MASSACHUSETTS WILLS

I. Intestate Succession A. Vocabulary 1. Probate – Court proceeding in which a. It is judicially determined that decedent left a validly executed will, or that the decedent died without a will and his intestate heirs are determined; and b. A personal representative (executor if named in the will, administrator if appointed by the court) is appointed to administer the decedent’s estate. 2. Heirs – Persons who take by intestacy. 3. Beneficiaries (devises, legatees) – Persons who take under a will. 4. Intestate distribution riles applies when: a. Decedent left no will (or “will” was not validly executed); b. The will does not make a complete disposition of the estate (resulting in a partial intestacy); c. An heir successfully contests the will, and will is denied probate; and d. Testator marries after the will’s execution, in which case the will is revoked by operation of law. e. Intestacy rules also invoked in questions involving omitted child statutes. 5. The MA statutes use “issue” throughout. The terms “issue” and “descendants” are synonymous, and include lineal descendants (child, grandchildren, etc.) by blood or adoption. B. Intestate Decedent Survived by Spouse 1. Survived by issue If intestate decedent is survived by a spouse and issue(s) (descendants), whether the issue are of this marriage or from an earlier marriage, the surviving spouse takes one-half (1/2) of the estate and the issue(s) take the other half divided equally among all.

NOTE: If decedent wants to leave entire estate to spouse, MUST write a will to avoid intestate statutes. 2. Not survived by issue If an intestate decedent is survived by spouse and other kindred (i.e. relatives by blood or adoption) but NOT by issue, the surviving spouse takes first $200,000 plus one-half (1/2) of the balance. Kindred take remaining one-half (after spousal share of $200K + 1/2). $200,000 comes from personal property first. If not enough personal property to cover $200K, real property can be sold or mortgaged to get $200K. 3. Not survived by issue NOR kindred If an intestate decedent is survived by his or her spouse but NO kindred (no living relations by blood or adoption), the surviving spouse inherits the ENTIRE estate. This rule is rarely invoked, as MA sets NO LIMIT on the degree of relationship needed to take as heir. If one living relative is found, no matter how remotely, “first $200K plus one-half balance” rule applies. C. Other Statutory Rights of Surviving Spouse These rights take precedent over creditor’s claim. TIP: In ANY question involving a surviving spouse, whether decedent left a will or died intestate, the answer can be strengthened if also discuss the statutory rights below. Thus it might be appropriate to say something like “In addition, [spouse] is entitled to the following statutory rights, which take precedent over creditor’s claims. These amounts passing to [spouse] under [decedent’s will] [by intestacy] [as an elective share].” 1. Right to occupy residence for 6 months Spouse might remain in the house of a deceased spouse for six months without charge for rent. This would be relevant ONLY if the deceased owned a house in his or her name. If house was held in joint tenancy or tenancy by entirety, spouse would take house by right of survivorship. 2. Spouse’s allowance

Upon petition, the probate court may grant the surviving spouse an allowance to provide for “necessities” “for a short time until she has an opportunity to adjust herself to the new situation”. Amount of the spouse’s allowance is in court’s discretion, taking into account all circumstances of the case, including the standard of living to which the spouse had been accustomed (NOTE: NOT a dollar amount). The spouses allowance is over and above amounts passing to the spouse by will, intestate succession, etc., and takes priority over debts and administration expenses. D. Inheritance by Issue – Per Capita Representation If inheritance is by children and issue of deceased children (or by brothers, sisters, and issue of deceased brothers, sisters, etc), the distribution, although sometimes referred to a per stirpes, is per capita with representation (“per capita at the first level; by representation at the next level”) – Issue of deceased children take by representation. You go down to the first generational level at which there are living takers and then one share for each line of issue/descendant. E. Intestate Decedent NOT Survived by Spouse or Issue 1. All to parents (one-half each) or surviving parent (all). 2. If not survived by parents, to issue of parents – Brothers, sisters, and issue of deceased brothers and sisters who take per capita with representation. 3. If not survived by parent, or issue of parents, to “kindred” in nearest degree of kinship. MA does NOT have a “no laughing heirs” statute (as does the Uniform Probate Code, which eliminates inheritance by remote relatives). In MA, there is NO limit to the degree of kinship that qualifies one to be heir. ONLY if the decedent left no living kin by blood or adoption does the estate escheat to the Commonwealth. F. Adopted Children, Non-Marital Children 1. Adopted Children

Adopted children and their issue have full inheritance rights from the adoptive family (and vice versa). A gift to someone’s “issue” presumptively includes adopted offspring. Child is not adopted for this purpose until final decree of adoption is entered. Once a child has been adopted by a new family (e.g. an infant adoption), the child has NO inheritance rights from the natural parents or their kin. EXCEPT where child is adopted by spouse of a natural parent after the other natural parent has died (e.g. Child’s father dies, mother remarries; second husband adopts Child. Child has inheritance rights from her mother, her adoptive father, AND family members of her deceased biological father). 2. Non-marital children a. Non-marital children do NOT inherit from natural father, UNLESS i. The mother and father married after the child’s birth AND the father acknowledged the child as his child; OR ii. Paternity was established in a paternity suit; OR iii. Paternity is established in probate proceedings in action commenced within ONE YEAR after the decedent’s death. NOTE: The one-year statute of limitations is probably unconstitutional (Supreme Court said so in a case turning down a Texas statute) – e.g. 5-year-old kids cannot bring suit. Not fair that kid loses right because someone else didn’t bring suit. b. Woodward v. Commisioner of Social Services – Sperm bank case Posthumously conceived child can inherit… IF it is affirmatively shown that decedent (1) consented to the posthumous conception, (2) consented to support any resulting child, and (3) prompt and orderly administration of the estate is not compromised – The one-year SOL for paternity suits does not apply. c. Non-marital children have full inheritance rights from mother and mother’s kin.

d. Non-marital children have no inheritance rights from mother’s husband if husband did not adopt the child, UNLESS adoption by estoppel (equitable adoption – Unperformed agreement to adopt) – Step children have NO basis for inheritance. G. Deaths in Quick Succession 1. Under the Uniform Simultaneous Death Act (USDA), when title to property depends on order of deaths and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each passes as though he or she survived (absent contrary provision). a. Intestacy As though intestate survived and heir predeceased. b. Wills Estate distributed as though the testator survived and the beneficiary predeceased – This will invoke the lapsed gift doctrine and the antilapse statute. c. Insurance A though insured survived and beneficiary predeceased. As though IRA account owner survived and beneficiary predeceased. 2. If joint tenants with right of survivorship or tenants by entirety die simultaneously – One-half (1/2) is distributed through A’s estate as though A survived B, and one-half (1/2) is distributed thru B’s estate as though B survived A. Simultaneous deaths prevent operation of right of survivorship. In effect, property passes as though a tenancy in common were involved (one half each). 3. Massachusetts did NOT adopt the Uniform Probate Court “120 hour rule”, under which a person must survive by 120 hours to take as heir. In MA, controlling law is the USDA – Five minutes later is sufficient. H. Lifetime Gifts to Heir or Will Beneficiary 1. Common Law Lifetime gift to a child was presumptively an advancement (advance payment) of the child’s intestate share, to be taken into account in

distributing the estate at death (theory was that a parent would always want to treat all children equally). 2. Massachusetts Lifetime gift to an heir is NOT and advanced payment UNLESS a. Declared as such in contemporaneous writing by the donor, or b. Acknowledged as such in writing (contemporaneous or not) by the donee, or c. The will provides for reduction of legacies by any lifetime gifts. I. Disclaimer by Heir or Beneficiary All states recognize that no one can be compelled to be a beneficiary or heir against her will. An intestate heir, will beneficiary, beneficiary of a life insurance policy or an employee benefit plan, or any other interest in property can disclaim the interest, in whole or in part. A disclaimer, once made, is irrevocable. 1. To be a valid disclaimer a. Must be in writing and signed If real property is involved, must be acknowledged before a notary public and an attested copy must be recorded in the county where land is located. b. Must be filed with the probate court within 9 months after decedent’s death. 2. Any interest can be disclaimed (e.g. bequest by will, life insurance, employee death benefits, powers of appointement, etc). Surviving joint tenant or tenant by the entirety can disclaim, but only to the extent that the decedent has furnished the consideration for the property acquisition. 3. Disclaimer can be partial (e.g. “I disclaim ½ of the interest bequeathed to me). 4. Personal representative can disclaim on behalf of deceased beneficiary or heir.

5. Guardian or conservator can disclaim on behalf on incapacitated beneficiary or heir, IF court finds a disclaimer is the best interest of the estate of such beneficiary or heir. 6. Distribution of Estate If heir disclaims, estate distributed as though disclaimant predeceased – Disclaimant’s share passes by representation to disclaimant’s descendants – Disclaimant’s inheritance passes directly to disclaimant’s descendants/issues/children with NO gift taxes. 7. Irrevocable Intervivos Trusts For irrevocable intervivos trusts, beneficiary must disclaim within 9 months after the trust is created. The trust is read as though disclaimant was dead when the trust was created. A disclaimer can be made even if the trust contains a spendthrift clause barring transfer of beneficial interests because a. Disclaimer is not a transfer, and b. Spendthrift restriction does not attach until beneficiary accepts the trust interest. 8. A disclaimer cannot be used to defeat creditor’s claims if the disclaimant is insolvent. J. Non-Probate Assets Non-Probate assets are interests in property that do not pass under the decedent’s will (if testate), do not pass by intestacy if decedent left no will, and are not past of probate estate for purposes of administration. Major types (also called nontestamentary assets): 1. Property passing by right of survivorship – Joint bank account, tenancy by entirety, etc. 2. Property passing by contract – Life insurance, employee retirement benefits, where the contract governs change of beneficiary of distribution of assets. 3. Property held in trust, including a revocable trust, where trust governs the distribution of assets.

4. Property over which the defendant held a power of attorney. II. Execution of Wills A. Requirement for a Validly Executed Will 1. Testator must be at least 18 years old. a. Signed by testator or by proxy signature – Someone at testator’s direction and in her presence. Any mark intended as testator’s mark satisfies the signature requirement. b. Two attesting witnesses – No age requirement, but some have “sufficient understanding”. c. Testator must sign will (or acknowledge earlier signature) in each witness’s presence. d. Each witness must sign in the testator’s presence. 2. Codicil, a later amendment or supplement to a will, must be executed with same formalities. 3. Some states impose the following additional requirements, NOT required in MA. a. That the testator sign “at the foot or end” of the will – In MA signature can appear anywhere. b. That witness know they are witnessing a will as distinguished from some other legal document – In MA no “will publication” requirement. c. That witnesses sign in each other’s presence – In MA as long as each witness signed in testator’s presence, they do NOT have to sign in each other’s presence. 4. Signature Timing a. Two VERY OLD Massachusetts cases (1900 & 1911) – Witnesses attest to testator’s signature, which must be on the will when they sign. b. More recent cases in other jurisdictions (the “better view”) – Exact order of signing is not critical when the execution ceremony is a contemporaneous transaction.

BUT even under the “better view”, if testator’s forgot to sign when witnesses signed, and added his signature three days later in some witnesses’ presence, not a contemporaneous transaction and will be denied project. B. What Constitutes Being in Testator’s “Presence”? In MA, the testator must sign the will (or acknowledge her earlier signature) in each witness’s presence, AND each witness must sign in testator’s presence. 1. Most states apply the liberal conscious presence test It is not necessary that testator should actually be able to see the witnesses when they sign. They are in his presence whenever he is so near to them that he is conscious of where they are and what they are doing. 2. Some old MASSACHUSETTS cases indicate that MA has adopted the line of sight (scope of vision) test – Witnesses must be in testator’s uninterrupted line of sight (i.e. no impediment to visual contact). NOTE: If the witnesses take the will to an adjoining room and sign on a table that was visible to testator through the doorway, witnesses have signed in testator’s line of sight (and thus “presence”). BUT if the witnesses sign the will on a table on the other side of the wall, the “line of sight” test is not satisfied. And if immediately after signing the will, the testator has a massive heart seizure and dies, and then the witnesses sign, they did NOT signed in testator’s presence. C. Interested Witness Statute – “Purging Statute” Interested witness situation never affects validity of the will, but beneficiary loses legacy (beneficiary gets nothing), UNLESS there were two disinterested attesting witnesses – supernumerary rule. 1. If the spouse of the beneficiary is a witness, the gift is void. 2. Interest is determined at the time the will is signed. 3. ONLY beneficiary’s spouse triggers the statute and voids the gift (i.e. daughters, cousins, agents are allowed). 4. Statute applies to the beneficial gift, NOT earned compensation (beneficiary can still serve as executor and receive compensation).

5. Contingent gifts do no trigger statute. ONLY direct gifts trigger the statute. D. Holographic Wills, Oral Wills 1. Uniform probate court and about 30 other states recognize holographic wills – In testator’s handwriting and signed, but NOT witnessed by attesting witnesses. 2. Massachusetts does NOT recognize holographic wills. In Massachusetts, ALL wills must be in writing, signed by the testator, and witnessed by two witnesses. 3. Massachusetts does recognize oral wills under VERY limited circumstances – Valid only for soldiers in active military service and mariners at sea, and then for personal property only. 4. Under Uniform Execution of Foreign Wills Act, a will executed in another state is admissible to probate in MA if executed in accordance with (MED): a. MA law, b. Execution law – Law of place where the will was executed, or c. Domicile law – Law of place where the testator was domiciled, either when will was signed or at her death. NOTE: As long as holographic will done in state where it was legal, can be probated in MA. III. Revocation of Wills A. Valid Revocation – A will can be revoked only if 1. By a later testamentary instrument, executed with appropriate formalities, 2. By physical act (burning, canceling, writing VOID across the face, or obliterating) a. Anything done to signature by testator shows an intent to revoke the entire will and is considered a “decisive act of revocation”. b. Physical act must be on the will, NOT a copy. c. To be valid revocation by physical act by another person (by proxy) must be (1) at testator’s direction, and (2) in testator’s presence. d. If will destroyed by physical act, but not validly revoked.

“Proof of lost wills” rules: (1) Proof of due execution (testimony of attesting witnesses) as in any case. (2) Cause of will’s nonproduction must be proved – Must overcome presumption of revocation. (3) Contents must be proven by secondary evidence (e.g. photocopy). Any oral testimony as to will’s contents must be “strong, positive, and free from doubt”. 3. By operation of law. B. Presumption as to revocation 1. Where a will, last seen in testator’s possession or control, is not found after death, presumption is that testator revoked it by physical act. 2. Where a will, last seen in testator’s possession or control, is found mutilated after testator’s death, presumption is that testator did the mutilating (i.e. revocation by physical act). 3. Neither presumption arises if will was last seen in the possession of someone adversely affected by its contents. 4. Evidence is admissible to rebut presumption if revocation where will cannot be found or is found in damaged condition (e.g. will destroyed in fire that killed testator). 5. Where a will is executed in duplicate (two signed and witnessed copies), testator’s destruction of the duplicate copy in his possession revokes the will even though other copy is found unscathed. 6. Codicil – Effect of two wills executed one after the other without any revocation language. a. Read both wills together. The second “last will” is treated as a codicil to the first will, and revokes the first will only to the extent of inconsistent provisions. But if the second will is wholly inconsistent with the earlier will, first will is revoked by implication.

b. Revocation of a codicil to a will does not revoke the will; the part of the will that was modified by the codicil is restored and takes effect as though codicil had never been written. C. Revival of Revoked Wills 1. Common law and majority rule – No revival of revoked wills When testator executed the second will containing a revocation clause, will one was legally dead. It could not be revived unless: a. It was re-executed – Signed by testator and two witnesses, or b. The doctrine of “republication by codicil” applies (e.g. testator validly executes a codicil to will one that makes various changes). 2. Massachusetts A revoked will is not revived unless: a. The will is still in existence (i.e. it hasn’t been destroyed), AND b. There is evidence that testator intended to revive earlier will. D. Dependent Relative Revocation (DRR) 1. Permits a revocation to be disregarded when the act of revocation was premised upon, conditioned upon, dependent upon a mistake of law as to the validity of another disposition. Effect will be to disregard the revocation of Will 1 and permit its probate. Test – Does this come close to what testator tried, but failed to do? 2. DRR = Second Best Doctrine DRR should not be applied unless the distribution that results from disregarding the revocation comes from closer to doing what the testator tried (but failed) to do than an intestate distribution. If revocation of Will 1 is independent of the testator’s intent in drafting Will 2 then to disregard the revocation would defeat testator’s intent and intestate distribution rules will be applied. E. Changes on Face of Will after it has been Executed 1. Partial revocations by physical act are valid in MA. 2. Words added to a will after it has been signed and witnessed are disregarded as unattested words – They were not part of the duly

executed will. ONLY the words present when the will was signed constitute the final (last) will. 3. If testator crossed out a portion of the will and adds another BEFORE the will is signed and witnessed, the changes are valid IF it can be established by proof that the words were part of the duly executed will. 4. If testator crosses out some part of the will, the part has been revoked by physical act. DRR by mistake of law will be used to honor testator’s intent (e.g. crosses out “$2,000” and writes “$5,000”, beneficiary entitled to $2,000 even though clause revoked. If testator, however, writes “$500”, DRR would defeat intent and intestate rules will apply). IV. Beneficiary Dies During Testator’s Lifetime A. Anti-Lapse Statutes When a will beneficiary predeceases the testator, the gift lapses (fails), unless the gift is saved by the anti-lapse statute. Principle – Cannot make gift to a dead person. Dead person cannot hold title to anything. 1. The MA anti-lapse statute applies if the beneficiary was a child or other relative of the testator. Requirements: a. The deceased beneficiary must have been a child or other relative of the testator, AND b. Must have left issue who survived the testator. 2. The anti-lapse statute names the substitute taker, the beneficiary’s will is irrelevant. 3. If a bequest lapses and the anti-lapse statute does not apply (e.g. the beneficiary left no issue), the lapse gift falls into the residuary estate and passes under the will’s residuary clause. 4. If the gift is conditioned on beneficiary surviving testator, the gift fails according to its terms (surviving was a condition to the gift). Gift then falls into the residuary estate. B. Lapse in Residuary Gift – Surviving Residuary Beneficiary Rule

1. Anti-lapse statute does not apply to relatives by affinity (e.g. marriage). Statute applies only to relatives by blood or adoption. Massachusetts statute – If residuary estate is devised to two or more persons and gift to one of them lapses, surviving residuary beneficiaries take the entire residuary estate, in proportion to their interests in the residue (absent contrary will provision). 2. Anti-lapse statute trumps (overrides) “surviving residuary beneficiaries” rule if the predeceasing beneficiary (1) was related to the testator, and (2) left issue who survived the testator. C. Class Gifts 1. Class Gift Rule In a gift by will to a class of persons (“children”, “brothers and sisters”, etc), if a class member predeceases the testator, class members who survive testator take (absent contrary provision). Basis – The testator was “group minded” in making the gift, and wanted this group and only this group to share the property. a. If the beneficiaries are individually named (e.g. “to A, B, and C, the children of my friend”), the “class gift rule” does not apply. b. Subject to possible application of the anti-lapse statute. The class gift rule gives way to the anti-lapse statute when the predeceasing class member is a relative of the testator and leaves issue (e.g. “to A, B, C, the children of my bother”. A predeceases leaving issue, issues takes with B and C). 2. Rule of Convenience (“class closing” rule) Rule of construction used to define takers of a class gift. Class is closed, meaning later-born members are not included in the gift, when some class member is entitled to a distribution. This is done to determine the minimum share of each class member, so a distribution can be made without the necessity of debate. 3. Outright gift by will – Class closes at testator’s death. Subject to gestation principle – 280 days from conception to birth.

V.

Changes in Family Relations After Will’s Execution A. Testator marries after will executed 1. In MA, marriage following execution of a will revokes the will in its entirety (except for the exercise of power of appointment). UNLESS it appears from the will (no extrinsic evidence) that it was made in contemplation thereof. 2. Under the doctrine of republication by codicil, the will “speaks” (is deemed to have been executed) on the date of the last codicil thereto (i.e. if codicil after marriage, the pre-marriage will survives the marriage). B. Testator is Divorced After Will is executed Divorce of annulment revokes all gifts and fiduciary appointments in favor of former spouse. Estate is distributed, and fiduciaries are named as though the former spouse predeceased the testator. The statute operates to revoke gift and appointments only if spouses divorce at testator’s death. 1. Statute does not apply to a decree of separation by the parties. Statute only applies if the marriage was dissolved by divorce or annulment. 2. “Divorce revokes rule” applies only as to wills. Does not apply to life insurance policies or revocable inter vivos trusts… C. Omitted Child Statute 1. In MA, the omitted child statute applies to all children (and the issue of deceased children), whether alive when the will was executed or born or adopted thereafter. Omitted child takes intestate share, UNLESS a. Evidence shows that the omission was intentional and not occasioned by a mistake in drafting the will, or b. The child was provided for during the testator’s lifetime (e.g. inter vivos trusts or gifts, and c. As to real property, claim on behalf on child must be filed with Registry of Probate within one year after approval of executor’s bond. 2. “Omitted child” statute applies ONLY to the probate estate. 3. Children out of wedlock would probably take a share as an omitted child.

A 1976 case said “omitted child” statute did not apply to children born out of wedlock because in 1976 they were not entitled to an intestate share. In 1980, however, the intestacy statute was ruled unconstitutional as to children born out of wedlock; so today children born out of wedlock would probably be heirs under “omitted children” statute if they satisfy the rule. 4. A gift in a will or trust to some person’s “children” or “issue” presumptively include a child born out of wedlock if the transfer was made after April 17, 1987 (Patriots day 1987). VI. Problems Associated with Testamentary Gifts A. Lingo 1. Specific Device – Gift of specifically described property. “I devise Blackacre to my son John” 2. Demonstrative Legacy – A general amount from a specific source. “I bequeath $5,000, to be paid from the proceeds of the sale of my Shell Oil stock, to Sally” 3. General Legacy – “I bequeath $10,000 to my nephew Ned.” 4. Residuary Gift – “I give all the rest and residue of my estate to Betty” 5. Intestate Property – If the will, poorly drafted, does not contain a residuary clause it results in a partial intestacy. Today, the words “give”, “devise”, and “bequeath” are used interchangeably; they all mean the same thing. B. Abatement of Legacies to Pay Debts, Expenses Abatement problem – There are so many claims against the estate that there aren’t enough assets to cover all of the gifts made by the will. 1. General Rule Absent contrary provision, debts and expenses are first paid out of: a. Intestate property (if partial intestacy for some reason); then b. Residuary assets; then c. General and demonstrative legacies; and finally d. Specific bequests.

Within each category, no distinction is made between real and personal property. 2. Exception Gifts to spouse and minor children are the last to abate, EVEN if it is a residuary gift (want to protect the family). C. Specifically Devised Property Not in Estate at Death – Ademption by Extinction 1. Ademption by extinction – Where a will makes a specific gift of property and the property is not owned by the testator at death, beneficiary takes nothing (beneficiary does not take proceeds, nor mortgage because the gift was specifically for the land and proceeds or mortgage was not mentioned in will). 2. Exception IF (1) will was executed before testator became incapacitated, and (2) specifically devised property is sold by a guardian or conservator (or agent acting under durable power of attorney), the beneficiary is entitled to proceeds of sale, if traceable in the estate at testator’s death. 3. Mass. Gen. Laws ch. 204 § 1 – Probate court has authority to compel specific performance if a person dies after entering into a written agreement for the conveyance of real property. Therefore, ademption also applies if deceased had entered into written agreement to sell the land and beneficiary takes nothing. 4. Ademption applies ONLY to specific gifts (e.g. not demonstrative legacies, even if the specific source does not exist). D. Bequests of Stock and Other Securities 1. If stocks are specifically bequest in the possessory (“I give MY shares of stock”) and testator had sold the stock prior to death, ademption applies and beneficiary takes nothing. 2. If stocks are bequest not in the possessory (‘I give shares of stocks”) – For ademption purposes treat as general legacy. Ademption does not apply to

general legacies and beneficiary gets date of death value (DOV) of general legacy (e.g. value of the shares). 3. A specific gift of stock (“I give shares of stock”) includes additional stock of that entity or another entity produced by a stock split or stock dividend, and also stock resulting from a reorganization, merger, etc. after will was executed, but NOT stock acquired after exercise of stock option. NOTE: A bequest of stock can be specific for one purpose (stock split or stock dividend) and general for another purpose (to avoid ademption as in 3 above). Principle is that the beneficiary always wins. E. Specific Gifts of Property Subject to Lien 1. MA, by statute, abolished the “exoneration of liens” doctrine – NO exoneration of liens unless the will directs exoneration 2. Under the statute, a general provision in the will for the payment of debts is not such an indication that liens are to be exonerated. VII. Reference to Facts and Events Outside the Will A. Incorporation by Reference 1. Definition An extrinsic document, not present when the will was executed and thus not part of the duly executed will (not signed and witnessed), can be incorporated by reference into the will, IF: a. Writing must be in existence when the will was executed. b. Will must show an intent to incorporate the writing. c. Will must describe the writing sufficiently to permit its identification – “So there can be no mistake as to the identity of the document”. 2. Exception An exception is made for incorporation by reference to an existing document that makes gifts of tangible personal property (but NOT money or intangibles such as stocks and bonds) – While the writing must be in existence when the will is signed, the contents of the document can be

altered or revised at any time (i.e. the will does not have to describe writing by date). Statute provides a way to make gifts of personal items of sentimental value without having to amend the will every time client changes mind, or wants to add to the list. B. “Acts of Independent Significance” Doctrine 1. Also called, “doctrine of nontestamentary acts” – There is a lifetime act with a lifetime purpose or motive (independent of the will). 2. Doctrine applies to gift of contents (e.g. “contents of my sea chest”). Gift of contents does NOT apply to title documents (e.g. deeds, bank passbooks, stock certificates) – Gift of contents include tangible property only. VIII. Other Wills Doctrines A. Mistakes or Ambiguities in the Will 1. Plain Meaning Rule Under the Plain Meaning Rule, absent ambiguity, extrinsic evidence not admissible to overturn the plain meaning of the will. Absent suspicious circumstances, it is conclusively presumed that the testator read the will and intended its contents. 2. Latent Ambiguity a. Latent ambiguity results in a misdescription when the will its applied to the fact to which it refers (e.g. “to my nephew John Paul Jones” when testator only has nephew John Peter Jones and Harold Paul Jones). b. Extrinsic evidence is admissible to cure the ambiguity. c. If the extrinsic evidence does not cure the ambiguity, the gift fails. 3. Patent Ambiguity a. Patent ambiguity exists when the mistake appears on the face of the will (e.g. “bequeath twenty-five dollars ($25,0000)”) because of defective, obscure, or insensible language.

b. A couple of VERY old cases in MA say that extrinsic evidence is NOT admissible as to patent ambiguities. c. Modern/Better View Modern trend in other jurisdictions is to ALLOW extrinsic evidence to correct the ambiguity. 4. Blanks in Will (e.g. “I bequeath $25K to _______ ) Courts will NOT fill in the blanks in a will. There is no ambiguity because there are no words to interpret (an “air ball”). 5. Mistake in the Inducement Mistake involves the (mistaken) reasons that led the testator to make the will, or the mistaken reasons for making or not making a particular gift. a. NO relief, absent fraud unless the mistake appears on the face of the will. b. If fraud in the inducement – impose constructive trust in favor of beneficiary. B. Contracts Relating to Wills Statute of Frauds apply to all contracts relating to wills – All contracts to make a will, not to revoke a will, or to make a gift in a will must be in writing. C. Words of Disinheritance in Will are Ineffective When a will does not make a complete disposition of the estate (partial intestacy), words of disinheritance in the will are INEFFECTIVE. Rationale – When a property passes by intestacy, it passes pursuant to statute, not the decedent’s will. D. Attorney Liability for Negligence 1. Trust An attorney’s duty is to trustee or executor who retained him. Beneficiaries under the will cannot sue attorney because there is no attorney-client relationship and therefore, no duty. 2. Common law and minority view

An attorney’s duty is the client who contracted for his services (in effect burying the only witnesses). Intended beneficiaries under the will cannot sue attorney for negligence because there is no privity of contract. 3. Emerging Majority Rule An attorney also owes a duty to intended beneficiaries of his services. 4. Massachusetts – Argue both ways However, when the court held (Spinner v. Nutt) that the attorney for an executor or trustee has no duty to the beneficiaries because that would give rise to conflicting duties, it distinguished the “majority rule” cases holding an attorney liable for the intended will beneficiaries for negligent will preparation, noting that in the will preparation case there were no conflicting duties. Therefore, court has indicated that they will probably go with majority rule. IX. Elective Share Statute A. Amount of Elective Share Purpose of elective share is to protect surviving spouse disinheritance by assuring that, upon election, the spouse takes a minimum share of decedent’s state. 1. Decedent survived by spouse and issue Surviving spouse takes first $25,000 of personal property outright, plus life estate in one-third (1/3) of balance. a. When life estate involves personal property, property is held in trust. b. If the life estate involved real property, a “legal” life estate (i.e. not a trust) is established – “To spouse for life, remainder to others” 2. Decedent survived by kindred but not by issue Surviving spouse takes first $25,000 of personal property outright, plus one-half (1/2) of balance. When life estate involves personal property it is held in trust. 3. Decedent NOT survived by issue or any other living relation (rarely encountered)

Surviving spouse takes first $25,000 of personal property, plus one-half of balance OUTRIGHT (i.e. NOT in trust). TIP: In ANY question involving a surviving spouse, mention elective share statute, if only to dismiss it (e.g. “Since W takes _____ under the will, W has no reason to file for an elective share, which would only give W _____). 4. Revocable trust If a revocable trust was created by decedent on or after January 23, 1984 (1-23-4), the revocable trust is included in the assets to which spouse elective share applies. If the trust was created before that date AND no additions were made to the trust since the date, then the elective share does not apply to the trust. 5. The amount of surviving spouses elective share does is not affected by CD, life insurance, or savings accounts balance that passes to spouse after decedent’s death. Only the net probate estate is subject to the elective share statute, with the only exception of revocable trusts created after January, 23 1984 (other non probate assets do not apply). B. Key Points About Elective Share 1. Right of election is available only if decedent was MA domiciliary; elective share applies to personal property wherever located and to MA real property, but NOT real property in another state (Situs rule – MA courts cannot adjudicate title to land in another state). 2. Spouse must file election within SIX MONTHS after will is admitted to probate. If he fails to file for election within that period, conclusive presumption that he elects to take under the will (unless time for making election was extended by the court on motion). 3. Who may make the election Election can be made on behalf on an incapacitated spouse by guardian or conservator, with court approval. If spouse dies before election is made, election cannot be made by the spouse’s personal representative.

4. In satisfying elective share, “abatement” rules apply: first out of residuary estate, etc. But property devised outright to spouse by will is first applied. (Purpose: To avoid disruption of decedent’s testamentary plan as far as possible). If, e.g. decedent’s will devised stock (worth $15,000) to his spouse, this would be applied to the “first $25,000” amount. 5. Right to an elective share may be waived in a written contract (premarital or during marriage), provided the contract is supported by consideration. 6. Surviving spouse is disqualified from right to an elective share if spouse deserted decedent or if the couple had been living apart for justifiable cause. C. Dower Instead of taking under the will, by elective share, or by instestacy, a surviving spouse (male or female) can elect to take dower. A life estate in decedent’s real property owned at death. 1. As this is invariably less than the spouse ordinarily would be entitled to under the elective share, the dower election is rarely made. It would be attractive only if decedent’s estate is insolvent. (Only dower takes precedence over creditor’s claims. By contract, property passing by will, intestacy or elective share is the net estate, after payment of all claims). 2. Election to take dower must be made within 6 months after court approval of executor’s bond. X. Will Contests A. Standing 1. Only interested parties can bring a will contest: Persons with an economic interest that would be adversely affected by the will’s probate (e.g. heir’s, legatees under earlier will whose interest would be defeated if this will is probated). 2. Thus a close personal friend not named as legatee in an earlier will, has no standing to contest the decedent will.

3. Creditor does not have standing; status is not affected by whether decedent left a will or died intestate. 4. Child born out of wedlock has standing IF child would be an heir if decedent had died intestate. B. Lack of Testamentary Capacity 1. Burden of proof is on the contestants. Test – Did the testator had sufficient capacity to: a. Understand the nature of the act while he was doing it (knew that he was writing a will). b. Know the nature and approximate value of his property. c. Know the natural objects of his bounty (aware that had spouse and children, relatives…). d. Understand the disposition he was making. 2. Evidence of capacity or lack thereof must relate to circumstances at the time the will was signed, or shortly before or shortly thereafter. The more distant in time from the will’s execution a particular fact may be, the less significance of the question at issue: Did testator had capacity at the time the will was executed? 3. Adjudication of incapacity Adjudication of incapacity is admissible evidence of lack of testamentary capacity but will NOT support a directed verdict. a. Adjudication of incapacity involves different legal tests (capacity to contract, to manage one’s affairs) that four-point test for capacity to make a will. b. Jury could find that the will was executed during a lucid interval. C. Undue Influence 1. Existence of a testamentary capacity subjected to and controlled by a dominant influence or power. “Influence is not undue unless free agency of the agency of the testator was destroyed and a will produced that expresses the will, not of the testator, but of the one exerting the influence.” Contestants who have the burden of proof, must show:

a. Existence and exertion of the influence. b. Effect is to overpower the mind and will of the testator. c. Product if a will (or gift therein) that would not have been made but for the influence (undue influence may be shown as to the entire will, or as to one gift of the will). 2. While evidence of undue influence is usually circumstantial, the alone are enough: a. Mere opportunity to exert influence. Fact that one child (who received major share of estate) lived with her, wrote checks for her, balanced the checkbook, helped on income tax, held a power of attorney… is not evidence that opportunity was taken advantage of. b. Mere susceptibility to influence due to illness or age. Fact that mother was very old, had a broken hip, had memory lapses, took Valium… not evidence of undue influence. c. Mere fact of unnatural disposition Some children given larger shares than others not evidence of undue influence. Surmise, suspicion, conjecture are NOT evidence of undue influence, must have some other evidence. But opportunity, and susceptibility and unnatural disposition may be sufficient to establish undue influence. 3. Fiduciary relationship Where one in a fiduciary relationship (attorney-client, agent-principal, financial advisor, trusted child) benefits from a transaction with his principal, a presumption of undue influence. Fiduciary has burden of proof to show that transaction was fair and that principal was fully informed. Burden of proof is met if fiduciary can show principal (1) made a bequest with full knowledge and intent, or (2) had independent counsel. D. No-Contest Clauses 1. Massachusetts – No-contest clauses are given full effect regardless of whether the contest was filed with probable cause. Rationale: A testator

should be permitted to protect his testamentary plan, and his reputation, against post-death attack. 2. If the will is contested and denied probate, then there is no will and therefore no no-contest clause and have an intestate distribution. E. Tortious Interference with Inheritance Rights MA does not recognize a cause of action for tortious interference with inheritance rights. Adequate remedies already exist under MA law – Could appoint a guardian who could file suit against the alleged wrongful perpetrator; after the person’s death, her executor or administrator could bring such actions; aggrieved beneficiary could pursue undue influence claim. XI. Estate Administration A. Statute of Limitations In MA, a special short Statute of Limitations applies to decedents’ estates – All claims, including contingent claims, must be filed within ONE YEAR after decedent’s death. Exceptions: 1. New assets discovered (creditor didn’t file earlier; she thought it would be pointless) 2. Action on the claim accrued more than one year after decedent’s death. 3. Claim was covered by insurance – But only to the extent of the liability insurance coverage. The purpose of the legislation is to protect the insured’s estate and not the insurance company. 4. “Where justice and equity require it…” whatever that means (e.g. creditor with limited education and limited command of English relied on attorney’s assurances that claim was being properly handled). B. Sales of estate real property 1. The administrator of an intestate estate cannot sell estate real property without the court’s approval.

2. The executor or trustee named in decent’s will cannot sell estate real property without court approval, UNLESS power of sale was expressly granted in the will.

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