MT Bar Wills, Trusts & Estates 2 — Questions and Answers
Question 1: In Montana, which of the following is a required element of testamentary capacity?
- The testator must have a college education
- The testator must know the nature and extent of their property, the natural objects of their bounty, and the nature of making a will (Correct answer)
- The testator must be free of all mental illness
- The testator must have independent legal counsel
Correct answer: The testator must know the nature and extent of their property, the natural objects of their bounty, and the nature of making a will
Montana requires testamentary capacity: the testator must understand the nature of a will, know the extent of their property, and recognize the natural objects of their bounty (family members).
Question 2: Under Montana law, a will may be revoked by:
- Physical act of destruction, subsequent will, or codicil only
- Physical act, subsequent will or codicil, or written statement signed by the testator (Correct answer)
- Oral statement before two witnesses
- Any written statement, even unsigned
Correct answer: Physical act, subsequent will or codicil, or written statement signed by the testator
MCA § 72-2-527 provides that a will may be revoked by a physical act of destruction (burning, tearing, canceling), or by a subsequent will or codicil that expressly or implicitly revokes the prior will.
Question 3: In Montana, a 'no-contest' (in terrorem) clause in a will is generally:
- Unenforceable as against public policy
- Enforceable unless the contestant had probable cause for the contest (Correct answer)
- Enforceable in all circumstances
- Void unless approved by a court at the time of execution
Correct answer: Enforceable unless the contestant had probable cause for the contest
Montana enforces in terrorem clauses under MCA § 72-2-532 but will not penalize a beneficiary who contests the will if there was probable cause to believe the will was invalid.
Question 4: Under Montana's Uniform Trust Code, a trustee has which of the following fundamental duties?
- Duty of loyalty, prudent investment, impartiality, and to inform and account to beneficiaries (Correct answer)
- Duty to maximize returns regardless of risk
- Duty to self-deal if beneficial to the trust
- Duty to follow beneficiary instructions over trust terms
Correct answer: Duty of loyalty, prudent investment, impartiality, and to inform and account to beneficiaries
Montana's UTC (MCA §§ 72-38-801 through 72-38-816) imposes on trustees duties of loyalty, prudent administration, impartiality among beneficiaries, and to inform and account to beneficiaries.
Question 5: In Montana, a durable power of attorney remains effective even if the principal:
- Revokes it in writing
- Becomes incapacitated (Correct answer)
- Dies
- Moves to another state
Correct answer: Becomes incapacitated
A durable power of attorney under MCA § 72-31-301 survives the principal's incapacity; the word 'durable' means the agent's authority continues despite the principal's loss of capacity.
Question 6: Under Montana law, the personal representative of an estate has the duty to:
- Distribute all assets within 30 days of appointment
- Settle and distribute the estate in accordance with the will or intestacy laws as expeditiously as possible (Correct answer)
- Sell all real property before distribution
- File a final accounting only if ordered by the court
Correct answer: Settle and distribute the estate in accordance with the will or intestacy laws as expeditiously as possible
Montana's Uniform Probate Code (MCA § 72-3-703) requires the personal representative to settle and distribute the estate of the decedent in accordance with the terms of the will or Montana's intestacy laws as expeditiously as possible.
MT Bar Wills, Trusts & Estates 2
In Montana, which of the following is a required element of testamentary capacity?