Term
| In WV what is the surviving spouse's intestate share? |
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Definition
| It varies depending on whether descendants survive the decedent and whose descendants they are. If no parents survive and there are no descendants then to the surviving brothers and sisters. |
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Term
| When does the intestate take the entire estate? |
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Definition
The surviving spouse takes the decendent's entire intestate if:
1) No descendents of the descedant survive; or
2) the decedent's surviving descendants are also descendents of the surviving spouse (and there are no other descendents of the survivng spouse who survive) |
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Term
| When is the surviving spouse entitled to 3/5ths share of the intestate share? |
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Definition
where
1) the decedent is survived by descendants who are also descendants of the survivng spouse AND
2) the Surviving spouse also has one or more surviving descendants who are not descendants of the decedent. |
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Term
| In WV when is the intestate spouse allowed only 1/2 of an estate? |
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Definition
| If one or more of the decendent's surving descendants are NOT descendants of the survivng spouse. |
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Term
| If the an intestate share is not given to the spouse to whom is it given? |
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Definition
| Any portion of the estate that does not pass to the spouse passes to the decendent's children (and the children's descendants by representation) |
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Term
| What is the intestate share of children and other descendants in WV? |
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Definition
| WV has adopted the UPC approach where the distrubution is per cpaita at each generational level. |
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Term
| In WV whats happens if the decedent is not survived by a spouse or descendants? |
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Definition
| The estate passes to the decedent's parents equally if both survive, or to the surviving parent. |
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Term
| In WV, if there are no living takers under the provisions (grand parents, siblings, parents, spouse) then what happens? |
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Definition
| The entirity of the estate escheats to the state. |
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Term
| Is there any difference between half and whole bloods in WV for intestacy purposes? |
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Definition
| No, if a 1 whole blood sibling passed away leaving a full and half blood siblings as the only survivors, each would take 1/2 of the estate. |
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Term
| WV has adopted the Uniform Simultaneous Death Act (USDA). What does this do? |
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Definition
| When it is difficult to determine who died first (car accident) and the devolution of ppty depends on who died first, then the ppty is treat |
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Term
| What is the 120 hour rule in WV? |
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Definition
| For purposes of intestate succession, a person must survive the decedent by 120 hours to take as an hier. For all other forms of transfer (wills, insurance, joint tenancies) cases involving deaths in quick succession are governed by the USDA. |
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Term
| What does the WV slayer statute provide? |
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Definition
| That anyone convicted of feloniously killing a decedent or of conspiracy in the killing of the decendent for fiets any interst of the decendents estate. the slayer is treating as having predeced, unless the interst would pass to another person under some rule of law or equity. |
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Term
| Does the Wv slayer statute affect anything other than intestate or testate transfers? |
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Definition
| Yes, the statue provides that the slayer is bared from taking by descent or distrubution whihc includes insurance policies or ANY other way. |
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Term
| If the slayer is not convicted then what happens under the slayer statute? |
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Definition
| A final conviction for felonious killing is conclusive. Where there is no conviction, evidence of an unlawful and intentional killing must be shown in a civil action. (like if the killer committed suicide before trial) |
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Term
| What is the WV approach to advancements? |
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Definition
WV has adopted the UPC approach to advancements. No lifetime gift is considered an advancement unless it is:
1) declared as such in a contemporaneous writing by the donor or
2) acknowledged as such in writing by the donee. |
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Term
| If there is a writting that makes a gift an advancement in WV and the recipient dies before before the "decedent" then what? |
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Definition
| The ppty is not taken into account in computing the division and distribution of the decendents estate unless the decenent's contemporaneous writing provides otherwise. |
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Term
| For someone to disclaim a gift what must they do? |
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Definition
To be effective the disclaimer of intestate share, testate share, life insurance or death bennifit must;
1) be in writting
2) irrevocable; and
3) filed w/i 9 months of the decendents death unless the disclaimer is under 21. In that case the disclaimed interest must be filed w/i 9 month of the 21st birthday. |
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Term
| May a disclaimer be made on behalf of an infant, incompetent or decedent? |
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Definition
| Yes by the guardian or PR but the ct having jurisdiction of the estate of the incapacitated person must find that it is in the best interest of the disclaiming party and is not detrimental to the best interst of the beneficary. |
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Term
| What is a negative bequest statute? |
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Definition
| In WV an heir may be disinherited. A provision in a will expressly directing how property shall not be disposed of is valid. If the residuary isnt provided for then a forbidden taker is treated as having disclaimed the intestate share. |
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Term
| Is there a subscription requirement in WV? |
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Definition
| No. The appearance of the signature at the end or at the bottom of the instrument is not essential as long as the name is intended as a signature. |
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Term
| What is WV Presence requirement for the will execution ceremony? |
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Definition
| WV requires the conscious presence, which is the majority view. |
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Term
| What is required to have a validly executed will in WV? |
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Definition
1) Signed by the testator or by another person in the testitors presence and at their direction;
2) There must be TWO attesting witnesses;
3) The testator must sign the will (or acknowledge a previous signature, or acknowledge the will) in each of the witnesses' presence.
4) The witnesses must sign in in the testator's presence. |
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Term
| In the execution of a will, does the order of signature matter? |
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Definition
| No, so long as all the signatures are affixed as part of a single, contemporaneous transaction. |
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Term
| For the will to be valid, both witness must be competant. That means the witnesses must be mature enough and of enough mental capacity to understand and appreciate the nature of the act they are witnessing. in WV if a witness is also a benificary, what result? |
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Definition
| Under the common law the will would fail, but that has been abolished in every state. In WV the gift would fail as to that witness. NOTE: WV defines interested witness very broadly and includes the spouses of the witness. |
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Term
| Can wills containing a self proving affidavit be used at a probate hearing with out the presence of the witnesses? |
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Definition
| Yes, the affidavit serves the same function as a deposition or interogatory. |
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Term
| In the drafting of a will, to whom does the attorney owe a duty? |
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Definition
| To the client and to the beneficaries named in the will. |
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Term
| If a will is holographic (entirely handwritten and has no attesting witnesses) what result in WV? |
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Definition
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Term
| In probating a holographic will what will the ct look to so as to determine the testimentary intent? |
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Definition
| So long as no future writing is contemplated, then it is a holographoc will. Extrinsic evidence can be admitted to makke this determination. |
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Term
| Inorder to incorporate by reference a document into the will, what are the requirements? |
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Definition
The document must;
1) be in existence at the time the will was executed;
2) describe sufficently the writting to permit its identification; and
3) manifest an intention to incorporate the document. |
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Term
| In WV what is the effect of a marriage following the execution of a will as to the omitted spouse? |
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Definition
| The omitted spouse is entitled to recieve the share of the estate that would have been devised had the estate passed intestate. This applies to only the portion of the estate that is not devised to a child (or descendent of a child) of the decedent who was born before the decedent married the surviving spouse and is not the child of the survivng spouse. |
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Term
| What are the exceptions to the marriage following execution of a will, the omitted spouse rule? |
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Definition
The survivng spouse is not entitled to invoke this statutory section if:
1) it appears from the will or other evidence that the decedne executed the will in contemplation of his marriage to the surviving spouse;
2) the will expresses the intention that it should be effective notwithstanding a subsequent marriage; or
3) the survivng spouse is provided for outside the will and the intent that this transfer be in lieu of a testamentary provision can be shown. |
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Term
| What is the effect of a divorce on a will or revocable trust? |
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Definition
| WV follows the majority rule that a final decree of divorce or annulment revoke all gifts and fiduciary appointments in favor of the former spouse. NOTE: the statute does not apply to nonprobate transfers. |
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Term
| What are the requirements to contract to make a will, a gift by will or not to revoke under WV law and the UPC? |
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Definition
1) Provisions in the will stating the material provisions in the will stating the material provisions of the K;
2) an express reference in a will to the contract and extrinsic evidence proving the terms of the K; OR
3) a writing signed by the decedent evidencing the K |
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Term
| What are the remedies for breach of K to make a will during the life of T? |
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Definition
| Generally, there is remedy during T's life b/c there is no way of knowing whether the T will carry out the promise until death. If T repudiates the K after substantial performance by the promisee, then the promisee may seek damages, quantum meruit or equitable relief. |
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Term
| What are the remedies for breach of K to make a will after T's death? |
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Definition
| If the promisor fails to make the promised testamentary gift, the promisee can seek damages equaling the value of the ppty promised. If the promise was for a specific ppty then the ct will normally impose a constructive trust for the promisee's benefit. |
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Term
| In WV if a joint will has reciprocal provisions what does this evidence? |
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Definition
| This is evidence of a contractual agreement between the makers. |
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Term
| What does WV anti-lapse statute provide for? |
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Definition
| The anti-lapse statute is extremely broad. It applies to ANY beneficary who predeceases the testator. If a gift is to go to joint beneficaries, and one predeceases, the other will NOT take. Instead the gift passes to the predeceased beneficaries at law. |
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Term
| Does the WV antilapse statute apply if there is contrary provision in the will? |
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Definition
| No. The usual language of the gift being contigent on beneficiary's survival. |
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Term
| What is the result in WV when a devise or bequest fails when it is included in the residuary? |
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Definition
| it passes to the remaining residuary beneficiaries in proportion to their respective shares or interest in the residue. |
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Term
| In WV if a specific ppty is bequeathed is not in the testator's estate at death, the bequest is adeemed. What if the specific ppty is sold or replaced with similar ppty? |
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Definition
| Tough. EIther you get the specific gift or nothing. e.g. to so&so my rolex watch. If I then sell the watch and get a sieko, then so&so gets nothing. |
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Term
| How does WV handle a pretermitted child? |
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Definition
| a child born after the will was executed (or the child's descendant) takes an intestate share of the decedent's estate provided that the child was NOT provided for by any settlement or expressly excluded by the will. |
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