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Intestate Succession
1. Testate: dies with Will 2. Intestate: dies w/o will Main Reasons for Intestacy: unpleasantness of confronting mortality, time and costs involved a. State Statute of Descent and Distribution: governs probate of a person who dies intestate i. Disposition of Personal Property: State where decedent was domiciled at death determines distribution ii. Disposition of Real Property: State where real property is located determines distribution


• • • • • • • • • •

Share of Surviving Spouse i. UPC § 2-102: Share of Spouse (1) The entire estate if: (A) no descendant or parent of decedent survives the decedent ; or (B) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent (2) The first 300,000, plus three fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent (3) The first 225,000, plus one half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent; (4) The first 150,000, plus one half of any balance of the intestate estate, if one or more of the decedents surviving descendants are not descendants of the surviving spouse. ii. NC Rules Governing Intestacy and Share of Surviving Spouse N.C. Gen. Stat. § 29-2: Definitions N.C. Gen. Stat. § 29-3: Certain Distinctions abolished as to Intestate succession N.C. Gen. Stat. § 29-4: Curtesy and Dower Abolished N.C. Gen. Stat.§29-5: Computation of Next of Kin; refer to GS 104.A1 N.C. Gen. Stat. §29-6: Lineal Succession Unlimited N.C. Gen. Stat. § 29-8: Partial Intestacy: If all property is not disposed of by will N.C. Gen. Stat. § 29-12: Escheat N.C. Gen. Stat. § 29-13: Descent and Distribution upon intestacy, 120 hour survivorship req. N.C. Gen. Stat. § 29-14: Share of Surviving Spouse N.C. Gen. Stat. § 29-30:Election of the Surviving Spouse to Take in Lieu of Intestate Share


Share of Descendants I. UPC §2-103: Shares of Heirs other than Surviving Spouse II. N. C. Rules Governing Shares of Descendants

• • •

N.C. Gen. Stat. § 29-6: Lineal Succession Unlimited N.C. Gen. Stat. § 29-15(1)-(2): Shares of Others than the Spouse N.C. Gen. Stat. § 29-16(a): Distribution among Classes

I. General Rule: In all jurisdictions in this country, after the spouse’s share if any is set aside, children and descendants of deceased children take the remainder of the decedent’s property to the exclusion of everyone else. Children of Deceased: take by representation
• Note: Son/ Daughter in Law: are excluded as intestate successors in virtually all states

(1)English Per Stirpes/ Strict Per Stirpes: 1/3 of states follow this method of distribution, This method treats each line of descendants equally (2)Modern Per Stirpes/ Per Capita with Representation: ½ of states follow this method. Whether any children survived the decedent, if so the distribution is identical to English Per Stirpes. If not, the estate is divided equally per capita at the first generation in which there are living takers (3)Per Capita at each Generation: UPC §2-106(b) remaining states follow this method of distribution (about 12). The estate is divided into as many equal shares as many equal shares as there are (i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. “ Equally Near, Equally Dear”


Negative Disinheritance:

UPC §2-101(B) changes the old rule of law that disinheritance is not allowed in situations of partial intestacy. This UPC provision authorizes a negative will. The barred heir is treated as though he disclaimed his intestate share. N.C. Gen. Stat. § 29-6 N.C. Gen. Stat. § 29-15(1)-(2) N.C. Gen. Stat. § 29-16(a)


Shares of Ancestors and Collaterals:

When intestate decedent is survived by a descendant, the decedent’s ancestors and collaterals do not take. In ½ of states, when there is no descendant, after deducting the spouse’s share, the rest of decedent’s property is distributed to the parents, as under the UPC.

II. an adopted child inherits from both adopted parents and genetic parents and their relatives. Rule of Law: The right of inheritance was removed by the legislature in 1963. other than the decedent’s parents and their descendants. Refer to Table of Consanguity on page 93! (1)Second Line Collaterals: Descendants of the decedent’s grandparents. However. Stat.C.(1) Collateral Kindred: All persons who are related by blood to the decedent but who are not descendants or ancestors are called collateral kindred. § 104A-1 N. other than the decedent and the decedent’s descendants.C. N. Maj. 2d 1162 (1988) I. Stat. Parentelic System: the intestate estate passes to grandparents and their descendants. If this relationship exists. counting degrees of kinship. II. IF there is no first line collaterals. (2)First Line Collaterals: Descendant’s of the decedent’s parents. Gen. intestate property will pass to brothers and sisters and their descendants. Vallandigham. Other states.C. Gen. § 29-15(3)-(5) N. This rule of law has long been abolished in American states. Of states and under UPC §2-107a relative of half blood is treated the same as a whole blood. Gen. Other states. Degree of Relationship System: The intestate estate passes to the closest of kin. UPC §2-114(b) (1990) an adopted child inherits from adoptive relatives and also from genetic relatives if the child is adopted by a step-parent. This disallowed dual inheritance for adoptive children in this state. Transfers to Children 1) Adopted Children Inheritance rights of an adopted child vary considerably from state to state. Note: There are different rules for FL. III. § 29-5 & 29-7 N. descendant.C. (4) General Rule for ALL jurisdictions: IF the decedent is not survived by a spouse. TX. 540 A. § 29-16(b)-(c) N. Gen. OK.C. then the child will take under intestate succession UPC §2-116. Gen. Stat. Upon entry of a decree of adoption the adopted child shall lose all rights of inheritance from its parents and natural collateral or lineal relatives. significant focus on “parent child” relationship. and if none to great grandparents and their descendants. • 2008 Amendments to the UPC. § 116B-2 B. (2) Laughing Heirs: persons so distantly related to the decedent to suffer no sense of bereavement. Stat. or parent. Two basic schemes are used: I. then the states differ on who is next in line of succession. laughing to the bank! (3)Half Bloods: Common Law wholly excluded relatives of half blood (half sister) from inheriting. Stat. and so on down the each line (parentela) descended from an ancestor until an heir is found. there are three main views discussed below: a) Hall v. .

N.E.2d 604 (N. § 29-17 • • . 78 S. Equitable Adoption • Oneal v. 2d 340 (1967) Facts: Amelia Minary died leaving a residuary trust to her husband and three sons. except when the donor is the adoptive parent. • Early Rule: Stranger to the Adoption Rule: The adopted child is presumptively barred whatever generic is used. 1994): The court held that an equitably adopted child could not inherit through her adoptive parent to take from her adoptive parent’s sister even though the sister’s estate escheated= this principle is limited to inheritance from parent. E. Stat. Rule from Crawford: “ An agreement to adopt a child. (Lankford v. and the intestacy of the foster parent. • Minary v. Rule: The first essential of a contract for adoption is that it be made between persons competent to contract for the disposition of the child.• Regarding Adoption. a parent child relationship exists between an adopted child and the adoptive parent (2-118a) but not between an adopted child and the child’s genetic parents (2-119a and this is subjected to several exceptions.W. Exception: Adopted child might be permitted to take if adopted before.C.C. 419 S. Wilkes. Issue: Whether the virtual adoption of Oneal from Cook was valid? Holding: No. 1. 489 S. Wright. Plaintiff’s BOP: showing of an agreement bt the natural and adoptive parents. this trust would terminate upon the death of the last beneficiary. but not after the testator’s death. they have no claim in equity. 2. Board of Educ. Reasoning: The court weighed the testamentary intent and the strict application of adoption laws (which rule in the favor of Myra). the paternal aunt who entered into the adoption contract with Cook had no legal authority to do so. Whether an adopted child is included may depend on what the law was at the testator’s death. Note: Many Courts refuse to apply equitable adoption principles to testate estates.E. Citizens Fidelity Bank and Trust Co.. Adult Adoption Most intestacy statutes draw no distinction between the adoption of a minor and the adoption of an adult. 439 S. 635 A. Issue: Did Alfred’s adoption of his wife Myra make her eligible to inherit under the provisions of his mother’s will? Rule: Adoption of an adult for the purpose of bringing that person under the provisions of a pre existing testamentary instrument should not be permitted. Browning. performed on the part of the child.” Equitable Adoption: permits an adopted child to inherit from foster parents. 2d (1994). Gen. 1997) However. Sear’s Dissent: Crawford v. the doctrine of equitable or virtual adoption was recognized for the first time in GA. v. is enforceable upon the death of the person adopting the child as to property which is undisposed of by will. foster parents can not adopt from the child bc they failed to “in fact” adopt the child. Wilson. performance by the natural parents of the child in giving up custody. partial performance by the foster parents in taking the child into the home and treating it as their child. One of the son’s adopted his wife in order to recover from his mother’s trust. 30. performance by the child by living in home of the parents. so as to constitute the child an heir at law on the death of the person adopting. 2d 373 (Md.

the state court indicated the question whether posthumously conceived genetic children could enjoy inheritance rights under the intestacy statute implicated three powerful state interests: the best interests of children.2) Posthumous Children Definition: Child was conceived before. § 29-17-22 N. Later. Further. born and conceived after the death of decedent) = a nonmarital child even though the child’s parents may have been married prior to the child’s conception. but born after. and not by any assumptions of the common law. Mass. born after death of decedent) and a posthumously conceived child (a child en ventre se Frigidaire. by adjudication during the life of the father. Rebuttable Presumption of 280 days: the normal period of gestation is 280 days. Rules regarding inheritance from the father vary. §29-9 3) Nonmarital Children Common Law: a child born out of wedlock. was filius nullius. which certified a question to the state court.C. Commissioner of Social Security.E. or by clear and convincing proof after his death. The state court advised that to answer the certified question. Gen. Stat.C. The United States District Court for the District of Massachusetts certified the question: if a married man and woman arrange for sperm to be withdrawn from the husband for the purpose of artificially impregnating the wife. N. The wife appealed to the federal court. 760 N. and the woman is impregnated with that sperm after the man has died. and the reproductive rights of the genetic parent. it must consider whether and to what extent such children could take as intestate heirs of the deceased genetic parent consistent with the purposes of the Massachusetts intestacy statute. Rebuttable Presumption of 300 days: Uniform Parentage Act §204 establishes a rebuttable presumption of 300 days. N. her father’s death. Ancient Rule of Law: Child to be treated as in being at time of conception rather than from the time of birth. . concluding. among other things. Rules Regarding Inheritance from Father: Most permit paternity to be established by evidence of the subsequent marriage of the parents. Gen. the wife applied for Social Security survivor benefits. Stat. 190. the state's interest in the orderly administration of estates. and could inherit from neither father nor mother. Laws ch. The children were conceived through artificial insemination using her deceased husband's preserved semen. Present Rule: All states now permit inheritance from the mother. § 49-10-14 4) Reproductive Technology Discussion about the difference between Posthumous children (a child en ventre sa mere. If conception is claimed before 280 days then the BOP is on the child.2d 257 (2002) FACTS: Plaintiff wife gave birth to twin girls. will children resulting from such pregnancy enjoy the inheritance rights of natural children under Massachusetts' law of intestate succession? Woodward v. Gen.C. Only the child’s spouse and descendants could inherit from the child. Defendant commission denied benefits. the children did not qualify for benefits because they were not entitled to inherit from the husband under the Massachusetts intestacy and paternity laws. Gen. Stat. child of no one.

OUTCOME: The infants were deemed to be "issue" and "descendants" for all purposes of the trusts. Although it could not be said that the grantor contemplated that his "issue" or "descendants" would include children who were conceived after his son's death. The court found it undisputed that the infants. These limited circumstances include. where it is demonstrated: (1) a genetic relationship exists between the child and the decedent. Legislation Regarding Surrogacy i) The law is evolving regarding who is a parent but there is hardly any legislation surrounding parentage in surrogacy matters. although conceived after the son's death were the products of his semen. the wife twice underwent in vitro fertilization with his cryopreserved semen and gave birth to two sons. a child resulting from posthumous reproduction may enjoy the inheritance rights.Y. in the event of his death. In re Martin B.5 (2008) a child of decedent conceived after the death of decedent shall be deemed to have been born in the lifetime of the decedent if (a) the decedent consented in a signed and dated writing. (b) within four months of the decedent’s death. Stat. OVERVIEW: After the son learned that he had Hodgkins Lymphoma. iv) UPC §72-120 : posthumously conceived child inherits from the deceased parent if (1) during life the parent consented to posthumous conception in a signed writing or consent is otherwise proved by clear and convincing evidence and (2) the child is in utero not later than 36 months or is born not later than 45 months after the parent’s death. 841 N. it be held subject to the directions of his wife. ii) La. Code §249. The trustees brought the proceeding because under the trust instruments they were authorized to sprinkle principal to the decedent's "issue" and "descendants. he deposited a sample of his semen at a laboratory with instructions that it be cryopreserved and that. they needed to know whether the son's children qualified as members of such classes. Because the grantor intended all members of his bloodline to receive their share. the surrogate does not have a parent child relationship with the child unless the surrogate is the child’s genetic mother and no one else has a parent child relationship with the child. who had died several years prior to such conception.S. and pursuant to Domestic Relations Law § 73 and EPTL 6. An .1 grants posthumously conceived children inheritance rights if born to the surviving spouse within three years of the decedent’s death. Thereafter. the trust instruments provided that the trust fund would benefit his sons and their families equally. inter alia. and (c) the child was in utero within two years of the decedent’s death and the child is not a clone of the decedent. ii) In some states: Surrogacy agreements are prohibited or are only enforceable under specified conditions iii) UPC §2-121 (2008): provides that in the absence of a court order to the contrary. Rev. 9:391.2d 207 (2008) Issue: The trustees brought an uncontested application for advice and direction in connection with seven trust agreements to determine if the terms "issue" and "descendants" included children conceived by means of in vitro fertilization with the cryopreserved semen of the grantor's son.5-7. notice of the possibility of posthumous conception is served upon “ a person who has the power to control the distribution of decedent’s property”. iii) Uniform Parentage Act §707: recognizes inheritance rights for posthumously conceived children if the parent consented to posthumous conception in writing. Prob." Therefore.OUTCOME: The state court answered the question as follows: in certain circumstances. Legislation Regarding Reproductive Technology i) California: Cal. and (2) the decedent affirmatively consented to posthumous conception and to support of any resulting child. the infants were "issue" and "descendants" for all trust purposes.

under the UPC the advancement is not taking into account in determining the share of the recipient’s descendants. In that case.C. (1) Uniform Simultaneous Death Act (USDA) (1940 rev. Simultaneous Death A person succeeds to the property of a decedent only if the person survives the decedent for instant of time. (2) • UPC §2-109 (1990): Advancements Note: The UPC changes the common law rule if the recipient does not survive the decedent. as the administrator of his daughter's estate. The mother and the administrator appealed.2d 418 (1985). ingested cyanide laced aspirin capsules. insurer. The court found that the medical evidence demonstrated that the daughter exhibited positive signs of life after the son ceased showing such signs. § 49A-1 C. who were husband and wife. the beneficiary is deemed to have predeceased the donor. holding that the evidence supported the circuit court's determination that the son predeceased the daughter and. The insurer paid the proceeds of the policy to the father. To prevent the application of this doctrine. (2) Life Insurance: when the insured and the beneficiary die simultaneously the proceeds are distributed as if the insured survived the beneficiary (3) Well drafted instruments typically require that a beneficiary to survive the donor by a stated period of time (often 30 or 60 days) • Janus v. Gen.E. and administrator. 482 N. has the parent child relationship if they have functioned as a parent of the child within 2 yrs of the child’s birth. NC §29-21-29 D. that the daughter's estate was entitled to the proceeds of the policy. claiming entitlement to the proceeds of her son's life insurance policy. . Advancements (1) Common Law: any lifetime gift by the decedent to a child was presumed to be an advancement/ prepayment of the child’s intestate share. The daughter was the primary beneficiary of the son's life insurance policy and his mother was the contingent beneficiary. The son died shortly after he was admitted to the hospital. The mother filed an action contending that there was no evidence that the daughter survived her son and that she was therefore entitled to the proceeds of the policy as the contingent beneficiary. accordingly.intended parent. OVERVIEW: The mother's son and the father's daughter. 1953): if there is no sufficient evidence of the order of deaths. Tarasewicz. the child has the burden to prove that the transfer was intended as an absolute gift and was not to be counted against the child’s share of the estate. The mother and the administrator of the son's estate appealed. father. N. The circuit court found otherwise and entered judgment in favor of the father. Stat. PROCEDURAL POSTURE: Plaintiff mother filed an action against defendants. The court affirmed. The Circuit Court of Cook County (Illinois) conducted a nonjury trial and thereafter entered a judgment in favor of the father. The daughter survived on life support systems for two days before she was pronounced dead.

UPC §2-803: bars the killer from succeeding to non probate as well as probate property. The wife challenged the decision and the court reversed. Stat.C. If the chancery court's jurisdiction was not invoked within 60 days the wife inherited the property. then his surviving spouse shall be entitled to the whole of the decedent’s estate if it does not exceed 8000. B. 14. Killer can not benefit from his wrong. 220 A 2d. State Law: California. RULE: General rules of descent provide that if decedent is married and leaves no issue. • UPC §2-803 (g) provides that a final criminal conviction is required to be deemed a slayer or upon acquittal. There was no statutory basis for depriving the wife of her rights under Ch. OUTCOME: The court reversed the judgment granting the husband's estate to his parents rather than his wife and gave the estate administrator 60 days to apply to the chancery court for the imposition of an equitable trust on the wife. Because the manslaughter conviction did not delineate between voluntary or involuntary manslaughter the intentional killing of the husband would have to be proved in the chancery court before a constructive trust could be imposed. OVERVIEW: The wife was convicted of manslaughter for killing her husband. Rhode Island. Stat. § 551(2). which had the equitable power to impose a constructive trust on the wife in favor of the parents. 3) Legal title passes to slayer but equity holds him to be a constructive trustee for the heirs or next of kin for the decedent. Only if the decedent leaves no surviving spouse or issue does the estate descend in equal shares to the father or mother. . 475 (1966). Ann. The court recognized that the wife should not be permitted to profit from her husband's death if she intentionally killed him and granted the estate administrator 60 days in which to apply to the court of chancery. and would violate the constitutional provision of corruption of blood. The husband died intestate and the probate court determined that it would be unjust to allow her to profit from her husbands death and decreed the residue of his estate to his parents rather than to her as required by Vt. a showing under the preponderance of the evidence that the individual would be found criminally liable for the killing. § 551(2) and the probate court lacked the equitable power to stray from the statutory mandate. A. ch. N. ISSUE: Appellant wife sought review of the decision from the Probate Court for the District of Franklin (Vermont). 14. and VA extend the bar by statute to the killer’s descendants. 2) Legal title will not pass to the slayer because of the equitable principle that no one should be permitted to profit by his own fraud. This statute provides that the killer is treated as having disclaimed the property and under the UPC disclaimer statute §2-1106 (2002) the disclaimant is treated as having died immediately before the time of distribution. Other states limit the rights of the killer’s descendants to take by case law. Bars to Succession • In re Estate of Mahoney. which granted the estate of her late husband to appellee parents and determined that she could not inherit from her husband because she had been convicted of manslaughter in his death. § 28A-24-1 -5 E. Gen.OUTCOME: The court affirmed the judgment of the circuit court. RULES Regarding Slayer: 1) Legal Title will pass to slayer bc denial of inheritance would be an additional punishment for his crime not provided by statute.

• Most common motivations: are to reduce taxes or keep property from creditors. Common Law: when a person died intestate. Gen. Stat. If the heir refused.N.1. Stat.C. . B. intelligence.C. The natural objects of his or her bounty. as this would incapacitate half of the population • In most states capacity to make a will is governed by a different legal test and req. A. UPC§2-1106 (b)1 o Drye v United States. §64-1-5 F. Gen. Wills A. Stat. his disclaimer did not protect the property from being subject to tax liens bc the court held that the inheritance property or rights to property belonging to him was within the meaning of the internal revenue code and subject to tax liens. less mental ability than to make a contract or to complete an irrevocable lifetime gift. a refusal. §29-10-11 N. Disclaimer/ Renunication Definition: Sometimes an heir or devisee will decline to take the property.C. The disposition that he or she is making of that property and must also be capable of 4. and NOT ACTUAL KNOWLEDGE!!!!! o Ex. The nature and extent of his or her property 2. that a disclaimer be made within 9 months of the creation of interest being disclaimed o Uniform Disclaimer of Property Interests Act: UDPIA (1999 rev 2006)= absorbed into UPC §2-1101 –UPC §2-1107= adopted by 1/3 of states and does not contain a time limit 2) Avoiding creditors: most disclaimer statutes provide that a disclaimer relates back for all purposes to the date of the decedents death= relation back doctrine. Gen. §31B-1-4 IV. and 3. this renuniciation was treated as though title had passed to the heir and then from the heir to the next intestate successor.C. a reasonable mistake about who is alive in your family will not be enough to render you mentally incompetent • Nor must the testator be of avg. title to real and personal property passed as a matter of law and a successor could not prevent this passing. Stat. 15 N. 528 U. §31A-1-12. 1) Saving Estate Taxes : o Most states disclaimer statutes req. 49 (1999) Issue: Whether Drye’s disclaimer was effective to pass the property to his daughter free from the federal tax lien? Holding: No. Capacity and Will Contest Mental Capacity: The tests for mental capacity are minimal. State Legislation: To eliminate the difference between disclaiming an intestate share and a devise. almost all states have enacted disclaimer legislation that provides that the disclaimant is treated as having died before the decedent or before the time of distribution. N. Gen.S. To be competent to make a will the testator must (1) Be an adult (18 or older) and (2)“must be capable of knowing and understanding in a general way: 1. Relating these elements to one another and forming an orderly desire regarding the disposition of the property • NOTE: This test is one of CAPABILITY.

E. A person may have mental capacity to execute a will but be suffering from an insane delusion so as to cause a will to fail for lack of testamentary capacity. not a psychiatric but legal concept whereas the testator adheres against all evidence and reason to the contrary. • Wilson v. A mistake is susceptible to correction if the testator is told the truth. it is not deemed insane.”See Hill v.E.” Issue: Whether Miss Strittmatter’s will was a product of her insanity? . then the will stands. 2. however when there is a evidentiary showing that testamentary intentions of the testator were unclear and fluctuated then the court will most likely rule in favor of the petitioner. Lane. “ The law does not withhold from the aged. not only must one have the capacity to make a will. the notionate.To make an irrevocable lifetime gift. View: if there is any factual basis at all for the testator’s delusion. except for one person who was her caretaker? Holding: There was no evidence to show that Greer lacked testamentary capacity.2d 88 (2005) Facts: Various witnesses including decedent’s attorney testified that Greer was mentally competent. Expert testimony revealed that testatrix was suffering from alzheimer’s disease at the time of the execution of the April 13th. until there is some evidence shown to rebut that presumption. Maj. all were family members. If an insane delusion is shown but it did not affect the dispositions. View: a delusion is insane even if there is some factual basis for it if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator. 690 A. 1992 will? Holding: The testatrix lacked mental capacity to necessary to execute a will. the capricious. 53 A. 614 S. 2d 205 (1947) Facts: Testatrix suffered from paranoia and a type of split personality. Min.” Evidentiary Burden: Minority rule: exemplified in Washburn case: BOP or Burden of Persuasion on proponent to show testamentary capacity Majority Rule: once the proponent adduces prima facie evidence of due execution. Issue: Was Greer mentally competent when executing her will devising her property between 17 named inviduals. Deal. 1992 will which resulted in the inability to recollect the property and decipher whom it she be allotted to upon her death.” • In re Estate of Washburn. No evidence of change in her condition over the years. the party contesting the will on the grounds of lack of capacity has the BOP. Issue: Did the testratrix have the mental capacity to execute the April 13th. She demonstrated incontrovertably her morbid aversion to men and feminism to a neurotic extreme. Rule of Law: The court “has long held that every person is presumed to be sane.2d 1024 (1997) Facts: Katherine Washburn executed three wills. UPC §3-407 o Insane Delusion Definition: is a belief not susceptible to correction by presenting the testator with evidence indicating the falsity of the belief. Explanation of Definition: a delusion is a false conception of reality. feeble. 861 (Ga. the weak minded. but one “must also be capable of understanding the effect that the gift may have on the future financial security of the donor and anyone who may dependent on the donor. the right to make a will. 193 S. 1937) Reasoning: “eccentric habits and absurd beliefs do not establish testamentary incapacity” MD’s testimony was not enough: “vague reference to senile dementia cannot eliminate testamentary capacity” Rule of Law: A person is mentally capable of making a will if she “has sufficient intellect to enable her to have decided and rational desire as to the disposition of her property. • In re Strittmatter.858. Focus on causation! 1. provided such person has a decided and rational desire as to the disposition of his property.

The will represents her wishes B. She understands the proposed testamentary disposition 4.3 cmt. Rule: There must be an inquiry as to whether the delusion materially affects the contested disposition of the will and if the delusion materially affects the contested will. basically when a testator is coerced into doing that which he or she does not desire to do Evidence: Proof may be wholly inferential or circumstantial.Holding: Yes. . sometimes showing of suspicious relationship (R3d §8. What constitutes sound mind. Cunningham Test: The court held that mental capacity to make a will req. Rebuttal is shown by clear. including a lack of sound mind.2d 1167 (2000) Facts: This contest involves a holographic will executed by decedent. 2d 1378 (1994) and then the BOP shifts to the proponent to rebut the presumption. petitioners did not prove that Breeden did not lack testamentary capacity or sound mind based on his alcohol/drug usage and depression. BOP: on party asserting that testator was suffering from insane delusion Causal relationship standard: necessary between an individual’s insane delusion and his capacity to contract derived from the Hank case. Before his suicide. Issue: Whether Spicer Breeden’s holographic will was invalid based on insane delusions when he suffered from depression and was frequently was under the influence of drugs and alcohol? Holding: No. 656 A. two test: A. usually circumstantial evidence used and if sufficient the court will infer a presumption of undue influence that is triggered by evidence of a (1) confidential relationship and usually at least one other factor. Stone.that: 1. Insanity does not make one incompetent to contract unless the subject matter of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction. and convincing evidence that the grantee acted in good faith throughout the transaction and the grantor acted freely. intelligently and voluntarily. by a preponderance of the evidence. the court held that it was her paranoic condition. Undue Influence Definition: coercion. Note: not all insane delusions materially affect the will!!!! • Dead Man Statutes Min of States: prohibit testimony by an interested party of a decedent’s oral statement in support of a claim against the estate. Testator understands the nature of her act 2. Reasoning/ Purpose: To protect the estate of decedent from false claims after the decedent’s lips are sealed. whom died by a self inflicted gun shot wound after he was involved in the hit and run accident that killed another driver. especially her insane delusions about the male which led her to leave her estate to the National Women’s Party. 992 P. satisfactory. then the will is deemed invalid. She knows the extent of her property 3.” BOP: Contestant must prove: (1) the donor was susceptible to undue influence (2) the alleged wrongdoer had an opportunity to exert the undue influence (3) the alleged wrongdoer had a disposition to exert undue influence and (4) there was a result appearing to be the effect of the undue influence. BOP: the contestant must prove a lack of testamentary capacity. • Breeden v. She knows the natural objects of her bounty and 5. h) See Estate of Lakotosh. The Insane Delusion Test: the contestant must show that (1) testator labored an insane delusion and (2) the will or some part of the will was part of that insane delusion. he left a handwritten note on his desk devising basically all personal property to his friend Sydney Stone.

Rule: R3d of Property: Wills and other donative transfers (2003) §8. His share was increased in the execution of the will and his half brother and his descendants were disinherited in the execution of this will. the confidential relationship and suspicious circumstance was proven however the contestants did not prove that the will as written resulted from Defendant Lipper substituting his mind and will for that of the testatrix.3 (a) a donative transfer is invalid to the extent that it was procured by undue influence. Issue: Was Moses will invalidated by undue influence of Holland? Holding: Yes. 369 S. all previous husbands died. (1969) Facts: Mrs. Moses was married three times before. or dominant-subservient) (2) that the person enjoying such relationship received the bulk of the estate and (3)that the decedent’s intellect was weakened. Weslow. based on the presumption of undue influence based on the confidential relationship between Holland and Moses (attorney client) even though Holland was unaware of Moses bequest and will execution. inexperience.2d 1378 (1994) Rule of Law: Burden of proof may be shifted so as to require the proponent to disprove undue influence. or mental weakness.Purpose: Protects against overreaching by a wrongdoer seeking to take unfair advantage of a donor who is susceptible to such wrongdoing based on age. • In re Moses. The descendants of his dead half brother are contestants in this matter and claim undue influence.” Moses suffered from alcoholism and depression. • No Contest Clause: . Note: attorney-client relationship raises the presumption in most states except when the attorney is related to the testator. dependence. 2d. Holland the rebuttal was not met. Rule of Law: The test of undue influence is whether such control was exercised over the mind of the testatrix as to overcome her free agency and free will and to substitute the will of another so as to cause the testatrix to do what she would not otherwise have done but for such control. NOTE: Capacity case= assessment of the testator’s status vs Undue Influence case = an assessment of conduct • Estate of Lakotosh. Three yrs. the lawyer. Issue: Did the confidential relationship of Mr. Holland who was 15 yrs younger than her and they had a “relationship. Lipper as the son. 656 A. Rule of Law: Confidential relationships give rise to the presumption of undue influence . Before her death she went to another attorney and executed a will that devised a large portion of her estate to Holland. rebuttal will not be achieved by a showing that the confidential relationship did not in fact interfere with the actual drafting of the will (based on the other attorney’s drafting) Reasoning: Because the other attorney did not advise Mrs. 227 So. Holding: The power of an attorney in and itself was sufficient for a finding that a confidential relationship existed. triggered presumption of undue influence and BOP shifted to proponent to rebut. executor of estate in some way cause undue influence upon the testatrix? Holding: (Min. physical.fiduciary. of States): No. reliant.2d 698 (1963) Facts: Defendant Lipper was the son of the decedent and executed the will for the decedent. During 2nd marriage she met attorney. duress or fraud.W. To do so contestant must prove by clear and convincing evidence that (1) there was a confidential relationship (def: embraces three distinct and sometimes overlapping relationships. • Lipper v. Moses regarding her will and blood relatives and the relation of Mr. (b) a donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not have otherwise made.

D asks O to bring will so that she can sign it. The will may be probated and then a court with equity powers can impose a constructive trust on one or more of the beneficiaries to remedy any unjust enrichment caused by the fraud Types of Fraud: 1. when O convinces D not to devise to A bc O assures that he will convey property to A and knows that he has no intention of doing so. Misrepresentations must be made with both the (1) intent to deceive the testator and the (2) purpose of influencing the testamentary disposition. equity will enforce a constructive trust to effectuate that purpose. Strike the portion of the will directly affected by the fraud 2. Invalid only if the testator would not have left the bequest had testator known the true facts. Explanation in Will 2.2d 168 (1949) Facts: Decedent left entire estate to leader of religious cult. Professional examination of client’s level of capacity 6. Letter to the Lawyer setting forth dispositions and explanation 3. If the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not have otherwise made. UPC §2-517 2. lest there be a fraud on the testator. Video discussion of Testator’s intent: practical experience= sometimes helpful and sometimes not 4. However. 1.E. 2. O brings D a document that he knows is not the correct will to sign Duress When undue influence becomes overtly coercive. D has bad eyesight.a clause provides that a beneficiary who contests the will shall take nothing or a token amount. in lieu of the provisions made for the beneficiary in the will. Ex. Majority of states: enforce a no contest clause unless there is probable cause for the contest. to refrain from executing or revoking the will or to include particular provisions in the wrongdoer’s favor. Remedies: 1. which does not in fact carry out the testator’s intent. Indiana and FL: Do not enforce no contest clauses at all Note: There are subtle differences in the application of law state by state. for some reason (P claims duress and threats of Defendants) did not execute the will before her death. Precautionary Measures in the Expectation of Will Contest: 1. Fraud in the inducement: occurs when a representation causes the testator to execute or revoke a will. Decedent expressed desire and contacted attorneys in regards to drafting the will however. Hold a family meeting before death of testator to explain rationale for will 5. Fraud in the execution: occurs when a person intentionally misrepresents the character or contests of the instrument signed by the testator. R3d §8. Instead of Will execute an inter vivos trust: easier to keep from other family members Fraud Occurs where the testator is deceived by a deliberate misrepresentation and does that which he would not have done had the misrepresentation not been made.3 • Latham v. Rule of Law: where a legatee has taken property under the will. Ex. 85 N. . No contest clause: only effective if contestant has a bequest 7. after agreeing outside the will to devote that property to a purpose intended and declared by the testator. Father Divine.

Elements of Intentional Interference with an Expectancy: 1. Stevens sign the will. Stat. §31-3.2d 610 (1998) Facts: Stevens went to the bank to execute his will. Attestation by witnesses UPC §2-502: Execution. fraud. Causation and 4. Signature of Testator (testator is permitted either to acknowledge his prior signature to both witnesses at the same time or to sign the will before both witnesses). Analysis should be directed toward the Testator. TIE can not be used in conjunction with challenge based on testator’s mental capacity.C. Writing 2. Holographic Wills • Stevens v. .1-2 N. §31-46 Attested Wills: Execution Requirements Purposes of Will Formalities 1. 508 S. duress. However.C. Damages Rule from Case: Exception to the General Rule: is that if the defendant’s fraud is not discovered until after probate then the plaintiff is allowed to bring a late action for damages since relief in probate was impossible and the circumstances surrounding the tortious conduct effectively preclude an adequate relief in probate court.2d 1231 (2007) Facts: Herrera was caretaker of decedent in the latter years of her life. and 3. Ritual Function : require the performance of some ceremonial 3. SOL: is based on tort law.Constructive Trust: is an equitable remedy that is sometimes said to be a fraud rectifying trust Tortious Interference with Expectancy Tort law that recognizes intentional interference with an expected inheritance or gift as valid cause of action. The existence of an expectancy 2. • Schilling v. Witnessed or Notarized Wills. Will Execution Introduction N. Casodorph. Finality of intention to transfer: The court needs to be convinced that the statements of the transferor were deliberately intended to effectuate a transfer 2. Brother of Decedent challenges probate based on theory of TIE. BOP: Plaintiff must show that the interference involved conduct tortious in itself such as.E. Gen. Intentional interference with the expectancy through tortious conduct 3. Channeling Function: recording in a standardized form following the wills act The basic formalities of a will: 1. Evidentiary Function : emphasize the purpose of supplying satisfactory evidence to the court 4. after signing his will in the presence of Ms. Wauley took the will to two other witnesses who signed the will wo seeing Mr. Stat. starts running on the action at the time the plaintiff discovered or should have discovered the fraud NOTE: This is NOT a WILL CONTEST! But an action to recover from a third party (punative damages) for misconduct. Herrera. Protective Function : safeguarding the testator 5. Gen. Wauley. 952 So. or undue influence. B.

Real Property: the law of the state where real property is LOCATED Execution: 1. witness does not immediately sign. cross. Disinterested Witnesses: • Estate of Morea.2d 1022 Rule: an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void “unless there are. Note: Godfrey Case: Computer signature was held to be valid signature 2. comprehends that the witness is in the act of signing • Note: UPC §2-502(a) dispenses with the requirement that the witnesses sign in the Testator’s presence Definition of Signature: UPC §5-502(a): requires a signature 1. Conscious Presence Test: The witness is in the presence of the testator if the testator. with assistance.Issue: whether the signature of the two witnesses outside the presence of the testator validated the will. Line of Sight Test: Testator does not have to actually see the witnesses sign but must be able to see them were the testator to look. 2. Lawyer confirms testator has read the will and understands its contents . at the time of execution and attestation. abbreviation or nickname can be sufficient. Order of signing: The testator must sign or acknowledge the will before the witnesses attest. 645 N.” Reasoning: there must be at least two disinterested witnesses. and if there is one interested witness that does not benefit from signing the will his signature is valid.Y. present at the same time.” 3. that the testator sign the will “at the foot or end” of the will. Note: Recommended Method of Executing a Will Lawyer should not rely on the formalities of one state when executing a will bc the client’s will may be offered for probate in another state Applicable Law: See UPC §2-506 (1990) 1. Definition of Presence: 1. or by another: preferable to a full signature however. or general consciousness of events. through his sight. Subscription: few states have adopted this req. the witnesses did not sign in the presence of the testator and the testator did not sign in the presence of the witnesses. Holding: No. the exact order of signing is not critical.S. and the specify the exact number of pages 2. Rule: The signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses. at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder. all that is req. is a reasonable record of the markings that make up a will. but if they all sign “ as part of a single or continuous) transaction. Delayed attestation: occurs when witness actually sees testator sign the will however. of states: Do not require witnesses to be disinterested following UPC §2-505(b). Min. UPC §2-502 (a)(3)(a): the witness must sign within a reasonable time(could be after the testator’s death). a mark. hearing. A will need not be on paper. 4. Personal Property: The law of decedent’s domicile at time of death determines the validity of the will 2. Make sure all pages are fastened together securely. Signature by mark. NY law: 30 days Meaning of Writing 1.

• In re Snide. testator. Facts: Husband and Wife mistakenly signed each other’s wills by accident. Two Step Self Proving Affidavit: separate affidavit. Issue: Did the parties substantially comply with the Wills Act? . No two step process was administered. Have you read it and do you understand it? c. One Step Self Proving Affidavit: combined attestation clause and self proving affidavit (witnesses and notary sign only once) 2. 418 N. 2. Substantial Compliance: • In re will of Ranney.2d 528 (1959) Facts: Husband and Wife mistakenly signed each other’s wills by accident. 148 A. ___. and ____ to witness the signing of your will? 6. and two (three in Louisianna) disinterested witnesses and a notary public are brought in one rm from which everyone else is excluded . The lawyer. The lawyer asks testator three ?’s: Testator must answer all with yes. It is not necessary or customary for the witnesses to know the terms of the will. strict compliance with the will’s act.2d 656 (1981). until completion of ceremony 4. the affidavit must be signed by testator and witnesses in front of notary after the signing of the will. The lawyer asks the testator: “ Do you request ___. Substantial Compliance Doctrine: the court may deem an effectively executed will as being in accord with the statutory formalities if the defective execution nonetheless fulfills the purposes of those statutory formalities. strict compliance with the formalities of the will’s act. Refer to pg.3. 244 for other steps regarding ceremonial procedures! Self Proving Affidavit: UPC §2-504 authorizes two types of self proving affidavits. 1. require strict compliance with the will’s act and will not apply these principles. Harmless Error Rule (AKA: Dispensing Power): the court may excuse noncompliance with statutory formalities if there is clear and convincing evidence that the decedent intended the document to be his will. Curative Devices Courts have occasionally excused or corrected an obvious execution defect to avoid denying probate to a will that manifestly represents the true testamentary intent/ wishes of the decedent. 2d 1339 (1991) Facts: Witnesses did not sign the attestation form and the self proving affidavit. 589 A. Note: Some cts. a. UPC §2-503 • In re Pavlinko’s Estate. rm door closed. in a voice that can be heard by witnesses and notary. Is this your will? b. 1. UPC §3-406(1): if a will is self proved. Rule: The court adjusted the will based on testamentary intent of the parties based on the genuine mistake of the parties did not req. Rule: Court declined to adjust or alter the will even though there was a known testamentary intent to do otherwise and req. questions of due execution may not be contested unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit. The witnesses should be standing or sitting so that all can see the testator sign. Does it dispose of your property in accordance with your wishes? 5.E.

instead. is the signature to it a sufficient compliance with our wills act? Holding/ Rule: Yes. the harmless error of Jim to formally execute his will did not prevent its admittance into probate.C. agreements. Issue: Whether the harmless error of Jim and Betty to execute the joint will prevents the administration of the will? Holding: No.2-3 Conditional Wills 1.Conclusion: the court was reluctant to validate the execution of the will based on one signing when the statute requires two based on the wills formalities act without the inquiry of whether the testimony deemed that the witnesses substantially complied. Gen. you need two other people to witness UPC §2-503 Holographic Wills Definition: Is a will by testator’s hand and signed by the testator. 405 (1924) Facts: Father sent letter to sons regarding the distribution of his estate upon his death. presume that the language of condition does not mean that the will is to be probated only if the stated event happens but is. requiring the most precise compliance with specified formalities (NC recognizes) • Kimmel’s Estate. but to a further inquiry does the non-complying document express the decedent’s testamentary intent. merely a statement of the inducement for execution of the will. §31-18. the document may still be treated if it had been executed under certain circumstances. attesting witnesses are not required. Jim directed Betty to destroy the original will and it was deemed his intention to have the joint will admitted to probate and to revoke the original will. . Rule: “when formal defects occur. Authorized by: UPC §2-502(b) • Note: Holographic wills are not recognized in the majority of states. Stat. Note: Notarized Wills UPC §2-502(a)(3): provides that a will is valid if it is signed by two witnesses or by a notary. 51 P. §31-3. proponents should prove by clear and convincing evidence that the will substantially complies with statutory req. and for some decisions . Most likely executed: The cts. 123 A. Issue: Is the paper testamentary in character? Second. which can be probated upon death from any cause.” N. checks. powers of attorneys. and informal letter of requests were wills and his intent was evident from this writing. Rule: Under the harmless error doctrine. in states recognizing them.” “ Finding of a formal defect should lead not to automatic invalidity. they did not formally execute the new will. 3d 1134 (2002) Facts: Betty and Jim Hall prepared a joint will however. letters. mortgages. Gen.C. and does the form sufficiently approximate will act formality to enable the court to conclude that it serves the purposes of the will’s act?” Harmless Error • In re Estate of Hall. the court has previously held that “deeds. • Some states have held that notary can count as one witness but you still need a total of two • Some states have held absent intent of notary to be a witness. Stat. One such circumstance is if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to be the decedent’s will. … a letter of instructions.4-5 N. notes.

Note: Sometimes Holographic wills are written in extremis: Ex. To be deemed a valid holographic will. By a subsequent writing executed with testamentary formalities or. The Validity of Holographic Wills on Preprinted Forms: If a testator writes will by hand on a typed or preprinted will form but fails to have the form properly attested then the instrument fails as a formal will. • Estate of Gonzalez. Definition of Codicil: a testamentary instrument that amends a prior will but does not replace it. 15 P. Bird. that the document be entirely written. fulfill the requirements of a holographic will. (1) it must be handwritten by Testator and (2) signed by Testator(most states say anywhere on the face of the document suffices). signed and dated by the testator 2. Second Generation Statutes (1969 UPC): req. • In re Estate of Kuralt. 621 So. which means that it is subject to modification or revocation by the testator during her lifetime. Husband trapped under tractor scratched holographic will onto tractor with knife before death and this was admitted.3d 931 (2000) Facts: Kuralt had a wife and children. However. cts are split on their application. 1. taken alone.2d 1146 (2004) Rule: A holographic will is one where a signature and the material provisions are in the handwriting of the testator. 2. All states permit revocation of will in one of two ways: Revocation by Writing or Physical Act 1. • Whether it will be deemed holographic depends on how much of the will was handwritten. Will Revocation A will is an ambulatory document . Not usually executed: When a statement expresses a motive or reason for drafting the will rather than a contingency upon which the will was based.2. C. Rule of Law: The provisions of a letter may be deemed a showing of testamentary intent and may be deemed to equal a holographic will and a codicil to a validly executed will when evidence proves testamentary intent of Testator. However. have ignored the preprinted words and decided based on the handwritten words. he had not yet transferred this parcel of land before death but sent letters indicating his intent to do so. unbeknownst to them he had a mistress and another life whereas he supported the mistress and her children for a series of years and before death attempted to devise a certain track of land to this mistress. However. First Generation Statutes: req. that material provisions be in the handwriting of the testator (signature +material provisions only) 3. or burning the will. Note: Oral revocation alone is not enough to be a valid revocation! UPC §2-507: Revocation by Writing or a Physical Act • Harrison v. obliterating. Holding: The preprinted will form filled in by the testator was deemed a valid holographic will because when read with the preprinted words the document exemplifies a valid statement of testamentary intent. 855 A. Third Generation Statutes (1990 UPC): material portions and extrinsic evidence allowed to establish testamentary intent. have held that testamentary intent was clear and this was a valid holographic will • Some cts. By a physical act such as destroying. • Some cts. 2d 972 (1993) .

if UPC §2-507 (a)(2) would have been applied it allows for cancellation regardless of whether the cancellation touches any words on the will. the revocation is not effective” .C. Lou Bowen Kroll had been revoked shortly before death? Holding: No. Maj: UPC §2-507: authorize partial revocation by physical act 2. the person who takes the new gift may be the one who made the canceling marks. or any part thereof. to be executed. NOTE: In absence of a statute to the contrary. burning. or destroyed with the consent of the testator but not in compliance with the revocation statute can be admitted into probate if its contents are proved (by copy in lawyer’s office or clear and convincing evidence) MIN. 99 A. Dependent Relative Revocation and Revival If the testator purports to revoke his will upon a mistake assumption of law or fact. Two reasons for prohibiting partial conduct: 1. Some states require clear and convincing evidence and some require preponderance of the evidence standard. • Lacroix v. a will that is lost. or by the testator. The underlying theory is that the testator lacks true revocatory intent if the revocation was based on a mistaken belief. M.1 PARTIAL REVOCATION by physical act: 1. Senecal. Min: will cannot be revoked in part by an act of revocation. and the pieces of the will were not found with personal effects at death. unless… by a subsequent will or codicil. tearing. the will must be admitted to probate in the form which it was originally executed if the original language can be ascertained. RULE: In a few states. and executed in the manner in which a will is req.Rule: Presumption of Revocation may exist when there is evidence that attorney destroyed Decedent’s will. the attempted revocation is not valid bc testratrix attempted to revoke will with subsequent writings not executed as required by statute. outside of Decedent’s presence. obliterating canceling. the revocation is ineffective if the testator would not have revoked his will had he known the truth. BOP shifts after presumption is made to the proponent to prove there was no revocation of the will. it can be revoked in part only by a subsequent instrument. Royall. or by some writing declaring an intention to revoke the same. • Thompson v. Gen.2d 115 (1953) Rule: “Where the intention to revoke is conditional and where the condition is not fulfilled. 748 (1934) Issue: Whether the will of Mrs.E. cutting. statutes prohibit the probate of lost or stolen wills unless the will was in existence at the testator’s death or was fraudulently destroyed during the testator’s life. or the signature thereto. Stat. NOTE: This case would have been diff. 175 S. or some person in his presence and by his direction. N.Permitting this allows an opportunity for fraud. destroyed without the consent of the testator. The doctrine is one of presumptive intent not actual intent. Note:If partial revocation by act is not recognized. shall be revoked. §31-5. with the intent to revoke.Canceling a gift to one person results in the gift or benefit of another person which can only be done by attested writing 2. Rule: No will or codicil. or destroying the same.

or similar non probative donative transfer. If there is evidence that the Testator intended the destruction to be absolute(and no intention for the prior will to be admitted into probate). 2. However. 118 N. upon revocation of #2. pension plan. the presumption is that the previous will is revived. 4. Only usually apply to wills. Gen. 3. unless it appears from the will that the omission was intentional or spouse is provided for in the will or by a will substitute with the intent that the transfer be in lieu of testamentary provision. -usually in the form of another will either duly or effectively executed. there is no room for application of DRR. Stat. Common Law: Will #1 is not revoked unless will #2 remains in effect until the testator’s death. insurance or annuity policy. See UPC §2-301: revokes the will to the extent of the spouses intestate share Min: a premarital will is revoked entirely upon marriage Birth of Children: Common Law: marriage followed by birth of children revokes a will executed before marriage. This doctrine limits the amount extrinsic evidence that can be used • Estate of Auburn. the presumption is that the previous will remains revoked. Maj: A divorce revokes any provision in the decedent’s will for the divorced spouse. UPC §2-509: nearly half of states have adopted • 2-509 (a) if a subsequent will that wholly revoked the previous will is itself revoked by a physical act. pension plans or non probate transfers.C. not life insurance policies. trust. or (2) where the mistake is recited in the terms of the revoking instrument or possibly. . §31-5.C. Stat.DRR applies only: (1) where there is an alternative plan of disposition that fails.W. will. • 2-509 (b) if a subsequent will that is partly revoked the previous will is itself revoked. N. Min: revocation occurs only if divorce is accompanied by a property settlement. Maj. Governing instrument= deed. will #1 is revived if the testator so intends. UPC §2-804 applies to non probate transfers as well as wills. account with a payable on death designation. is established by clear and convincing evidence. 2d 919 (1963) Rule: It is held that the destruction of a later document is intended to be conditional where it is accompanied by the expressed intent of reinstating a prior will and when there is no explanatory evidence. §31-5. Min: revoked will cannot be revived unless re-executed with testamentary formalities or republished by being referred to in a later duly executed testamentary writing.8 Revocation by Operation of Law 1. REVIVAL of Will: 1. 2.3-5 Marriage: if the Testator executes his will and subsequently marries Maj: give the spouse his/her intestate share. 3. Intent may be shown by the circumstances surrounding revocation and oral declarations. N. Of course.: assumes that will #2 legally revokes will #1 at the time will #2 is executed. Gen.

582 N. whereas incorporation by reference can apply to incorporate into will language or instruments that have never been validly executed. • Major Diff. or restrict the provisions of the will. See UPC §2-302 D. . a share in the parent’s estate. If it was in existence at the time of the execution of the will.: Republication by Codicil vs. giving a child born after the execution of a parents will. by words or by action that a document is the testator’s will. written bequests of personal property contained in a notebook maintained by a testatrix were incorporate by reference into the terms of the testatrix’s will? Holding: Yes Rule: a properly executed will may incorporate by reference into its provisions any “document or paper not so executed and witnessed. Doctrine of Incorporation by Reference: is that republication only applies to a prior validly executed will. a mere list or memorandum. If applicable. Stat. an addition to or qualification of. though sometimes courts have ignored this qualification. of Codicil: is a supplement to. Gen. that the instruments are incorporated as one. an existing will. a will is treated as re-executed (re published) as of the date of the most recent codicil. Holding: That there were two wills written on the same page..” “The intention of the testator shall prevail if consistent with the applicable rules of law” Reasoning: It appears clear that Helen intended by the language used in Article 5th of her will to retain the right to alter and amend the bequests of tangible personal property in her will. 279 P. and that a proper execution of the codicil extends also to the will. Rule: The general principle of law is that a codicil validly executed operates as a republication of the will no matter what defects may have existed in the execution of the earlier document. are integrated into the will. • Doctrine is not automatically applied. enlarge. only where updating the will carries out the Testator’s intent. made by the testator to alter. and is identified by clear and satisfactory proof as the paper referenced to therein. Under Doctrine of Republication by Codicil.Maj: have pretermitted child statutes(some include children born before and after execution of will).C. • Johnson v. and it must be testamentary in character. Will Components Integration of Wills All papers present at the time of execution. results in a revocation of the parent’s will to the extent of the child’s share. without having to amend the formally the will through documentation in her notebook. intended to be part of the will.…. Johnson. to explain or republish it.2d 949 (1991) Issue: Whether a probate judge correctly concluded that specific. and that the second will (a handwritten codicil) incorporated by reference the first will (the typed will). Greenhalge. whether the paper referred to be in the form of . not mentioned in the will.E. Incorporation by Reference UPC §2-510 UPC §2-513 Separate Writing identifying devise of certain types of Tangible Property N. §31-47 • Clark v.2d 928 (1954) • Def. Republication by Codicil Publication of a will is the testator’s statement to the witnesses.

Personal usage exception: if the extrinsic evidence shows that the testator always referred to a person in an idiosyncratic manner. Plain Meaning Rule/ No extrinsic Evidence Rule: extrinsic evidence may be admitted but cannot be entered to disturb or contradict the plain meaning of the words in the will 2. is established. 186 N.E. the gift will be upheld under this doctrine. . 86 (1933) Rule: There must be a latent ambiguity or equivocation (when testamentary language is not clear) in the will itself which would permit the introduction of statements of the testatrix to prove her testamentary intention.C. Mistaken or Ambiguous Language in Wills Majority of Jurisdictions still follow two rules that bar the admission of evidence to vary the terms of the will: 1. Grainger. Exists when no person or thing exactly fits the description. Interpretation and Construction of Wills Goal in construing wills is to give effect to the testator’s intent. direct as well as circumstantial evidence of the donor’s intention may be considered in resolving the ambiguity in accordance with the donor’s intention. Two types of Ambiguities: 1. No Reformation Rule: equitable remedy that would correct a mistaken term in a will to reflect what the testator intended the will to say N. A will duly executed and allowed by the court must under the statute of wills be accepted as the final expression of the intent of the person executing it. Latent Ambiguity: manifests itself only when the terms of the will are applies to the testator’s property or designated beneficiaries (oral declarations of intent to the scrivener are admitted in most jurisdictions to clear up latent ambiguity) a. Gen. Patent Ambiguity: appears on the face of the will 2. Equivocation: Occurs when a will clearly describes a person or thing. and two or more persons or things exactly fit that description (direct expressions of the testator are admissible) i. §31-41 • Mahoney v. the evidence is admissible to show that the testator meant someone other than the person with the legal name of the legatee b. • Another doctrine permitting extrinsic evidence to identify the will beneficiaries or property passing under the will • This will be true even if the phrasing of the will leaves it in the testator’s power to alter the beneficiaries or the property by a non testamentary act E. but two or more persons or things partially fit that description (more common) Note: Collapsing the patent/ latent distinction: the determination bt the two is often a subjective undertaking and the relevance of distinction has begun to fade. Stat. patent or latent.Acts of Independent Significance (AKA: Doctrine of Non-testamentary acts) UPC § 2-512: Event of Independent Significance If the beneficiary or property designations are identified by acts or events that have a lifetime motive and significance apart from their effect on the will. RULE: Once an ambiguity.

there is a trend towards adjusting wills to correct mistaken terms to conform the will to the actual intent of the testator. Insane Delusion (relief granted) Effect: Mistaken Terms Fraud (relief granted) Mistake (no relief) • Arnheiter v. Experience in other jurisdictions 3. Duress (relief granted) Lack of capacity. The rise of the non probate system 2. NJ. Testator put 304 instead of 317 in her devise. the devise lapses (it fails). however the plaintiffs can seek recourse under another method. Issue: Whether the court can correct an obvious mistake in the will? Holding: No reformation is not applicable. Lapse: If a devisee does not survive the testator. 2d 914 (1956) Facts: Guterl devised a piece of property on Harrison Ave. 716 A. 125 A. The Causes and Effects of Will Defects Cause: Intentional Wrongdoing Cause: Innocent Acts Effect: Lack of Volition Undue Influence. However. would permit a finding that the will provided for the contingency of marriage. testatrix did not put the right street number of the property in her will. Erickson. UPC §2-805: Reformation to Correct Mistakes This statute allows the reformation absent ambiguities if shown by clear and convincing evidence of transferor’s intent (re: mistake). Growing embarrassment that failure to cure well proved mistakes inflicts unjust enrichment. improperly excluded evidence of mistake that if believed. Concern to spare lawyers from needless malpractice liability Death of Beneficiary before Testator: Lapse I. the trial ct should not have admitted the will bc there was no language in the will providing for the contingency of marriage therefore no ambiguity to resolve. However. should have allowed the submission of extrinsic evidence regarding the decedent’s intent that his will would not be revoked automatically by his subsequent marriage? Holding: No. Dissent: Extrinsic evidence should be admissible to establish the decedent’s true intent. Reasons for adjustment to the No. Arnheiter. the trial ct. RULE: Under the principle of “falsa demonstration non nocet” (mere erroneous description does not vitiate) this allows less essential particulars may be rejected provided the remainder of the description clearly fits.2d 92 (1998) Issue: Whether the trial ct. It is a requirement that all gifts given by will are subject to a devisee surviving the Testator .Correcting Mistakes without the power to reform wills: In addition to resolving latent & patent ambiguities. Openly reforming wills for a mistake: • Erickson v.reformation rule and fixing of mistakes: 1. and 4.

However: rule has been turned over in most states by statute or judicial decision.• N.2d 353. §31-42 Majority of States: have antilapse statutes. §92. died testate and had a valid holographic will which devised everything she owned to H. she had two dogs named Roxy Russell one was intended to replace the other one and was alive at the time of execution). Residuary Devise: if the residuary devise lapses. P alleges that the court erred in allowing extrinsic evidence to determine the Testator’s intent. . “A dog cannot be the beneficiary under a will the attempted gift to Roxy Russell is void.C. Note: That if there are more than one share of residuary estate devised and lapses. Void Devise: when the devisee is already dead at the time the will is executed. and one member of the class predeceases the testator. then the owners of the other residuary shares do not rcv the remainder of the residuary estate bc of the no-residue. Quinn and Georgia Nan Russell Hembree. In addition. Typical Rule: If a devisee is of a specified relationship to the testator and is survived by descendants who survive the testator. 4.5 3. Rule: A disposition in equal shares cannot be equated to with a disposition of the whole to one of them who may use whatever portion thereof as might be necessary on behalf of the other. or made to some ineligible taker (ex.”=bottom pg. 359: Estate of Russell. “ • That portion of any residuary estate that is the subject of a lapsed gift to one of the residuary beneficiaries remains undisposed of by the will passes to heirs at law. Antilapse statutes: they do not prevent lapse. the descendants are substituted for the predeceased devisee. the devise falls into the residue. Georgia Russell ( her niece and heir at Law).of. much less indicate that the provision for the dog is merely precatory in nature. However. Testator. the surviving members of the class divide the gift. 2.Quinn (her friend) & Roxy Russell (Her dog. Reasoning: No words of the will give the entire residuum to Quinn. 444 P. • Extrinsic evidence was admitted and considered accurately to determine that Roxy Russell was a dog. dog or cat) then the devise is void. discussed later in outline Default Rules: apply when the will does not indicate what happens when a devisee predeceases the testator and the antilapse statute is not applicable 1. Class Gift: if the devise is to a class of persons. 2. Gen. the “extrinsic evidence brought forth to express the intent of the testator should have been excluded by the trial court.a.residue rule. P’s Arg: (Niece) argues that her aunt could not have devised a portion of her estate to the dog and that the dog’s share should be devised to her since she is the only living heir of the testator. This no residue of a residue rule has also been rejected by UPC §2-604b (1990) and Restatement 3d of Property: Wills and Donative Transfers §5. 220 • The rule is equally applicable with respect to a void gift to one of the residuary beneficiaries. II. 1. Stat. • • Pg. Specific or General Devise: If a specific or general devise lapses. they merely substitute other beneficiaries (usually descendants) for the dead beneficiary if certain requirements are met. 1968 Facts: Thelma Russell. Common Law Rule: gives the predeceased devisee’s gift to the devisee’s descendants unless the testator provides otherwise. 362 Conclusion: The residue of testatrix estate should be distributed in equal shares to Chester H. the heirs of the testator take by intestacy.

and North Dakota. §2-605: applies only to a devise of a grandparent or a lineal descendant of a grandparent. However. would pass through intestacy. Colorado. Common Law: Being a residuary devise. This decision was reversed by the Supreme Ct.” Brennan died 17 days before Swanson. • Pg. Issue: Whether the court concluded that the antilapse statute does not apply? Whether an intent contrary to §45a-441 is so manifested? Rule: Antilapse statutes “will apply unless testator’s intention to exclude its operation is shown with reasonable certainty. Hawaii. Antilapse statute: C would take B’s share. if she survives me. 2006 Facts: John Swanson devised ½ of his residuary estate to his stepdaughter. • Some statutes: Apply only to descendants of the Testator • Some statutes: Are Broader and apply to Kindred of the Testator. which followed the UPC 2-603(b)(3) rule that survivorship language does not express contrary intent to devise to the heir of devisee upon predecesant death. 367. problem of increase • 1990 UPC : adds a devise to a stepchild Default Rules: BC the antilapse statutes are designed to implement presumed intent. Gen. antilapse statute will still apply.Case 4 Ex. of survivorship states an intent that the antilapse statute will not apply. 2008 UPC §2-603(b)(3): has rcvd negative feedback from several states. Words of Survivorship. Minnesota. Both the 1969 and the 2008 antilapse statute are in the handout!2-603 will not be on the final exam.2d 166. §45a-441 .” .” “Should be defeated only when the trier of fact determines that the testator wanted to disinherit the line of descent headed by the deceased devisee. and occasionally to Kindred of the Testator as well • Few States: statute applies to ALL devisees. Because the assumption is that the Testator would only want to imply this rule if this specific relationship exist. ½ to A Presumed Intent: Scope of the Antilapse Rule: applies to lapse devisee ONLY if the devisee bears the particular relationship to the testator specified in the statute. It has been adopted in seven states. Montana. Tietjen.”Hazel Brenan. What happens to B’s share? Under: 1. T devises her entire estate “one half to my son A and one half to my daughter B. New Mexico. Utah and Iowa. “If he survives me” or” To my surviving children” in the absence of additional evidence are not indications of intent contrary for UPC §2-603(b)3. Arizona.” B predeceases T. stated in the will what would happen if someone predeceased them then this would apply. leaving a child C.Stat. Conn. No residue of residue: All would go to A 3. one half to A. Michigan. If a testator. 890 A. regardless of relation to Testator • 1969 UPC. Alaska. designed to carry out presumed intention.” Reasoning: Antilapse statutes “establish a strong rule of construction. Florida. Five states have enacted modified versions that preserve the majority rule. ½ to C. Ruotolo v. One half to C=A would take ¾ and C would take ¼ 2. Procedural History: Lower court held that the survivorship language indicated contrary intent and precluded the application of the antilapse statute. they state default rules that yield to a contrary expression of the testator’s actual intent. Texas and California have done likewise by nonuniform legislation. The court applied the applicable antilapse statute. majority of cases have held that an express req.

Yucas. therefore. Willis. Changes in Property after Execution of Will a) Ademption by Extinction Happens if a will includes a specific devise of an item of property. demonstrative or residuary devises only to specific devises. Dawson v.2d 284 (1959) • The courts have reached the opposite result on virtually identical facts. ex.” Burden of Proof: is on those who seek to deny statutory protection rather than on those who assert it.E.” Holding: survivorship language does not express an intent contrary to the presumption of the anti-lapse statute. .2d 305. in addition to contrary intent: “It is necessary that the testator in app language .” 1. so as to prevent escheat. FYI words and meaning: • “To A and Her Heirs and assigns forever” Words of Purchase: “To A” indicating to whom the property is devised Words of Limitation: “and her heirs and assigns forever. Hofing v. Schultz. 151 A. Jackson v. Note: This doctrine does not apply to general. 1968 Under the restatement. but are described by their individual names may be deemed a class gift if the court decides. after the admission of extrinsic evidence that the testator would want them to divide rather than one beneficiaries share to lapse. make an alternative provision in his will providing that in the event such relative predeceases or fails to survive the testator such devise shall be given to another specifically named or identifiable devisee or devisees. 376. Another way to Determine Class Gifts: “A gift to beneficiaries who form a natural class. testator must unequivocally express that intent or simply provide for an alternate bequest.“residuary language expresses an intention to …. here fee simple. 239 N. • To A or Her Heirs” The above mentioned phrase has been concluded that there are actually no words of limitation and just and indication that A’s Heirs would take the gift of estate if A predeceased the Testator. “to my nieces and nephews.2d 852 III.” Indicating what interest in the property devised. What is a class? The test is often whether the testator is “group minded. when you have both the name as individuals and name of class this will be individuals but this is a rebuttable presumption and can be refuted by extrinsic evidence. Ex. 201 N. Ex. but the testator sells or gives away the item before death.” • The courts have applied “and” as “or” to provide for a substitute gift to A’s heirs to avoid lapse. “Group Minded” is determined if Testator used a class label in describing beneficiaries.” 2. then the class divides the predeceased share amongst other members of the class. If a member of the class predeceased the Testator. Rule from Ohio: added another req. Avoid intestacy” “ Our antilapse statute was enacted to prevent operation of the rule of lapse and unintended disinheritance.E.” • Pg. Class Gifts Under Common law lapse rule. a class gift is treated differently from a gift to individuals.

the gift is extinguished (subject to limited exceptions listed below) ii) Intent Theory of Ademption: if the specifically devised item is not in the testator’s estate the beneficiary may be entitled to the replacement for. not substance= no Ademption. Most courts hold that corp. Rule of Law. Issue: Whether the sale of certain property by an attorney in fact prior to the death of the testator resulted in Ademption of a specific devise of the property? Holding: No Ademption occurred bc even if the sell of property was disclosed to Mary she would not have had time to revise the will.2d 923 (1973): Rejected the identity theory. Nancy sold the duplex prior to the death of Mary. 1990 UPC abandons the identity theory and adopts the intent theory in this section. merger is a mere change is form. there is no Ademption. no Ademption occurred. however. Her biological daughter.W. realizes the effect of the transaction on his or her estate plan. residuary to her biological son and daughter.W. or cash value of. 731 N. 208 N. Unbeknowst to Mary and in order to pay for her nursing home care. Note: In some jurisdictions. 119 N.2d 1318 (1975): IN situations involving guardians. b) Stock Splits and the Problem of Increase Are a change in form. • In re Estate of Anton. Estate of Bierstedt.2d 19 (2007) Facts: Mary bequeathed ½ her interest in a duplex to her step daughter. . Rule: Ademption occurs where a testator had knowledge of a transaction involving a specific devise. unpaid proceeds of sale. where the property is missing from the estate bc of some act or event involuntary as to the testator. Mary was in a serious accident and had to be placed in nursing homes the latter part of her life. and has an opportunity to revise the will. not substance= no Ademption Rule: Absent a contrary showing of intent. Exceptions to Ademption (Identity Theory). Nancy was her financial coordinator and durable power of attorney.W. avoidance of Ademption: To avoid: 1) Some cts will classify the devise as general or demonstrative rather than specific. sale by conservator or agent. Estate of Wolfe. Rule of Law.(i) General Devise: when the testator intends to confer a general benefit and does not give a specific item of the testator’s property (ii) Demonstrative Devise: is a hybrid. in effect. the beneficiary was entitled only to the unexpended balance of the proceeds of specifically devised property. depending on whether the beneficiary can that this is what the testator would have wanted. Therefore. condemnation. 2d 234 (1963): BC testator did not testamentary capacity to . (iii) Residuary Devise: conveys that a portion of the testaor’s estate not otherwise effectively devised by other parts of the will. 533 P. the original item. 3) UPC §2-606(a)(5): Non ademption of specific devises. Estate of Graham. work a change in the will. ½ to biological son. the cts treats stock splits differently than dividends. 2) Classification of property as inter vivos disposition as a mere change in form not substance -Ex. a devise of stock is entitled to additional shares rcvd by the testator as a result of the stock split. (iv) SpecificDevise: is a disposition of a specific item of the testator’s property i) Identity Theory of Ademption: if a specific devised item is not in the testator’s estate. or insurance. a general devise yet payable from a specific source. the sale could not be considered the manifest intention of the testator to modify the will. Rule of Law. no ademption occurs.

Stat. they would abate in the following order: 1) Residuary Devise 2) General devises 3) Specific and demonstrative to be reduced pro rata UPC §3-902: if the testamentary plan would be defeated by the usual order of abatement then the shares of the estate abate as necessary to give rise to effect to the intention of the testator. Pure Will substitutes (Mass will substitutes): they are marketed by financial intermediaries using standard form instruments with fill in the blank beneficiary designations. the beneficiary would take free of the mortgage 2.C. main diff.§28A-15-3 e) Abatement Problem of abatement arises when a estate has insufficient assets to pay debts as well as all the devises. • Operates similarly to bankruptcy In absence of indication in the will how a estate is to be reduced or be abated. Gen. including the power to name and to change beneficiaries until death. 1) Life insurance A propertied middle age person commonly has several life insurance policies acquired individually. group policies from work. that is they are non existent until the death of the testator.C. UPC §2-607: reverses the common law rule 4. §28A-15-5 • • V.UPC §2-605: stock dividends are treated the same as stock splits. Designation of this policy mirrors the designation of a devisee in a will. Some states: have enacted statutes that require that the intention of the testator to adeem by satisfaction to be shown in writing. Gen. on which there is a mortgage does the beneficiary take free of the mortgage? 1. N. d) Exoneration of Liens When a will makes a specific devise of land. . Common Law Rule Exoneration of Liens : It is presumed that the testator wanted the debt like all debts to be paid out of the residuary estate and for the property to pass free of liens. Introduction to Will Substitutes Four main will substitutes that reserves to the owner complete lifetime dominion. A. 3. Satisfies the twin element of wills: revocable until the death of the Testator and that the interests of the devisees are ambulatory. beneficiary gets them along with the other shares. some devises may be abated or reduced. Nonprobate Transfers and Planning for Incapacity Have the effect of passing property at death outside of probate. is that Ademption by Satisfaction usually applies to specific bequests not general (like doctrine of advancements). Some states: Yes. c) Ademption by Satisfaction Applies when the testator makes a transfer to a devisee after executing the will. N. Stat. Similar to Doctrine of Advancements: however.

with the remainder to pass to other at his death. Pour Over Wills and Revocable Trusts Joint Tenancies in Reality Planning for Incapacity Restrictions on Testamentary Dispositions A. Rights of the Surviving Spouse Protection of Children Contracts Relating to Wills . The trustee holds legal title to the property and the beneficiaries hold equitable title. E. Payable on Death Contracts and Other Nonprobate Transfers C.2) Pension accounts Supplementary retirement accounts 3) Joint accounts They look more like gifts than wills and are accounts over which the depositor retains explicit lifetime dominion while designating beneficiaries to take at his death. may be revocable or irrevocable 2) Testamentary Trust: created by will Other ways to create a trust: 3) Deed of Trust : settler transfers the property to be held in trust to the trustee 4) Declaration of Trust: the settler simply declares himself to be trustee of certain property for the benefit of himself during his life. or trustor: person who creates the trust 1) Inter Vivos Trust: Created during the trustor’s life. 4) Revocable Trust B. F. Introduction Will Substitutes and the Subsidiary Law of Wills Revocable Trusts Life Insurance Pension and Retirement Account Multi-Party Bank and Brokerage Accounts D. Will Substitutes and the Wills Act Revocable Trusts Trustee manages property in a fiduciary capacity for one or more beneficiaries. VI. grantor. C. B. The trustee can be one of the beneficiaries of the trust. • Settler. nut the same person cannot be the sole trustee and sole beneficiary bc then the trustee would owe no duties to anyone except himself.

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