters got married she should’ve executed a codicil
stating that the son-in-laws get $1,000 each.
2. But, under acts of independent significance doctrine provides that as long as the act
referenced in the will has its own significance independent of its effect on T’s probate
property, the referenced act can control who takes how much, without T having to
execute a codicil.
3. Clause 1  Referenced act is each daughter getting married. The act of getting married
carries with it many ramifications, each with its own independent significance apart from
the fact that it also permits new son-in-laws to take $1,000 under the will. So, valid, w/o
codicil.
4. Clause 2  referenced act is putting things into and taking things out of the garage.
Every time she puts in/takes out something from garage she is changing her gift. As long
as the act has its own inter-vivos significance, she doesn’t need a codicil. Storing items
and using them are legitimate inter vivos purposes that show the referenced act had its
own significance apart from who takes what under the will. Bob would get the new
lawnmower without a codicil.
5. Clause 3  The referenced act in the 3rd clause that controls who will take $10,000 is the
creation of a letter addressed to executor. The letter doesn’t have its own independent
significance apart from affect on who takes under the will. It only serves one purpose –
who takes under the will. No independent significance, so, there needs to be a codicil
otherwise Carolyn and Kristin do not take any money.
E. ALTERATIONS ON FACE OF THE WILL: In IL, any addition, alteration, interlineation [cross out], or
deletion made after the will is signed and attested is ineffective to change the will, unless the will is executed
with the proper formalities.
F. REPUBLICATION BY CODICIL: Codicil merely amends an existing will. A codicil re-executes and re-
publishes the underlying will. Republication operates to:
a. Re-Date the will: may be significant, especially bc of incorporation by reference. [i.e. document in
existence when executed]
b. Validate terms of defective will: A codicil implicitly presumes a pre-existing valid will. If underlying
will isn’t valid, codicil is its own freestanding will – it doesn’t automatically re-execute and republish an
invalid will, but, through incorporation by reference, it can give effect to T’s wishes expressed in the
invalid will.
c. Revive: prior revoked will if there is sufficient incorporation by reference.
G. POWERS OF APPOINTMENT: Authority granted to a person [donee of that power] enabling donee to
designate, within limits prescribed, the persons who shall take the property and the manner in which they take.
[i.e. power to override the trust]
a. Lingo:
i. Donor person creating power of appointment
ii. Donee party who holds and has the right to exercise the power of appointment
iii. Appointive property property subject to power of appointment. Property donee may
appoint.
iv. Objects  class of people to whom the property may be appointed; group of eligible
appointees in whose favor the power may be exercised.
v. Appointees individuals whom property is actually appointed; or in whose favor the power is
actually exercised
vi. Takers in default the individuals who are identified in the instrument creating the power
who are to take the property if the donee fails to exercise the power.
b. General vs Special Power of appointment:
i. General: power [to appoint the property] exercisable in favor of donee herself, her estate, her
creditors, or creditors of her estate.  can be appointed to anyone in the world
ii. Special: Power exercisable in favor of a limited class of appointees, which does not include
donee, her estate, her creditors, or creditors of her estate.
c. Presently exercisable vs Testamentary Power: Donor can specify when the power may be exercised.
i. Present/Lifetime: Donee can only exercise power of appointment during her lifetime [inter-
vivos].
ii. Testamentary: exercisable only, if at all, by the donee’s will.
d. Appointive Property:
i. Surviving Spouse: A surviving spouse’s elective share does not apply to property over which
the deceased spouse held a power of appointment.
ii. Creditors:
1. Special Power: creditors cannot reach the property subject to the power.
2. General power: Creditors cannot reach the property subject to the power unless the
donee exercises the power.
a. The Donee doesn’t technically own the appointive property unless she exercises
her general power. BUT if she exercises general power, even if she appoints to
another, her creditors can reach the appointive property as if she were the owner.
b. If donee of general power is also the donor, creditors can reach the appointive
assets regardless of whether she exercises the power.
e. Exercise of Power: Power of appointment exercised any time donee intends to exercise the power, but
the instrument creating the power can stipulate the expression necessary to exercise the power.
i. Residuary Clause: If T held such a power [i.e. T is donee], does a standard residuary clause in
T’s will exercise the testamentary power even if the residuary clause makes no reference to the
power?
1. IL & Majority: Residuary clause, by itself, doesn’t exercise any power of appointment
held by the testator.
ii. Blanket Exercise of Power: If person holding testamentary power executes a will that devises
“all the rest and residue of my property, including any property over which I may have power of
appointment” this blanket will be given effect unless the grantor of the power called for the
exercise by an instrument that specifically referred to the power.
iii. Exercise by Implication: power of appointment can be exercised by implication if the donee
purports to dispose of property subject to power as if it were her own – i.e. the disposition can
only be given effect if it is treated as an exercise of that power. Exercise by implication can be
found unless donor called for exercise by a specific reference to the power.
iv. Interests created by exercise of power: Absent contrary provision by document creating the
power, donee can:
1. Appoint the property outright or in trust [can include spendthrift provisions in the trust]
2. Create life estates and future interests
3. Impose conditions and limitations on the interests created
4. Create additional powers of appointment
v. Trustee protected: Trustee acting in good faith isn’t liable for making an improper distribution
of property subject to a testamentary power of appointment. The party who should have
received the distribution can recover the property from those to whom it was improperly
distributed.
f. K to exercise power of appointment: Donee of testamentary power of appointment [specific or
genera;] cannot K to make the appointment.
H. NON-PROBATE ASSETS CANNOT BE DISPOSED OF BY WILL: A will cant dispose of non-probate
assets i.e. property passing by K [life insurance, employee benefits], passing by right of survivorship, or property
held in trust.

CONTRACTS RELATING TO WILLS


A. JOINT WILL: A will of 2+ persons executed on the same piece of paper.
B. MUTUAL WILL: 2 separate wills containing reciprocal provisions
C. JOINT AND MUTUAL WILL: joint will containing reciprocal provisions; synonymous with contractual will
In IL. It is entered into by pursuant to a K that the surviving party would not revoke the agreed-upon
disposition.
D. CONTRACTUAL WILL [K not to revoke will]: If the will is contractual, the contract is that the survivor
shall not revoke the will after the death of the first to die. This K is embodied in a joint and mutual will and
becomes irrevocable after the death of one of the testators. The survivor is estopped from disposing of the
property differently than agreed upon in the joint and mutual will, and the K is enforceable by 3P beneficiaries.
During their lifetimes, either party may rescind the K after giving notice to the other.
a. Determining if Contractual: Courts look to the term of the will, factors include
i. Labelling will as joint and mutual – strong indication
ii. Reciprocal provisions – i.e. each leaves his entire estate to the other, characteristic of joint and
mutual will.
iii. Unified disposition of all thee testators’ pooled property –pools both of their interests by
making a unified disposition of all the property whether owned jointly or separately
iv. Uniform dispositive scheme upon the death of the survivor e.g. ½ to husbands kids, ½ to wife’s
kids, whichever is survivor [rather than to survivor in fee simple]
1. If joint will leaves property to survivor in fee simple forever with no language of bequest
to a 3P, it wont be joint and mutual even if other factors are present.
v. The use of plural possessive pronouns [“we” “our”]
b. Breach – Constructive Trust: If a K concerning a will is established and the T breaches by executing a
different will, the probate court still probates the will the T executed but a constructive trust based on
the K is imposed, whereby the devisees or heirs are ordered to give the property to the K beneficiary.
c. Lifetime Gifts: Surviving party under a K will cannot defeat the intended testamentary plan by making
an inter vivos gift.
d. Analysis on Essay: Under the UPC 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 other states, however, execution of a joint will by a
husband and wife may be found contractual if all or most of the following factors are present: (1) the will is labelled “joint
and mutual” (2) the will leaves the entire estate to the surviving spouse (3) the will disposes of all of their property in a
unified disposition (4) there is a common dispositive scheme on the death of the survivor (5) the use of plural possessive
pronouns in the wills. Thus, in Illinois, if a will is found to be contractual, A testator can always revoke a will and admit
it to probate later. However, in such a case, in applying contract law, the revocation of the earlier will [by executing a
different will/disposition] is considered a breach by which the probate court still probtates the will, but imposes a
constructive trust based on the contract whereby the devisees or heirs are ordered to give the property to the contractual
beneficiaries of the earlier joint and mutual will.
E. CONTRACT TO MAKE A WILL: A K to make a will is enforceable only if proven by clear and convincing
evidence. A K may be implied where: (1) no family relationship exists (2) housekeeping ad caregiving services
were rendered at decedent’s request (3) the decedent had no reason to suppose that the services were gratuitous.

CHANGES IN BENEFICIARIES & PROPERTY AFTER EXECUTION


A. ANTI-LAPSE STATUTES: If a will beneficiary predeceases the T, his gift lapses [fails] and passes as part of
the residuary estate unless it is saved by an anti-lapse statute.
a. IL Anti-Lapse Statute: A gift by will to a descendant of the T who predeceases the T generally does
not lapse, but rather goes to the descendants of the predeceased descendant, per stirpes.
b. Scope:
i. IL: Predeceasing beneficiary must be a child or other descendant of T.
ii. UPC: Predeceasing beneficiary must be a descendant of T’s grandparent
c. Requirements: The pre-deceasing beneficiary
i. Must have been in the prescribed degree of relationship to T [child or other descendant of T in
IL]
ii. Must have live descendants who survived T
iii. Effect The descendants are substituted as the takers under the anti-lapse statute [deceased
beneficiary’s will is irrelevant; it passes per stirpes]
d. If requirements are not met: The gift lapses into the residuary estate, which is the estate that remains
after expenses of administration and debts have been paid, and after all specific and general legacies
have been satisfied.
B. LAPSE IN RESIDUARY ESTATE – SURVIVING RESIDUARY BENEFICIARIES RULE: Absent
contrary intent in the will:
a. IL & Majority: If the residuary estate is devised to two or more persons and the gift to one of them
lapses, the surviving residuary beneficiaries take the entire residuary estate in proportion to their
interests in the residue [absent contrary will provisions]
b. However- the anti-lapse statute trumps the surviving residuary beneficiaries rule so the anti-lapse
statute applies if the predeceasing residuary beneficiary (1) was within the scope of the statute and (2)
left descendants who survived T.
1. Example 1: I give residuary to Mariusz and Reama in equal shares. Reama Predeceases
me. Mariusz still gets his half, but Reama’s descendants do not get her half. Instead,
Reama’s half falls to intestate succession. Neither of them fall under anti-lapse statute.
2. Example 2: I give residuary estate to Reama and my child X. If Reama predeceases me,
the residuary ½ goes to intestate. If Child X predeceases me, residuary ½ goes to Child’s
descendants per stirpes pursuant to the anti-lapse statute, provided that Child X has
descendants.
c. Class Gift: Where member of the class predeceases T, absent contrary intent in the will, the other
members of the class succeed to his share. BUT if deceased member of the class was a descendant of
the T, anti-lapse statute applies and descendants of that beneficiary take his share of the class gift.
i. Rule of convenience: Class is closed/determined when some class member is entitled to a
distribution/possession [usually at time of T’s death]
1. Gestation principle/Womb Rule: Includes those born 280 days after T’s death.
ii. Contrast Class gifts vs Individually named beneficiaries If one of the beneficiaries
predeceases T, his share goes to the residuary estate. For class gifts, it goes to the rest of the
class.
d. Void Gifts: If beneficiary is dead when the will is executed, the gift is generally void. In IL, void gifts
are treated the same as lapsed gifts, and the anti-lapse statute may apply.
e. Future Interests: In IL anti-lapse applies to future interests when the beneficiary dies before or after
the T, but before the beneficiary’s interest becomes possessory. [e.g. Survives T, but not life tenant]
Anti-Lapse DOES NOT apply where future interest is indefeasibly vested at the T’s death or any time
thereafter before it takes effect in possession.
C. CHANGES IN T’S PROPERTY: Will is executed inter-vivos but doesn’t take effect until after death.
Changes in the T’s property can happen in between. Depends on type of gift involved.
a. Definitions: Ultimately a question of T’s intent. Fact sensitive.
i. Specific Gifts: Gift where T has a specific item in mind when he makes the gift. T intends that
the specifically described item can satisfy that gift. Usually modified by the word “my” Can only
be satisfied by that specifically named property.
ii. General Gift/Legacy: Amount of money. Gift of general pecuniary value that is satisfied by
using any item that fits the description of the gift.
1. Demonstrative legacy: [hybrid] General gifts [amount] from a specific source. Treated
as a general gift for construction purposes.
iii. Residuary Gift: Gives away all of the T’s property that has not otherwise been given away.
b. Abatement of Legacies: Absent contrary will provision, debts and administration expenses are paid in
the following order
i. Intestate property
ii. Residuary assets
iii. General legacies
iv. Specific bequests and demonstrative legacies
1. Demonstrative legacies only to the extent of the value of the referenced asset [excess
goes to general legacies]
c. Ademption: When T makes a specific gift and thereafter the item in question is transferred, thus, not in
estate at death. The gift is said to be adeemed, or the gift fails  beneficiary takes nothing
i. Partial Ademption: a gift can be partially adeemed of a portion is disposed of prior to T’s
death. Beneficiary takes whetever is left of the specific gift.
ii. Does not apply to: demonstrative legacies, general legacies, or to gifts of sale proceeds or T’s
interest.
iii. IL Specific Bequests of real property under Installment Ks: If T leaves property to X and
sells it before his death, X gets nothing because K was fully performed. But if it was an
installment land K, then K would get the remaining payments.
iv. Bequest of securities: Usually considered as general legacies. Courts try to construe as general
legacies if possible. But if it is “my 100 shares” it will be considered a specific bequest.
v. Executory K for sale: If T K’s to sell specifically bequeathed property [land] and the K is still
executory at his death [i.e. not performed; no closing] the beneficiary takes the T’s rights under
the K. Equitable conversion doctrine would NOT apply.
vi. Identity Approach: [Maj but not IL] if will makes specific gift, executory must go through
probate estate and see if he can identify the gift in the estate. If so, beneficiary takes. If not, the
gift is adeemed and the court wont hear extrinsic evidence as to why item cannot be found or
what might have been T’s intent with respect to the item.
vii. Softening Doctrines: Ademption is a harsh doctrine. States have developed a number of
avoidance and softening doctrines to justify not applying Ademption where it would otherwise
apply.
1. IL Modified Intent Approach: Act of T Must Indicate Intent to Revoke: IL requires an
act by T indicating an intent to revoke the gift. So, sale of property by T’s
guardian/conservator or accidental destruction of the property with no opportunity to
change the will does not result in Ademption. Instead, beneficiary is entitled to
remaining sale or insurance proceeds.
2. Will executed before T became Incapacitated: If specifically devised property is sold
by a guardian, conservator or agent under a power of attorney, or if the condemnation
award or insurance proceeds relating to the property are paid to the guardian:
a. UPC: Specific devisee has a right to a general legacy equal to the net sale price,
condemnation award, or insurance proceeds.
b. IL: Specific devisee gets the sale price, condemnation award or insurance
proceeds only to the extent that they can be traced and have not been expended
for the ward’s [T’s] care.
c. IL: Where T did not have an opportunity to change his will, and property is
destroyed, then no Ademption. Instead, beneficiary is entitled to remaining sale
or insurance proceeds.
d. Bequests of Stock/Securities, Stock Splits & Dividends:
i. Specific vs General:
1. If it is specific, “My 100 shares of IBM”
a. If T does not own stock at death, beneficiary gets nothing bc of Ademption –
adeemed when T sold the stock.
2. If it is general, “100 shares of Kodak stock”
a. If T does not own at death, beneficiary gets the date of death value of 100
Kodak shares. Ademption does not apply.
ii. Stock Splits & Dividends: T’s will makes specific bequest of stock shares and the corp later
declares a stock split or stock dividend.
1. IL & Majority: A specific bequest of stock includes any additional shares produced by a
stock split, resulting from a merger, takeover, reorganization etc. after the will was
executed, but does not include shares produced by a stock dividend.
e. Specific Gifts of Encumbered Property: “Lien” exonerated?
i. CL: absent contrary provisions, liens on specifically devised property are exonerated from the
residuary estate. Beneficiary gets title free and clear.
ii. IL & UPC: A specific legatee of encumbered property is not entitled to have the lien
exonerated unless the will expressly directs as such. [gets what T owned]

RESTRICTIONS ON THE POWER OF DISPOSITION – PROTECTION OF THE FAMILY


A. SURVIVNG SPOUSE RIGHT OF RENUNCIATION: In separate property states, A surviving spouse can
renounce the will and take the share of the estate she is entitled to under intestacy. This is a means of protecting
a spouse against disinheritance.
a. Does not include real property located outside of IL or any lifetime transfers.
b. Amount of Elective share:
i. IL: Right of renunciation applies whether or not T left her something in the will. Surviving
spouse is entitled to 1/3 of the estate [after payment of claims] if T was survived by descendants
or ½ if he was not. This ensures a minimum amount of the estate for the spouse.
ii. Elective share charged against residuary estate Other legacies and bequests only abate if
the residuary estate is insufficient. All will beneficiaries contribute pro rata to the elective share
but property devised outright to the spouse by will is applied/given to the surviving spouse first.
c. Notice of Election: Spouse must file notice of election to renounce the will within the specified period
[IL it is 7 months after will is admitted to probate]
i. Who may make election: Can be made on behalf of legally incapacitated spouse by a guardian,
with court approval, upon showing that election is necessary to provide adequate support for the
spouse during his probable life expectancy.
1. If spouse dies before election is made, it cannot be made by the executor.
d. Type of property Elective share applies to:
i. Elective share applies to personal property regardless of where it is located.
ii. Elective share only applies to real property located in IL.
iii. Life estate Remainders accelerated The will is read as though the renouncing spouse
predeceased the T. Thus, remainders following a life estate devised to surviving spouse are
accelerated
iv. Non-Probate Transfers or Lifetime Transfers:
1. Majority Augmented Estate: the “estate” against which the elective share applies
includes certain non-probate transfers in which T retained control or economic benefit.
a. UPC: applies to augmented estate, which is defined as including things like
revocable trusts, survivorship estates [joint bank accounts, JTs] to the extent that
deceased spouse furnished the consideration for the property’s acquisition.
2. IL Probate Estate Only: Does not apply to any form of non-probate transfer. A
property owner has an absolute right to dispose of his property during his lifetime in in
any manner he sees fit, and he can do so even if his purpose of the transfer is to defeat
the elective share right.
a. Exception Sham Transfer: Lifetime or non-probate transfers are subject to
surviving spouse’s elective share is if the transfer was illusory or colorable and
thus a sham. Illusory transfer is one where there is no present intent to pass title.
Colorable transfer is one that appears absolute on its face, but due to an
understanding between transferor and transferee, is in fact not a transfer because
parties intended that ownership be retained by transferor.
e. IL Specific rules:
i. IL right of renunciation is available only if decedent was domiciled in IL when he died.
ii. The fact that surviving spouse lives in another state doesn’t affect her right of renunciation.
B. PRETERMITTED CHILD INTESTATE SHARE: Child born/adopted after will execution is entitled to
portion of estate per intestacy unless (1) provision is made for child in the will (2) appears from the will [no
extrinsic evidence] that T intended to disinherit the child. Applies to after-born & after-adopted children of the
T; grandchildren are not included.
a. Republication of will – i.e. codicil, can change a child’s status as pre-termitted. Child born before the
republication isn’t considered pre-termitted and not entitled to the protection of the statute.
C. SURVIVING SPOUSE & CHILD AWARD: Surviving spouse is entitled to award of at least $20K plus
$10K for each dependent child to support the family during the probate of the estate. If no surviving spouse,
decedent’s minor children and adult dependent children get at least $20K plus $10K per dependent child.
Award divided equally.

SUCCESSION PROBLEMS – WILLS AND INTESTACY


A. Simultaneous Death: To take, person must “survive” decedent. Requirements may vary depending on type of
property involved [probate intestate, probate testate, non-probate]
a. CL: had to prove by preponderance of evidence that he survived decedent by a millisecond. Whether he
survived is a question of fact.
b. IL adopted Uniform Simultaneous Death Act [USDA]: When disposition of property [by will,
intestacy, non-probate] depends on the order of death and there is no sufficient evidence that they died
other than simultaneously, [i.e. order cannot be established] the property of each decedent is distributed
as if he had survived the other.
i. Instrument provides otherwise: USDA Applies unless there is a specific contrary provision in
will/instrument.
ii. JT: distributed as though held as a TIC.
iii. UPC: requires person to survive decedent by 120 hours to take intestate, will, or non-probate.
Not required in IL.
iv. Purpose of USDA: prevent property of one decedent from passing to a second decedent [and
then to the 2nd decedent’s beneficiaries], resulting in double administration and possibly double
taxation of the same benefits.
B. Disclaimers: No one can be compelled to be beneficiary/heir. Can disclaim in whole or in part.
a. Disclaimed interest passes as though disclaimant predeceased decedent: Beneficiary/heir can
disclaim his interest from decedent. Consequence is that the disclaimed interest passes as though
disclaimant predeceased decedent. [i.e. would still go to his issue]
i. Reasons to disclaim: Usually done to avoid gift taxes and creditor’s claims [i.e. no interest that
can be reached by creditors]. CANNOT be used to defeat federal tax liens.
ii. Consequence: the disclaimed interest passes as though disclaimant predeceased decedent.
1. Calculating
a. Calculate disclaimed party’s share before giving effect to disclaimer, disclaimer
doesn’t affect the size of the share going to the next line in takers.
b. Apply anti-lapse statute allows the gift to pass on to the disclaimant’s
descendants rather than force the gift to pass through intestacy.
2. Once disclaimer is made, it is irrevocable & effective when filed.
iii. Can disclaim on behalf of a minor, incompetent, or decedent only w court approval finding it
is in the best interests of those interested in the estate and not detrimental to best interests of
beneficiary.
iv. Requirements: (1) writing, signed by beneficiary/heir & notarized; (2) describe interest
disclaimed; (3) delivered to decedent’s personal representative, trustee, or person in possession
of property; (4) copy filed with clerk of court.
1. Real prop disclaimed: executed copy of disclaimer recorded in the county where land is
located
2. Spendthrift clause: Doesn’t prevent disclaimer. [i.e. restraints on alienation]
3. Majority: There is a time limit on making disclaimer. Must be filed w/I 9 months of
decedent’s death.
4. IL: No time limit, but under estoppel principle, cannot disclaim after beneficiary or heirs
has accepted the property/benefits or has assigned or mortgaged the interest.
a. Federal Gift Tax purposes: Disclaimer must be filed within 9 months after
decedent’s death to be effective for fed gift tax purposes. If disclaimer not made
in that time, he is deemed as accepting the property and as giving it to the
persons who take as a result of the assignment [resulting in gift taxes]
i. Beneficiary under 21 has until 9 months after 21st birthday to make
disclaimer.
b. Future Interests and Life Estates: In IL, holder of future interest technically can
disclaim after the interest vests in possession. However, SCOTUS held that, to
be effective for tax purposes, must disclaim future interest within 9 months after
the interest was created.
c. Disclaimer of life estate: accelerates the remainder.
C. Slayer Statutes - Decedent’s Death Caused by Beneficiary/heir: Person who intentionally and unjustifiably
caused death of another, whether or not the act is considered criminal [e.g. found not guilty bc of insanity],
forfeits any interest that passes by reason of that death. The property/interest passes as if the person causing the
death predeceased the decedent. Final judgement/conviction for murder is conclusive.
D. Offenses Against Elderly/Disabled: convicted of financial exploitation or criminal abuse/neglect of elderly
or disabled person forfeits property interest that passes by reason of elderly/disabled person’s death. Also
applies to those civilly liable, but court can reduce portion rather than entire share.
E. Doctrine of Advancements: [Intestacy] An advancement is a lifetime gift by intestate decedent to an heir,
intended to be a pre-payment of the recipients share.
a. In IL & Majority a gift is not an advancement unless (1) expressed in writing by donor or (2) so
acknowledged in writing by done.
i. Advancement found: if found to be an advancement, gift’s value when given is added back into
the estate for purposes of calculating shares, and then subtracted from donee’s share. Heir
doesn’t need to return the amount of an advancement that is in excess of her intestate share.
1. If donee fails to survive decedent, advancement is applied to the share of the donee’s
decedents.
b. CL: Lifetime gift to child is presumptively an advancement, to be taken into account in distributing
estate at death.
F. Satisfaction of Legacy: Beneficiary under a will receives an inter-vivos gift from T of the same property as the
gift in the will. Applies to cash legacies and bequests of the residuary estate. [ademption applies to specific
bequests of property].
a. E.g. will bequeaths $25K to X, T later gives X $10K.
b. IL & CL: A lifetime gift to a T’s child named as beneficiary in an earlier will is presumptively in partial
satisfaction of the legacy. A lifetime gift to a beneficiary that is not a child is presumptively not in
satisfaction of the prior legacy.
i. Rebuttable presumption that the inter-vivos gift counts against the child’s testamentary gift.
c. UPC: no satisfaction of legacy unless:
i. Declared as such in a contemporaneous writing by donor
ii. Acknowledged as such in a writing by donee or
iii. Will provides for reduction of legacies by lifetime gifts.

PROBATE & ESTATE ADMINISTRATION


A. PROBATE: Probate property must pass through the probate system. Probate court is the state court with
special jx over determining who is entitled to receive probate property.
a. It is a court proceeding in which: (1) Wills determined (2) Letters issued (3) Notice given to
interested parties (4) Notice given to creditors (5) Estate distribution/mechanics (6) Wills contested
i. (1) Will determined: It is judicially determined that a decedent left a validly executed will or that
he died without a will and his intestate heirs are determined and
1. Testimony of attesting W’s: Unless due execution proved by attestation clause or
affidavit, 2 attesting W’s must testify as to T’s signature and competency and W’s own
signatures.
a. If W’s outside county or unable to attend, testimony may be by deposition or
interrogatory.
b. If W unavailable or outside the state, court may admit extrinsic proof of W’s
signature.
ii. (2) Letters issued: a personal representative is determined to administer the decedent’s estate
1. Executor – if named in the will; ct will issue letters testamentary
2. Administrator – if appointed by court; ct will issue letters of administration
a. Order of preference where no executor named: (1) surviving spouse (2)
legatee/devisee (3) child (4) grandchild (5) parent etc.
3. Qualifications: At least 18 yo & resident of US can serve unless he is of unsound mind,
has been adjudged disabled, or is convicted felon. Both administrators and executors can
be non-IL residents.
4. Fiduciary Bond: Corporate fiduciary not required to give a bond [e.g. bank] but, unless
will waives requirement, an individual appointed as personal representative must post a
surety bond.
5. Resignation & Removal: Representative may petition to resign. Court can also remove
personal representative if not qualified to act or for other good cause.
iii. (3) Notice to Interested parties: IL: within 14 days of order admitting/denying admission of
will to probate or appointing personal representative, interested parties [legatees named in will
and T’s heirs] must be given copy of will proponent’s petition.
iv. (4) Notice to Creditors: Ensures creditors receive notice, opportunity to present claims and
payment & extinguishes claims of creditors who don’t present their claims to probate court.
1. Notice: personal rep must publish notice of administration 1/week for 3 weeks in
county where estate being administered. Must also mail or deliver notice to creditors
whose names/addresses are known or ascertainable.
a. If no personal notice given, claim is not barred by the 6 month non-claim statute.
b. Creditors who have actual notice are held to 6-month period regardless of
whether they received personal notice
2. SOL: creditors to whom notice was mailed/delivered barred unless they file claim within
the later of (1) 6 months after first publication of notice (2) 3 months after delivery of
notice.
a. Unknown or unascertainable creditors: must file claims within 6 months of first
publication of notice.
b. Even if no notice published: creditor’s claims must be filed w/I 2 years of
decedent’s death.
3. Statutory custodial claim: Spouse, parent, brother, sister or child of disabled person
who lives w disabled person and dedicates self to person’s care for at least 3 years is
entitled to claim against disabled person’s estate. Amount is based on nature and extent
of disability, and can be reduced to extent that living arrangements physically or
financially benefitted claimant.
4. Priority of payment: when estate insufficient to pay all claims, claims are classified and
paid in following order:
a. Class 1: funeral and admin expenses and statutory custodial claims
b. Class 2: surviving spouse or child’s award
c. Class 3: debts due to US govt
d. Class 4: Money due to decedent’s employees, expenses of decedent’s last illness
e. Class 5: money received/held in trust by decedent that cant be identified
f. Class 6: debts due to state, county, township, city, town, school district
g. Class 7: all other claims.
h. * if estate insufficient to pay all claims in a class, claims are paid pro rata.
5. Abatement of legacies: claims paid out of residuary estate. If that is insufficient, general
legacies are applied, if still insufficient, specific legacies are used. Within the categories,
gifts abate pro rata.
a. Demonstrative are treated as specific legacies for abatement purposes if they can
be satisfied. If they cannot be satisfied, they are treated as general legacies for
abatement purposes.
6. Estate taxes: under equitable apportionment, each person interested in estate bears a
pro rata portion of the tax burden.
a. IL: non-probate transferees pay their pro rata portion, but probate estate, estate
taxes are satisfied from residuary estate.
b. Gifts qualifying for charitable or marital tax deductions don’t bear any portion of
the tax.
7. Exoneration of liens: Unless directed in the will, liens on specifically bequeathed
property are not paid off by the estate.
v. (5) Mechanics of Administration/Distribution of estate: Ensures that decedent’s property is
properly distributed to those entitled to receive
1. Inventory & Appraisal: q/I 60 days of letters being issued, rep must file in court a
verified inventory of estate’s real and personal property and any c/a on which
representative has a right to sue.
2. Citation to recover property: rep or interested party may petition court to order
citation issued to any person believed to have property or info about property belonging
to the estate.
3. Property management: specific property [personal or real] or property selected by the
surviving spouse/child cannot be sold, mortgaged or pledged unless necessary for
proper administration. Personal rep can operate as decedent’s unincorporated business
for 1 month after issuance of her letters, unless directed otherwise by ct. After that
month, prior ct approval must be obtained.
4. Approval of accounts: w/I 60 days after the close of the claim period, personal rep
must file an account showing all receipts and disbursments. When account is approved,
absent fraud, accident, or mistake, the account is binding on all who were given notice
and the personal rep will be discharged.
5. Distribution on presumption of death: when admin is based on presumption of
death, distribute must pose a bond for double the amount to be distributed, so as to
refund the amount if decedent is alive. Surety only needs to be provided for 10 years, but
the duty to make a refund to decedent continues.
vi. (6) Will contests: if challenging will offered for probate, most jx’s stats require contest be
brought in timely manner after probate is opened or the claim will be barred. [see more below]
b. Probate Venue: probate ct in county where decedent domiciled at time of death has
domiciliary/primary jx over the probate estate. Ct has jx over personal and real property in that jx.
i. Presenting death cert opens probate.
1. IL: Not time limit on when a will may be offered for probate.
ii. Ancillary jx: may be necessary if dec owned real property in another jx from domicile. It ensures
1. Local creditors in jx where real prop located receive notice and can present claims
2. There is compliance w that jxs recording system.
B. WILL CONTESTS:
a. Generally:
i. Grounds for contesting will: include defective execution, lack of testamentary capacity, insane
delusion, undue influence, fraud, mistake, and T’s lack of knowledge of contents of his will.
ii. Filing & Standing: Contest must be filed w/I 6 months after will admitted to probate. Right to
contest is not waived by failure to raise the issues on which contest is based at the hearing on
admission of will to probate. Only an interested party has standing to file a petition contesting
admission of will to probate [persons w economic interest that would be adversely affected by
will’s probate]
1. 6 month limitation doesn’t apply to a petition to probate a later will, even if it revokes an
earlier will that has been admitted to probate.
b. Defective execution: requirements under wills act are missing.
c. Valid Revocation: will validly revoked by operation of law.
d. General Lack of testamentary capacity: Presumption that every person is of sound mind.
i. Burden is on contestant to show that, at the time of executing the will, the T did not have
sufficient capacity [ability to know] to:
1. Understand that he was writing a will
2. Know the nature & character of his property
3. Know the objects of his bounty
4. Make a disposition of his property according to a plan formed in his own mind.
ii. Low Standard: Because all that is required is the ability to know what one is doing, rather than
actually know, it is a low threshold.
1. Merely being old, frail, drinking a lot or having memory lapses isn’t sufficient.
2. Being appointed a conservator does not mean person lacked testamentary capacity
3. Let the jury decide if it is a lucid interval
4. Testamentary vs K capacity  K capacity is higher than testamentary capacity.
e. Defect in Capacity – Insane Delusion: A false sense of reality to which a person adheres despite all
evidence to the contrary. Must be overpowering and much more than eccentricity. A person can have
sound mind and memory and still suffer from an insane delusion that affects who he leaves property to.
Unless terms of will are affected, it will not have effect on validity of will. If any part of the will is
invalid, the entire will is invalidated.
f. Defect in Capacity – Undue Influence: “substituted intent” when one influences the T to the extent
that the will expresses the influencer’s intent, not the T’s intent.
i. Will contestant Must show:
1. Existence and exertion of the influence
2. Effect of which was to overpower the mind and will of T
3. Product is a will [or gift in the will] that would not have been made but for the influence
ii. Circumstantial Factors: Because there is rarely direct evidence of UI, factors may be
considered – these by themselves are insufficient to establish UI – must be multiple & specific:
1. Susceptibility – Was T susceptible to UI
a. E.g. elderly, in poor health, memory lapses, took valium, .
2. Opportunity – D had the opportunity to exert UI
a. E.g. lived next door to mother, had a key to house, held PoA to act on her
bahelf, took care of mother’s financial affairs
3. Motive – did D have a motive for exerting UI
4. Causation – did UI cause the T to dispose of his property in a way that T would not
have otherwise
a. Will makes unnatural disposition that favors some relatives over others
5. *Specific facts must be pleaded: Pleading UI must contain specific recital of the
manner in which the free will of T was impaired at the time will was executed. Mere
Conclusionary statements is insufficient.
iii. Presumption of UI to Interested drafter: Rebuttable presumption arises when will gives
1. a substantial benefit to a party who stood in a fiduciary or confidential relationship with
the T
a. Fiduciary relation as a matter of law: Attorney drafting will, principal-agent,
guardian-ward.
b. Informal relationship: Special confidence reposed in a person, who by reason
of such confidence, must act in good conscience and faith and w due regard for
the interests of the T. Relationship stemming from moral, social, domestic, or
personal. Factors to consider:
i. Degree of kinship of parties
ii. Disparity in age, education, business experience
iii. Health and mental condition
iv. Extent to which business and financial affairs entrusted to other party
2. T is the dependent and beneficiary is the dominant party
3. T places trust and confidence in the beneficiary
4. Beneficiary was instrumental in preparing and procuring the will
5. Shifts burden: to the beneficiary. Can be overcome by clear and convincing evidence
that no influence was exerted. Fail to rebut entitled contestant to a verdict.
iv. Remedy: Part of will that is affected by UI is stricken and remainder is allowed to stand if doing
so is doesn’t defeat T’s intent or destroy testamentary scheme.
g. Defect in Capacity – Fraud: Will or particular gift will be invalid. If only part affected by fraud, only
that part is invalid and remainder given effect.
i. Requirements:
1. Someone made a false representation of material fact, knowing or believing it to be false
2. Representation was made for purpose of inducing T to write a will [or not write a will] in
a particular way
3. T reasonably believed in and actually relied on the statement in making the will.
ii. Fraud in the execution: Misrepresentation as to the contents of the instrument or the nature of
the document being signed.
iii. Fraud in the inducement: Person misrepresents material fact to T for purpose of inducing T
to execute will with certain provisions/gifts or to revoke will. The key is that the
misrepresentation does not go to the terms of the will per se, but rather concerns a fact that is
important to the testator and may induce the testator to dispose of his or her property
differently in light of the misrepresentation.
1. The will or particular gift affected by the fraud must be set aside.
h. TRANSFERS TO CAREGIVERS: Rebuttable presumption that any transfer that is effective on or
after T’s death is void if transferee is transferor’s caregiver and the FMV of the property is $20K+.
[doesn’t apply to close family members]
i. MISTAKE:
i. Mistake in execution: extrinsic ev allowed to show T didn’t know instrument signed was a will
bc the issue of testamentary intent is at issue.
ii. Mistake in Inducement: If T mistaken as to reasons leading T to make will or gift, court
usually wont grant relief. If apparent on face of the will, relief may be granted.
iii. Mistake as to contents: Extrinsic ev not admissible to show a provision was omitted or was
incorrect. Under the plain meaning rule, ev not admissible to contradict the plain, unambiguous
language of a will.
iv. Ambiguity:
1. Latent ambiguity arises if language is clear on its face but results in a misdescription as
applied.
a. Extrinsic ev admissible to cure latent ambiguities because doing so doesn’t re-
write the will.
2. Patent ambiguity is when uncertainty appears on the face of the will.
a. Traditionally, no extrinsic ev to cure patent ambiguities.
b. Under IL rule, extrinsic ev admissible to show patent ambiguity.
3. Admissible extrinsic evidence:
a. Testimony as to circumstances surrounding will’s execution, T’s relationship and
association with persons who are intended as beneficiaries, and motives that may
have actuated T
b. Statements made by T to the attorney preparing will.
c. T’s statements to other persons are not admissible.
j. T LACKED KNOWLEDGE OF CONTEST: T must know and approve words in her will for intent
to be present. Execution of a will w/ T’s signature raises a presumption, in absence of fraud or
imposition, that T was aware of the contents and understandingly executed the will. If contestant can
prove that T didn’t have opportunity to read will prepared for her or she can’t read, and contents not
explained to her, will is invalid.
k. NO CONTEST CLAUSE: Clause stating that if a beneficiary contests the will, he forfeits his legacy.
Forces beneficiary to choose between what he is given under the will vs contesting the will and risk
losing the gift.
i. UPC: If Beneficiary loses will contest, he forfeits legacy unless contest was brought in good faith
and he had probable cause for the contest.
ii. IL: If Beneficiary loses will contest, he forfeits legacy even if he had probable cause. No contest
clause is given full effect unless:
1. Contest filed by guardian on behalf of a minor or incapacitated beneficiary doesn’t
trigger forfeiture
2. Construction suit merely seeks to determine what interests were created by the will
3. Doesn’t prevent a spouse from filing for elective share.
l. TORTIOUS INTERFERENCE WITH EXPECTANCY TO INHERIT: plaintiff must establish
i. An expectancy
ii. D’s intentional interference w/ expectancy
iii. Interference involved tortious conduct [fraud, duress, undue influence]
iv. Reasonable certainty that devise to P would have been received but for the interference
v. Damages.

MAJOR DIFFERENCES UPC VS ILLINOIS

UPC WILLS (generally less IL Wills (generally MORE


restrictive) restrictive)

“In testator’s presence” Conscious Presence Test: T need Line of Sight test: T does not have
not see the witnesses when they sign to see the witnesses sign, but they
– as long as in T’s presence and he must be within the uninterrupted scope
is conscious of where they are and of T’s vision, so T could have seen
what they’re doing them signed if he had looked
T slips into coma before he signs Valid if Ws sign within a reasonable Not in testator’s presence
time after T signs

Attorney Liability for Negligence in Intended beneficiary does not have Intended beneficiary does have a
Preparation of Will a COA against att’y because no COA because privity is rejected as a
privity of K defense (duty runs to intended
beneficiary of the services)

Interested Witness Statute: Where Will is given full effect (abolished Gift to witness may be set aside
a beneficiary is attesting the will this statute) unless:
(1) Supernumeracy – 2 other
interested witnesses
(2) “Whichever is Least”- If the
witness-benef. Would take a
share of the state if it were
not admitted to probate, he
takes the lesser of bequest
given by the will or the
intestate share
Earned Compensation The party who signed as a witness is NO compensation for witness-
entitled to compensation for serving executor or testamentary trustee.
as an executor But if bank is named as executor,
bank EE can witness and so can
att’y
Spouse of Interested Witness Interested witness statute does not A bequest to witness’s spouse is
void a legacy to witness’s spouse void.

Holographic Wills (handwritten by Recognize holographic wills – can NOT recognized in IL


the testator and signed but NOT be handwritten, signed, and not *Exception: Execution of Foreign
properly witnessed) along with oral witnessed Wills Act – a holo will written in a
wills state that recognizes them is
admissible to probate in IL if T
moves here
Later Testamentary Instruments If a state recognizes holographic Writing “void” /s T is NOT
– writing “void” wills, T can write “void” /s T (T’s sufficient b/c need 2 witnesses
handwriting and signed)

Partial Revocation by Physical Partial revocation is valid NO partial revocations (can only
Act revoke in entirety). Attempt at
partial revocation is ineffective and
the original terms are effective.
*To change in IL – need NEW will
or CODICIL
Anti-Lapse Statutes (If a will Necessary Relationship: Necessary Relationship
beneficiary predeceases T, the gift Predeceasing beneficiary must be Predeceasing beneficiary must be
lapses and passes as part of the descendant of T’s grandparent child or other descendant of T
residuary estate unless it is saved by
these)
Lapse in Residuary Gift – If the residuary estate is devised to 2 Same
Surviving Beneficiaries Rule or more persons and gift to one of
(trumped by anti-lapse, use if there them lapses, the surviving residuary
is a residuary estate) beneficiaries take the entire
residuary estate in proportion to their
interests in the residue (absent
contrary will provisions)
Deaths in Quick Succession 120 Hour Rule: A will beneficiary or Uniform Simo Death Act: When
heir who fails to survive the there is no sufficient evidence that
decedent by 120 hours is treated as the persons died otherwise than
if he predeceased simo, the prop of each passes as
though he survived
Wills: as though T survived and
beneficiary predeceased (invoke
lapsed gift doctrine and anti-lapse
St)
T Marries after will is executed Pretermitted spouse takes an No effect on the will because of
intestate share of T’s estate elective share statute

T is divorced after will is Final decree of divorce or Same


executed annulment (legal sep not sufficient)
revokes all gifts and fiduciary
appointments in favor of the former
spouse
T has children after will is Gives after-born/adopted children Same
executed an intestate share of T’s estate
unless it appears from the will that
omission was intentional

Specifically Bequeathed Prop Where a will makes a specific gift of Same, but specific bequest of REAL
Not in Estate at Death property and the property is not property: If T leaves property to X
Ademption (specific bequests only) owned by T at death, ademption and sells it before his death, X gets
applies and the beneficiary takes nothing because the K was fully
nothing (the gift fails). performed. But if it was an
installment land K, then X would
get remaining payments
Exceptions to Ademption The specific devisee has a right to a Specific devisee gets the sale price,
Doctrine general legacy = to the net sale condemnation award or insurance
Will executed before T became price, condemnation award, or proceeds only to the extent that they
incapacitated insurance proceeds can be traced and haven’t been
expended for the ward’s care

Where T did not have an


opportunity to change his will
before death – leaves car to X, dies
in car accident, X gets insurance
proceeds
Specific Gifts of Encumbered Under common law, the liens would Same
Property: Is Lien Exonerated? be exonerated form the residuary
estate
BUT, under IL and UPC, a specific
legatee of encumbered property is
NOT entitled to have the lien
exonerated unless the will expressly
directs so
Incorporation by Reference Permitted as to tangible personal Not permitted
Doctrine – Will Not in Existence property not specifically disposed of
If the will refers to a list that will be by the will – the list must be signed
prepared at a later date and describe the property with
reasonable certainty, and it may be
written before or after the will and
altered at any time
Contracts Relating to Wills A will is never contractual unless the The execution of a joint will by
(If a will is contractual, the K is that will expressly states that a K exists husband and wife may be found
the survivor cannot revoke the will contractual if all or most of these
after the death of the first to die. factors are present:
During the joint lifetimes, either Labeled “joint and mutual”
party can rescind) Leaves entire estate to surviving
spouse
Disposes of all their property in
unified disposition
Common dispositive scheme on
death of survivor
Effect of Words of Disinheritance Negative Bequest Rule: A will can When a will does not make a
in Will (“I intentionally make no provide how much property shall complete disposition of the estate,
provision for X”) not be disposed of. Estate is words of disinheritance in the will
distributed as though the are ineffective.
disinherited person predeceased T.
Inheritance by Descendants (common law): siblings of the half Siblings of the whole blood inherit
(“issue”)” half siblings blood inherit half as much as the same share as siblings of the
siblings of the whole blood whole blood

Intestate Distribution: S, single, Parents get entire estate Everyone takes equal shares (1/5
dies intestate survived by mom, dad, each)
and 3 sisters

Children Born out of Wedlock Same Children born out of wedlock can
inheriting from NATURAL only inherit from natural father if
father “PAP”
Paternity Suit (man adjudicated to
be father)
Acknowledged paternity (during his
lifetime)
Probate Proceedings (after the
man’s death, proven to the father by
clear and convincing evidence)
Lifetime gift to heir or will Lifetime gift to heir not an Same
beneficiary advancement UNLESS:
(1) declares as such in a
(Doctrine of Advancements) contemporaneous writing by the
donor, or
(2) acknowledged as such in writing
by the donee
Lifetime gift to heir or will NO satisfaction of legacy UNLESS: A lifetime gift to a child named as
beneficiary (1) Declared as such in a beneficiary in an earlier will IS
(Satisfaction of Legacy) contemporaneous writing by the presumptively in partial satisfaction
Will bequeaths $25K to X, T later donor of the legacy, but not a lifetime gift
gives X $10K (2) acknowledge as such in writing to any other beneficiary (unless
by the donee; evidence shows otherwise)
(3) will provides for reduction of
legacies by lifetime gifts
Does Elective Share Apply to YES NO
Non-Probate Transfers? Public policy underlying the elective Only applies to the probate estate
share should not be defeated by
lifetime transfers and non-probate
transfers in which the donor retains
rights, powers, or economic benefits
If beneficiary loses the will YES, unless it was brought in good YES, even if he had probable cause.
contest, does he forfeit his faith and he had probable cause for Exceptions:
legacy? the contest (1) contest filed by a guardian on
behalf of a minor or incapacitated
beneficiary does not trigger a
forfeiture
(2) construction suit merely seeks to
determine what interests were
created by the will
(3) does not prevent a spouse from
filing for an elective share