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Gratuitous Transfers

8/21/12 pg 1-51

Freedom of Disposition- (dead hand control) A property owner may even exclude
their blood relatives and subject her dispositions to on going conditions.
*American Law strongly favors this
-Some limitations are based upon actions during lifetime. Ex: creditors
-Donors have the freedom to choose how things are divided. Donees
interest in a future inheritance is a mere expectancy.

Succession- A short hand way of summing up social processes and institutions and
their legal echoes, which govern the way property moves from generation to
generation and to the living from the dead.

Shapira v. Union National Bank-
Facts- Man in his will said that his 2 sons must marry a jewish woman with
jewish parents within 7 years of their death. If this did not happen
then the money would be given to the state of Isreal.

Issue- Whether the court should enforce the testators restriction upon his
sons inheritance?

Answer- Yes. These are reasonable restrictions.

Rule- Prevailing rule A restraint unreasonably limits the transferees
opportunity to marry if a marriage permitted by the restraint is not
likely to occur. The likelihood of marriage is a factual question to be
answered from the circumstances of the particular case.

It is a fundamental rule of law in Ohio that a testator may legally
entirely disinherit his children This would seem to demonstrate
from a constitutional standpoint that a testator may restrict a childs

The great weight of authority in the United States is that gifts
conditioned upon the beneficiarys marrying within a particular
religious class or faith are reasonable.

Restatement (third) of trusts 29
-Takes the position that in reckoning what is contrary to public policy, courts
should balance the donors freedom of disposition against other social values and
the effects of deadhand control on the subsequent conduct or personal freedoms of
others. If a provisions is unnecessarily punitive or unreasonably intrusive into
significant personal decisions or interests the provision may be invalid.

Justifying Freedom of Disposition
-Creates an incentive to industry and saving
-Difficult to curtail
-Permits more estate planning
-We like the idea that we are fulfilling what those we care about would want

-It perpetuates inequalities in the distribution of wealth

Possible Succession Options
a.) Forced succession- property could pass by simple rule of mandatory or forced
succession say to a spouse, child, or other family members.

b.)Freedom of Disposition- You have the authority to control where all of your
money will go after you die.
**This is what American law typically follows.

c.) Confiscation by the state- The state takes all of your property after your death.

Is Freedom of Disposition a Constitutional Imperative?

Hodel v. Irving
Facts- Indians were given portions of lands. The Indians began selling their lands
to white men and they became extremely fragmented. It got to the point
where 100-200 people could have an interest in just a couple acres of land.
The Indians were receiving very little money for the interests. So a statute
was created which made it where if you had an incredibly small interest,
the land was given back to the tribe.

Issue- Whether the original version of the escheat provision of the Indian Land
Consolidation Act of 1983, effected a taking of appellees decendents
property without just compensation?

Holding- Yes. This went too far

Rule- One of the most essential sticks in the bundle of rights that are commonly
characterized as property- the right to exclude others. In one form or
another, the right to pass on property to ones family in particular has been
part of the Anglo-American legal system since feudal times.

Posthumanly Acquired Property Rights

Shaw Family Archives Ltd. v. CMG Worldwide, Inc
A recent battle over licensing infringement may, however, leave Monroe's heirs
without control over her likeness.
In Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., the United States District
Court for the Southern District of New York found that in 1962, the year Monroe
died, New York did not recognize a transferable postmortem right of
publicity. Well-settled New York estate law allows testators to devise only the
transferable rights they possess at the time of their deaths. Because the court found
that the right of publicity did not exist, Monroe did not possess the right when she
died; therefore, her will could not have conveyed the right to her heirs. This
finding defeated any claim of ownership and thrust Monroe's persona into the
public domain, where anyone is free to use it.

Probate and Nonprobate Property

Probate Property- property that passes through probate under the decedents will or

Nonprobate property- property that passes outside of probate by way of a will substitute
- Inter Vivos Trust
- Life Insurance
- Pay on Death/ Transfer on Death
- Joint Tendancy

Probate Terminology
First Step- The appointment of a personal representative to oversee the winding up of the
decendents affairs. The personal representative is a fiduciary who collects and
inventories the property of the decendent.

Probate Administration
Has the following core functions:
1.) provides evidence of transfer of title to the new owners, making the property
marketable again
2.) protects creditors by providing a procedure for payment of the decedents debt
3.) Distributes the decendents property to those intended after the decendents
creditors are paid.

Opening Probate and Choice of Law
Personal Property- law of the state where the decedent was domiciled at death
-Primary or domiciliary jurisdiction

Real Property- The law of the state where the property is located.
-Ancillary probate is needed

*A person who is appointed as an administrator must give bond which insure against
mismanagement of misappropriation. This is typically paid by an insurance company.
This can often times be waived
Types of Probate
English system (East of Mississippi)
-Common Form Probate- ex parte proceeding in which no notice or process was
issued to any person.The will was admitted to probate at once, letters
testamentary were granted and the executor began administration of the
estate. No objections- this would suffice. However within a number of
years people could file a caveat compelling the probate of the will in
solemn form.

-Solemn Form- Notice to interested parties was given by citation, due execution
of the will was proved by the testimony of the attesting witnesses, and
administration of the estate involved geater court participation

Uniform Probate Code (UPC)
-Informal Probate- Without giving notice the representative petitions for
appointment. The pertition must contain pertinent information about the
decendent and the names/addresses of remaining heirs AND if a will is
involved, the devisees.
*Probate for a will- Original will must be attached. The executor
must sear that to the best of their knowledge the will was validly
executed. No proof by witness is required. Must send notice to all
heirs within 30 days these heirs can file for a formal probate

-Formal Probate- Litigated judicial determination after notice to interested parties.
These become final judgments if not appealed.

Supervised and Unsupervised Administration
-Supervised- The personal representative is subject to the continuing authority of
the probated court in administering the estate. The personal representative
is empowered to act without interim court approvals but cannot make a
distribution to the beneficiaries without court approval.

-Unsupervised- After appointment, the personal representative administers the
estate without going back into court.

Barring Creditors
*Every state has a nonclaim statute which requires creditors to file claims withint
a specified time frame.
Two Basic Forms:
1.) They bar claims not filed within a relatively short period after
probate proceeding have commenced, generally 2-6
2.) They bar claims not filed within a longer period after the
decendents death, generally 1-5 years.
Closing the estate- Expecting to be done as promptly as possible.
8/22/12- In class
Gratuitious Transfers

Legalines wills, trusts, & estates. Gilbert law summaries. Dukeminier casebook.

-Final Exam
-Multiple Choice, policy essay
of a point.

10-40 trillion dollars in wealth is changing hands as this money moves around. About 1%
of people end up with all of the wealth. As education/opportunity arose more people
got involved in the game. The wealthy have been getting richer.

Woman dies wearing a 10 Million dollar necklace what should become of it?
-She should have control
-Go to her decendents Immediated by her wishes
-State take it
-Bury her with it

Midevil Times- Whoever was around the dying person got the stuff. If there were a bunch
of kids they just kinda got some of it. This created a free for all type atmosphere. This
also resulted in very strategic behavior by those who were involved.

*Problem Argument that productivity would decrease because people wouldnt
be able to leave as much for their children.
*If you are only going to confiscate at death- people will give away what they
have prior to death.
*Question- do the children work hard and earn the property?
*They can try in the form of incentive trusts
*There is a huge problem with getting children of very wealthy family to
have an incentive to work. Ex: Liam.

Shirtsleeves to shirtsleeves
-What you want Is for everyone to feel things like with the recession. We want
everyone to feel the pinch in some way to keep basically everyone in the
same boat.
*Idea is either you have to marry well or earn the money. If you know that your
grandkids are gonna have to fend for themselves then the convo is different.
You are talking to thema bout enjoying what they have but also staying

The current system is one of intent. We let people say what they want to have happen to
their property prior to dying. We dont give the wealthy lady completely free
reign. They have to take care of:
-Creditors you cant just die and not pay off your bills.
-Children you cannot disinherit a child in most countries (civil law
countries, European/west European countries, Latin America).
*Common law countries- you can disinherit.

Shapira Case-
Plaintiff: The son who will only get money if he marries a Jewish girl with Jew
folks or he wont get any money. Has to be done in 7 years. If not the
money goes to the state of Isreal.
-He argues that there arent enough jewish girls. The court says he can get
on a plane/the internet. The court also says that 7 years is enough
-No one is telling this guy that he has to marry anyone they are just
saying that he wont get the money.

*This case is donor intent. You have the right to disinherit children in the US so
that would mean you have the right to put these types of restrictions upon
a child.
*If advising the client- she would suggest that you just go ahead
and cut the child out. She would say that you arent gonna get the
result you want so go ahead and just leave the money to the State
of Isreal.

Pg 14- The Restatement 3
of Trusts:
*This is not the law of the land this is the law of legal scholars.
* Lets change the facts and pretend that the son is gay.

Incentive Trusts
*Trusts that establishes certain requirements for someone to receive the benefits
of the trust.
-Formula: Do I get 1 trust dollar for every dollar earned? You have to set
this up and the question is how do I actually know that the person
is actually making the money?
*You have them show you a paycheck.
-Another problem: say you have 2 kids who have different jobs (1
nurse and 1 banker). The banker would get more money out of the
estate than the nurse this is a problem because maybe you
wanted the nurse to get the money/you want to help her out.
**There is a problem with drafting these contracts.

8/26/13- pg 51-62

Universal Succession- Europe/Louisiana This is where when a person dies, their heirs
pick up where they left off. You are responsible for their debt/have control over
their assets. Thus, most of this stays out of the courtroom.

Simpson v. Calivas
Synopsis of Rule of Law. A duty runs from a drafting attorney to an intended
beneficiary, and as such, an identified beneficiary has third party beneficiary

The Privity Defense:
-In all but 9 states you can bring a malpractice claim against an attorney because
of their negligence your ability to recover the estate was barred.

Conflicts of Interest
A v. B-
Facts: Firm represented Husband and Wife in estate planning. Both of
them left everything to each other. Random woman comes in
about a paternity suit. Turns out that H has a bastard child. Under
NJ law, the wifes estate could pass to the bastard child.
Issue: Is the firm able to tell the wife about the child?
Ruling: Yes, Where a firm represents a husband and wife and another
woman who has a child by the husband, the firm may disclose to
the wife that another child exists, however the firm may not
disclose the identity of the other woman or the child.
Discussion: The Court will allow the firm to tell the wife that her husband
has a child by another woman because it is crucial to her needs in
her won estate planning. However it must protect the
confidentiality of its client, the other woman, because it also owes
her a duty because they had formerly represented her.

When representing multiple family members:
-Important at the outset for the lawyer to discuss with each client the issue of
conflicts of interest and the ground rules for sharing information.

8/17/13 In Class

We have different types of interests:
1. The people who are dead and want to have control over their money
2. The people who are still alive

Testate- You die with a will and you have an executor who will be have the authority to
administer you affairs.
*You devisee real property to devisees
*You bequeath personal property to legatees

In-testate- You die without a will. The court will appoint an administer of your estate.
Real property- Decends to the heirs
Personal Property- distributed to the next of kin

One of the advantages of having a will- the line is shorter. This is a faster process.
*The people who are in charge/clerks in the probate office have a deeper
grounding of the law.

Executor/administer- gather the assets, you transfer the assets into the name of the estate,
pay the bills, pay the taxes, give notice to creditors. When you are sure that you
have done everything you need to do you distribute the assets pursuant to the

Why we shouldnt be an executor of a will right after law school- You are personally
liable, there is no insurance they will come get your childrens toys. The level of
liability is the basically the highest in the law. If yout hink you have paid all the taxes and
the IRS cames and says you owe more money then you try to get the funds from the
beneficiary. If they dont have enough/spent it then you are on the hook for the funds.

Parties- Would be executor propounds the will
People who get notice People who are named in the will.
People who are cited People who potentially object to the propounding of the
will. (Basically people who may have a problem with the will)
*Mess up the notice and the citation, then you are liable.

Fundamental Issue of probate?- Is this the will? Is this the decendents will?
*The most important person to the will is gone/dead.
*Usually about 30 days- anyone who would object is able to come in and protest
the will.

Is probate necessary?
You dont have to probate a will. Even though the person who has died has left
*Why might you look at a will and decide that you do not need to probate it?
-If its clear where the assets are going.
Three way property passes
*Will- This is for property that is being held outright
-(Life Insurance) Under the contract of the life insurance the money would
pass to the wife.
*Operation of Law
-This is property held for joint tenants. This passes to the next person
through operation of law.

Professional Responsibility
Simpson v. Calivas (Not in probate, in general jurisdictions court) Tort claim
Plaintiff- Simpson (the son).
Facts- He complains that the lawyer drafting the will of the Ps father. The
son is suing the drafting lawyer for what the lawyer did. Lawyers
notes indicated that the father wanted the property to fo to the wife
as a life estate and the remainder of the property to go to the son.

*The wife gets to keep the land during her life- on the land are
buildings that the son uses to run his business.

*Problem here- the wife is a step mother. The family isnts actually
that happy. The son has to pay her 400,000 to get her out of his
hair so he can do stuff on the land and not have to worry about her.
The son sues the lawyer saying this is your fault/problem make
me whole.
Analysis- The answer that the court gives is that you do have some sort of
privity to the intended beneficiary. Here the harm to the intended
beneficiary is forseeable therefore this indivisual has a right to
sue under the contract.

*How might you limit the contract-
-You have 3 different levels
A.) Privity
B.) 3
party beneficiary (anyone named in the will)
C.) people actually named in the will.--> you could limit
the ability to sue by stating that only the named
people in the will

Issue before Probate Court- To determine the testators intent. The task of the probate
court is a limited one: to determine the intent of the testator as expressed in the
language of the will

Law of land- If you are a foreseeable beneficiary then the lawyer is liable to you.
*Collateral estoppel will not work. Just because the probate court determines what
the will says this does NOT mean that you (lawyer) cannot be sued in another
court. The reason being, the court examines what you did as a lawyer does not
worry about what the intent fo the will was supposed to be.

Conflicts of Interst (A v. B)
Facts: Man and Wife have recipical wills. Identical wills where they just leave
everything to each other. Law clerk entered the last names wrong- they
didnt notice the conflicts of interest. A woman comes forth with a bastard
child. The man is the father- he doesnt want to pay money The 3

firms says you already have the financial information. The 1
firm refuses
to deal with the woman/illegiate child. They then try to get the husband to
tell his wife about the other child
-The wife would probably give the man a q-tip estate. Thats what
she would probably doassuming that she forgave the man.
-The law firm- looks at whether there is a fraudulent act and whether
the firm would be participating in a fraudulent act if they did not
say anything. Ultimately, the firm tells the wife what is going on.

Rule 1.7- You can get informed consent from both parties saying they are alright with
you representing them. Retrainer letter and discussion with clients become crucial.
**You have to be mindful of whats going on/what you become aware of. There is
a deep conflict here and you cannot represent each estate effectively.

Next time-
**Go through page 91 without stuff on simultaneous debt.


-maj anyone forseeable
-min they have to be someone named in the will

Conflict of interest-
*Because people are paying for this out of their own money- this means that most
of the time they are okay not having their own lawyers.

Rule 1.7- Retainer letter.
-This consent lets me tell your spouse what you told me. This means that you are
able to tell the spouses anything that you know which may affect their interests.

*When someone dies without a will
*Will doesnt cover all of the property
-I bequeath my car to my daughter the passing of the car would be valid
but the testing of the rest of the material would pass through intestacy.
-Left property to my heirs (who are my heirs)?
*This statute throws up a bunch of terms of art- then you invoke the
statute and you intentionally invoke those provisions. (Be careful about
the words that you use).
*Assets are distributed by according to the stat statute.
-Significant percentage of people die in testate. Just because 50% of
people die intestate doesnt mean that 505 passes like that.

Heir No living person has heirs. Children are heirs in apparent ( their interest in your
property is a mere expectancy in the property). Because if you were like going to go
gamble away all of your money- the children would NOT be able to sue for the funds.

1990 UPC (2008) 2-102
Dead person
has kids that
arent hers.
Leaves stuff to
No desendants
and parents
All desendants
are theres but
has other issue
If one ot more
D is not
100% spouse 100% $300,00 + .
Less than
300,000 then
spouse gets it
225,000 +
150,000 +

Tenn 31-2-104

No Issue Issue
100% See below

1 child= to child; to spouse
2 child= 1/3 to child; 1/3 to spouse
3 child; 1/3 to child; 2/3rd/ 3 to spouse
4 child= 1/3 + 2/3
/4 to spouse

**This all assumes that we know who the surving spouse is.
-Concequence of giving someone a share- that means someone else does NOT get
that share.
Estranged but not divorced? You are still married. Therefore they are still your
surviving spouse.

Domestic Partnerships/Same sex marriage-
*Whether you were married or not is really a matter of state law.
*No ne knows the difference between domestic partnership in each state. You
basically have to have the book from the state you are domiciled in so
you can say this is the law.

Choice of Law Questions
-If I die and jewelry is is NC and I die in Knoxville (die intestate)- what state law
*Answer: where ever you are domiciled.
-If its real property?
*Answer: Whereever the real property is located.

Same sex couples & choice of law:pg 74
- Same sex couple gets married, then moves to state where same sex is not
allowed. One dies- the other then wants to claim they are a surviving spouse.
*The forum will look to the law of another state unless the forum state has
a deep interest in the matter in which case the state will look at its own
rules (if its in the state constitution that marriage is between man &
woman then you are dead in the water NO CHANCE!) If the matter has
come before the legislature then it is highly unlikely.

Case in book-
*NY permitted same sex marriage because it would recognize anyones marriage
that happened in another US jurisdiction. Shortly after the legislature decided to
recognize same sex marriage.

Pg 68 2-103
(1) by representation (pg 81)
a.) English per stirpes (where the children are)
*Splits the money equally at the first generation line. If 2 children
and 1 child dies then the money would be split between living
child and dead childs kids.

*If both kids died first then the money would be split between
child 1 and child 2 kids.

Each branch has its own legacy and each branch gets an

b.) Modern per stirpes (where there are surviving decendants)
* If both child 1 and child 2 die- then the grandkids equally split
the remaining balance.
*If one of the grandkids die, then their sum is split between that
persons children.
Ex: Moms family. Grandma dies- then
c.) Per capita at each generation

Notes pg 63- 91

Testate- People who die with a will
Intestate- People who die without a will.
*How property is divided is governed by the default rules of the law of intestacy.
If a will disposes of only part of the probate estate, the result is partial intestacy,
in which the probate property not disposed of by the will passes by intestacy.

*Primary intent- to devise the will in a way that they believe the person would
have wanted it to be divided.

-More remote kindred
-Property then echeats to the state

Conflicts of law:
-Personal Property place where domiciled
-Real Property Place where its located

Uniform Probate Codes:
2-101 (pg 67)
2-102 (share of spouses) pg 68
2-103 (share of heirs other than spouse) pg 68
**Amazing chart on pg 69- photocopy and learn.

*Heirs- No living person has an heir. The heirs can only be identified upon a
persons death.
*Heirs Apparent- The persons who would inherit the property of A, (a living
person), if A dies within the next hour.
-These people have a mere expectancy in the will
-Cannot sue upon expected benefits
*Devisee, legatee, beneficiary- Person named in the will

Simultanious Death:
-UPS 2-104 AND 2-702 Requires that you survive the other person by 5 days.

-After the spousess share is set aside. Children and decendants take the
remaining in all states.

*English Per Stirpes
*Modern Per Stirpes
*Per Capita at each generation

Collateral Kindred- All persons who are related by blood to the decedent but who
are not descendants or ancestors.
First-Line Collaterals- Descendants of the decedents parents other than the
decedent and the decedents descendants.
Second-Line Collaterals- Descendants of the decedaents grandparents other than
the decedents parents and their descendants.

Finish notes starting on pg 86


Tennessee Statutes- Going up into the course materials. We go through UPC for
the majority then she starts the next class by fitting the TN statute in.

Interstate succession- The probable intent of the dying person. We believe that the family
members (naturalnormal person that you love and want to take care of). In most states-
UPC gives us very nuianced formula for the spouses share. Small estates- we want the
bulk of the property to go to the spousethere is also a trade off between the spouses and
the parents.

Tennessee- This is where most states are. Tn this is a slightly different formula

-We then started thinking about WHO is actually a spouse. Who is a decendant.
-Same sex partners/changes in the law. Matter of state law.
-No state has to give full faith and credit to other states.

Cohabitation- Not all states rcognize common law marriage. Just because you are
cohabitating with a person does not mean that you want your property to be given to
them. The culture used to be more based on/towards marriage this is becoming less and
less of a norm.
*Problem with common law marriage-
-People dont really hold themselves out as being marraiged.
-Also everytime someone has a roommate and dies there is going to be
extensive litigiation about the matter. This would be a lengthy,
expensive litigation process.
-SAME SEX- The idea came about with letting cohabitating partners who
live together inherit from each others property. But now since gay
people can get married it makes since for us to say HEY if you
want to inherit then you must get married.
*The question is should people who are cohabitating be able to inherit from each
Yes- Peoples property is going to be intermixed hard to devise whose is

No- Expensive litigation

Look at piece of paper- explainging the different per Stirpes.

There real question becomes which of these is more fair?

*The law of the books in TN is English Per Stirpes.
-If you die with property in TN you die under English Per Stirpes.

English Benefit
-Its not dependent upon who died before you. The same shares are going
to flow down the chart.

*People do not know what the law is and they dont go consult a lawyer because
that is very expensive. People who dont own much at all are not going to want to
spend what they do have on consulting a lawyer.

Income to my daughter for life- Remainer to her instirpes for life.
*How do you find out thwat these words mean? Who are these people?
-You are encorporating by reference these instirpes bit in most cases. In
some states the trust is governed by TN law. Then in most states
it is going to be English stirpes and is going to those people.

*We are going to use this language all the time.

Pg 85- Collateral Care

Nathan Hale Revolutionary. Died when he was 26. Person in the law firm was
related to him but the person in the law school was descendant from
great great great nephew.
**This Nathan Hale is a collateral descendant.

Brother/ sister- 1
Cousins- 2
And if no descendants or parents then the collaterals take.

Pg 87 problem

Pg 86
-Degree of Kinship. You use this chart to determine the degree of kinship. The
person who is nearest then takes 100% of the property.

Gothrough woodword.

Degree of Relationship System

Majority Rule-
*Step Children are NOT considered children.


Step- you have 0 parents in common
Half- You have 1 parent in common
*The TN rule is 31-2-107
*There are 2 minority positions.

Maj- you have to have a will. The will has to give the property to the other estates
Minority- you can cut off a person by stating in your will that you want that
person to get nothing.

The question becomes: Who is a decendent? Who is a child?

Pg 92
Fairness doesnt come into the idea of donor intent. Is really interested in the idea of
donor intent you cant say that its not fair bc the donor gets to do what the donor
wants to do. There is a finite pie out there- the more that you give out a share the less
that other people are going to be able to adopt

Adopted children basic rights:
1.) Can inherit from both Minority
2.) Can inherit only from adopted parents
3.) Step child eception. (majority except on the fact pattern that we have in Hall v.
Vall bc of a step parent exception.The spouse of a genetic parent adopts
*UPC & Tn
Pg 98 Minary v. citizens
*Stranger to the adoption rule This is in a minority of the jurisdictions. In most
places you are able to take under the will.

Go through page 129

Sept 10

Can adopted children inherit through both their adoptive parents and natural parents?
*Minority view- you can only inherit through adopted, exspecially in terms if
Hall. Undler Halls [TN rule- you can inherit from both.]

Note- On pg 95 this adds 2 additional circumstances where you are able to adopt .

Stranger to the adoption rule- minority
-its ok for you to inherit form your adopted parent but you couldnt inherit
through them. This did not effect affect any one elsess inheritance
-Adult adoption This is ok but there is some reservation where there was a
prior sexual relationship.

ONeal case pg 104-
Hattie ONeal, appellant, was born out of wedlock and raised by her mother until
her mothers death in 1957 (she was 8). For four years after her mothers death, appellant
lived with her maternal aunt, Ethel Campbell. In 1961 (she was 12) , Campbell
surrendered physical custody of the appellant to a woman named Louise who was known
to want a daughter. Shortly thereafter, Louise determined she couldnt care for appellant
and took her to the home of Estelle Page, the sister of appellants biological father. After
living a short time with Page, Roswell Cook and his wife, who wanted a daughter, picked
up appellant. Although he never statutorily adopted appellant, Cook raised her and
provided for her and she resided with him until her marriage in 1975(she was 26) .
Appellant never took Cooks name but Cook referred to her as his daughter and referred
to her children as his grandchildren. Cook died intestate in November 1991. Firmon
Wilkes, appellee, was appointed as administrator of Cooks estate and refused to
recognize appellant as having an interest in Cooks estate. In December 1991, appellant
filed a petition in equity, asking the court to declare a virtual adoption that would thereby
entitle her to the share in Cooks estate she would have received had she been statutorily
adopted by Cook. A jury found appellant had been virtually adopted by Cook. On post
trial motions the court granted a judgment not withstanding the verdict to appellee on the
ground that Page had no legal authority to enter into the adoption contract with Cook.

Issue. Whether the court correctly determined that Page was without authority to contract
for ONeals adoption? She wants to share in on his estate she builds her case by
saying that she had lived with him and been his daughter she acted like a daughter, was
treated like one, and should have some benefits.

Held. Yes. Judgment affirmed. Page had no authority to enter in to the adoption contract
with Cook, and therefore the contract was invalid. The obligation to care and provide for
appellant undertaken by Campbell, and later Page, was not a legal obligation, but rather a
familial obligation resulting in a custodial relationship that is characterized as something
less than that of a legal custodian. This relationship carried no authority to contract for
appellants adoption.
Georgia Code defines legal custodian as a person to whom legal custody has been
given by court order, and who has the right to physical custody of the child, and has the
right to determine the nature of the care and treatment of the child, as well as to provide
that care.

** Since the actual father has never consented then the adoption can not be
considered binding. At the end of the day the fathers approval was not necessary at the
time[ ok for you to go live with the person] but no ok for formal adoption. HE has to
weigh in on this matter for it all to be okay.

**Disent The whole question is the parent/child relationship. They would blow
past the whole question of whether the people consent.

**Doctrine of equitable adoption is out there in MANY states but it has various


-Do we want equitable adoption? Is this doctrine a good thing?
*yES- WE WANT extended families to take on children, so they do not have to
go to the state. By becoming part of the family, the child gave their own
services and so then they provided a service and so they should take.

No- Just because your parents are nice to someone and have them move into the
house does not mean that they deserve part of the income. The basis of
this is that people are greedy and do not like to share their toys when they
do not have to share. Its hard to put yourself in the shoes of someone who
is about to lose half of their inheritance to someone that maybe they
havent had the best relationship with.
-You would argue that this person couldnt have been sopted by
your family.

Blended familys?- According to the dissent, then this could deal with the
stepchild interest.

What about not only inheriting form the adoptive parents but also from the other parents?
-No1 knows the answer whether you can adopt through other people in the
-If someone dies with a will, then you cannot come in and claim equitable
adoptiong bc they had the opportunity to put the child in the will.

Non Marital Children
*Used tp ne a very cruel world when dealing with these things. Life got a bit
better where you could inherit through your mother. Then things got a bit better with
saying you could inherit through father
-You needed to pass the relationship test. There had to be a valid state
interest in proof of paternity.
Bottom of pg 110- has the rule for non martial children.
-question of fact can we put the dna together? There are still policy questions
that arise for example, can I pull a body out of the ground?

Can a natural parent then come in and try to inherit from the child?
-The authorities are quite split on this.

Posthumously Conceived Child
Repoductive Technology En Ventry Se Frididaire

Woodward v. Commissioner of Social Security
*Bc he was afraid he would be sterile, he preserved sperm. 2 years after he died,
his wife gave birth to twins. The woman then applies to the federal government fo
social security benefits.

*Court rulling- The federal court turns to the Mass court and says tell us what the
law is here in Mass.The mothers main argument- genes rule because
they have the genetic connection there, then they should be able to inherit.

-Social Security No really happy with this bc the law goes to being at
time of death.

-So we have a set of tests as to who is in being at the time? We are going
to look at a number of competing tests.

The law is extremely different based upon where you live.
*California to inherit
-parential consent
*written, signed, dated
-notice with person with possession over the peropty within 4 months of
death. You have to tell the executor within 4 month of death that
you plan on doing this.
-Child has to be in womb within 2 years.
*These last 2 establish finality.

*The UPC rules are listed on pg 119.
-Clear and Convincing Evidence School documents.

Posthumously Conceived Children and wills and trusts
Explore this next time, surragency, to pg 126

Sept 17

Chasten course materials! Read this. The policy question on the exam will have
something to do with this.
*No class this Thurs!

Simulatanous death
-Common law standard. No evidence x overlives Y then
-Uniform act then you must have clear and convincing evidence of 5 days. No
clear and convincing then you go to the common law standard.
-TN statute 31-3-12
Most common instructive trust on property
-Few let slayer take anyway

Bouyant Case-
*We are interested in who died first (W or david 7 year old) because who gets the
estate turns on this. If w died first it would go to david and his half siblings. If david died
first it would go to the wife and then her parents.

-There is no evidnce that she gouhgt her her chid. Which indicates that she must
have died first because otherwide she would have protected the kid.

RULE- you have to live five days. Neither lived 5 days so you are under the sufficiency
of the evidence rule. (seems likely that he killed the wife first bc there is no evidence that
he fought for his child.)

SLAYER STATUTE- in the common law of inheritance, is a doctrine that
prohibits inheritance by a person who murders someone from whom he or
she stands to inherit (e.g., a murderer does not inherit from parents he or
she killed). In calculating inheritance of the decedent's estate, the effect of
the slayer rule was that the slayer would be treated as though he or she
had predeceased the person who had been murdered, therefore his or her
share of the estate would pass to his or her issue.


Disclaimer (pg 140)
-Creditors (pg 142)
-Except IRS DRYE

*Disclaiming to qualify for Medicaid
*pg 144- troy vs hart
-The brother writes a disclaimer to prevent themoney being taken from him. The
lesson- it is very difficult to disclaim to continue to qualify for
-If the gov can recoup any money. It will!

Wills pg 147
Chastain case- in this case they messed up the execution of the will.

Pg 153- Groffman case
*The widow is the 2
wife, decendant is the son. (child from previous
marriage vs widow does not lend itself to trust after dad is gone.)

-Will fails the document failed the presence requirement. The wife ends
up getting the property outright.

Stevens v Casdorph
*Who gets what under the will who takes under testisy and what does this
*Will- was foing to leave the buld of the estate to casdorph. The neice was
supposed to collect. There are 4 neices they would take equally- so they
all get left out.
*Hes in a wheel chair. They all have to see each other sign. No body says this
will is wrong/ this is NOT what he would want. Nobody even talked about that.

Classic Standards test: 2 standardards
1.) Line of sight- just have to show that you were sitting where you COULD see.
Dont have to prove that you were actually watching.
2.) conscious presence- This is more subtle. This is knowing that its going on. If
you dont know why you are there then this does NOT count. You
actually have got to be aware of whats going on.

UPC- acknowledgement can be apart of this.
-Might have property in another state. You cant be certain where any given will is
to be probated based upon the law of domicile. Its how the validity of
the will is judged. The states themselves often have choice of law.

Often when there is a lot of money- the top of the will is sewn together. That way you
cant substiture a page and you really ust cant mess with it at all.
-You dont need a self proving affidavit for the will to be valid. Used to be- you
would call the witnesses to the will to court. However- the problem with
the 2 witnesses coming in what if the witnesses are dead?
*As society became more mobile people had to fly back to court to egt
things to be more mobile/better.

Sept 25

Elements of execution:
Prensce requirement- this goes to the essence of a witness will. If its not
witnessed in the proper way, then its not a will. Unless you want to call it a
holographic will.

Groffman- 1 of the witnesses& testator go into a room. They leave and then
another witness goes into the room. This violated wills act

Wills act- everyone has to do everything in the presence of everyone.

Stevens v. Testator- You would have failed under the strictest standard and also
under the looser standard acknowledgement because he failed to

*In some of these cases- there is a huge problem with even though the will may
be the donors intent, just because it does not have the exactly right
forumla then it is not validated. This does upset people.

*We have everyone do it all at the same time because say there are days that you
are crazy and others that you are sane. What happens if you are sane when you
write the will but then crazy when it is executed. So we do it all at the same time
so that there arent those issues.

Problems bottom of pg 159
*You call in and day- thats my will will you sign it?
-line of sight No bc you cant see it
-conscious presence The question is what do we means by presence
under the law telephonic presence doesnt do it. Regarding video
camera.. it depends upon what we mean by presence. If we get
backed into this corner- then argue it to the judge. This is a
situation we dont want to be in Talk someone/an assistant to the
home with us. This is ana rea of strict compliance- of we dont
know its right then its probably wrong.

Problem 3 (c)
*Pres of back drawing a will- this is an unauthorized practice. Even if he
is still a lawyer then this is still unethical bc its a conflict of interest.

*anPOTHER PROBLEM- the testator was at such an angle that you could
not actually see his sign the paper. That is a huge problem. To apply the
sonscious presence tests on these facts would be to let it run wild.

UPC- has gotten rif of the conscious presence test.

Prescription Requirement

Pg 162- Taylor vs. Hock
*He did his will on the computer and he used a font that was a signature font to
sign his name. This was allowed because the testator intended it to be a signature.

*If you want to show that the old man has capacity, would you video tape him to
show that he has capactity?
-Against- This gives the other side like 1,000 different things that they can
use to attack the testator. The question is- how is this man going to
look on tape? He will probably look old, voice will be weak. So if
you are going to video tape this person then you better be aware of
how they are going to look.

The question right now- turns on whether the document can change or not.

Signature- This is supposed to be the end of the will. This has a sense of finality.
-What happens when you write something under the will?
-This isnt valid.
-You have a stronger case if you initial/date after what you write.
However if you dont do thi and is added after your signature then
this is just writing on the will and doesnt matter/do anything.

Tn attestation law- (32-1-104)

Execute a will: Astor Will
Reason why this is good- She does a lot of things and bequeaths a lot of
differenttypes of property. This covers A LOT of basis and give you an example of how
all this should be done.
On Pg 26- It shows how/where the will was sewn. It was properly prepared. If the
document can be messed with after it has been signed- then you havent done your
job/you havent prepared the will properly. (There are placing in the country that still
actually sew wills.) There is a slit made in the page and the ribbon comes out and then it
is sealed- so to open the will after it has been sewn shut then eithr the will seal must be
broken/ribbons must be cut. BEFORE THE WILL IS EVER SIGNED/SEALED THEN

There is only 1 original to a will! A will is a physical thing. It has a materiality
that other documetns dont have. The person who matters when this came to form is
dead. It is like this is what is going ot be said to god whe you die.
The lines of the will go to the end of the page- this is done so that nobody can add
any sentences to the will.

*Everyone knows that you do NOT take apart a will to make copies.
-If you are in a district where its ok that you stapled the pages of the will,
then you do some serious research and make sure that its all okay.

Execution of the will- You go into a room and close the door. You better make sure that
the oly people who are in that room are people who are involved with the testate of the
will. You close the door and everyone stays until it is all over. Often times the client will
initial every page- especially is you are not going to sew the will then this is good to use.

Get the person to say This is my will.

Then you ask- was it prepared in accordance with your instructions?

Does it accurately set forth your testamary desire?

Do you publish this to be your last will and desire?

Would you like for the 3 of us to act as your subscribing witness?
-they have to say yes

Then you read the attestation clause.

Safegaurding a will
*Problem with you keeping the will It looks like you are trying ot influence
them to give you repeat business. Gives you a chance to be the attorney for the will.

*Problem with going with them Then its a problem ith losing it and also it
getting written on. When people put it on their saftety deposit box- when a person dies
the box is sealed, then you cant get a court order bc you arent executor. But you cant be
executor bc there is no will.

*You go to a bank and you get a vault there.

Go to Page 197

Sept 26

Will execution & Witness Wills
-Last week: question of interested witnesses 3 rules
1.) common law- (rarely) simply invalidate will
2.) majority- (TN) interested witness is purged of everything except what
they would have gotten intestate.
3.) minority- person who would be interested witness gets nothing

Proper method of execution: How to minimize problems going forward
Pableto estate-
Mirror Wills- the first to die gives everythign to the survivor then they
give everything remaining to the same people at the end. With these
types of wills (redisary clause will not have much money in it bc the
people who use these types are typically of limited means.) The
redisary person is always going ot be the same on both sides.

In re Pavlinkos Estate
Facts: Husband & Wife accidentely sign each others will. Not
valid bc large parts of the will would have to be
rewritten. Little money and speak little english.

Rule: The Wills Act provides in clear language that every will
shall be in writing and shall be signed by the testator at the end
thereof. The court below correctly held that the paper that
recited that it was the will of Hellen Pavlinko could not be
probated as the will of T and was a nullity.

In re Snide
Facts:Wife & Husband accidently sign each others will. Except
for their respective names, the wills are identical.

Reasinung: If a carbon copy has been presented and signed, the
intent would not be frustrated. Here except for the names of
the donors and beneficiaries, the dispositive provision in both
documents were the same.

*Here if the father died in testate- then the mother would get
more of the property. The children were okay with the will
being validated, but there was 1 minor child with a guardian ad
liem. This guardian was the one person who had an issue with
the will. As a result- the ocurt looked at the person who was
petitioning the will and decided that they would help the
wife/husband out.

Will ends. There is an affadavit and the widow signs at the end of the will.
What happens- the court basically looks to say what the point of the formality?
This person seems to want to die intestate. The purposed of the formalities to to
determine that this is what he wanted so in this case- they probate the will. That
means (clear and convincing evidence that the requirements are close to being
complied with.)

Harmless error (pg 182)
*suicide case- Notorized will and no witnesses. Court refused to use substantial
compliance because the court said that this wasnt close enough. The doctrine of
substantial compliance needt o be applied exactly.
*Substiantial compliance Courts are not excited about using this. Only
place it has been applied are 1.) switched wills; 2.) Case of Rainey of
where you have the self proving afadavit signed.

*Courts have had a hard time using substantial evidence so at this point
we switch over to harmless error.

Chastain Case
Facts- Chastains bought a will kit from Barnes &Noble. On Page 2 there was an
attestation clause with 2 lines for witnesses. The people who bouhgt the will kit
signed on the 3
page where it was a space for testate instead of signing on the
proper page page 2. The actual will only had an initial on it and it was in
dispute whether this was considered signed.

*Court of appeals argument- the line that he was supposed to sign did NOT really
look like a signature line.

*Daughters behavior after father died- She tried to go to court and say there is NO
will. Then she goes to the court later and says oh hey- here is the will.

*Harmless error & substantial ocmpliance are still on the horizon in Tennessee

Go through page 215

October 1 2013

Snide- introduced concept of substantial compliance.

Will of RAINEY- basically identical to the chastain case. Testator signed a will with a
page missing (the attestate page.)

Estate of Hall- attorney drafted a join will. He lets the guy sign the draft and then the
lawyer notirized it. The problem is that you need 2 witnesses. We dont go to substantial
ocmpliance here but it brings us the the case of harmless error. Here we do actually get
relied even though it was technically not a whole will.

Why do we get wills/things notorized?
*You want to authintate that you are who you say you are. That way when you
are buying something that people are able to find you.
*Wills- you are trying to authenticate that the will represents that the document
represents what this perosn wanted.

*Why it hasnt been adopted in Tn 1.) tradition; 2.)case law- give up the rigid
requiremnt of presense and the traditions then you have a lot of work to do to ensure that
what you ocme up with to make sure thats what the people actually want. Most really
wealthy people dont just have a short will. People think oh to make it official I must go
get it notorized you get it notorized then you die and then the court says heyyou have
harmless error if she ahd a client with a lot of money- you need tax plan estates and if
you bring tax planning into the will then you get a lawyer 3.) notoraized will- if
someone tries to probate a notorized will- then we dont know how the court will reacatt.
4.) hard to change this area of the law. 5.) the perople are dead- not like contracts where
you can just go and talk ot the person. 6.) The people running this hsow are tax estate
people. They are not pushing for a change, even if this change wouldmake their lives

In Re Probate of Will and Codicil of Macool
*Husband and Wife (2
marriage.) Elmor had 7 kids and they had a close
relationship with Louise. She had a will from 1995- Elmor got everything if he survived.
If he didnt then the 7 step kids and the step grandkids received (it was all people in his
family). Elmor died in 2008- 1 month later, she goes to the attonrey to make her new will.
She still is going to leave to the 7 step kids but she wasnt to add in her 2 nieces (an dall
of them would take equally.) She also had ideas about what happens in a lapse (if the
people she leaves to dies before she does.) She writes these notes of how she wants to
change the will and gives it to the attorney. He quickly pumps out a rough draft. He
leaves some of the takers in lapse off bc he doesnt ususally add so many. She goes out to
lunch and then she dies. The nieces start the lawsuit bc theyw ant to propound the
unsugned draft of the will (they admit that it doesnt meet NJ execution requirements.)
They are trying to propound the will under UPC statite on pae 184.

*Needed clear and convincing evidence that she intended this to be her will.

*Legal Zoom Dont recommend this. The guy she called had some understanding
of what you could do. You couldnt establish a trust for an adult that survive past
your death.
*The fact that she hasnt signed it would prevent this infprmatopn from being
entered in to evidence.

In Re Kimmel
-Here it is clear that he intended to get rid of his estate. So this gets in.

In Re Gonzales:
-The 3 included kids want the will. The 2 excluded kids object
-This is not a witnesses will because people didnt sign the document.

In Re Kuralt:
1989- He wrote a holographic will and gaevt he Montana property with his gf.
1994- Does a probate will. This invalidates his previous holographic will
April 1997- he tansfers aprt of the property to his gf (this is not a gift because it
was set up as a sell.) Then he goes into the hospital a few days later.
June 1997- He is in the hospital.
*Thing about a holographic will- you dont need witnesses bc the writing
itself establishes the authentisticy.
*They get this in- but this is considered to on the far side. Suggests that this isnt
normal thinking.

Whitney houstan Will

Go to page: 234

Oct 3 2013
Preprinted forms- likely to be used by someone who cant afford or they believe there isnt
much time before they will die.
-Should we be more generous with preprinted forms?
YES- if the preprinted will really expresses their intention before death
then yes, yes we should. Would it be sufficient that this person told
someone (oral statement?- No bc there is enough oral
decision/proof that it was written.)

People who think chastain case is wrong-
*People cant believe the chastain case was decided like ti was. Practice witht
chastain in the back of your mind

what should we do? Is it sufficenet that people make a holographic will? Should we be
generous with these?
**There is a concern about fraud
-How do we fix this concern? Would it suffice to say if its property above
50,000 we will have a different set of standards than if it was under
50,000? Should we just cap it with a certain dollar amount?

Legal Zoom-
If you can figure out that this person has more than 100,000- then you should get a
serious call from someone saying do you really think you can suffice with our services?

Assume you have a valid will
Whitney- Astor Start off by explicitly revoking all previous wills.

A lot of the cases are heavy going (hard to figure out the rules). At the beginning of the
chapter are some really set out rules.

1.) how to I execute a will
Traditional (2 witnesses)
Holographic will
*3 generations

Harmless Error
-look at the reasoning that goes into the cases (how they justify tweaking it.) Is it
testator intent? Then if asked on a new set of facts follow it through the
tstandard rules then apply harmless error then do you have president for
doing that? What cases are this kinda like? Thats how you go about this.
-Start with what you can organize
-Then move to what the courts are struggling on.
-The alw is trying to be more generous but its doing it case by case.

Pg 217
Problem at the top of the page:
2007- T:Will
Everything to A

2012- T: Will
Diamond Ring to B
Car to C

2013-T: Will

A gets everything except the Diamond Ring or the Car

If They were to rip of the codecil then this would revoke it and A would get

What about if you revoke the will instead of the codecil?
-If you revoke the will it is assumed that you revoke the codecil that goes with the
will. Unless you can show that the testator intended otherwise.

Go to Page 245. Prob wont get that far. Look back at stocker.

Oct 8

Wills can be changed up until the moment of death.

To revoke a will:
1.) subsequent writing with all the formalities
2.)Physical Act (no oral revocation). You have to destroy, burn, obliterate the
will. Another perosn can do it for us if done in our presense (harrison vs burn case- if the
last place will is known to be is in the testator possession and you cant find it-
presumption that testator revoked.) The question is whether writing in a defamatory act-
UPC: doesnt have to touch the words, old law- yes this can be has to be on the words. It
is more controversial if we can do a partial revocation by marking through a persons
name (upc okay) maj (including tn no.)
3.) We can write a concidial

Stocker Estate:
Facts- will 1997. Stocker appointed Destiny (then gf) to be the executor of the
estate. Redisary estate passes to a trust to which she is the benefial and the testee.

Issue- 1.)Whether the 2
writing is valid enough to get rid of the first writing.
2.) * The guy urinated on the will and tried to burn it. Does this count as a
revocation by physical act?

Problem: The guy peed on a copy of the will. UPC 2-207 (we have problems bc
this is a copy. The upc and the restatement would want us to have the
original. So att his point we go to the issue of harmless error.
.) you have to be in a state that recognizes harmless error. The
case book would make it seem like harmless error is the law of the

Why doesnt the court just look at harmless error and say this is ok? The UPC
does not explicitly say that you can apply harmless error to revocation by a
physical act. The restatement allows this- but it is not okay via the UPC. The
restatement does not necessarily tell you whats okay. You have to be careful.
*Physical act- does not get us home. If there is not some way to get rid of
the old will then then old gf gets everything.

In 2013- when things get revoked how do they usually get revoked?
-Another will
- To claim its another will,
1.) you have to follow the wills act. (2 witnesses)
2.) Or holographic will has to be handwritten, signed

If will number 1 is revoked number 2 then they must bother be
considered valud wills.
Whats the problem with this writing on pg 221?
-The will is signed by 1 person. So we have to look at this as a
holographic will. The guy signed this will- but he dictated it. So he signed
the will but he did not actually write it. We do not meet the standards of
the holographic will so wwe fall back to harmless error (Which we can
do in this state.)

*What is this holographic will missing/what the gf tries to argue.
-Intent In every will we look for words of transfer (I bequeth, I
devise, I transfer.) When you draft a will for a client virtually every
paragraph starts out that way. She argues that these words are not
found within the will.
*How do we get around her? We have everything is to go,
it looks like informal language of disposition.

*If we had invoked the physical act- he would have died in testate.
*If we had invoked the writing on 221- the people named in this wriitng
would have received.

LaCroix v. Senecal
The Friend gets the property.
Dependent Relative Revocation
If the new will is not valid for some reason, then the first will that they made is
considered valid. Its a duly executed condicial to the will. It subsitures the new
privision to the friend with signatures that dont work (the signatures work ot
unvalidate the original will but dont validate the 2

*Because you made a mistake. You couldnt have intened to revoke the 1
if you had known that the 2
will wouldnt have worked. Because of the
inclination from 1 to the other-

Example on pg 233:
Testator who wants to revoke an old will and create a new one. She takes her old
will and writes void across the top of it. She takes this will to her lawyer (the
lawyer drafts this new will but before its put in final form. She dies.)
*The court here refuses to apply Dependant Relative Revocation.
-Was this close enough that the court should have applied it?

Okay written: I bequeth $1000 to my nephew, Charles. THIS IS TYPED
*Above ritten 15000, then intialed and dated.
*Question: Is this a holographic condicial?
-Problem There are no words of disposition. This wouldnt mean
anything without the other words. So if there is supposed to be 100
in writing, then this wouldnt count.
**Generation of hographic will matters.
**If witnessed- this would be okay.
**Signature- we have initials not a signature. The fact that these are an initial
should not be a huge issue. The fact is that they are still initialed.

Pg C- If the state does not permit partial revocation by a physical act.
*in this state- striking through the 1000 would not court. So this does NOT effect

D- Assuming that we applied partial revocation by physical act. But the stuff written
ontop is not valid. What results if we dont do something? Then Charles is in the will but
he doesnt get any money. There is a screw up. In this case you would apply the
dependent relative revocation.
*Basically- bc this didnt fly. Can we undo what we did?

E- He crosses out the 1,000 and substitutes 500. It is signed and we put the date. (low and
behold- this doesnt work.) The states recognizes the mark through but doesnt recognize
the change because the format is written in a way that isnt recognized.
*Dependent Relative Revocation- not as easy to revoke it here bc his intent with
the 500 shows his intent that he wants to lower the amount given.

Pg 233- Top
I bequeth 5,000 to John Boon
*John is striked through with the word Nancy
*The state recognizes partial revocation
*The state does NOT recognize holographic concials.
What happens?
-The $ stays the same but the beneficary is what changes.
2 lines of cases:
-Holton Estate: The court says its clear that she didnt want Holton
to take anything.

-Lyle Estate:
I devise 40 acres of Blackacre to A and 100 acres to B. We
strike through A. Then we strike through the 100 and give
all the property to b.
*The court refused to apply dependent relative revocation here.

Pg 234-
500 to Judy
R/R/R to Mark
Codicil: I revoke the legacy to Judy who is dead
*In this case, the case grants the estate bc the mistake is in the instrument.
She would NOT have recoked if she knew that Judy was still alive.
*You can tell that testator was wrongly told that Judy was dead.

Pg 234- Estate of Alburn
*Moved to Milwakee to live with her grandneice (1954)
1955- executes the Milwakee will. Gives jewelry & furnishings to the grandneice.
Residue in 4 equal shares. 1- viola (grandneice); 1- Olga (friend); 1- Lulu;
1- Doris. These are the husbands relatives.
1959- Moves to Illionis. She executes the Kankakee will. This revokes the
Milwakee will. She givs shares of stock to Olga (friend); jwelery to lulu &
doris; reside to 4/10 to lulu, 5/10 to doris, and 1/10 to her brother.

1960- June moves back to wisconsin. To another brother
Nov- destroys the Kankakee will. Presents the torn up pieces to her
brother. Says she wants Milakee will to stand.
Nov 1960- She dies.

*Why is she moving around so much?- She is moving aorund and deosnt really
have a place to be.

*Why dont they just probate the milakwee will?- She revoked it and she also
revoked the revokuing will.
*Law in Wisconsin- no revival of revoked wills rule. So once a will is
revoked, then it does revive upon revocatiopn of a subsequent instument.
Ex: T executes will #1
T executes will #2
Will number 2 revokes will number 1 (either expressly or
by inconsistancy.)
T revokes will number 2
What is the effect upon will number 1?
*WhAT HAPPENED? They applied dependant relative

Page- 255

Revocation by Operation

In re estate of Alburn
A states- no automatic revival. What you need to get the 1
revived is you
have to show intent or you need another testimentory instrument.
B states- Will nuber 1 revived by another testimentory instrument.
Common law rule- Will number 1 spring back automatically.

Tn- No statute in tn. But we have a case (McCluer)
Intent governs. We are really back with the maj group A states. The burden of
proof is on the proponent. If you want to get that will back alive the burden is
on you to do so.

Will number 1
Will number 2 revokes
What happens?

Pg 238 UPC
Upc 2-509
fACTS- wILL #1
wILL #2 revokes will number 1 in entirity
will 2 is revoked by physical act
revocation of will 2 does not lead to the revival of will 1. Unless
proposal of 1 has evidence of Ts intent

*You cannot assume that UPC is adopted.

Facts: Will 1
Will 2 revokes will 1 in part (codicil)
Will 2 is revoked by physical act- if you live in an area where you cant
revoke by physical act then a lot of this stuf goes away because you
have to have a writing.
Revocation of will 2 revoves will 1 unless there is evidence that the
testator did not so intend.

c.) will 1
will 2 revokes in whole or in part
will 3 revokes will 2.
Will 3 does not revive number 1 unless will 3 states to revive 1.

Pg 239
2003- A my property to A
2010- My property to B
2011- I revoke my 2010 will
Who gets property under UPC?

*Complete revocation. The presumption is that there is no revival
unless there is intent that they ment to revoke the 2003 will. In this
case there is nothing to suggest that they meant to revoke the 2003
will. So they die intestate.

If you have a state that has revived the harmless error rule?

Components of the Will:
The will

Pg 244- Republication by codicil
*A codicil republishes the will.
2011: T All property to A
a & b witness
2012: T codicil of 5,000 to C
C & d witness
2013: T Ring to C
D & e witness
*Under this statute- the people to receive who witnes lose what they are getting unless
they would get it under testicy.

*If something like the publication requirement is messed up. You cant fix this by
publication by recodicil.

Prioblem with her getting the painting?
Whether it could be considered a memorandum under the 5

What about this list that occurs after the will?
-Even though it occurs after the will. It is encorporated as if it (the will)
was inexistance.
Ny- you cannot incorporate by reverance.

Go to page 269

Class Oct 15

Last Class-
Compentents of a will.
The will consists in those sheets of paper that are present at the time of
execution and that the testator intended to be part of the will. We will take
pains to bind the will and make it all attached.

Doctrine of intregration- what speaks after death is contained within the pages of
the will. 4 corners doctrine tells us that nothing else should ne necessary
and nothing else should be used to determine what they want.

Rigsby- the list was not adopted as part of the will.

Republication by codicil- the effect of the codicil is to resterect will 1. To republish the
will and will 2 becomes sqeezed out.

Encorporate by reference- minimize error by copying.
Basic doctrine pg 245

Clark v. Greenhalge
*Wuestion- why you cant you do it under 2-510. The document encorporated at the time
has to be in existance at the time that the will was created. If we couldnt have used
republication by codicil then we wouldnt have been able to enter the memos in.

Johnson &Johnson
3 typewritten parapraghs- not signed at the end, not dated, no witnesses. In the
handwriting of the testator it says I give 10 dollars to my brother.
1.) holographic codicil
2.) Types will this does not meet the standard though for wills.

Pg 251-
Following the doctrine, we have The court refuses to probate this because
The handwriting was a holographic codicil. The court wont go with this because the will
was never duly executed. We dont have any witnesses so it was never duly executed.

The whole purpose of dual execution is to minimise fruad.

Acts of independent signifigance (pg 255)
*bequeth house in knox to friend soyna. Between bequething and dying you buy a
new smaller house. Upon your death, Soyna gets the smaller house.

Problems 255/256
A.) Yes. A gets these items
B.) If its the contents of the house- then they would get this. These items are going to
What about if its the items in the drawer?
*What is it about the independent significagance.
This is an awful thing to draft.
These cases turn on who all has access to the drawer. If only the testator has
access then we are happier with this. Why do you think that she put that
stuff in the drawer?
-Did she put it there onpurpose? Or did it just get thrown into
The question is if this is an independent signifigance?
-If you do it as an estate planning then we need to get some other way to
get this in.
-Here A got the contents of the drawer.

D.) In envelopes. Each had a name on it [this is written in the will]. Do the people get the
*Problems with acts of independent signifigance If you cant use idependent
significance. Then you might try incorporation by reference and use that.

*number 2 In 2008. Sarah does a will to trust under the will of Barney
2009- Barney executes a will and creates the trust under the will.
2012- Barney dies
2013- Sarah Dies
Does it get in? And under what theory?
** Problem- Barneys will is not in existance at the time of sarahs will.
If sarah dies first then the problem is that the trust desnt exist so you are
standing with all this money and nothing that you can really do with it.

Problem pg 258-
Contracts claim. Assumption that you do these things for free when you marry the

Pg 283

Go to page 384
Cse: go through 460 on new reading list.


Keith vs. Lulofs
-Man and woman each have 1 kid from other people. They get married
and make a will. All the money goes to the spouse and then the rest to the
remaining 2 kids. The guy dies and then the woman goes in and changes
the will so everything is left to her daughter.

-Should have told clients to put everything into a joint trust. The trust
becomes irrevocable on the death of a person.

-The daughter wins.

*Why do they get to weigh the evidence of intent here?
*In Tn You have to have one of these writings.
*Extrinsic evidence-

*You cant make a will until you are of a legal age (18).

There is a line of importance.
-K, Deed, & Gift

Wilson vs. Lane on pg 271

Pg 284

Oct 24:
Capacity: This has to be at the time you authenticate
5 parts of test
*If we step back a momemnt-w e can ask other questions about your free will.
(How free was your will?)
*Can a real estate agent draft their own will?

Wilson v. Lane
Katherine Lane (propounder), as executrix of Jewel Jones Greers will, offered
her will for probate. The will distributed the estate in equal shares to 16 blood
relatives and Lane, Greers caregiver before her death. Floyd Wilson (caveator) filed
a caveat claiming that Greer lacked testamentary capacity. At a trial in Jasper County
Superior Court, the evidence included testimony that Greer was eccentric and
feeble, but still of sound mind at the time of executing her will. The evidence also
showed, however, that Greer may have been suffering from Alzheimers or senile
dementia and that a petition for guardianship of Greer was filed by Lane a few
months after the will was executed. The petition claimed that Greer was no longer
capable of managing her own affairs and her incapacity was caused by Alzheimers-
related dementia. An expert, whose report indicated that Greer may have early to
mid-stage dementia related to Alzheimers disease, admitted that he had only
reviewed her medical records and had not actually examined her. Testimony also
indicated that the petition was filed by Lane in response to concerns raised by the
Department of Family and Childrens Services, to enable Greer to continue living in
her own home. The jury found that Greer lacked testamentary capacity, but the trial
court reversed the jurys verdict and granted Lanes motion for judgment
notwithstanding the verdict.

Procedure becomes very important
Jury said this guy lacks capacity
Judge turns it around and reverses this

Party with the burden of proof- the contestant.
Capacity: B/P
B/P on caretake- if due execution

In re Strittmaters Estate
In Re Strittmater
Facts: Womens insane delusion- that she hated men so she left her estate
to the National Womens party. The court determined because of this
that she was just insane.

*We are looking at peoples intentions.
*For the time period- this was socially out there This was a huge
issue at the time.
*Question of her family:
-If there is a rational basis (other people would have made the
same deicion given the circumstances- then this is okay.)

Breeden v. Stone
Facts: Spicer Breeden committed suicide on March 19, 1996, two days after he
was involved in a fatal hit-and-run accident. Shortly before committing suicide,
Breeden scribbled a brief holographic will giving everything I have to Sydney
Stone (respondent), specifying the addresses of his real property as well as
stocks, bonds, jewelry and clothes. Previously in 1991, Breeden had executed a
formal will and a holographic codicil. These documents left his estate to
various people, not including Stone. Nor did the documents include Breedens
father, Vic Breeden, Sr. (petitioner) and sister, Holly Connell (petitioner).
Various people, including Breedens sister, father and brother, Vic Breeden, Jr.
(petitioner), filed exceptions to the holographic will claiming Breeden lacked
testamentary capacity. Evidence was offered to show that Breeden had been
using cocaine and alcohol for several years prior to his death and that he had
consumed both cocaine and substantial alcohol on the night of his death.
Testimony indicated that Breeden had drastic mood swings and had paranoid
fears about threats against himself and his dog. Some handwriting experts
testified that Breeden possessed the motor skills to write his will and some of
Breedens friends testified that he had previously stated his intention to
exclude his family from his will. The probate court found that Breeden did not
lack testamentary capacity to execute the holographic will and formally
admitted the will to probate. That ruling was appealed to the Supreme Court of

*Unless you get a will in place on a day that a lot of people say he is
sober- then there is going to be a problem.
*This guy is NOT very sympetetic. He killed someone, then went bar hopping,
then 2 days later shot his dog and killed himself. We are judging him and his
actions. At the scene- we find the handwritten note.

*The probate court admits the holographic will to probate and the family
-The issue: They misapplied the capacity doctrine. They misimplied
the insane delusion and they completed the 2 cases of action.
*Good thing about case- lets you analyze the difference between
*This is the 5 point test that I have written previously
2.) insane delusion test
A. Is there a factual basis for the fear or idea?
-Is there a reason to belueve that his family is spying on him?
Minority: They msut have NO basis in fact. Any factual basis
vitiates the cause of action. [here there was a ratuibak
Maj: Even if some factual basis, it is still an insane delusion if a
rational person would not have done this.

B. Causation
Maj: Does it materially affect the disposition?
Min: An Unnatural disposition this makes for causation
*You can name all of your heirs and such and you leave
everything to your drug dealer. People can say- this is a
really weird group for you to leave everything to. This
makes it way for causatioin.

Lots of people have influence- we try to reduce these.
*We looka t who has the intial burden of proof (the contestatant).

Next time: Pg 313

Go to page 317

Father divine.
Tortious intereference
Go to page 332

Undue influence

Estate of Cole

Patent & Latent ambiguity difference
*Which do we generally allow somee?
Answer: Latent- we let in some information. [this is where we cant tell
if its ambiguous.]
*In the case of Patent?
Answer: We strike it. [When we know that it is ambiguous this is
when we dont allow them to enter information.]

Next time- gibs, per se, start lafts, roxy russel. Page 356

On the exam:
-You will be expected to know specifics.
Testimentry Substitutes:
*This is whats going on with upper middle class people.

Revocable trusts:

You can create a trust 2 ways
1.) under a will
*If you set up a trust- you take the assets and the executor of the
estate puts them in the name of the trustee. The trustee- then has a
recipe they have directions about how to invest the property and
directions about when/how they are to distrubute the property.

*A trust under a will- this is basically a contract by the granter
enforceable by the beneficiary against the trustee.

*If a trust is deeding property to you. The property will be in the
name of the trustee to you.

*The trusts can be
2. revocable- These are called living trusts among non wills lawyers.

2.) during life

State Street:
Majority rule: Because he could reach while he was alive The creditor
could also reach.

Pour Over Wills:
The rest, residue & remainder my estate to my trustee. Under

Michael Jackson will:
-They try encorporation by reference
-The problem is 1.) whether the trust actually exists. 2.) Can he
amende the trust? So encorporation by reference doesnt work
as much as we would like.

Acts of Independent Signifigance:
*Problem- this has to be sestablished before the death

Climber pg 460