DE Bar Wills Trusts and Estates 3 — Questions and Answers
Question 1: Under Delaware intestacy, when the decedent is survived by a spouse and by children who are all also children of that spouse, the spouse takes which share of the personal estate?
- The entire personal estate
- The first $50,000 plus one-half of the balance (Correct answer)
- One-third of the personal estate
- One-half of the personal estate with no dollar preference
Correct answer: The first $50,000 plus one-half of the balance
When all surviving issue are also issue of the surviving spouse, the spouse takes the first $50,000 of the intestate personal estate plus one-half of the balance.
Question 2: How does Delaware's intestacy statute treat the decedent's real estate passing to a surviving spouse when the decedent leaves issue?
- The spouse takes the real estate in fee simple
- The spouse takes a life estate in the intestate real estate (Correct answer)
- The real estate passes entirely to the issue
- The spouse and issue take as joint tenants
Correct answer: The spouse takes a life estate in the intestate real estate
Delaware's intestacy scheme distinctively gives the surviving spouse a life estate in the decedent's intestate real property when there are surviving issue, with the remainder to the issue.
Question 3: A will beneficiary who is the testator's sibling predeceases the testator, leaving two children. Under Delaware's anti-lapse statute, who takes the gift?
- The gift lapses into the residue
- The sibling's estate
- The sibling's two children by representation (Correct answer)
- The testator's heirs at law
Correct answer: The sibling's two children by representation
Delaware's anti-lapse statute preserves gifts to predeceasing relatives by passing them to the beneficiary's surviving issue by representation.
Question 4: What is the effect of a self-proving affidavit attached to a Delaware will?
- It makes the will incontestable
- It allows the will to be admitted to probate without live witness testimony (Correct answer)
- It substitutes for the two-witness requirement
- It waives the executor's bond automatically
Correct answer: It allows the will to be admitted to probate without live witness testimony
A self-proving affidavit lets the will be probated without producing the attesting witnesses, though the will can still be contested on other grounds.
Question 5: Under Delaware's slayer rule, a beneficiary who feloniously and intentionally kills the testator receives what?
- The full devise, subject to a wrongful death offset
- Nothing; the slayer is treated as having predeceased the decedent (Correct answer)
- A reduced share set by the Court of Chancery
- The devise held in constructive trust for the slayer's creditors
Correct answer: Nothing; the slayer is treated as having predeceased the decedent
A slayer forfeits all benefits from the victim's estate and is treated as if he predeceased the decedent.
Question 6: A child is born to a Delaware testator after the will was executed and is not provided for or mentioned in it. What does the pretermitted child generally receive?
- Nothing, because the will controls
- The child's intestate share, unless intent to omit or other provision appears (Correct answer)
- A mandatory one-third of the estate
- Only support until age 18
Correct answer: The child's intestate share, unless intent to omit or other provision appears
An after-born child omitted from the will takes an intestate share unless the omission was intentional or the child was otherwise provided for.
Question 7: In Delaware, which standard governs testamentary capacity?
- The testator must understand the nature of the act, the natural objects of her bounty, and the disposition she is making (Correct answer)
- The testator must be able to manage all her financial affairs
- The testator must pass a court-ordered psychiatric evaluation
- The testator must have capacity to contract at the moment of execution
Correct answer: The testator must understand the nature of the act, the natural objects of her bounty, and the disposition she is making
Testamentary capacity requires knowing the property owned, the natural objects of one's bounty, and the effect of the disposition — a lower bar than contractual capacity.
DE Bar Wills Trusts and Estates 3
Under Delaware intestacy, when the decedent is survived by a spouse and by children who are all also children of that spouse, the spouse takes which share of the personal estate?