Decedents¶ Estates Outline

Introduction (CB 1-46)
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4/16/2011 4:20:00 PM

This material introduces the three modes of wealth transfer, taxation, administration, and the personal decision issues involved in decedents estates.

3 modes of wealth transfer y Non-probate transfers (will substitutes) = Is the most common form of wealth transfer in America. PROS: secrecy, speed, avoids taxes. o Tenancy in the entirety: is a will-substitute non-probate transfer. o Retirement accounts o The only thing that is not payable on death is some of the other random property. o Living trusts: everything that you own is identified, you retain a life estate in it, and then a remainder in someone else.  This is better than having a will b/c the living trust transfers without probate. If you go through probate, have to pay inheritance taxes. Last wills and testaments o Probate transfer: Can say how you want your property to be transferred at death. Need to have a will to go along with a will substitute. Wills are good to pick up stuff if the will substitute doesn't work.  Ie, if you die simultaneously, it is treated as if the other partner doesn t exist. Each person's estate is probated separately - so will substitute won't apply here. o Validity of a will is complicated, but a lot of it has been streamlined with the harmless error approach. o Estate representative: has to file notice in the domicile of the decedent, account for assets, pay debts, and distribute to heirs. Complicated and lots of costs, so ppl prefer non-probate transfer. Intestate succession o Property is not passed as a will substitute or a valid last will and testament so goes through intestate. Every state has a different method of setting this up. Need to memorize the UPC scheme. o Need to compute what the intestate portion will be for the pretermitted spouse.

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Probate = the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. y y A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.

Nonprobatevs probate Who takes a decedent s property depends first on whether the property is nonprobate or probate property. y Nonprobate property = limited to: o (1) property held in joint tenancy, o (2) life insurance contracts (modern trend expands this exception to include all contracts with a payable-on-death clause), o (3) legal life estates and remainders, and o (4) intervivos trusts. Nonprobate property passes pursuant to the terms of the nonprobate instrument. Probate property passes pursuant to the terms of the decedent s will, otherwise through intestacy.

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-CONSTITUTIONAL GUARANTEEHodel v Irving there is a constitutional right to bequeath or devise property (a property right). A person cannot be deprived of land inherited from a decedent w/o just compensation.

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SCOTUS reversed itself and held that the escheat provision of the Indian Land Consolidation Act of 1983 constituted an unconstitutional taking of decedent s property without just compensation. o The Act completely deprived Indian landowners, without compensation, of the right to dispose of their fractional interests in Indian land by intestacy or devise, but not through nonprobate means, if the decedent s interest met certain criteria  The decedent s fractional interest would escheat to the tribe. The Court found the statute overly broad and unconstitutional. o Court was bothered that the statute virtually abrogated an important right (the power to transfer at death) and that the statute was not well drafted to achieve its stated goals.  The statute applied even in cases where permitting the property to pass to one s heirs would have resulted in increased consolidation of the property, the goal of the statute.

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-PROCEDURAL RESPONSIBILITIESTulsa Professional Collection Services, Inc. v. Pope y SCOTUS ruled that where the identity of a creditor is known or reasonably ascertainable, the Due Process Clause requires that the creditor receive actual notice before a creditor s claims could be barred.

-TAXATION AT DEATHGift Tax y The gift tax system focuses on inter vivos transfers that lack consideration inter vivos gifts. o The tax is imposed where a donor makes a taxable gift. IRC §2501(a). The tax is imposed on the donor, but if the donor is unable to pay the tax, the donee is liable for the tax. The tax is implicated if there is a taxable gift. o Each donor is entitled to make annual gifts up to a set amount to each individual donee before there are gift tax implications. Under the Tax Reform Act of 1976, the annual exclusion per donor was $10,000. The annual gift tax exclusion is now indexed for inflation (the exclusion

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. and here the settlor had neither the form nor the substance of control of the remainder. o Grandchildren didn t receive anything. o The income was payable to his wife for life.increased in 2002 to $11. to her heirs. per donee). y Commissioner of Internal Revenue v. o Rule: Where the grantor has neither the form nor substance of control and never will have unless he outlives his wife. y petitioner funded an irrevocable inter vivos trust with 3.000 shares of stock worth $571. Grandchildren wanted to sue the attorney for negligence. Wanted damages . if alive. a donor may owe federal gift taxes. Elliott privity rule when the atty did not actually represent the potential beneficiaries. Estate of Bosch y state court proceedings are not binding for purposes of determining federal estate taxes owed unless the judicial proceedings are approved by the state s highest court. o The government conceded that the reversion was immune from gift tax. Shaughnessy You have made a gift if you have given up all economic control and dominion. Atty gave her an inter vivos trust. otherwise as his wife might direct by her will.000 per year. and in default of such appointment. B's estate passed intestate to the children.000. The taxpayer conceded the life estate was subject to the gift tax. and they win. we must conclude that he has lost all economic control and that the gift is complete except for the value of his reversionary interest. -ATTORNEY S ROLEBarcelo v. Smith v. The court held that the contingent remainder was subject to the gift tax in that the essence of a gift is abandonment of control over the property. Her children challenged the validity of the inter vivos trust. the stock was to be returned to him. Atty was negligent in the preparation of the trust. y Facts: B wanted to provide benefits to her grandchildren.what they would have gotten had the trust been effective. Depending on the amount of cumulative taxable gifts. and upon her death. he owed no duty to them.

the grandchildren) then they should have a cause of action. y Intestate Succession (CB 47-176): y Each state has a statutory means for descent anddistribution of property when the decedent has not provided otherwise. DE TERMS y y (X) = decedent S = spouse . consequences of placing the burden on defendant. Certain legalissues accompany this mode of transfer. If you don t know who the beneficiaries are.would divide the atty's loyalty b/w his client and the third party beneficiaries. o Policy: Otherwise this would disrupt the atty-client relationship . (5) Non-probate instrument is payable to heirs rather than the estate. forseeability. then they wouldn t be anticipated. likelihood of injury balanced against  social utility of actor s conduct. Intestate succession = a statutory method by which the property of a decedent that does not pass by LWAT or by nonprobate transfer may be transmitted to others 5 instances in which intestacy could occur: y y y y y (1) No will and no non-probate transfers (2) There is a will.y Privity rule (majority rule): there is no privity b/w the atty and the grandchildren so there is no cause of action b/w them even though the resulting harm was foreseeable to the grandchildren. Dissent (minority rule): if the beneficiaries can be anticipated (ie. magnitude of the burden of guarding against injury. but it does not provide for all of the decedent s property (3) The will is revoked or found to be invalid (4) The will directs that property pass according to intestacy. o More courts are wiling to allow a suit to be brought against the attorney with the balancing test:  risk.

()=dead collaterals = siblings. nephews. to a degree. other than a child born to a gestational carrier P = parents o P is trumped by surviving issue and/or spouse.y I = issue o The word issue is more inclusive that just children. ect y y y pattern of intestate distribution y y y y y spouse issue ancestor collateral escheat to the state (if none of the preceding is found) -THE SURVIVING SPOUSEy ***ALWAYS MAKE CERTAIN THAT CLAIMANT IS ACTUALLY A SURVIVING SPOUSE 6 ways to become a spouse y statutory marriage o valid statutory marriage reqs certain formalities. unless contrary to strong public policy (5 states + DC allow for statutory sex-same marriage) . such as:  proper capacity to enter into marriage  license  solemnization o once married. marriage is valid everywhere . it is meant to incorp issue of the body. nieces. amrital and non-marital and. adopted issue  Child in gestation = issue as well (qualifies to inherit) o Parent child relationship  UPC Def child+ a functioning parent Stepchild or any child in the process of being adopted when the adopting parent dies Child conceived by assited repro.

g. and responsibilities that are provided to spouses y y y y In re Estate of McKown y Spouses who are legally separated generally still qualify as spouses for purposes of the intestate distribution scheme. the marriage violates the state s degree of relationship requirements).  As long as one of the parties reasonably believes in good faith that the marriage is valid. the marriage ceremony is not valid. partner have similar rights as married persons with respect to inheritance and admin of the estate Civil unions o Couple need sot apply for license and the union must be solemnized once this is done. meeting all the stat reqs other than license and officiant. o Curative device not the estofa marriage for purpose of marital rights of inheritance or election  Inheritance and other remedies occur only bc of equity Reciprocal beneficiaries o Statutory means allowing persons otherwise unable to marry to enjoy certain ebenfits otherwise reserved to married couples  Intestate succession = included  Coule must register as RB in ordr for status to be achieved Domestic partnership o Under this status.. one spouse is already married and not divorced. but for some reason the marriage is either void or voidable (e. but reciprocity may not be allowed in another juris (26 states have adopted constitutional amds banning recognition of SS marriage) y CL marriage o Far fewer states allow for status of marriage when couple. statutory marriage may be valid in any of the jurisdictions. coupel will have all fo the same beenfits. the spouses qualify as putative spouses and will be treated as spouses for purposes of most intestate schemes. hold themselves out as married for a period of time Putative spouse o exist where the couple goes through what at least one of them believes is a valid marriage ceremony. protections. Even if the parties have filed for divorce. the .

issue.parties remain legally married until the court enters the final judgment or decree of dissolution of marriage. . Then. or parents. y y -METHODS OF DISTRIBUTION4 methods of distribution: y The same four methods apply to both issue and collaterals. y Decree of sep maintenance has to be super specific. y (1) OLD UPC o go to first line where there is a survivor and make a per capita distribution. make a per stirpes distribution at every succeeding line where there is issue. o Never give money to people who are dead and who are not survived by issue. per capita distribution o a person receives in an dof himself form a decedent ( he takes by his own head and not through another) per stirpes distribubtion o a person takes by representation or through another Issue/Collaterals o Issue take before any parents or other collaterals. otherwise the surviving spouse maintains their inheritance rights -SHARE OF HEIRS OTHER THAN SURVIVING SPOUSEoverview y y Only matters if there is no surviving spouse.

O and P get 1/24th. issues. the goal of which was to keep assets in the bloodline o diff = you start with first horixontal line and distrib the pproperty regardless of survivorship o pro = dead have the ability to determine the amount the living shall receive next of kin o completely per capita system o first level where theres a survivor of the closest degree of kinship and giving them everything (or giving that gourp an equal share) o Pro  fast and easily identifiable distrib of the estate among heirs  lessens chance of laughing heirs  proves equality for persons with same degree of kinship y y in re estate of Martineau y X dies intestate with no surviving spouse. So they get 1/3 of 1/4. siblings. If G dies. KL share in 1/4 that D would have gotten.  y NEW UPC o Major diff btw old and new upc  Per capita distribution at each level of distribution there is no per stirpes distribution o Advantage of new system =  equal distribution among those heirs who are equally related to the decedent  this is also presumably the preference of most clients  allows step-children to inherit strict per stirpes distribution o based on old English model . parents. o Problem with old UPC: J gets more than I. J takes 1/4. GHI will share per stirpes the share that B would have gotten. . E and F don't get anything b/c A is still alive. People related equally are not treated equally. A gets 1/4. Can keep going down unless state has a laughing heir statute. A is alive. or grandparents.BCD dead.

may inherit by intestate succession from the sister of an equitably adoptive parent Equitable adoption o applies where the natural parents transfer custody of their child to a couple (or individual) that promises to adopt the child but then fails to complete the proper paperwork to adopt the child legally. it will apply y . Holdig o Equitably adopted child may not inherit through an equitably adoptive parent  BUT.  The doctrine is based on the equitable maxim that equity regards as done that which ought to be done. o They found unpersuasive the Appellant s argument that the legislature s failure to enact a formula for computing share by representation suggests that the legislature did not intend to provide for representation y -ESCHEAT TO THE STATEboard of edu of Montgomery county v browning y y QP: whether a person. EA kid doesn t trump the state o Escheats are favored by law. if equitably adopted. equity will treat the child as a child of the adoptive parent for purposes of distributing the adoptive parent s intestate property. but in the absence of legal heirs. equitably adopted chil may inherit from his or her equitably adoptive parent o The doctrine of equity doesn t extend so far as to allow a foster kid to recover from the estate of their foster parents sibling  In this context. one for the surviving uncle and one for each the surviving first cousins who would take instead of their parents who predeceased them The Court found that the trial court correctly applied the state s probate statute in ordering the distribution of the decedent s estate. o As applied in this scenario.  The paternal side was to be divided into eight shares.y Issue = Did the trial court err in ordering the decedent s estate to be distributed with first cousins sharing by right of representation? NO o The trial court was correct in distributing the decedent s estate half to the maternal side and half to the paternal side.

still need to prove the existence of the contract.  Rationale was that it was good public policy to discourage nonmarital sexual relas CA court: Courts may develop equitable remedies to meet the expectations of the parties.---HEIRS: CHANGING DEFINITION OF FAMILY---Non-Marital RelasMarvin v. it is enforced through equitable estoppel. o Until this case. He threw her out of the house. F got nothing. never married.  S dies and his will beneficiaries are all dead. The intestate heirs wanted the estate. argued that he promised to take care of her for the rest of her life.  BUT. o She didn t want to marry him b/c she was worried about the previous insurance policy. y . it brought about an inequity for the contract to not be enforceable. but she relied on him. y y y Byrne v laura y Holding o If there is expectation that the survivor would be supported. courts had said that you couldn t enter into a contract for support with someone you were co-habiting with. Applicable in both same/different sex couples. Facts: S and F live together never having actually married. Equity is the method of enforcement. o Allowed for two people to co-habit and enforce an oral/written contract b/w them that stated they would take care of each other. Based on the large number of people who are co-habiting. Marvin y Holding o Cohabiting couple can enforce through equity an oral/written contract btw them that stated they would take care of each other Facts: Couple lived together for 7 years. She sued for alimony.

y QP: do you override the intestate statute by using the Marvin doctrine of equitable estoppel to meet the expectations of the parties? o Equitable estoppel is the measure of providing support. Upon the death of one joint tenant. o NJ Case: didn t use equitable estoppel b/c she didn t have an expectation she had her own money and could take care of herself. Applicable in both same/different sex couples. NOTE: This wouldn t be true in every jurisdiction. Court held that there was clear evidence that she had an expectation that she would be supported and would get everything. Joint tenancy Joint tenants hold the property in question concurrently.  Technically. his or her fractional share is extinguished. Also the time period was too small. The fact that they were in love doesn t prevent the promise from being enforced. but there is a trend towards it. They own it in whole and in fractional shares. o The key characteristic of joint tenancy is its right of survivorship. some states do treat half and whole blood siblings differently -Relatives by AdoptionUPC y y Parent-child rela exists btw adopted child and adoptive parent child in process of being adopted . o F had an expectation that could be proven by clear and convincing evidence and this entitled to enforcement by equitable estoppel. no property interest passes upon the death of a joint tenant.  Didn't require a writing. and the shares of the surviving joint tenants are recalculated. y y y -Relative by Half-BloodUPC y Makes no distinction btw half and whole bloods o BUT.

Non-biological woman has no legal status in reference to the child. she has child. the child loses his relationship with the biological parent (BP). o BUT. Donor gives sperm.  Problem is that state statute says that once a stranger adopts a child statutorily. UPC will treat child as adopted so long as the childs genetic parent outlives the dead-step-parent by at least 120 hrs statutory adoption y falls under state law o no CL on adoption. they couldn t come up with a rationale to allow AE to adopt the child. they would do step-parent adoption. neglect. or abandonment (involuntary termination)  necessary to avoid detriment to child (involuntary termination) o 2) once termination established. If they were married.it would be possible for them to go to another state and get an adoption.  b) abuse. although equitable adoption is becoming more popular some variation. but most state statues provide for a valid adoption thru 2 step process o 1) terminationfo birth parents rights in the child thoruhg that parents  a) surrender of the child. state must creat new parent-child relawitht the adoptive parent or parents y step parent adoption y y y account for about half of all adoptions in America aka related adoptions allows step parent to adopt without severing childs tie to either birth parent in re adoption of luke y Facts:same-sex women want to raise a child together.o treated as adopted if adoptive parent dies before adoption is final o if it s a step child being adopted. o Want to allow the non-biological woman (AE) to adopt the child. and then come back to Nebraska who would honor it under full faith and credit y . Court held that under the terms of the statute.

There was mutual reliance in a parent-child relationship. Allows the adoptee to take from OR THROUGH the parent. not just equitable adoption. No anti-lapse.  Thus. Equitable adoption y Equitable circumstances generally confined to intestacy (when the decedent has made no choice in the matter) o Derived from the facts of the situation Test for the application of EA = clear and convincing evi of o 1) agreement btw bio and adoptive parents o 2) bio parents surrender custody to the adoptive parents o 3) child lives with the adoptive parents o 4) adoptive parents take child into home and treat as their own o 5) adoptive parents died intestate and the child seeks to inherit y Lankford v wright y Facts: Since B was born. issue = was B an issue of wife for purposes of intestate succession? QP: does NC state law recognize doctrine of equitable adoption? YES o Equitable adoption provides only one benefit: may take FROM your equitably adopting parent. Dissent:should tip the scale in favor of the best interest of the child. o NOTE: The majority opinion here is still good law. if AE gave up an egg and inserted it into BP. Dissent: concerned that the court is essentially overturning the intestacy statute. but the dissent is where things are headed. But the will was not valid so the wife died intestate.  SO. y 2nd option is to create two women with a biological connection to the child. o NOTE: Cali statute gives substantive benefits through statute. Ie. B is an intestate heir. o The wife left a will naming B as heir. y y Anti-lapse . the couple who lived next door raised B as their child for an extensive period of time (at the request of B s birth mom).

o Virtually all states have adopted the anti-lapse doctrine statutorily. o In that situation.  The presumption can be rebutted. the lapsed gift goes to the issue of the predeceased beneficiary o (4) unless the will expresses a contrary intent.  the 1969 version is widely adopted and representative of what most states are using assisted reproduction and relative adoption y y AR = repro that cocurs whenever pregnancy is caused oher than through sex intercourse RA = an adopted child. who is adopted by a maternal or paternal relative of either genetic parent. and o (3) the predeceased beneficiary has issue who survive the testator. but only by an express contrary intent expressed in the will. the most recent of which is extremely complicated and not well received to date. or by the spouse or surviving spouse of such a relative. remains a child of both genetic parents for puposes of inheritance Non-marital children Wingate v. but the details of the statutes can vary greatly from state to state Basic rule statement = Anti-lapse statutes provide that (UPC §2-605 (1969 version)) o (1) where there is a lapse. and o (2) the predeceased beneficiary meets the statutory degree of relationship to the testator. anti-lapse presumes that the testator would prefer that the gift go to the predeceased beneficiary s issue rather than fail. Probate . y y y Current UPC rule statement: o The UPC drafters have adopted several different versions of the anti-lapse doctrine. Estate of Ryan Support vs.y The presumption that the testator would prefer that the gift fail where the beneficiary predeceases the testator arguably does not apply where the beneficiary is sufficiently related to the testator and the beneficiary has issue who survive the testator.

Rule of Law. In determining whether the Legislature intended to change the Probate Code s statute of limitations the Court looks to the legislative history. She argues that the probate act only needs a reasonable standard (court agrees). Real issue is: is this an action for support or inheritance? o The heirs say that she is beyond the statute of limitations." Issue = Whether the twenty-three year limitations period found in the New Jersey Parentage Act applies to an intestacy action filed by a thirty one year old claimant to prove parentage and heirship under the Probate Code? NO o The 1991 amendment to the Probate Code intended only to amend the standard of proof (from clear and convincing to preponderance of the evidence) and did not adopt the twenty-three year limitations period found in the Parentage Act. The twenty-three year statute of limitations period of the Parentage Act did not apply to an intestacy claim by a thirty-one year old claimant under the Probate Code.  In addition the Court finds that the Parentage Act and the Probate Code are independent statutes that address different primary rights. Parentage act creates a statute of limitations 5 years past the date of majority. Discussion. She says that the act is only for petitions of support not for a probate proceeding.y Plaintiff argues that the Probate Code statute of limitations applies to her claim and allows her to file a claim within a reasonable time and after reasonable notice and publication. y y y Court: asking about heirship is not the same as asking about support.  Plaintiff s claim is therefore not barred. Distinguish b/w probate actions and support actions need "reasonable notice. y y Proof of Paternity . o Defendants contend that the twenty-three year statute of limitations from the Parentage Act apply and bar Plaintiff s claim. o The Court finds that the only item discussed by the Law Revision Commission was the inconsistent burdens of proof and not the statute of limitations. o Two separate statutes of limitations.

y y y y .  In response. genetic testing becomes conclusive on the issue of paternity regardless of whether any other presumptions apply. Heather filed a paternity action under the Kansas Parentage Act seeking a determination that Sam was her father. The district court held a Ross hearing and concluded that it was not in Heather's best interest to conduct genetic testing in either the paternity action or the probate action and denied Sandra's motion. stating: o "Without a Ross hearing to determine whether genetic testing is in the child's best interests. o Under KSA. (Sam). o Also discussed whether the district court improperly appliedRoss in ordering genetic testing in a paternity action brought by an adult in the context of a probate case. claiming Ross was inapplicable both to a probate case and to adults. Heather's stepmother. After the Reese court concluded that Sandra lacked any statutory basis for requesting genetic testing in the probate case. the court acknowledged the protection of presumptive paternity over biological paternity when it is in the child's best interests. before a court can order a paternity test.  The presumptive father was named on the birth certificate and paid child support for some time after he and the mother divorced. o child in case was born during the marriage. o Sandra appealed.Reese v. opposed the request and filed a motion demanding Heather undergo genetic testing to determine whether she was in fact Sam's biological daughter. after he committed suicide in December 2002. o Sandra Waldschmidt. In reaching its decision. a man is presumed to be the father of a chilf born while the man I married to the childs mother  BUT. must first hold hearing in order to determine if doing so would be in best interest of child upheld the district court's denial of a party's request for genetic testing where the district court found such testing was not in the child's best interest. Muret y Heather Reese filed a probate action requesting the district court appoint administrators for the estate of her presumed father. Jr. it determined that the district court did not err in holding a Ross hearing concerning the parentage proceeding. Wade Waldschmidt.

the Kansas Parentage Act does not include such limiting language in the statutory scheme..As a result.get an egg and a sperm from donors and put it into another woman. o If the legislature intended for genetic testing to be conclusive for determining the paternity of an adult child. you can be a parent through consent. the husband is still the father.  NOTE: If you are a bona fide donor. o The couple changes their mind and say that they don t have an obligation to it. No biological connection b/w the couple and the kid. in the context of an infertile man whose wife becomes pregnant through another man. denying adult children the protection of a Ross hearing is tantamount to rewriting the Kansas Parentage Act because it eliminates all of the other paternal presumptions besides genetic testing. Facts: couple get a "designer baby" . Commissioner of Social Security y Warren Woodward decided to put his semen in a holding bank so his wife could be artificially inseminated after learning that he his sickness may later cause him to be sterile. o ie. you are the parents." Court: the couple are parents through consent. it could have included language limiting the remaining presumptions to minor children. . So the child had "no parents. o ie. ie if you consented to having artificial insemination. y y ---Posthumous Conception--Woodward v. The surrogate also didn t want it.  However. you have no obligations towards the child at all."  ---Reproduction and the Biological Revolution---artificial inseminationIn re Marriage of Buzzanca parent by consent y possible to become a parent through consent. not simply biology.

y Rule of Law. Lauren Woodward. a nonmarital child must obtain a judicial determination of paternity as a prerequisite to succeeding to a portion of the father s estate if there is no acknowledge of paternity by the father. wife became pregnant and bore children as a result of the insemination. a court cannot be assured that the intestacy statute's goal of fraud prevention is satisfied. appellant. Issue = Whether posthumous children who are the result of artificial insemination may receive social security benefits if there genes can be traced to the alleged father NO o Without evidence that the deceased intestate parent affirmatively consented  (1) to the posthumous reproduction and (2) to support any resulting child. To determine whether posthumously conceived genetic children may enjoy inheritance rights under an intestacy statue. o Posthumous genetic children may enjoy the inheritance rights of issue under intestacy law in limited circumstances where.  (1) the surviving parent or the child s other legal representative demonstrates a genetic relationship between the child and the decedent. o (2) the State s interest in the orderly administration of estates. the court balances o (1) the best interests of children.  (3) the proper time limitations are met.  The wife filed an application to receive her husband s social security benefits on behalf of her children. Under intestacy law. y y . and o (3) the reproductive rights of the genetic parent. o Furthermore.  (2) the survivor or representative must establish that the decedent affirmatively consented to posthumous conception and to the support of any resulting child. It is within the best interests of children to be supported by their natural parents and the legislature has expressed this intent in creating intestacy statutes.o After he died three years later. and  (4) notice is given to all parties. the state conduct paternity suits in an orderly fashion by placing time constraints on the period in which parents may file for benefits. his wife.

In that period of time other changed circumstances can intervene to change the individual s mind.000 policy to the administrator of Theresa's estate. it was not clear for the record that he may have wanted to father children even if he were not alive. o Therefore before a posthumous child may receive inheritance rights under statutory law. o Stanley s mother filed suit for a declaratory judgment seeking to show there was no sufficient evidence that Theresa survive Stanley.  Stanley s insurance policy had Theresa as his beneficiary and his mother as the contingent beneficiary. o In this case children and mothers should not have intestacy rights. only applies if there is no proof of survivorship Janus v tarasewicz y Theresa (wife) outlives Stanley (husband) by 2 days after they both accidently ingest cyanide o Since Theresa survived Stanley. provides that an heir must survive by at least 120 hrs (5 days) o Howveer.  y Discussion. 3 major state interests involved in deciding issue: o best interest of children o state interest in orderly admin of estates and o repro right of the genetic parent y ---Simultaneous Death--Uniform Simultaneous Death Act y Adopted by many states. the Life Insurance Company paid Stanley s $100.However in situations in which an individual chooses to medically preserve his gametes for use by his spouse. and that the money was improperly paid to her father as the administrator of her estate. the decedent must have affirmatively consented to conception and to the support of any resulting child. . Because the wife here became pregnant after her husband died. a number of years can pass before they are used.

 It was not necessary to determine the exact moment at which Theresa died or by how long she survived him. the husband. and the TC properly declined to do so. y Rule: An appellate court s task is to determine whether the trial court s findings were against the manifest weight of the evidence. they continued their efforts to preserve her life. o Survivorship is a fact which must be proven by a preponderance of the evidence by the party whose claim depends on survivorship. fell for another woman and informed his wife of his intent to leave. o The TC found that these facts and circumstances constituted sufficient evidence that Theresa survived her husband. o Viewing the record in its entirety. life insurance policy. car. the house. Their conclusion that Theresa did not die until October 1. was based on various factors including the restoration of certain of her vital signs as well as other neurological evidence. interest in bank trust. and bank account.  Stanley was diagnosed as having sustained irreversible cessation of circulatory and respiratory functions on September 29.y QP = Whether there was sufficient evidence presented to show that Theresa survived Stanley to prove that the trial court s finding was not against the manifest weight of the evidence. These same physicians concluded that Theresa's condition on that date did not warrant a diagnosis of death and. YES o The court believed that the records clearly established that the treating physicians' diagnoses of death with respect to Stanley and Theresa were made in accordance with the usual and customary standards of medical practice. o She received custody. ---Assignment of Expectancy--Scott v First National Bank of Baltimore y Scott. therefore. They entered into a separation contract. . the Court said it cannot say that the TC's finding of sufficient evidence of Theresa's survivorship was against the manifest weight of the evidence.

o An agreement to assign an expectancy is enforceable where it is  fairly made on adequate consideration. and the liability for his unpaid debts.  The lower ct made no finding that the agreement was unfair or inequitable.y In a separate instrument. Knowledge by the ancestor of the separation agreement is not required as a necessity for enforceability. There is no Conn.  The adequacy of that consideration is material only as to an element of fraud or undue influence. o His father died and left his $490K estate to his two children. Rationale: As the parties concede and stipulated that Connecticut law.  Thus. and supported by adequate consideration. Smith assumed the burden and expense of raising their daughter. Rule: Where relief sought is specific performance of a contract. and the husband had opportunity to seek advise prior to entering into the agreement. he transferred his expected inheritance in his father s estate. o Ms. y y y y . She received a $12K judgment. case law indicating this agreement should be unenforceable because it lacked an equivalent consideration. He stopped making payments four years later. made in contemplation of divorce. equity will enforce a contract only where it is fair. there is no claim of fraud or undue influence. assigning the ½ expected interest in real estate within an inheritance estate for $1 and other consideration is valid under Connecticut law ? YES o a property settlement in contemplation of divorce is valid. the place the instrument was executed. o He was to pay support for both until she remarried. there was adequate consideration. is controlling. then support for their daughter until she turned 21.  without oppression or unjust advantage being taken of the heir. equitable. Issue = Whether a separation agreement. o Furthermore. o Equity will enforce the assignment of expectancy after the death of an ancestor despite its invalidity at law. o Just as in any other contract the parties may acquire or surrender their legal rights as consideration.

intestacy. o Must be done within the statute of limitations (IRS: 9 months). y y y DePaoli v. treat the party who disclaimed as if he or she predeceased the decedent for purposes of distributing the decedent s property. o (2) IRS code: have 9 months to disclaim o (3) Disclaimer must be in writing Release: occurs during the lifetime of a decedent and requires consideration. CIR When you renounce. duress or any breach of a fiduciary rela ---Disclaimer: Release and Renunciation--disclaimer = umbrella term y both release and renunciation = types of disclaimers o all refer to the prospective beneficiarys ability and conduct in rejecting proposed beenfits disclaimer o If a party properly executes a disclaimer. o Very common among older people who already have children. o Most common kind of release is a pre-nup agreement.Two rponged test to enforce an assignment of an expectancy: y y 1) there must be sufficient consideration to support the assignment 2) the assignment must be fairly entered into. Renunciation: occurs after the death of the decedent and does NOT require consideration. you are treated as if you had pre-deceased Categories of Wills (177-192) . ability of beneficiary to reject proposed benefits. and non-probate transfer. without fraud. declining to accept a testamentary gift the taker otherwise would have received.  Why would someone renounce money? For tax reasons.  Aka.  Better to work things out when you are reasonable and not angry. o (1) UPC: statutory recognition of ability to disclaim under a will.

. y in re kimmel s estate y y y Poorly writing holographic will embedded within letter? "ifenny thing hapens . signed by the testator. generally transpires in connection with a last illness and must be stated in presence of at least 3 ppl who must reduce the statement to writing wihin a specified time C) Holographic Wills y Holographic wills are informal. but the will has to be handwritten. . and express testamentary intent (the intent that the document be the decedent s will). o About half of states allow and have adopted CL reqs that holograph be:  1) entirely in the handwriting of decedent  2) dated  3 signed  4) some kind of death talk indicating that it is meant to be a will and not something else Holographic wills need not be witnessed. "Father" works as signature." implies testamentary intent. . handwritten wills.y Documents that meet state requirements for testamentary ---CATEGORIES OF WILLS--A) Statutory and Form Wills y A few states offer person seeking a LWAT a form to complete that will serve as a valid instrument with which to transfer property at death o Avoiding having to hire an attorney and meet reqs of probate code in jurisdiction B) Nuncupative (Oral) Wills y y Very restricted oral character allows for confusion and litigation In few instances allowed.

 Some illiterate people sign with an 'X'. YES y y E) Witnessed Wills Two bases for contesting a will: Formalities & Intentionalities Estate of Kurz v. Kurz could take only 5 percent of the principal in any one year if the Martial Trust was exhausted. ( The Family Trust ). QP: Whether a proponent establishes by clear and convincing evidence that a decedent intended a second will to be his will where he the deceased revokes all prior wills in his second will and told his wife to revoke his first will. Commissioner y Kurz was the beneficiary of two trusts. Kurz was entitled to as much of the principal as she desired. o Under first trust. Therefore any signature was acceptable. The trial court admitted the will to probate and one of James Hall s surviving daughters appealed. o The will revoked a prior will and he instructed his wife to tear up the first will. . Rule of Law = A document that is not properly witnessed by two people who see the testator sign the will and also sign themselves may be probated if the proponent of the document establishes by clear and convincing evidence that the decedent intended that document to be his will. o Under the second trust. D) Notarized Wills y UPC permits will to be valid if it is either o 1) acknowledged by the testator before a notary.o The Court found that the purpose of the signature requirement was to make sure that the will wasn't fraudulent. ( The Marital Trust ).  The Court found that the intent to execute was apparent. or o 2) acknowledged by a testator before any other indiv authorized by law to make acknowledgments in res estate of hall y James Mylen Hall executed a will that was not properly witnessed.

even though she never exercised the power.  Powers that are not exercised during the holder s lifetime do not exist with the holder when they die only if was impossible to exercise the power because of the nature of the condition.y The Tax Court held that 5 percent of the Family Trust be included in her estate for federal estate tax purposes because when she died. y y Decedent has access to two trusts. divorce. The power over the Family Trust exists with the decedent upon her death despite the fact that she never chose to exercise the power.g. o Kurz s estate argued that the decedent did not have a power when she died because she was not entitled to the Family Trust unless she first exhausted the Marital Trust. o The decedent s power to make a withdrawal from the trust only if she exhausted another trust was a power that she held at her death. and (2) the decedent had the power to exhaust the Marital Trust? YES o The Family Trust must be included in the decedent s estate for tax purposes because the conditional event was within the decedent s control. The court found that the decedent had the power to satisfy the condition to access the family trust by depleting the marital trust. Kurz did not have a property interest in the trust. decedent may withdraw 5% of the family trust principal per year. she held a general power of appointment over 5 percent of the Family Trust. bearing children etc.  The decedent could have exhausted the Marital Trust and taken a withdrawal from the Family Trust. QP = Whether the Family Trust must be included in the decedent s estate for tax purposes where the decedent (1) could not make a withdrawal from the Family Trust unless the Marital trust was exhausted. o Here the condition precedent was illusory. first to a marital trust which decedent may deplete entirely at will.  Because the condition was never fulfilled. o After the prior has been exhausted. having no significant non-tax consequences (e.) Competency to exercise power y y .

y Formalities and Intentionalities (193-282) y These are the grounds for contest of a will. ---STATUTORY FORMALITIES----(1)Presence-y Statute of Frauds and Wills Act o presencereq for execution originally was a 3 pring test  1) witnesses saw the testator sign  2) testator saw the witnesses sign and  3) the witness saw each other sign o test implied a req of sight UPC = conscious presence test o Does not require actual sight. . even in diff proximate locations  Even if the testator were to sign the will in an isolated moment. or even if the decedent was unaware she held the power. but only that the persons involved comprehend the signing through a consciousness of the events taking place. but late acknowledge that signature of acknowledge the will as his or her own. hen the sight/consciousness of that even would allow for a valid attestation of he will y in re demaris estate y this case avoids the sight requirement and uses a consciousness test.o A power exists for tax purposes even if the decedent was unable to exercise power due to incapacity.

o Her hand shakes so much that she can't sign. it could have been. Could the dot have been her full intended signature? o Yes. she would have died intestate. and then. her hand stops shaking and she signs it.  The clause is only a rebuttable presumption. Webcam wouldn t work either has to be within the immediate area. and you could have seen if you had gotten up. added a cursive version of his signature before printing out the document. o Ask whether he understood what the witnesses were doing and he could have seen them do it.o The majority rule is still sighted presence unless you have a visual handicap. o In Virginia. o The will upset her family b/c they got $1. o But the witnesses didn t actually see her sign it. You need to have been able to go there. Can't prove it through harmless error. Holt y A man wrote a one-page will on his computer. but here she stated that this was not her full intended signature."  The witnesses sign. The friends got everything. The will had an attestation clause which states the three-pronged test. she says that she signed it. Family says there wasn't a valid signature. o Virginia: the signature requirement is absolute. in their presence. . When the friends come back. y --(2) Signature-in re estate of wait y Decedent brings some people to witness her will. NOTE: Speakerphone would not be sufficient. She puts a dot on her signature spot and says "this is where I will sign later.could probate the will under 2-503. asked two neighbors to witness his signature. Held that formality of the signature was absent b/c didn t have a valid signature. Later.  In other jurisdictions: 2-503 harmless error . y y y Taylor v. y Conscious presence test: need to know what is going on.

o CA: you are still a valid witness. This is the old rule. you are still a valid witness.o The witnesses then signed the paper. y . you get whatever you would take under intestate succession. but you only get what you would have gotten under intestate succession. y The Tennessee court accepted a will signed not with pen and ink but on computer. As such. If you have sufficient witnesses. Adds an additional item: presumption arises that you are taking under undue influence. no age reqs to be a witness just need to be able to testify interested parties and ability to witness o Common law:anyone who took more than they would have under intestate succession is an interested witness. you don't get what you get under the will. Only lose what you get under the will if there are insufficient witnesses. o Ct ruled that a signature included any "symbol or methodology" used by a person with the intent of authenticating a document. is disqualified as a witness.  Deceased did make a mark that was intended to operate as his signature The law on electronic signatures and wills is still up in the air. Need to compute how much the individual would get under intestate and then ask what you would get under the will. y --(3) Witnesses -y y y y statute of frauds = 3 or 4 credible witnesses req wills act = 2 req today. o UPC: doesn t matter if you are an interested witness. the one who is taking more still gets more. most states = 2 o in general. In re estate of parsons y QP = whether a subscribing witness to a will who is named in the will as a beneficiary becomes disinterested within the meaning of statute by filing a disclaimer of her interest after the testatrix s death NO Parsons wrote a will. o NY: if you take more under the will than you would take under intestate. Even though you are an interested witness.

but had been abolished. However. and Warda. They found that based on the Statute as written. having an interested witness creates the presumption that there was undue influence.  Therefore a subsequent disclaimer doesn't make a person a disinterested witness. if there is an interested witness. Court felt that their hands were tied.  Since both Neilson and Gower received gift in the will. a gift to aninterested witness (aka a subscribing witness) is void unless there are two other disinterested witnesses subscribing to the will. o Under the new California Probate Code. they only can take what they would take under intestate succession. If the witness fails to rebut. y Parsons' relatives (a bunch of first cousins once removed) attempted to get the will declared invalid. there were not "two other" disinterested witnesses who signed. but that witness only can take what they would take under intestate succession. There are different ways States handle interested witnesses. o Under the old California Probate Code. Court noted that the requirement that witnesses be disinterested was once part of the common law. o The relatives argued that Gower's signature on the will as a witness was invalid because she stood to gain from the will. The relatives argued that based on California State law. o Parsons' died. o Court found that Neilson's disclaimer didn't matter.  Nielson filed a disclaimer giving back the $100. Gower. because the Statute looked to the time when the will was signed. not to the time when the estate was divided. this is a rebuttable presumption. Neilson.o It was signed by three attesters (aka witnesses).  The will left $100 to Neilson and some property to Gower. they had no choice but to invalidate the will. o Court suggested that the California Legislature modify the Statute to be more in line with modern jurisprudence. o Someone who takes more under the will than they would take under intestate succession is known as an interested witness. y y y y .

then the formalities in the affidavit presumption are irrebuttable. If there aren't two other witnesses.  a revival of a last will. and o (2) there is clear and convincing evidence that the testator substantially complied with the Wills Act formalities.  a codicil to a last will. Attestation clause creates a rebuttable presumption that the formalities have been preformed. the signature of an interested witness is void. o Does not apply to intentionalities.o Under Uniform Probate Code § 2-505. there is no problem at all with interested witnesses. and has the further effect of permitting probate without requiring the appearance of either witnss o Wills may be made self-proving simultaneously with or after execution Diff btw attestation clause and subsequently signed self-proving affidavit o In attest clause. o Facilitate probate by providing prima facie evi that the testator voluntarily sign the will in the presence of the witnesses o Also permits probate of a will when a witness forgets the circumstances of the wills execution or dies before the testator Self-proving affidavit If the state allows self-proving wills. the entire will is void. o In some States. --(4) Compliance Devices Substantial Compliance y Substantial compliance holds that a will was properly executed as long as o (1) there is clear and convincing evidence that the testator intended the document to be his or her will. affiant swears that the has already been witnessed Substantial compliance: o if there is clear and convincing evidence (>75%) that the testator intended:  it to be a last will and testament. attestant expresses the present intent to act as a witness o In affidavit. o Sworn statements by eyewitnesses that the will has eben duly executed o Performs virtually all of the functions of an attestation clause. y y y y .

UPC §2504. y UPC self-proving affidavit: y The UPC permits a combined attestation clause and self-proving affidavit that requires the testator and witnesses to sign their names only once. they go onto say that signature requirements cannot be complied with by clear and convincing evidence.codification of substantial compliance. the Wait case would have been ok under 2-503 but not Va. Restatement has also adopted harmless error. Has no bearing on intentionalities. it is a valid will/revival/revocation. y y y y ---INTENTIONALITIES--- .  Only applies to formalities. it is treated as if it had been if it is established by clear & convincing evidence that the decedent intended the document to constitute his will. Ie. but the court went on to adopt the substantial compliance doctrine and remanded the case. Virginia: states can adopt harmless error and then make changes to it. (Only a minority of jurisdictions have adopted it. o The self-proving affidavit technically is not a part of the will. In re alleged will of ranney y testator properly signed the will in front of two witnesses present at the same time. Policy: if most property is passed through will substitutes. then shouldn t make such a big deal over will formalities. but the witnesses signed the self-proving affidavit instead of the will. Applying strict compliance. or a revocation of a last will o Then even if you don t meet the formalities listed in the statute.Designed to cure inequities caused by harsh formalism. Harmless error: allows for the introduction of extrinsic clear and convincing evidence that allows the will to be probated even if the will fails formal requirements.) o UPC 2-503 calls this harmless error. o Although a will is not executed in compliance with formalities. the New Jersey Supreme Court held that the will was not properly executed. Ie. thereby avoiding the potential for the mistake that occurred in the Ranney case.

"  It is a requirement that all pages of a will be together when signed. they did not modify any of the bequests. The will was challenged by Beale's son on the grounds that it was unnatural. o The will gave all the money to the Masons and completely disinherited Beale's 10 year old son. he sent a letter to his secretary asking her to make some changes to two of the pages of the will. the person must intend that following his or her death.  The pages were not stapled together and the witnesses did not read the other pages. The next day. a will "must constitute the testator's will at the moment of execution. however. but do not have to be stapled y y y . the typical execution ceremony has such a strong ritualistic component that it virtually guarantees that the executed document has testamentary intent o . In the appropriate fact pattern. testamentary intent can be the determining element even for traditional.(1) Testamentary Intent y Testamentary intent is the intent that the document in question is to serve as the party s last will and testament when he or she dies. Therefore it is not valid. y In re estate of beale y Beale had some friends come over. o At the time a person executes the instrument. witnessed wills. Beale's son appealed. and declared it to be his will. o In order to be valid. o He signed the top page and then had the friends sign the top page as well. o The changes involved who was to be the executor. For attested wills.  The Probate Court found the will to be valid. showed them a large stack of papers. the document is to be probated as his or her will. he must not have intended the will as signed to be his last will and testament. It was argued that since Beale wanted changes made to the will after the witnesses signed.

Marshall died July 29.  (3) the nature of the testamentary act he or she is performing. Beale's son unsuccessfully argued that since the pages hadn't been stapled together. they did not constitute Beale's official last will and testament. He or she need not actually know the information. they were just intended to be a draft. or to revoke a will. NOTE The testator need only have the ability to know the information covered by the requirements. and  (4) how all of these relate to constitute an orderly plan of disposing of his or her property. and since Beale had made changes to the pages.  (2) the natural objects of his or her bounty. the testator must be at least 18 years old and of sound mind. . His daughter challenged a will and two codicils executed shortly before his death on the grounds that he lacked testamentary capacity. 1968." y 2) Testamentary Capacity y To execute a will. it becomes readily apparent that the test for sound mind is extremely low.  The Appellate Court noted that a Probate Court cannot find a will invalid because appeared to be "unjust to a natural object of the testator's bounty. y Barnes v marshall y Dr. o Sound mind requires that the testator have the ability to know  (1) the nature and extent of his or her property. o Appellate Court found that the will was a valid will as it was written when it was first typed. o This = low threshold: When viewed from the perspective of the ability to know.  de facto. o Therefore there was no testamentary intent.y There was some factual issue as to whether all 14 pages of the will were present when the witnesses signed or if two of the pages had been sent back to the secretary for editing. there is a strong presumption that one has testamentary capacity.

y The court concluded that testator s stated views on government. and finances went beyond peculiarities and eccentricities and were sufficient evidence from which a jury could reasonably find that he lacked sound mind when he executed the will and codicils. a specialist in psychiatry and neurology. and of sound mind the day the will was executed. collected. o The defendants presented evidence that the testator was calm. Marshall was not of sound mind on particular days in 1968 when he executed the will and codicils. Marshall would become highly emotional he would pound his fists on the table. o Moreover. Rowling also concluded Dr. the court will strike as much of the will as was caused by the defect. o Dr. morals. Marshall was of unsound mind when he executed the instruments and was incapable of generalized logical thinking. Hartman. o A lay witness also testified that in talking about these people Dr.y Three lay witnesses testified that starting as early as 1940 Dr. concluded that Dr. ---DEFECTS IN CAPACITY--y Even if a person has general testamentary capacity. evidence of testator s mental condition prior to the execution is admissible if it tends to show his condition at the time of execution. Dr. religion. o There are three possible defects in capacity that may nullify part or all of the will:  (1) insane delusion. y . quiet. or  (3) fraud. a person may suffer from a defect in capacity that may invalidate part or all of the will. Dr. Marshall claimed to be the only person on earth who could speak with the Lord.  (2) undue influence. Remedy o If the testator suffers from a defect that causes him or her to dispose of the testator s property in a way that he or she otherwise would not have. an incurable mental disease. which only gets worse. that the Lord had given him special powers. o In response to a hypothetical question. Rowling saw the testator in 1940 and concluded that Dr. Marshall was then suffering from manic-depressive psychosis. use profanity.

there was nothing particularly delusional about Hargrove's behavior. then that part may be stricken and the remainder may be probated Delusion vsMistake o Delusion A delusion is a false perception of reality. The process is too speculative. every time a person was left out of a will that he or she expected to be in. y . o Hargrove had no contact with his children for the next 31 years. y In re Hargrove s Will if there is any rational basis for a belief. and therefore he lacked testamentary capacity to form a will. o Mistake As a general rule. BUT delusion will only invalidate the entire will if it can be shown that th delusion affected the entire disposition under the will  Ie. The children argued that Hargrove suffered from an insane delusion that the children were not his. At one level. o Hargrove died. y Facts: Hargrove went through a nasty divorce and believed that the children were not his. and opens the door to fraudulent claims.  Other than this belief. is an element of capacity . the person could claim there must have been a mistake and ask the court to rewrite the testator s will to include the person. involves high costs of administration. if delusion only affects part of the will. courts do not correct mistakes if they did.you have a delusion about one of the elements. and the children contested the will. Not about a lack of capacity.  There is general agreement that courts should not rewrite testators wills. o Lack of capacity at time of execution will invalidate the entire instrument. o Hargrove's divorce attorney married his ex-wife a week after the divorce! o The wife testified that she had been faithful and that the kids were Hargrove's. one could argue that a delusion is nothing more than a form of a mistake. there cannot be a delusion.--(1) DELUSION-y y An insane delusion is a false sense of reality to which a person adheres despite all evidence to the contrary.

o (3) the defendant had a motive. it was conceivable that the children were not his. then a person believing that fact would not be delusional. RULE = If there is a rational basis then there is no delusion. they'd just be wrong. Presumption doctrine Because undue influence is difficult to prove and the alleged undue influencer is in the best position to produce the relevant evidence. just on whether it was believable that Hargrove was not the father. most jurisdictions have a burden shifting approach to undue influence the burden will shift to the alleged undue influencer to show no undue influence if the plaintiff meets the requirements of the presumption doctrine. and o (4) causation. o The Court pointed out that there were not ruling on actual paternity.o The ten witnesses that signed the will all testified that Hargrove was. even if that evidence were not persuasive. based on the evidence related to the divorce. and  (3) the defendant takes the bulk of the testator s estate. and where there is coercion (typically mental or emotional. Traditional rule statement The plaintiff bears the burden of proving that o (1) the testator was susceptible. he was not delusional." y Court found that delusion was when someone believed a fact even though there was no evidence to support the fact.  (2) the testator was of weakened intellect.  the will is valid even though the kids say that it was a delusion that he thought they weren't his children y -.  Court found that.(2) UNDUE INFLUENCE -y Undue influence occurs where another substitutes his or her intent for the testator s intent. o If there was some evidence to support the fact. but in many jurisdictions if the plaintiff can prove  (1) the defendant and the testator were in a confidential relationship. not physical). Therefore. "at all times of sound mind and unusual intelligence. o The details of the vary from jurisdiction to jurisdiction. o (2) the defendant had the opportunity. y y .

and (2) the challenge is based on a claim of forgery. each who had children of their own. or misconduct by a witness or the drafter. while other jurisdictions will not enforce the clause if (1) there is reasonable cause to support the claim. testator s grandsons. During testator s lifetime she executed many wills and trusts agreements which were prepared by a long time family attorney.  No contest clauses are generally valid. testator executed a will leaving most of her estate to her daughter Cotsworth and very little to her two grandsons. sought to set aside the will on grounds of undue influence arising from theconfidential relationship between testator and her daughter. the chief beneficiary. Cotsworth. Haynes v first natl state bank of NJ family + undue influence y Testator left a large estate after the death of her husband. some jurisdictions will not enforce the clause if there is probable cause to support the challenge (whatever its basis). Haynes sons moved away at the disappointment of their grandmother. revocation. This will was drawn up by the Cotsworth family attorney after several conversations between the Cotsworth family and the attorney. but narrowly construed. Betty Haynes and DorcasCotsworth. o Plaintiffs. Richard Stevents. however Haynes continued to live with her mother until her own death. y y . the testator may include a clause that provides that if the beneficiary challenges the will (or any provision in the will).then a presumption of undue influence will arise and the burden of proof will shift to the defendant to rebut the presumption. o Even if a beneficiary challenges a will (or clause) and loses.  Testator then went to live with her younger daughter. She had two daughters. y No contest clauses o If a testator suspects that someone may challenge his or her will. the beneficiary is barred from taking under the will. o Haynes and her two sons came to live with testator after her husband s death. o After moving in with her younger daughter.

y

The trial court held that the Defendants rebutted the presumption of undue influence and that an in terrorem clause in the will was unenforceable. o The appeals court affirmed but held the clause enforceable.  Plaintiffs now appeal. Rule of Law o A presumption of undue influence created by a professional conflict of interest along with a confidential relationship between the testator and the beneficiary, must be rebutted by the proponent of the will with clear and convincing evidence. QP #1: Whether a will is invalid on the grounds of undue influence attributable to the fact that the attorney who advised the testator and prepared the will was also the attorney for the chief beneficiary, the testator s daughter whom the testator depended on? REMANDED o A presumption of undue influence created by a professional conflict of interest on the part of an attorney, coupled with confidential relationships between a testator and the beneficiary, must be rebutted by clear and convincing evidence.  The matter must therefore be remanded to the trial court for new findings of fact and conclusions of law based on this burden of proof.

y

y

y

QP#2: Whether under New Jersey common law a no-contest, or in terrorem, clause is enforceable? NO o When there is probable cause to challenge a will or trust agreement an in terrorem clause will not be enforced.  Since the trial court concluded that the Plaintiff s case was with good faith and based on probable cause the no contest provision will not be enforced. 1) Confidential rela o First element needed to raise a presumption of undue influence is a confidential relationship between the testator and a beneficiary.  Such a relationship existed in this case as the testator was dependent on her sole surviving child for care and support. 2) suspicious circumstance o In addition the presumption needs the presence of suspicious circumstances which will shift the burden of proof to the proponent of the will.

y

y

Suspicious circumstances existed in this case as the testator s will was drastically altered by the family attorney of the chief beneficiary. o The Court goes onto determine that a significant burden of proof needs to be imposed on a proponent of a will in such circumstances and therefore remands to determine if the proponents can met such burden.  y NJ requires presumption rebutted with clear and convincing evi

In re Will of Moses heterosexuality (old woman, young man) + undue influence](a y Testator = woman dated a man 15 years younger o Two confidential relas (neither = based on love):  Guy used to be her atty as well.  they had a joint account. o Woman Dies with 2nd valid last will.  The first one had left all her property to her sister. The 2nd one left her property to the guy. Sister challenged the will on the grounds of undue influence. Court says burden shift apply bc 1) b/w the decedent and the beneficiary, there was two confidential relationships. AND 2) Also suspicious circumstances: drastic shift in the estate plan. o Must rebut the presumption that arises b/c of undue influence. But ct doesn t look at the evidence of the testator's mind, but instead they were concerned that she didn t have independent advice. o But independent advice is not the point - need to look at her mind. Concerned that the atty didn t give her good advice. QP: Whether a presumption of undue influence is overcome when independent advice and counsel is sought? NO o It s clear from the testimony that the attorney-draftsman did no more than write down, according to the forms of law, what decedent told him.  There was no meaningful independent advice or counsel touching upon the area in question. NOTE: The sexual morality of the personal relationship between the decedent and the appellant is not an issue. o However, the intimate nature of this relationship is relevant to the present inquiry to the extent that its existence, under the circumstances,

y

y

y

y

warranted an inference of undue influence, extending and augmenting that which flowed from the attorney-client relationship. y Rule of Law = A fiduciary relationship, such as attorney-client, gives rise to a presumption of undue influence, where the fiduciary is a beneficiary under the will, and the testatrix has not received independent advice and counsel in making her will.

-- (3) FRAUD -y Fraud occurs where there is an intentional misrepresentation, made knowingly and purposely to influence the testator s testamentary scheme, that causes the testator to dispose of his or her property in a way in which he or she would not have done otherwise. There are two types of fraud. o 1. Fraud in the execution  A person intentionally misrepresents the nature of the document (either completely or in part) that the testator is signing. o 2. Fraud in the inducement  A person intentionally misrepresents a fact to the testator to induce the testator to execute a will (or amend a provision in a will or to revoke a will) in reliance upon the misrepresentation.

y

In re roblin s estate oral fraud y Appellant was disinherited from his father s will and contests the will being admitted to probate on grounds of lack of testamentary capacity, undue influence, and fraud on the part of a beneficiary. Rule of Law = In order to possess testamentary capacity one must understand the nature of the testamentary act, the natural objects of his bounty and the nature and extent of his property. o For a presumption of undue influence to arise there must be a confidential relationship as well as a showing of suspicious circumstances.  Courts will set aside a will provision that reflects that testator s belief in false information arising from a fraudulent misrepresentation by a beneficiary, however such statement must be false and known to be such by the maker.

y

 In order to find fraud. undue influence. the unjust enrichment must result from some party s misconduct..e. i. QP: Did the conduct of the cult in preventing her from executing the new will constitute fraud that can be rectified by a constructive trust? YES o The court ruled that the plaintiffs complaint stated a case for relief in equity. need to find an intentional misrepresentation of material fact upon which the decedent relied to his detriment: Fraudulent failure to execute y If the fraud causes the decedent not to execute a will that he or she otherwise would have. did the daughter intend to deceive when she told the father that the son got everything? NO o Court ruled that she just exaggerated. but courts have imposed it. and that if proved. o Remedy for fraudulent failure to execute = constructive trust y Constructive trust o The practical effect of this remedy is to give effect to the will that the decedent did not execute. o As a general rule. entitled the plaintiffs to a constructive trust ordering the beneficiaries under the testatrix s will to transfer the property to the plaintiffs. o The plaintiffs alleged that the testatrix intended to revoke that will and execute a new will leaving her estate to them.y QP: whether fraud actually occurred. but it wasn't an intent to deceive. Latham v Father Divine fraudulent conduct + constructive trust y testatrix s will left almost all her estate to Father Divine. but the testatrix was prevented due to Father Divine and his followers fraud. and physical force. where appropriate. the court can impose a constructive trust on the parties who take the decedent s probate property and order the property distributed to the parties who would have taken the property had the decedent executed the will that the misconduct prevented the decedent from executing. although the court will not execute the will for the decedent.  The constructive trust remedy is rare. to prevent unjust enrichment by those who would otherwise receive the decedent s property. y .

inter vivos gift. But if you are prevented from doing something that you planned to do. duress or toher tortious means intentionally prevents another from receiving from a third person an inheritance or fift that he would other have have received is subject to liability to the other for loss of the inheritance or gift. or interest in trust) that another would have received. -. o Elements of tort  1) valid expectancy  2) intentionalinterference with that expectancy through independently tortious conduct ( ex undue influence. but for that interference o It is not n action against the decedent of the decedent s estate  Instead. o Anytime you have a bad act. duress. can apply constructive trust.make the bad actor a constructive trustee to indicate that is what she would have done and give the money to the relatives instead. that is a bad act.y Court found the conduct was fraudulent There was a bad act: a mistake is not a bad act.(4) Tortious Interference with an Expectancy -y TIWE = wrongful interference with an inheritance (or legacy. fraud)  3) reasonable certainty that absent the tortious interference the P would have received the expectancy (ie causation) and  4) damages y schilling v herrera y P calimed that D (P s sisters caretaker) intentionally interfered with his expectancy of inheritance after D helped the sister execute a new will naming D . or to demonstrate why seeking a remedy in probate would be futile o Def of tort  One who by fraud. o Make Father Divine into a constructive trustee . The old will was never revoked. D might = a person who wrongfully induced or prevented execution or revocation of a testamentary instrument States that recognize this tort require the P either to have exhausted her remedies inprobate court.  The new will is ineffective. so allow the old will to be probated.

fraud) o 3) reasonable certainty that absent the tortious interference the P would have received the expectancy (ie causation) and o 4) damages  note: breach of legal duty is not required this case involves 2 fruads o 1) undue influence in procuring/executing a will o 2) preventing another party rom contrsting the will in probate court y y ******RECAP****** Formalities y Components o Sufficient number of witnesses (2 in most places. o Substantial compliance UPC term. o Must be signed at the end anything after the signature is presumed to be added after execution and is inadmissible o Must be full intended signature o Self-proved some states have adopted by statue. If a notary public watches all the formalities. duress. complaint must allege o 1) valid expectancy o 2) intentional interference with that expectancy through independently tortious conduct ( ex undue influence.  If there is clear and convincing evidence that the testator intended this to be his LWT.as her sole beneficiary and then fraudulently failed to inform P of the sisters death until after probate was discharged y Rule of law o A party who would have contested a will but was prevented from doing do by another persons fraudulent conduct may bring a claim of intentional interference with an expectancy of inheritance Court held that tostate a cause of action for IIEI. Cannot be contested for formalities Substantial compliance/harmless error means by which LWT will be allowed to be pro bated even if all the formalities are not met. (2) testator saw witnesses sign. even though all the formalities are not met. when they are done. the formalities become irrebuttable. 3 in VT and LA) o Presence test (three prong) (1) witness saw the testator sign. (3) witnesses saw each other sign. y .

you can be in a mental asylum and still have testamentary capacity.  (2) Understand extent of your wealth. Devine) no need for operation. functional. Only lack of capacity will strike the whole LWT.  In re roblins estate ( daughter tells dad that mom has left everything to son. constructive trust created to do equity. based on this dad changes will.  (4) Can interrelate the first three. others will only strike the passage of the will that is affected. but delusion has happened.) y .insane delusion if you lack a rational basis.  (3) Understand nature of the transaction (the LWT). Fraud is bad act. Father Devine(relatives claimed fraud by doctor (agent of Fr. Grounds for Lack of Capacity o Delusion have an irrational view of reality.  In re Hargrove wills (guy who disinherited children bc he thought his wife cheated on him) o Undue influence FAVORITE ON EXAM  Haynes v first natl bank of NJ ( grandchildren cut out of will after testator goes into their aunt s care and uses aunt s own lawyer to redraft etstators will and change it entirely to her benefit)  In re will of moses (older woman.there is substantial compliance allowing for the probate of the instrument o Harmless error common law term Intentionalities y Testamentary Capacity de minimus test. Devine. disinheriting Fr.  Latham v. but just an exaggeration so no intentional interference on behalf of daughter). o NOTE:To draft a will for an incompetent person is a breach of professional ethics. done before new LWT executed. younger guy in sexual rela guy was her lawyer who drafted will and they had a joint account) o Fraud intentional misrepresentation of a material fact upon which the party relied. assertion was false. o Four elements Barnes v marhsall  (1) Understand objects of your bounty (who are your relatives).

OH.) Some jurisdictions do not permit partial revocation by act.o Tortious Interference with an Expectancy If you want to write a LWT to benefit Greg. AR only). Greg can t benefit from the LWT. Revocation by writing y . and Sarah kept you from executing the LWT before you die. Revocation of Wills (282-291) y A validly executed will (attested or holographic) can be revoked by act. obliterating.Not a probate claim must exhaust probate remedies before you can bring tort claim  Schilling v herrera o Mistake fix through primary intent (i. burning. or by operation of law. by writing (if the writing qualifies as a will). HI. get beneficiary s address wrong in LWT) y Premortem probate corresponds w/self-proved wills. Methods of Revocation y Revocation by act o A testator can revoke a will by act if  (1) the act is destructive in nature (tearing. if you go before the probate clerk and swear it is your LWT. He can sue Sarah for tortuous interference. scratching.  At common law. the act need not affect the words of the will as long as the act affects some part of the will. the intentionalities are irrebuttable. (The act of writing can be a destructive act for revocation purposes. (in ND. by presumption. the act had to affect at least some of the words of the will. o Someone other than the testator can perform the act as long as it is performed in the testator s presence and at his or her direction. and  (2) the testator has the intent to revoke when the act is performed.). etc.e.  Under the modern trend.

(1) PHYSICAL ACT --y A will may be revoked by a physical act as long as the act is destructive in nature (burning. y y Thompson v. the will can be probated if its terms can be established by clear and convincing evidence. tearing.o A testator can revoke a will by writing if the writing qualifies as a will either attested or holographic. UPC §2-507(a)(2). and that does not completely replace an existing will. the will is not revoked. o If the presumption is rebutted. Common law The traditional and majority rule requires the destructive act to affect some part of the printed words of the will. UPC §2-507(a)(2). etc. o The UPC requires only that the destructive act affect some part of the will. and either in whole or in part in which case it will be a codicil.) and is performed with the intent to revoke. A codicil is a will that merely amends and/or supplements an existing will. Royall . and under the lost will doctrine. the act must be performed in the testator s presence and at the testator s direction. Partial revocation by act: The jurisdictions are split over whether to permit partial revocation by act because of its potential for fraud and because a partial revocation is intrinsically a new gift. y --. y Revocation by presumption o Where a will was last in the testator s possession and cannot be found after the testator s death. a presumption arises that the testator revoked the will (by act). o The act may be performed by the testator or by another.  The presumption can be rebutted if the proponents prove by a preponderance of the evidence that a more plausible explanation exists for why the will cannot be found. but if by another.  A subsequent will can revoke a prior will either expressly or implicitly (through inconsistency). Modern trend/UPC The UPC rejects the common law approach.

A will is not revoked where the testator fails to execute another valid will or attempt in some way to physically obstruct the will by causing words or marks to come into contact with the will or destroy the will itself. ****will be on exam example of lost will ***** . unless the person who had access to the LWT also would be the one to benefit by non-production. QP #1: Whether a will or codicil is revoked where the testator directs another to write words on a sheet of paper attached to the will or codicil. o Kroll signed the documents attempting to revoke the will and codicil. NO o The will was not revoked because the words this will null and void did physically come into contact with the words of the original will. obliterating. The presumption must be rebutted by clear & convincing evidence. NO o A will or codicil is not revoked where the testator attaches a paper to a will writing this will null and void because it was not executed the way a will is required to be executed. the words themselves did not constitute a validly executed will.  Furthermore. those words must physically come into contact with the words of the will. but signs the document herself. even though the testator wrote words on a separate paper attached to the will that declared the will null and void. y y y y Harrison v. the first will must be destroyed by a cutting. Bird Lost will . burning.y Lou Bown Kroll attempted to revoke a will and codicil by directing another person to revoke the will by writing on a separate sheet of paper. The trial court admitted the documents to probate and Kroll s heirs at law appeal the verdict Rule of Law = To revoke a will other than by creating another duly executed will. QP#2: Whether a will or codicil is revoked where the testator directs another to write words on a sheet of paper that is attached to the will or codicil. Then presumption must be rebutted by the preponderance of the evidence. o If it is revoked by words that do not quality themselves as a validly executed will. or destroying the will.Any LWT that can be traced to the possession of the testator & cannot be found at death is presumed revoked. if the words do not physically come into contact with the words creating the will. tearing.

y Daisy Virginia Speer executed a will and named Katherine Crapps Harrison as the main beneficiary of her estate. a rebuttable presumption arises that the testator revoked her will. a presumption arises that she revoked her will and all duplicates even though a duplicate exists that is not in her possession. put the torn pieces in an envelope along with a letter informing Speer that her will had been revoked. y y y .  This presumption may only be rebutted by clear and convincing evidence. o Though a person may have left copies of his or her will with other people. the law does not require that the testator insure that each copy is destroyed in order to revoke a will. Speer called her lawyer and told him that she wanted to revoke her will. in each other s presence.  The proponent of the will must rebut the presumption by clear and convincing evidence. and (2) the will was not found among her personal effects at her death. even though a duplicate of the will exists YES o A presumption arises that the testator revoked her will if she destroyed it before her death and it was not found among her personal effects at her death. Rule of Law = If there is evidence that a will was in a testator s possession before death and not found among her personal effects at death. The Circuit Court affirmed the decision. A few years later.  Harrison attempted to probate her copy of Speers will but the trial court did not admit it to probate. o If a testator destroys her will death. Furthermore. o The original will remained with her attorney and a duplicate was given to Harrison.  The law only requires evidence that the testator revoked the will itself. o Then the lawyer or his secretary. QP: Whether a presumption arises that a testator revoked her will if (1) she had possession of the will before death. tore the will. a presumption arises that she revoked the will and all duplicates even though a duplicate may exist with another person.

-. bros and sis took personal effects o If possible. Ms.(2) Subsequent Instrument -In re Wolfe s Will y testator properly executed a will ini July that gave a certain tract of land to Ms. The reasoning underlying this approach is that revocation by presumption is a subset of revocation by act. y -. but did it revoke by implication the previous will? The court ruled that absent evidence to the contrary. it applies to all duplicate originals. Not revoke all duplicate originals . don't probate any of them and the person dies intestate. o ii. Luffman took the land. it is presumed that the word effects applies only to personal property. and thus the two instruments were not inherently inconsistent. (August) the testator executed a second will that gave all my effects to his sisters and brothers. try to probate all the wills.  Real property goes to the July will and personal property goes through the August will. Luffman (property will) o Less than a month later. Revokes all duplicate originals  If the presumption doctrine applies to one duplicate original. Try to let everyone get at least something. but the other duplicate original can be found.(3) Revocation by presumption -y jurisdictions are split over whether the presumption doctrine should apply to revoke all duplicate originals if the one the testator took home cannot be found. If you can't tell which comes last. equally (personal effects will)  No express revocation. Valid revocation by act revokes all duplicate originals. so valid revocation by presumption of one should revoke all duplicate originals. o i.

see what the testator would have wanted. The reasoning underlying this approach is that presumption assumes that testators who take their wills home with them will take care to safeguard them. y . however. it is just as likely that he or she lost it as that they destroyed it with the intent to revoke. Revival of Wills (292-296) y Revival = reflection of an intent on the part of the testator to reapply the formalities and Intentionalities necessary for a valid instrument 5 Ways to Revive a will y 1) Revoke the revoking will: happens if the 2ndwill that revokes the 1st will(by express clause) is subsequently destroyed by physical act (ie. the 1st will is the only copy a will left): o Common law: the first will is revived automatically. If there is a duplicate original. If the will the testator took home cannot be found. or bc of a false of law or fact that is either recited in the will or proven by clear and convincing evi o aka. 2) Dependent relative revocation and mistake:doctrine of failed intent. you don t want the revocation to take place. restatement provides that a partial or complete revocation is presumptively ineffective if the testator made the revocation in connection with an attempted disposition that fails. and if it cant be probated. The presumption doctrine will not revoke duplicate original wills unless none of the duplicate originals can be found following the testator s death. testators are less likely to safeguard the duplicate original they took home with them. o Ecclesiastical/UPC/NY rule: not automatic. your intent to revoke was contingent on the probate of a subsequent instrument. When you did the physical act revocation.

Clark. plus common mistakesoccurring through ambiguities. y y . (4) Re-execution: this is bad.if it occurs after the codicil. o Thereafter testatrix created a memorandum and a notebook in which she made entries giving certain items of tangible personal property to certain beneficiaries. and ademption.need to show by clear and convincing evidence that the physical act revocation was a mistake.  The testatrix told Ms. Testatrix died in 1986. o The notebook was titled List to be given [testatrix] 1979 and contained an entry giving a picture to Ms. so need to refer to the physical act in the codicil. o Greenhalge argued that the will expressed the intent to incorporate only the memorandum. Clark of her intent to add the picture to the list in early 1980. UPC refers to doctrine of mistake . and provided that he was to receive all her tangible personal property except for those items designated to be given to others by a memorandum she would create and make known to Greenhalge. integration. (5) Write a new will: this is good y y Components of Wills (297-368) y What is included and excluded. y (3) Republication by codicil: if you republish something that has been physically revoked. and Greenhalge refused to honor the purported gift of the picture via the list. Incorporation by Reference Clark v Greenhalge y testatrix s 1977 will named Greenhalge as executor and principal beneficiary. The memorandum was created in 1972 and amended in 1976. has been revoked. have to be careful . I.

apparently because it was displeased with the way the executor had behaved. death talk.The court held that the language of the will was broad enough to include both the memorandum and the notebook.  You can incorporate by reference a typed will as long as it is in existence. (The court did not analyze whether the precise entry had been made in the notebook by the date of the second codicil. 1980. the court noted that the testatrix executed two codicils to her will. and that the will described the notebook with reasonable certainty.handwriting. it was revocation by physical act he wrote some changes with a signature and a date of 1974. and the testator intended to incorporate the paper. Nielson died. signature.  As soon as he started to write. and a date. and a second on October 23.) Republication by codicil y y whenever a will is amended by codicil. Nielson's uncle stepped forward and challenged the will. the will takes the date of the codicil o requires existence of a valid will to be republished Incorporation by reference y UPC 2-510: a writing in existence at the time of execution (A line) can be incorporated by reference as long as the will sufficiently describes the writing and the testator intended to incorporate the writing. o As for whether the entry in question had been entered in the notebook when the will was executed. QP: did incorporation by reference occur? Ie. o Diff from events of indepsignif Estate of nielson incorp by reference y Testator had a valid typed and witnessed will dated 1969. it identifies the paper. y y y . 1980. o The uncle would inherit by intestate succession if the will was found to be invalid. is it possible to incorporate by reference a typed will together with written holographic changes? YES o there was a valid holograph . one in May 30. The Probate Court found the will to be valid. o Took a pencil and made changes to it. The word "revised" allowed them to incorporate by reference.

o The Appellate Court found that (assuming the handwriting was proven to be Nielson's). the fact referenced in the will is the reference to the trust. it was not a valid witnessed will nor was it a valid holographic will. the handwritten holographic will authorizes an inference of an intent to incorporate by reference those portions of the typewritten will that were not crossed out. The handwritten parts represent a valid codicil that refers the reader to the typewritten parts which are a separate memorandum. o Refers to a person or event that will be ascertained at the effective date of the LWT Pour-over clause o As applied to a pour-over clause scenario. y The uncle argued that since the will was now partially handwritten and partially typed. that the handwritten sections met the Statutory requirements of a holographic will.  As long as the trust is funded inter vivos. the handwritten parts and the typewritten parts should be looked at as two separate documents. o The trick was that Nielson used the word "revised" showing intent. as long as the referenced fact has its own significance apart from its effect upon the disposition of the decedent s probate property. Facts of Independent Significance y Facts of independence significance provides that a will can reference a fact outside of the will. o Temporal sequence y . the trust has its own significance holding and managing of the property placed in the trust inter vivos. In essence. a holographic will must be completely in the handwriting of the testator. The question becomes whether the trust has its own significance apart from its effect upon the decedent s probate property.o Under California State law. NOTE: This case took place before the Uniform Probate Code came out eliminating the requirement for a holographic will to be completely in the handwriting in the testator. y y II. and the fact can control either who takes or how much they take. and has some property in it at the time of the decedent s death. o In addition.

may be open to more than one meaning or objective of the testator o 3) patent ambiguity descript is clearly erroneous and cannot be what the testator had as an objective . as long as the trust is created inter vivos and has property in it at the time of the decedent s death. III. also permitted under Delaware law. it being the public policy of both to enforce a testatrix s clearly expressedintent. directed the distribution of 18 items to five named persons and that the remainder of the testatrix s tangible property be sold with the proceeds being distributed to the same five persons. although accurate in its possibilities. the testatrix made a will disposing of tangible items by reference to a separate memorandum as permitted by Florida law. where she executed the memorandum along with a codicil toher will. The memorandum. In litigation in Delaware. o Example: Give & devise all personal property in accordance with list I am maintaining. o She then moved to Delaware. In re last will and testament and trust agreement of moor Memo may direct sale of listed assets. y While a resident of Florida. Under facts of independent significance. Legal List y written list that is may come into existence before or after LWT is executed & refers only to personal property other than money & is signed and referred to in the LWT. Plain Meaning Versus Ambiguity y Categories of language disputes o 1) plain meaning words or phrases appear to describe with complete accuracy the testator objective o 2) laten ambiguity where the description. it does not matter when the inter vivos trust is created (before or after the execution of the will). Can continue to change the list. UPC §2-513. the court held that the direction of sale was permissible under the statutes of either state. y y IV.

o A latent ambiguity is one which is not apparent on the face of the will but is disclosed by some fact collateral to it. o A patent ambiguity is an uncertainty that appears on the face of the will. The California Supreme Court reversed. o The Trial Court found that it was in the intent of Russell to give the entire estate (except the coin and diamonds) to Chester. the Court it was reasonable to infer that Russell was talking about her dog when she wrote about Roxy. The Trial Court found for Chester. Georgia appealed. Based on their reading of the will. o Georgia argued that California State law didn't allow pets to take $$$ from a will.--Latent and Parent Ambiguity in re estate of Russell y Russell died leaving a holographic will. and the half intended for the dog should pass through intestate transfer (to Georgia naturally. o The will (written on an index card) left "everything" to Chester and Roxy. Georgia contested the will. Where no person or thing exactly meets the description in the will. o The California Supreme Court found that when the language of a will is ambiguous or uncertain. one can look to extrinsic evidence in order to determine the intent of the testator.  Two kinds of latent ambiguities: Where two people or things both meet the description in the will.  Roxy was Russell's dog (who predeceased Russell). and have him take care of the dog. The Court found that the will contained a latent ambiguity.) o Chester argued that the intent of the will was that Chester was to receive the entire estate and that Russell was charging him with taking care of the dog after Russell's death.  Chester was Russell's friend and neighbor. half of the estate should go to Chester. Therefore.  The back side of the will left some diamonds and a gold coin to Georgia (her niece). y y y y y .

extrinsic evidence would not be admissible to show that the testator used the words to mean something other than their plain meaning.o However.) y . the plain meaning rule remains the majority approach. o Due to an error at the attorney's office. --Plan Meaning Rule and Mistake y The common law position against admitting extrinsic evidence manifested itself in the plain meaning rule: o In construing and giving effect to a will." y There were no words that could be interpreted as allowing Chester to hold Roxy's share in trust. (Most likely because all the property was in Vasil's name anyway. y y In re Pavlinko s Estate y Vasil and HellenPavlinko both wrote wills. what was not inferable was the fact that she intended to leave 100% of her estate to Chester and have Chester take care of her dog. Majority approach Although the plain meaning rule is coming under increasing criticism. the words used in the will should be given their plain meaning. so it passed through intestate succession. As a general rule. The dog couldn't take it either. Chester didn't get the 50% that Russell left to the dog.  No one seemed to notice.  "A disposition in equal shares between two beneficiaries cannot be equated with a disposition of the whole to one of them who may use whatever portion thereof as might be necessary on behalf of the other. The attorney testified that they had both intended to sign their wills and that the same witnesses had witnessed them both sign. Vasil signed Hellen's will and Hellen signed Vasil's will. o Therefore. Hellen died and for some reason no one bothered presenting her will for probate. and there is a modern trend approach that rejects it. probably because neither spoke English very well. o Extrinsic evidence was admissible to help construe a word or phrase in a will if there was an ambiguity.

Elias appealed. The Pennsylvania Supreme Court affirmed. according to Statute. and Mrs. NOTE: See the case of Erickson v. In all cases. o The will signed by Vasil wasn't valid because it wasn't his will. Robert J. now of 4708 North 46th Street.  Elias was a beneficiary in Hellen's will y The Register of Wills refused to probate the will. also claimed the gift. The intention of the testators was clear an unambiguous. Although the Court agreed that a mistake had been made. The Probate Court affirmed. and Vasil's will wasn't valid because it wasn't signed by him. Wisconsin. y y y y y y Estate of Gibbs y Mr. o The Probate Court agreed that. Gibbs died approximately one month apart from each other. Elias appealed. Krause. Vasil died. o In a dissent it was argued that since the facts were clear. who lived at the address listed in the will. o The Pennsylvania Supreme Court looked to numerous other cases involving improperly signed wills. claimed the gifts. Restatement of Wills § 12. so you couldn't look at Hellen's will from the right angle and squint and pretend it was actually Vasil's will with some errors in it. Robert W. y . a will must be properly signed in order to be valid. Gibbs and friend of the family for many years. the will was not valid unless it met the Statutory letter of the law.1 allows for mistakes to be reversed if there is clear and convincing evidence. There was no ambiguity. Erickson.o A few years later. they refused to make an exception. o Each had a provision in their will devising 1 percent of their respective estates to Robert J. Krause. who was a 30-year employee of Mr. o Both wills were very clear in their meaning of words. and since the majority declared the situation to be 'unfortunate'. which came to the opposite conclusion. Milwaukee. there should be some way at equity to probate the wills. Hellen's brother Elias brought forth Hellen's will and offered it for probate as Vasil's will. Krause.

o Document was challenged and was held ineffective . The testator died without changing his will. however. but the incident in question predated the reference to Robert Krause in Mr. the evidence should be admitted. y The court concluded that it was appropriate to admit extrinsic evidence to establish that the middle initial and address were misdescriptions and to disregard both. The property was given to Robert W. Wanted to sue the atty for negligence. thereby claiming a share of his estate through intestacy.she died intestate and grandchildren didn t get anything. o The Erickson case arguably raises more questions about the scope of the doctrine than it answers. if after making a will a testator gets married.o He may have met Mrs. y y Espinosa v sparber. Gibbs once when he worked as a cab driver. shapo. Krause.  The testator s children objected to the evidence because there was no ambiguity in the will. ruling that if there is clear and convincing evidence of the scrivener s error and clear and convincing evidence of its effect upon testator s intent. y . Rule: an attorney s liability is limited to clients with whom the atty is in privity of contract. and his children from his first marriage invoked the statute to void the will. o Dorothy offered extrinsic evidence to establish the attorney erred in having the will executed two days before the marriage and not expressly acknowledging the impending wedding in the will. o Under the state s laws. The court adopted the scrivener s error doctrine. Gibb s first will. rosen&heilbronner y Lady went to atty and wanted a trust established by which her children would benefit for life and then go to her grandchildren. Erickson v Erickson y the testator executed a will leaving the residue of his estate to Dorothy. shevin. the marriage automatically revokes the will unless the will expressly provides for the marriage. and two days later he married her.

Pages 730-749: Class gifts: Gifts to persons capable of increase and decrease. they can pierce the privity requirement.she is not in privity and she is not an intended beneficiary. Pages 480-488: Establishing heirs. Pages 781-822: Rule Against Perpetuities: Limiting the duration of trusts. . . Pages 823-894: Planning Options: Documents and persons needed prior to incapacity. y Court: Two times in which you can pierce the privity rule. Pages 663-729: Prudence: Investment rules for wealth managers. Pages 895-904: Entitlement Programs: Government support for persons confronting incapacity. Issue and Spouses. Pages 385452: Restraints: Public Policy. and neither is valid here . Pages 489-549: Elements of a valid trust. Pages 749-781: Powers of Appointment: Building flexibility into the estate plan. Pages 453-460: Administration of Decedents Estates. Pages 550-645: Classification of trusts: Types of modern trusts and non-probate transfers. termination and administration of trusts. Contracts and Wills Pages 369-384: Lapse: Accommodating bequests of predeceasing relatives. V. Pages 646-663: Modification.o Exception:if the plaintiff is an intended third-party beneficiary. Pages 474-480: Survival Requirements.omitting pages Pages 467-473: Analytical principle: Construction of charts and terms.

C.P. draws no distinction between a small estate and a large one. section 2-102(1) o provides that.4/16/2011 4:20:00 PM Intestate Succession Under the Uniform Probate Code Intestate y These statutes = invoked as last resort. John is not entitled to an intestate share if his brother is survived by a wife.P. y Value of estate makes no diff o U.C. y Surviving spouse > surviving sibling o As a sibling. In defense of the U.. ieforestates of persons who die without valid wills or whose wills do not dispose of their entire estate. if all the decedent's surviving issue are also issue of the surviving spouse.C. This reflects what most testators do in disposing of their estates even when there are surviving children. the surviving spouse takes the entire estate. y .P. most intestate estates are smaller estates since persons who have greater wealth tend to plan their estates to minimize federal estate tax and state inheritance tax. Claims of a surviving spouse y U.

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